R v Thrupp[2024] QCA 134

SUPREME COURT OF QUEENSLAND

THE COURT:

Introduction

1. [1]
   In the late morning of 24 January 2016, Corey Breton and Iuliana Triscaru were separately lured to a home unit in Kingston.  During the remainder of the day, they were tortured by being detained at the unit, assaulted, bound by use of cable ties and duct tape, and then placed in a toolbox and locked inside it.  The toolbox was about 2 metres long x 40 centimetres wide x 60 centimetres deep.^[1]
2. [2]
   In the evening the toolbox containing Breton and Triscaru was taken from the home unit and placed on the back of a Toyota HiLux truck.  Breton and Triscaru were still alive at this stage.  The toolbox containing Breton and Triscaru was then driven to a wetlands area called Scrubby Creek and disposed of by being placed in the waters of a lagoon and weighed down by concrete and tyres.
3. [3]
   In the following days, police conducted an investigation into the disappearance of Breton and Triscaru.  Police found the toolbox when they were taken to the waterhole by Tuhirangi Tahiata on 10 February 2016, who had been in the HiLux when it drove away from the home unit.  Within the toolbox police found the bodies of Breton and Triscaru, bound by zip ties and duct tape and covered by a large amount of rubbish in bags.  An autopsy revealed that they died either by drowning or by asphyxiation, although the former was more likely.
4. [4]
   The Crown alleged that Tahiata and each of Trent Thrupp, Stou Daniels, Davy Taiao, and Waylon Walker had been parties to the murders of Breton and Triscaru on 24 January 2016.  The Crown alleged that Tahiata and Thrupp were most directly involved in the murders because they had driven the HiLux carrying the toolbox to the waterhole and one or both of them had performed the physical act of placing the toolbox in the water.  But the Crown alleged that even if Tahiata had performed that physical act by himself, the nature of the preceding involvement of all four of the others was such as would necessarily attract their criminal responsibility pursuant to s 7 or s 8 of the Criminal Code (Qld).
5. [5]
   Tahiata was charged on a separate indictment with murder and tried in a separate proceeding.  Each of Thrupp, Daniels, Taiao and Walker was charged on indictment with two counts of murder.  Thrupp, Daniels and Taiao were also charged with two counts of torture.  Walker was not charged with torture.  Thrupp, Daniels, Taiao and Walker were tried together before a jury in the Supreme Court.
6. [6]
   Thrupp, Daniels and Taiao were convicted on all counts.  They were sentenced to life imprisonment on each of the two counts of murder and to 10 years’ imprisonment on each of the two counts of torture, to be served concurrently.  Walker was acquitted of murder and convicted of manslaughter.  He was sentenced to 12 years’ imprisonment on each count of manslaughter, to be served concurrently.
7. [7]
   Each has appealed against their conviction on all counts.
8. [8]
   As to Thrupp’s appeal, and for reasons which follow, we would make the following orders:

   1. In relation to the convictions for murder of Breton and Triscaru:

1. Appeal allowed.
2. Convictions set aside.
3. Retrials ordered.

2. In relation to the convictions for torture of Breton and Triscaru, appeal dismissed.

9. [9]
   As to Daniels’ appeal, and for reasons which follow, we would make the following orders:

   1. In relation to the convictions for murder of Breton and Triscaru:

1. Appeal allowed.
2. Convictions set aside.
3. Retrials ordered.

2. In relation to the convictions for torture of Breton and Triscaru, appeal dismissed.

10. [10]
    As to Taiao’s appeal, and for reasons which follow, we would make the following orders:

    1. In relation to the convictions for murder of Breton and Triscaru:

1. Appeal allowed.
2. Convictions set aside.
3. Retrials ordered.

2. In relation to the convictions for torture of Breton and Triscaru, appeal dismissed.

11. [11]
    As to Walker’s appeal, and for reasons which follow, we made the following orders on 16 July 2024:

    1. Appeal allowed.
    2. Convictions for manslaughter on counts 1 and 2 of the indictment set aside.
    3. Direct judgment and verdicts of acquittal of manslaughter on counts 1 and 2 of the indictment be entered.

Preliminary observations as to the importance to the Crown case of proof of relevant knowledge and intention

12. [12]
    It will become clear that each of the appellants contended that the verdicts obtained against them should be set aside because the Crown failed to prove that they had the state of knowledge, intention or belief which was necessary to render them criminally responsible for the offences of which they were convicted.  It will also become clear that the Crown paid inadequate attention to this requirement at trial.  Accordingly, it is appropriate to examine at the outset what the Crown had to prove in that regard.

The section 7 case

13. [13]
    Section 7(1) of the Criminal Code is in the following terms:

“7 Principal offenders

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.”

14. [14]
    Section 10A(1) of the Criminal Code supplements that provision in the following way:

“(1) Under section 7, a person’s criminal responsibility extends to any offence that, on the evidence admissible against him or her, is either the offence proved against the person who did the act or made the omission that constitutes that offence or any statutory or other alternative to that offence.”

15. [15]
    Section 7 is structured so as to render criminally responsible as “principal offenders” the actual perpetrator of an offence (s 7(1)(a)); any person who enables or aids the actual perpetrator (s 7(1)(b) and (c)), and any person who counsels or procures the perpetrator to commit the offence (s 7(1)(d)).  Even though they are all technically to be regarded as “principal offenders”, it is convenient to refer to a person who is criminally liable under s 7(1)(a) as “the principal offender” in order to distinguish that person from the enablers, aiders, counsellors or procurers mentioned in the other subparagraphs of s 7.
16. [16]
    The present case involves the offences of murder, manslaughter and torture.  As to those offences:

    1. In R v Barlow, the High Court observed:^[2]

“Section 2 of the Code makes it clear that "offence" is used in the Code to denote the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment. Section 7(a) confirms that "offence" is used to denote the element of conduct in that sense. By the ordinary rules of interpretation, the term must bear the same meaning in pars (b), (c) and (d) of s 7 as it bears in par (a). Section 8, which complements s 7 and extends the net of criminal liability for an offence to the parties who have formed a common intention of the kind therein mentioned, reveals no ground for attributing a different meaning to "offence" in s 8.”

2. Using the language of R v Barlow and of ss 291, 300 and 302(1)(a) of the Criminal Code:

1. The offence of manslaughter is established when the Crown proves beyond reasonable doubt that the defendant did the particular act(s) or made the particular omission(s) which caused a prescribed result, namely the death of another person, in prescribed circumstances, namely the killing was unlawful because it was not authorised, justified or excused by law.
2. The offence of murder is established when the Crown proves beyond reasonable doubt that the act or omission which unlawfully caused the death was engaged in with the prescribed state of mind, namely that at the time of the act or omission, the defendant intended to kill or do grievous bodily harm to the person killed.

3. To establish that a defendant was criminally responsible for the offence of murder as the principal offender under s 7(1)(a), the Crown would have to establish first that the defendant did the act(s) or made the omission(s) which unlawfully caused the death.  But second, the Crown would also have to establish that at the time the principal offender actually did the act(s) or made the omission(s) which unlawfully caused the death, the principal offender intended to kill or do grievous bodily harm to the person killed.  If the Crown proved the former but not the latter, then the defendant would be guilty only of manslaughter.
4. The offence of torture is established when the Crown proves beyond reasonable doubt that a defendant tortured another person.  “Torture” is defined as “the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion.”  “Pain or suffering” is defined to include “physical, mental, psychological or emotional pain or suffering, whether temporary or permanent.”
5. To establish that a defendant was criminally responsible for the offence of torture as the principal offender under s 7(1)(a), the Crown would have to establish first that the defendant did the act(s) which inflicted severe pain or suffering on a person.  But, second, the Crown would also have to establish that at the time the principal offender actually did the act(s), the principal offender intended to inflict severe pain or suffering on the person.

17. [17]
    Sections 7(1)(b) and 7(1)(c) deal with persons who enable or aid the principal offender.  To aid means to assist or help.^[3]  In this context the section does not necessarily require that the enabler or aider physically help the principal offender to do the act or omission which unlawfully caused the death.  Wilful encouragement can be enough and, in this regard, voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding.  In this regard, reference should be made to the analysis in the judgment of Chesterman JA (with whom Muir and Fraser JJA agreed) in R v Butler & Lawton & Marshall^[4], which was recently referred to with approval by this Court in R v Peter; R v Banu; R v Ingui.^[5]  The factual scenario referred to in the quote below concerned an appeal from the conviction of Lawton, who was present when two others raped a woman, but whose conviction as an aider on the basis of intentional encouragement was overturned.  The relevant observations by Chesterman JA were as follows (emphasis added):

“Presence by itself is not enough to constitute aiding for the purposes of s 7(1)(c) of the Criminal Code. The law was explained by Macrossan CJ in R v Beck [1990] 1 Qd R 30 at 37 and 38. The Chief Justice said:

‘Intentional encouragement may come from expressions, gestures “or actions intended to signify approval”. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence … can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.

…

It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided. In some cases … where positive intervening acts in support of the commission of the offence by the principal offender may not have occurred it has been natural to speak of encouragement and this will often be an appropriate word to convey, in the absence of direct physical involvement, the relevant active element in the aiding which has taken place.’

There is, in this case, no evidence of expressions, gestures or actions by Lawton intended to signify his approval of what the co‑accused were doing. One must scrutinise the behaviour of the alleged aider to see whether it affords evidence of wilful encouragement. Such scrutiny reveals nothing. The important proposition is that proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider. There were no acts. The intention behind and the effect of the presence of the aider at the scene may make out a case of intentional encouragement. There is no evidence that the appellant’s presence had any effect on the others. Intention is dealt with next.

It is important to recall that the three men encountered the complainant by chance. None of them went to the park intending to commit rape. The meeting was by chance and the offences were opportunistic or fortuitous. In that circumstance it is inaccurate to describe Lawton’s presence as deliberate, or intentional. He was at a place where a crime was opportunistically committed. It is true he did not leave or do anything to discourage those committing the crime from the course they set upon but that does not make him an aider. The point is that there was nothing sinister in his presence. The case may be contrasted with that of a man who goes with others to where a crime is committed, knowing those others intend to commit the crime.

In short the evidence was insufficient to prove that Lawton aided either Marshall or Butler to rape the complainant. The appellant has made out his first ground of appeal. The convictions are unreasonable and cannot be supported having regard to the evidence. The appellant is entitled to be acquitted.”

18. [18]
    It is not enough to render a defendant criminally responsible as aider pursuant to s 7(1)(b) or (c) merely to establish that the defendant aided the principal offender in the manner discussed in the previous paragraph.  In order to establish criminal responsibility for defendants who are not said to be the principal offenders, but who are said to have aided them, it is necessary that the Crown must prove that alleged aiders had a particular state of knowledge and intention when they aided the principal offender.  The Crown cannot establish that a defendant is criminally responsible as an aider to a principal offender unless the Crown can also prove that at the time the defendant did the act(s) or made the omission(s) said to have constituted the aid, the defendant knew the essential matters which constitute the offence committed by the principal offender.^[6]
19. [19]
    Accordingly, in the 1997 case of R v Jeffrey it was held that for a defendant to be convicted of murder under s 7(1)(b) or s 7(1)(c), the defendant had to have known that death or grievous bodily harm was intended by the person whose act had killed the victim.^[7]  McPherson JA put it this way (emphasis added):^[8]

“As regards both s. 7(1)(b) and s. 7(1)(c) of the Code, it is settled that the accused is criminally responsible only if, in giving aid or assistance, he knows that the offence is being committed or is intended: see R. v. Beck [1990] 1 Qd.R. 30, 38; R. v. Jervis [1993] 1 Qd.R. 643, 647-648; which means that it must be proved that he knows the essential facts constituting or making up the offence that is being or about to be committed by the person he is aiding or assisting. See Giorgianni v. The Queen (1985) 156 C.L.R. 473. The requisite state of mind which had to be established against the appellant to make him criminally responsible under s. 7(1)(c) was that he knew that one or more of the others was intending to kill or to do grievous bodily harm.”

20. [20]
    In the 2021 case of R v Taylor, Fraser JA summarised the position in this way (emphasis added):^[9]

“The word “offence” [in s 7(1)] denotes “the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment”. Sections 7(1)(b) and 7(1)(c) apply only if – when the person did or omitted to do the act described in (b) or aided as described in (c) – the person knew the essential matters which constitute the offence committed by another person. Thus, for a person to be responsible for the offence of murder under s 7(1)(b) or s 7(1)(c) that person must have known that whoever did an act that killed the victim did so intending to cause death or grievous bodily harm. Section 7(1)(b) in terms requires the prosecution also to prove that the person did or omitted to do the relevant act for the purpose of enabling or aiding the principal offender to commit the offence. Although s 7(1)(c) does not express any similar requirement, it has been held that it requires the prosecution to prove that the person intended to aid the other person in committing the offence.”

21. [21]
    In the present context, it follows that in order to establish criminal responsibility pursuant to s 7(1)(b) or (c) for the murders of Breton and Triscaru, the Crown would have to prove beyond reasonable doubt that at the time when the alleged aider did the relevant act or acts constituting the aid, the alleged aider knew that the principal offender(s) (whoever they were) intended to kill Breton and Triscaru or to do them grievous bodily harm.^[10]
22. [22]
    If that state of knowledge of the alleged aider could not be established, the aider could not be guilty of murder, but manslaughter would still need to be considered.  The aider would be guilty of manslaughter if it could be proved beyond reasonable doubt that when the aider did the relevant act or acts constituting the aid, the aider knew the essential matters which constituted the offence of manslaughter.^[11]
23. [23]
    Notably, however, the requirement of proof of knowledge of the “essential matters” does not mean that the aider must know or foresee that the unlawful acts or omissions by the principal offender were such as would actually cause death or grievous bodily harm.  All that would need to be proved is that the aider knew that the conduct constituting the offence was occurring or would occur.  The conduct in this sense is the conduct, to use the language of R v Barlow which, if accompanied by prescribed circumstances, or if causing a prescribed result, would render a person engaging in the conduct liable to punishment for manslaughter.
24. [24]
    This was explained in R v Licciardello^[12], in a lengthy discussion by McMurdo JA (with whom Sofronoff P and Douglas J agreed) of which it suffices to quote the following:

“[29] … The appellant in [R v Brown^[13]] was found not guilty of murder, but guilty of manslaughter of a man who had been killed by several blows to his head, which could have been caused by fists, feet, boots or a blunt object. The appellant and others went to the deceased’s home in order to collect a drug debt. The appellant was armed with a hammer and there was evidence that he used it to strike the deceased. But there was some evidence that further violence was inflicted on the deceased by others. The prosecution case was that the appellant was guilty of murder either under s 7 or s 8. The appellant’s first ground of appeal was that the trial judge erred in directing the jury about s 7(1)(c), by telling the jury that they could convict him of manslaughter under that provision if they found that he had aided the principal offender with knowledge that that offender had an intention to assault the deceased. It was argued that for the jury to convict the appellant of manslaughter under s 7(1)(c), it was necessary for them to be satisfied both that a reasonable person in his position would have foreseen death as a possible outcome of the assault that he was aiding and that he actually foresaw this. That argument was rejected.  McMurdo P said:

‘The case against the appellant at trial under s 7(1)(c) was that he was present and knowingly aided the perpetrator in a lethal assault upon the deceased. To convict the appellant of manslaughter on the basis of s 7(1)(c) in this case, the jury had to be satisfied that the appellant knowingly aided the perpetrator to assault the deceased; the assault was a substantial or significant cause of the death; the killing was unlawful; but not satisfied that the appellant intended to kill or do grievous bodily harm to the deceased.’

In the same case, Holmes JA (as she then was) said:

‘The state of knowledge which the Crown had to prove in order to convict the appellant as an aider under s 7(1)(c) of the Criminal Code was of the ‘essential facts constituting or making up the offence that [was] being or about to be committed by the person he [was] aiding or assisting’; that is to say, the assault which caused the deceased’s death.  The direction given met that requirement.’

Conclusion

[30] To be criminally responsible under s 7(1)(b) or s 7(1)(c), a person must know of the offence which is being, or which is about to be, committed by the person he is aiding or intending to aid. That offence is constituted by the conduct (an act or omission) of the other person which attracts criminal liability. If the principal offender's crime requires a specific intent, then s 7(1)(b) or s 7(1)(c) requires the aider to know that he is aiding the other to act (or omit to act) with that intent. But if "the offence" has no ingredient of an intent (or other state of mind) on the part of the person who does the act or makes the omission, all that the aider need know is that the conduct constituting the offence is occurring or will occur.”^[14]

The section 8 case

25. [25]
    Section 8 of the Criminal Code is in these terms:

“When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

26. [26]
    Section 10A(2) of the Criminal Code supplements that provision in the following way:

“(2) Under section 8, a person’s criminal responsibility extends to any offence that, on the evidence admissible against him or her, is a probable consequence of the prosecution of a common intention to prosecute an unlawful purpose, regardless of what offence is proved against any other party to the common intention.”

27. [27]
    In Puntigam v The State of Western Australia^[15] the Western Australia Court of Appeal pointed out by reference to relevant High Court authority that the identical provision of the Criminal Code WA required the Crown to prove three matters beyond reasonable doubt:

    1. the formation by two or more persons of a common intention to prosecute an unlawful purpose in conjunction with one another;
    2. that in the prosecution of the unlawful purpose an offence was committed; and
    3. that the offence that was committed was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
28. [28]
    It is desirable to make these further points.
29. [29]
    First, the test as to whether an alleged common purpose has been proved is a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.^[16]
30. [30]
    Second, in R v Barlow Brennan CJ, Dawson and Toohey JJ explained that “offence” in s 8 is to be understood in the same way as it is understood in relation to s 7, namely as a reference to the element of conduct which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment: see [16](a) above.  In this regard, their Honours went on to observe (emphasis added):

“…, "offence" in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made. It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular "nature". Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted.”^[17]

31. [31]
    Third, in Darkan v The Queen,^[18] the High Court explained that the expression “probable” does not mean “on the balance of probabilities” and means more than “a real or substantial possibility or chance”.  Accordingly, the expression “a probable consequence” means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible.  It must be probable in the sense that it could well happen.  The Court went on to observe:^[19]

“It is not necessary in every case to explain the meaning of the expression ‘a probable consequence’ to the jury.  But where it is necessary or desirable to do so, a correct jury direction under s 8 would stress that for the offence committed to be ‘a probable consequence’ of the prosecution of the unlawful purpose, the commission of the offence had to be not merely possible, but probable in the sense that it could well have happened in the prosecution of the unlawful purpose.  And where it is desirable to give the jury a direction as to the meaning of the expression ‘a probable consequence’ in s 9, a correct jury direction would stress that for the facts constituting the offence actually committed to be ‘a probable consequence’ of carrying out the counselling, they had to be not merely possible, but probable in the sense that they could well have happened as a result of carrying out the counselling.”

32. [32]
    Fourth, whether the offence that was committed was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose is to be determined objectively.  In R v Keenan the High Court also observed:^[20]

“It is important to recognise that the second question presented by s 8 – was the offence that was committed an offence of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose? – can be answered in the affirmative even if the possibility that the conduct actually committed would occur was not shown to have been adverted to by any participant in the common intention.  So much follows from the fact that what is a "probable consequence" is to be determined objectively.”

33. [33]
    Fifth, a person charged as a secondary party by the operation of s 8 may be convicted of a lesser offence than that committed by the perpetrator: see s 10A(1) and R v Barlow in which Brennan CJ, Dawson and Toohey JJ observed:

“The criminal liability of the principal offender for the act done or omission made by him determines the "nature" of the act which the secondary party is deemed to have done or the omission which the secondary party is deemed to have made only in so far as the act done or omission made by the principal offender, when taken in combination with (i) the attendant circumstances, (ii) the result of the act or omission, and (iii) the principal offender's state of mind, was a probable consequence of prosecuting the common unlawful purpose. Thus, if a principal offender does an act or makes an omission in prosecution of an unlawful purpose and, by reason of facts attendant on the doing of the act or the making of the omission, the act or omission renders the principal offender liable to punishment for any of a number of contraventions of the Code, a person who formed a common intention with the principal offender to prosecute that purpose is himself liable to punishment for any contravention that was a probable consequence of prosecuting that purpose.”^[21]

34. [34]
    In the present case, the Crown particularised the s 8 case in relation to all defendants in this way:

“The prosecution alleges that [Daniels], …, [Thrupp], [Taiao], … and [Walker] formed an intention and/or entered into an intention already formed by others, to detain [Triscaru and Breton] and place them into and keep them in a toolbox and then dispose of the toolbox with Breton and Triscaru in it and that the intentional killing of Breton and Triscaru was the probable consequence of the prosecution of such purpose.”

35. [35]
    Having regard to the above discussion of the law, in order to establish criminal responsibility pursuant to s 8 for the murders of Breton and Triscaru, the Crown would have to prove beyond reasonable doubt that –

    1. Daniels, Thrupp, Taiao, and Walker subjectively formed an intention and/or entered into an intention already formed by others to detain Breton and Triscaru and place them into and keep them in a toolbox and then dispose of the toolbox with Breton and Triscaru in it;
    2. in the prosecution of that unlawful common purpose, the offences of murder (namely the intentional killing of Breton and Triscaru) were committed by a principal offender or by principal offenders; and
    3. the intentional killing of Breton and Triscaru by the principal offender(s) was a probable consequence of the prosecution of the common unlawful purpose, which must be assessed objectively.
36. [36]
    If the intentional killing was not a probable consequence, murder could not be established, but manslaughter would need to be considered.  In that case the third element would be that the unintentional but unlawful killing of Breton and Triscaru by the relevant principal offender(s) was the probable consequence of the prosecution of the common unlawful purpose, with the consequence to be assessed objectively.

The case supported by the Crown’s evidence at trial

37. [37]
    Under this heading we will narrate the case supported by the evidence admitted as against all defendants^[22], before examining in a little more detail the way in which the evidence sheds light on the involvement of each particular defendant.^[23]

The particular catalyst for the offending

38. [38]
    The offending took place against a background of drug dealing and using.  Daniels sold drugs.  Breton sold drugs.  Triscaru had an association with Breton.  Many of the other people who had some involvement in the events were drug users.  The home unit at which much of the offending took place was well known to them all and was colloquially referred to as “the Tav”.  It is convenient to adopt that form of reference.
39. [39]
    Phat Khuu sold burner phones to and used to buy drugs from Breton.  Khuu gave evidence that he had asked Breton who supplied his drugs and Breton had responded “Islanders”.^[24]  On 22 January 2016, Khuu texted a photo of Daniels to Breton’s phone, asking Breton “Do you know him?”.^[25]  He did that because he wanted to know if the person photographed was Breton’s supplier.  A text response from Breton’s phone confirmed “Yeah that’s him”.^[26]
40. [40]
    On 22 January 2016, Breton showed Lelan Harrington and Blake Marsh the photo and text exchange which Breton had had with Khuu.^[27]  On the evening of 23 January, Harrington returned to the Tav where he lived with Thrupp and Puna Mariri; he had borrowed Breton’s Courier to drive there.  That night, he told Mariri about what he had seen.^[28]
41. [41]
    The events described in the previous two paragraphs comprised the catalyst for everything which followed.  As will appear, it may be inferred that Daniels felt threatened by what had happened.

Breton and Triscaru are lured to the Tav

42. [42]
    When Harrington woke at the Tav on the morning of 24 January 2016, Mariri told him to go downstairs to talk to Daniels.^[29]  Someone had obviously told Daniels about the photo and the text exchange and Daniels questioned Harrington about it.  Harrington described the conversation in this way:^[30]

“Tell us what happened then?---I walked downstairs and [Daniels], [Taiao] and [Thrupp] were – and [Mariri] were all in the living room. And the first thing [Daniels] asked me was, “Did [Breton] have a picture of me?”

…

Right. Now, you had told [Mariri] this. Had you mentioned it to anyone else?---No.

No. However, Blake [Marsh] was present when this was shown to - - - ?---Yes.

- - - you?---Yes.

Did you mention anything about [Triscaru]?---No.

…

Now, did you make a call to [Breton]?---Yes. [Daniels] asked me to call him and ask him to come over and that he just wanted to talk to him.”

43. [43]
    He later said:^[31]

“Now, when you – at the time he said he wanted to talk to [Breton], was there anything – did you ask any questions about what would happen?--- No, just - - -

At that stage or at any stage?---No, like, he told me he just wanted to talk to him but I honestly thought he was just going to punch him in the mouth and then send him on his way.

All right. Now, what did you do after you made the telephone call?---I called [Breton], told him to come over and pick up the keys to his Courier, the Ford Courier and – and then he said yes, he’ll be over there soon. Then I hung up and then – and then [Daniels] asked me for the keys and he’s handed them to [Thrupp] and then [Thrupp] still had to go and get the Courier.

All right. So you – you put that the sequence?---And then [Daniels] told me that they’re just going to scare him.”

44. [44]
    Harrington’s evidence was that Daniels then told him that Mariri’s got “a puff for you upstairs” and that he then went upstairs and smoked methamphetamine with Mariri.^[32]
45. [45]
    Triscaru was not asked to come to the Tav at this time.  As is related below, Breton arrived and Harrington heard him being assaulted.  Harrington later heard Daniels, discussing with Thrupp and Mariri that someone should call Triscaru to come to the Tav.  Shortly afterwards, Harrington heard either Thrupp or Mariri call Triscaru.^[33]  Telephone records reveal that someone used Breton’s mobile to call Triscaru at 11.48 am^[34].

Breton and Triscaru are tortured and placed in the toolbox

46. [46]
    CCTV evidence and the testimony of Harrington showed that Breton arrived at the Tav in his Mitsubishi Pajero at about 11.37 am.^[35]  Harrington’s evidence of what happened once Breton arrived was as follows:^[36]

“…when [Breton] arrived, did you hear that it was [Breton]?---Yeah, because he walked in and he said, “Hey, what’s up? What’s going on? Where’s [Harrington]?

…

Right?---And they said, “Take a seat. He’s just upstairs, having a shower.”

…

Tell us what you heard?---After that, I’ve just heard [Mariri] cock the gun and then heard, like, a bit of a scuffle, and then they’ve asked him if they had – if [Breton’s] got a picture of him. Who does he buy from, who does he sell to.

All right. What did [Breton] say?---Couldn’t really hear. Like, he was, like, mumbling. And then I just heard a loud thud and a scream. And then they asked him who does he get on from, where was the picture taken, and - - -

Who’s asking these questions?---[Daniels].

…

Who’s downstairs?---[Daniels], [Taiao], [Thrupp] and [Mariri], and [Breton].

And did you hear anything else?---And then I heard them turn the music up, and then could sort of hear them, like, just still asking questions. I didn’t know what they were saying, but – and then I just kept hearing loud thuds and [Breton] screaming while he was duct taped around the mouth, yeah.”

47. [47]
    Later, as has been related, Harrington heard arrangements being made for Triscaru to come to the Tav.
48. [48]
    At 12.21 pm, prior to Triscaru’s arrival, Walker had arrived at the Tav, driving a Kia Ora vehicle and with his then-girlfriend Sarah Conway.  Conway’s evidence was that Walker spoke to Taiao and went inside.^[37]  Conway said that when he came out five minutes later, he told her they had to go get petrol for the Peugeot that was parked next to their Kia.  CCTV evidence and Conway’s testimony showed that they left the Tav at 12.25 pm, driving both the Kia and the Peugeot and travelled to a petrol station.  Conway’s evidence of what happened sheds light on Walker’s then state of mind.  It was as follows:^[38]

“… What happened there?---Well, [Walker] was sitting in the [Peugeot] and he hadn’t gotten out to fill the petrol from the bowser.

Right, did you do something then?---I believe I went into the store and got drinks and then I came out and he was still sitting there.

Yes?---And I got into the passenger seat of the car.

Yes?---And he was in shock.

What could you say, like, what did you notice about him? You say he was in shock, what’s – what - - -?---He was very silent and he had his hands on his face and he was pale.

Did you ask him, “What’s going on?” or something to that effect?---Yes.

What – and what did he say?---He told me that he had seen a boy at the unit, that he was badly beaten, he had gaffer tape over his mouth,  he had zip ties on his body and, yes.

…

Right. Did you say anything to him at that point?---I said we should do something, we should call somebody.

What did he say?---He said, “No, we’re not going to call the fucking police.””

49. [49]
    Conway’s evidence was that she and Walker then drove both vehicles to their residence in Slacks Creek.^[39]
50. [50]
    CCTV evidence and the testimony of Harrington^[40] suggested that Triscaru arrived by bicycle at the Tav at about 12.28 pm.  Harrington’s evidence of what happened once Triscaru arrived was as follows:^[41]

“… and then I’ve heard the gate ring again, and then she’s come in. And she’s, like, “What the fuck’s going on,” and then she screamed and then – and then I heard the music go up again and they started asking her questions. And they started – and then I heard loud thuds again with her screaming.

…

…Now, you’ve heard [Triscaru] arrive, and you hear – what happens to her?---She’s walked in, and she’s, like, “What the fuck’s going on,” because [Breton] would’ve been there, tied up, on the couch.

When you say “would’ve been”, why do you say that?---Because that’s how he was when I walked down after - - -

…

What did you hear happening to her?---Sounded like she was sort of freaked out when she walked in, and then they’ve grabbed her and she’s tried to scream. And then they’ve, like, turned the music up and started asking her questions and they’ve just kept hitting her with the pole.^[42]

…

What did you see when you got downstairs?---I seen them both with duct tape around their mouth, their hands tied – zip tied. [Breton's] feet were zip tied, and I think [Triscaru’s] feet were just duct taped.

…

Now, did you notice any injuries to either of them?---Yeah, I noticed [Breton] had, like, a stab wound above his left knee. Yeah.

And was there any – how did you know there was a stab wound, there?---There was just all blood, on top of his leg, and down his – down the leg, and his sock was saturated. Yeah.

What about to either of their faces?--- They were just – you could see that they’ve been crying, and [Breton] sort of couldn’t really move his left arm, as well.

Now, did [Daniels], in the presence of these other people, make any comment to you, when the mask was being removed – the tape was being removed?---Well, [Daniels] said to them, “If youse look to scream, I’ll hit youse again, with the pole.”

51. [51]
    Tahiata’s phone records show that at 1.32 pm someone (the Crown posit Mariri) sent him a message saying “I need to speak to u right now.asap,tav” followed by “Don’t call”.  Tahiata sent a message in response saying “Yo be there in 10”.^[43]  The HiLux was a vehicle owned by Tahiata.  CCTV evidence shows that it was driven into the unit complex at 1.46 pm and driven out of the complex shortly thereafter at 1.59 pm.^[44]
52. [52]
    Phone records indicate that at 1.59 pm Breton’s phone was used to text Khuu.  It must be inferred that someone other than Breton initiated this correspondence.  The correspondence was as follows:^[45]

53. [53]
    Ngatokoona Mareiti’s evidence was that at 3.38 pm there was telephone contact between her and Daniels in which Daniels asked her to come to the Tav.^[46]  CCTV evidence and the testimony of Mareiti shows that she arrived at the Tav with Webbstar Latu and two other friends at about 4.08 pm.^[47]  Mareiti and Latu went into the residence and asked whether there were any drugs to buy.  Daniels said “[n]ot yet” and asked her to wait and to tell the two people who were waiting outside to leave.^[48]  They left and Mareiti then became involved with the events which transpired.
54. [54]
    Mareiti’s evidence was that upon entering the Tav she had seen Breton and Triscaru on the couch.  She saw that they were in trouble because Breton had a “scratch” on his leg and Triscaru had been crying and looked like she had been hit on the mouth.^[49]  Daniels asked her to search Triscaru’s bra, which she did, finding nothing.^[50]  She then went into the garage with Daniels and Latu, where Daniels showed Mareiti a picture of himself on Breton’s phone and the messages between Khuu and Breton.  Mareiti’s evidence of their conversation was as follows:^[51]

“…what did [Daniels] say about that – that photograph and those messages?---His – he said he was – he wanted to know why his photo was on his phone.

Yes, anything else?---And we all thought that they were trying to set him up.

Right, “we all thought”, now you’ll have to - - -?---It’s like - - -

Who says – who’s saying what to who?---Well, I thought that he was being set up and I assumed he thought that too, every single one of us.

Right, was there any conversation about that?---No, not really.”

55. [55]
    Mareiti saw Breton and Triscaru being asked why Daniels’ photo was on Breton’s phone.
56. [56]
    Mareiti said she was then asked by Daniels to purchase alcohol and by Thrupp to purchase cleaning equipment.^[52]  The apparent purpose was to clean up blood from the floor and couch at the Tav.  Daniels provided Mareiti with money.^[53]  Mareiti called her friend Torise Titimanu and asked him to meet her at the unit; he picked her up in a Toyota Yaris and CCTV evidence shows that the two left the unit and returned at 6.14 pm.^[54]  Just before she had left to go to the shops, she saw Breton and Triscaru had had their hands and feet tied up with duct tape, she acknowledged that she did not see that occur and that it was possible that they may have been bound that way when she first arrived at the Tav.^[55]
57. [57]
    Harrington’s evidence was that after Mareiti and Titimanu had left, Latu and Thrupp had brought a toolbox from the garage into the loungeroom.^[56]  Daniels then told Breton and Triscaru to “get in the box, to go lay down in it”.^[57]  The lid had been left open at this stage and Harrington said that at one point, when no one else was around, he had seen Triscaru climb out of the toolbox and put her hand to her mouth telling Harrington “to shush”.^[58]  Harrington said that he immediately ran upstairs to notify Daniels, Taiao and Mariri and then assisted Taiao and Thrupp with putting Triscaru back into the toolbox.^[59]  Thrupp had been in the garage.  Harrington’s evidence was that when he came back downstairs Thrupp’s hand was over Triscaru’s mouth which had blood running from it.  Harrington helped them put her back in the toolbox, they shut the lid and locked it.^[60]
58. [58]
    CCTV evidence shows Tahiata returned in the HiLux to the Tav at 6.10 pm, Walker returned in the Peugeot at 6.14 pm and Mareiti returned in the Yaris at 6.14 pm.^[61]
59. [59]
    Once she returned to the Tav at 6.14 pm, Mareiti observed that the two people who had been on the couch when she left were now in a closed toolbox that she had earlier seen in the garage.^[62]  She heard a woman screaming from inside.^[63]  She said that Daniels, Thrupp and Tahiata were out the back of the unit when she arrived.^[64]  She overheard a conversation between them where she heard the word “Coolangatta” mentioned and she heard Tahiata say that “he was going to do it”.^[65]
60. [60]
    She said that Taiao was upstairs at the unit.^[66]  She also said that the person who brought the Peugeot to the unit (i.e. Walker) was upstairs at the unit.^[67]  Mareiti and Harrington both gave evidence that once Mareiti had returned to the unit they began cleaning up.^[68]  Harrington said that Latu began cleaning blood off the couch with methylated spirits, before pouring the liquid on the ground and wiping it up with towels.^[69]
61. [61]
    Harrington gave evidence that Breton and Triscaru had been banging on the lid.  Taiao had opened the lid and punched Breton and then Triscaru twice in the head; Triscaru had put her arms out of the toolbox to prevent the lid from being closed again, and Daniels had sliced her arms with a knife and told her to put her “fucking hands down”.^[70]
62. [62]
    Harrington gave evidence that items that had been used to clean up the Tav were put in garbage bags and the garbage bags were loaded into the toolbox on top of Breton and Triscaru by Daniels, Taiao, Thrupp and Mariri.^[71]  Harrington’s evidence was that the lid of the toolbox was unlocked to allow the rubbish to be put in and then locked again once that happened.^[72]  Harrington and Mareiti said that about 20 minutes after that the toolbox was taken to the HiLux and strapped on the back of the HiLux by Tahiata, Taiao, Thrupp and Latu.^[73]  Harrington said that when the toolbox was initially picked up Tahiata nearly dropped it and then Daniels pushed Harrington forward and told him to help Tahiata.^[74]  Music was played loudly so as to cover the screams of Breton and Triscaru in the toolbox.^[75]
63. [63]
    Although Walker had arrived back at the Tav at about 6.14 pm, the evidence did not suggest that he actually participated in putting Breton and Triscaru in the toolbox or in carrying the toolbox to the HiLux.  Harrington suggested that Walker had been in the garage and around the stairs.  He conceded that Walker (who he referred to as the “lanky maori”^[76]) arrived after Breton and Triscaru had been locked in the toolbox.^[77]  Harrington said that while they were both in the garage Walker had asked him if “it was my first time doing this” and Harrington shook his head.^[78]  Harrington said that from what he did see of Walker, he would agree that Walker’s body language was that of someone who did not want to be there.^[79]  Harrington did say that whilst Walker was on the stairs Walker was in a position to see the toolbox carried through the hallway to the front door of the Tav and to hear Breton and Triscaru kicking and screaming because they were really loud.^[80]  However, in cross-examination some doubt was cast on the extent to which Walker could have seen the toolbox whilst it was still inside the unit.^[81]  However no doubt was cast on his ability to perceive that Breton and Triscaru must have been in the toolbox, when it was carried out from the unit.  Harrington said that blood had leaked from the toolbox all the way out to the front door and that he had mopped up the pool of blood which had leaked out.^[82]
64. [64]
    The HiLux had been backed into the carpark outside the front door and the toolbox loaded there.  A neighbour had seen a ute with a toolbox strapped on the back at the Tav.  She had heard “[l]oud music… in the truck and banging noise” which she later clarified sounded like “a banging noise like a hand on the toolbox banging”.^[83]  Another neighbour also heard loud music and banging coming from a ute leaving the Tav.^[84]  Another neighbour heard loud music and “kicking sounds” from the back of a green ute.^[85]  His partner heard “really loud music” coming from a car at the same time.^[86]
65. [65]
    Once the toolbox was loaded onto the HiLux, Tahiata and Thrupp then got into the HiLux and the other individuals got into different cars.^[87]  Not all the rubbish had been loaded into the toolbox: Harrington said that there were still some bloody towels and stuff which had been emptied out of Triscaru’s bag which was placed in garbage bags and thrown into the tray of the Ford Courier.

Cars leave the Tav

66. [66]
    CCTV evidence and the testimony of Mareiti^[88] suggested that the circumstances of various people departing from the Tav on the evening of 24 January was as follows.
67. [67]
    Commencing at about 8.30 pm with only a few minutes separating the first and last vehicles, a convoy of five vehicles left the “Tav” in this order:^[89]

    1. the Peugeot driven by Walker with Daniels as a passenger;
    2. the HiLux driven by Tahiata with Thrupp as a passenger and carrying the toolbox which held Breton and Triscaru;
    3. the Mitsubishi Pajero driven by Latu with Mareiti as a passenger;
    4. the Toyota Yaris with Titimanu; and
    5. Breton’s Ford Courier driven by Harrington with Mariri and Taiao as passengers.
68. [68]
    Traffic cameras show the Hilux carrying the toolbox drove eastbound along the Pacific Motorway at 8.32 pm before it “doubled back” and drove westbound on the Ipswich Motorway at 8.39 pm,^[90] ending up at Scrubby Creek.  The toolbox could be seen in the traffic camera images.^[91]
69. [69]
    Harrington gave evidence that he, Mariri and Taiao had initially driven the Ford to a shisha bar near the Tav where they ordered shisha, and Mariri and Taiao used their mobile phones.^[92]  At the instruction of Taiao, Harrington then drove the two of them to a nearby cul-de-sac called Mudgee Street where a dirt road could be used to access Scrubby Creek.^[93]  There Harrington observed the HiLux driving on that road away from the lagoons.  Harrington said that Tahiata got out of the HiLux and walked over to the Ford.  Harrington observed that Tahiata was splattered with mud.  Harrington observed the following conversation between Tahiata and Taiao:^[94]

“… [Taiao] asked him, “Is it done?” And [Tahiata] said, “Yes, it’s done.””^[95]

70. [70]
    At approximately 10.46 pm both vehicles then left that location with Harrington and Taiao in the Ford, following Tahiata and Thrupp in the HiLux back to the shisha bar.  Harrington could see that Thrupp was in the front seat of the HiLux.  Once there, Harrington said that Mariri got into the HiLux and the vehicle drove away.^[96]
71. [71]
    Taiao had then asked Harrington if he knew a place that they could burn the Ford Courier.^[97]  Harrington suggested Beaudesert, and at 11.39 pm they stopped at a petrol station to purchase a fuel can and fuel.  On the way to Beaudesert, however, they had been stopped by police and taken to the local police station as Harrington had been driving the Ford unlicensed and Taiao was not licensed to drive a manual vehicle.^[98]  Eventually they were released from the police station and, having obtained a lift from a friend, made their way back to the Tav by about 4.00 or 5.00 am.  Thrupp and Mariri arrived soon after.  Back at the Tav, Harrington said he and Thrupp had a conversation whilst Taiao was asleep:^[99]

“Did you talk – where did you talk?---We were talking in the living room for a bit and then we all went upstairs into the master bedroom and then me and [Mariri] were sitting on the recliner. [Taiao] went to sleep on the bed and [Thrupp] was just laying on the floor.

Was there any conversation up there?---Yes.

Tell us what was said?--- [Thrupp] was just laying there and then he said, “I don’t know why we had to do that to [Triscaru].”

How had the topic arise?---Hey?

How had the topic arisen?---Pardon?

How had the topic arisen – how did it start?---Because we were all talking downstairs, like, I remember [Taiao] kept saying, “Just stop thinking about it. Just pretend like it never happened.” And – and then as we were upstairs, [Thrupp] like, “So, so what – so, like, what did you do?” And then - - -

You asked him that?---Yes.

Yes, go on. And what did he say?---And he said that – that he opened the box. He shot them both in the head and that they put them back in, they drilled holes in the toolbox and they had holes in - - -

You said they?---That he and [Tahiata] put holes in the toolbox and him and [Tahiata] tried to sink it and that he was standing on top of it until it was underwater and that they put rocks and ties to keep it at the bottom of the water.

Now you mentioned before, He said, “I don’t know why we had to do that to [Triscaru].”

Did he say anything else about that?---Like, he said that [Breton], he didn’t really give a fuck about, but like, he broke his one rule that he – that he made to his Mum that, like, he’s never hurt a woman.”^[100]

72. [72]
    Mareiti gave evidence that the Mitsubishi and the Yaris had initially headed towards Coolangatta because she had misunderstood that that was where the group had been going.  Following a phone call between Mareiti and Daniels, both vehicles had turned around, with Titimanu driving to his home address and the Mitsubishi driving towards Cleveland.^[101]  Mareiti said she met Daniels at a service station in Capalaba at 9.55 pm where Daniels asked her to leave the Mitsubishi at Cleveland.^[102]  At 10.30 pm Mariri called Daniels.^[103]  The Mitsubishi containing Walker and Daniels and the Peugeot containing Latu and Mareiti then drove to Cleveland where they left the Pajero in a carpark.  The four of them then got into the Peugeot.^[104]  Mareiti said that they then drove around looking for the Hilux before going back to the unit.^[105]
73. [73]
    There was little evidence to indicate where the Peugeot containing Daniels and Walker had travelled in the intervening hour.  Traffic camera and cell phone evidence provided some support for Mareiti’s evidence that the Peugeot drove towards Cleveland before meeting the Mitsubishi in Capalaba as described above.^[106]

The aftermath

74. [74]
    On 25 January 2016, Daniels, Thrupp and Taiao all checked into the Evolution Apartments in Brisbane City and stayed there until around 9 or 10 February 2016.^[107]  Walker attended for a few hours on 25 January 2016 but left the same day.^[108]  He later purchased a one-way ticket to Auckland and flew out on 13 February 2016.^[109]
75. [75]
    Breton’s partner and their daughter had flown to Sydney on 20 January 2016, having been driven to the airport by Breton.  They flew back to Brisbane on 29 January 2016 and Breton was not there to meet them as he was supposed to be.^[110]  His partner reported him missing the following morning.^[111]
76. [76]
    On 10 February 2016, Tahiata took police to a waterhole at Scrubby Creek.  On 11 February 2016 police divers located at that waterhole the toolbox containing both deceased, weighed down by concrete and tyres.  When the toolbox was eventually recovered by police and opened, they found that rubbish had been placed in the toolbox on top of Breton and Triscaru.

The boot ride hypothesis

77. [77]
    A particular exculpatory hypothesis was raised at trial through the cross-examination of Harrington and of Mareiti, namely the so-called “boot ride” hypothesis.  In drug circles and presumably for intimidation purposes, a boot ride occurs when a person is put in a car boot (hence the name), taken for a drive so as to put them in fear of their lives, and then let go.
78. [78]
    The relevant exchange between counsel for Daniels and Harrington was (emphasis added):^[112]

“Right. You never heard [Daniels] say to anyone, “Well, look, let’s kill them. Let’s hurt them.” Do you agree with that?---No – yeah.

You don’t – you do agree with that. Okay. Good?---Never heard him say it.

No. When they left, you understood what was going to happen was that they were going to be driven somewhere, let out of the box, and made to walk home. That’s what you thought was going to happen?---That’s what I was assuming. Yeah.

All right. And, indeed, you pleaded guilty, didn’t you, to two – to four offences. Two counts of assault occasioning bodily harm whilst in company, and two counts of deprivation of liberty, relating to this incident. Correct?---Yeah.

And just for completeness, your head sentence was a suspended sentence of 18 months for a period of 36 months. Correct?---Yeah.

And that was on the 4^th of June, 2018. Do you agree?---Yeah.

And the basis for that was – just excuse me. Sorry, your Honour. Was this – that at no time did you believe the victims were going to die. That you believed they’d be taken or driven somewhere and let go. Correct?---Yep.

You’ve heard the term of a boot ride, correct?---Yep.

That’s a fairly common practice, isn’t it, in drug circles?---Yeah.

Where people are put in a boot or a container, taken - - -?---Yeah.

- - - for a drive - - -?---Sometimes around the block, yeah.

- - - given a bit of a scare, and then let go. Correct?---Yeah.

Right. And this had all the hallmarks of that, didn’t it? All the characteristics of it?---A bit extreme, though.

Remember I asked you that exact same question?---Yeah.

And you said yes?---Yeah.

I asked you – this is at 487:

And this had all the hallmarks of a boot ride; correct?---Yes.

?---Yeah.

That’s the - - -?---Yes.

- - - situation, isn’t it? Correct?---Yeah”

79. [79]
    And as between counsel for Walker and Harrington on the boot ride subject (emphasis added):

“Now, when you spoke to the police on the 9^th of February – you’ve already agreed with this, I think – you told them that you thought that Cory, and Tabita could still be alive?---Yes.

Indeed, when you pleaded guilty to offences of deprivation of liberty, and assault occasioning bodily harm, the basis of your plea of guilty was that you never thought that they would end up dead?---Yes.

You thought that what was going to happen, that night, was that something would be done to try to scare them?---Yeah.

It might be a boot ride or something like that?---Yes.

But you didn’t think that they were going to die?---No.

And that was still very much the case when you had the interaction with the [Walker], in the garage, wasn’t it? You, at that point, didn’t think that they were going to die?---No.

Now, [Walker] man had not been there for very long, at that time, had he?---No.

And you didn’t ask him what he meant, when he said to you, “Is this your first time”?---Yeah.

You just assumed that he was saying first time involved in something like this?---Involved in a boot ride.

Involved in a boot ride?---Yeah.

So that’s what you interpreted him as asking you about. But he didn’t say anything else about it, did he? He just said, “Is this your first time”?---And I shook my head, and he went quiet. Yeah.

Yeah. He didn’t say anything about a boot ride. He just asked you, “Is this your first time”?---Yeah.

You, then, interpreted that as meaning, “Is this your first time involved in a boot ride?” Is that right?---Yeah, that’s what I thought he was saying; yeah.

So to that question, and with your understanding being that he’s asking about the first time in a boot ride, you shook your head to indicate no?---Yes.

Had you been involved in a boot ride, before?---I’ve seen them happen; yeah.

You’d seen them happen, and this one was playing out much the same job as that; is that right?---Yes. Oh, not playing out the same. This one was a bit extreme. Yeah.

But nevertheless, that’s still what you thought was going on?---Yeah.

And you’ve been involved in them, before?---Yeah.”

80. [80]
    Marieti acknowledged in cross-examination by counsel for Daniels that someone had said to her that evening that they were going to take Breton and Triscaru for a boot ride just to give them a scare.^[113]  She also said that she did not believe that they would be killed.  She knew they were going to get hurt and her understanding was that what was going to happen was a boot ride.^[114]

Focus on Daniels’ involvement

Support for the particularised case

81. [81]
    As to the offences of murder, the table below identifies the acts which the Crown said rendered Daniels liable under s 7.  As will appear, those acts had been identified in particulars of the Crown case of murder and they also were the acts which were identified in the question trail which formed part of the trial judge’s directions to the jury.  The final column identifies evidence which supported the allegations.

82. [82]
    As to the offences of torture, the table below identifies the acts which were said have been done by Daniels.  As will appear, they were the acts which were identified in the question trail which formed part of the trial judge’s directions to the jury.  The final column identifies evidence which supported the allegations.

Other relevant evidence

83. [83]
    Phone records show that on 24 January 2016 Daniels sent the following two messages to Tahiata at 9.26 pm and 10.46 pm respectively: “Yo” and “We’re use at cuz”.  At 10.52 pm Daniels made two attempts to call Tahiata which were not answered.^[168]
84. [84]
    On 5 February 2016 Mareiti had the following text exchange with Daniels, although in Court she said that she could not remember what it was about:^[169]

85. [85]
    Titimanu’s evidence was that he saw Daniels at Evolution Apartments.^[170]  Taiao’s ex-partner also gave evidence that she saw Daniels at Evolution Apartments.^[171]  She said that that evening the group had gone to a pub in Brisbane City, and that Daniels “was just agitated”; when asked what he was doing and whether he said anything, she answered “[t]hat they were going to be on the news… that they were going to get caught”.^[172]
86. [86]
    On the afternoon of 10 February 2016, Daniels was arrested for murder; when he was searched by police two mobile phones were located on his person.^[173]  One phone had details to a secure network contained in the phone case for a user called “Showtime99”.  Over 5, 6, 9 and 10 February 2016 “Showtime99” had conversations on the secure network with “Future-Punk” (who the Crown said was Thrupp) and “Iron Punch” (who the Crown said was Tyson Daniels, Stou Daniels’ brother) about the Tav, police activity in the area and seeing lawyers.^[174]  The most significant were:

    1. on 5 February 2016 Daniels telling Tyson Daniels he thought the police were checking CCTV at the Tav;
    2. on 5 February 2016 Daniels telling Thrupp that police were in the area;
    3. On 9 February 2016, Thrupp telling Daniels “I'm going to see a lawyer tomorrow and give him a scenario of what happened but I'm not going to tell him what we done just some expert perpectives of a proffessional [sic]".
    4. on 10 February 2016 Daniels asking Thrupp whether police were at the Tav;
    5. on 10 February 2016, Daniels saying to Tyson Daniels that he thought a “snitch” (presumably Harrington) had informed the police.
87. [87]
    The Crown argued that the following evidence was relevant as post-offence conduct demonstrating a consciousness of guilt as to the unlawful killings of both Breton and Triscaru (but not of their intentional killing):

    1. instructing Mareiti to leave the Pajero at Cleveland;
    2. staying at Evolution Apartments with the other participants;
    3. statements made by him in the text communications with Thrupp and Tyson Daniels in February 2016;
    4. the text communication with Mareiti on 5 February 2016.

Evidence as to the state of Daniels’ knowledge and intention at relevant times

88. [88]
    The Crown posited that Daniels was the “ringleader” for the offending.^[175]  At the time that toolbox was placed in Scrubby Creek the evidence indicates conclusively that Daniels was located in or around Cleveland.  However, the evidence also clearly showed that Daniels was involved in the events that preceded the deaths of Breton and Triscaru.  The evidence as to the state of his knowledge and intention at relevant times comprises of the inferences which may be drawn from the above-summarised evidence, but in particular:

    1. The evidence that Daniels was the only person giving instructions on the night of the offending, with the inference being that if a relevant plan had been formed then it had been formed fully or in part by Daniels.
    2. The evidence demonstrated that Daniels initiated Breton and Triscaru attending the Tav because he perceived a personal threat,^[176] and that no one aside from Daniels gave orders on the evening.^[177]
    3. Evidence of Daniels giving orders at key stages of the offending is as follows: instructing Harrington to call Breton to get him to come to the Tav;^[178] instructing Harrington to go away and smoke meth after making that call;^[179] instructing Thrupp to drive the Courier to the Tav;^[180] asking questions of Breton when he was being assaulted immediately upon arriving at the Tav;^[181] instructing that Triscaru and Breton be restrained with duct tape;^[182] instructing Marieti to search Triscaru’s bra;^[183] instructing Triscaru and Breton to get into the toolbox;^[184] instructing Harrington to start cleaning the Tav;^[185] instructing Harrington to assist with lifting the toolbox on to the HiLux;^[186] using Latu as a driver;^[187] instructing Marieti to drive towards Cleveland when she had mistakenly begun driving to Coolangatta;^[188] instructing Marieti to leave the Pajero at Cleveland;^[189] instructing Marieti to not “speak of” the offending;^[190] chastising Taiao for “going missing” on 5 February 2016.^[191]
    4. The evidence that Daniels was involved in a discussion with Tahiata and Thrupp in which Tahiata said that “he was going to do it”,^[192] the inference being that Tahiata was going to dispose of the toolbox with Breton and Triscaru in it.
    5. The evidence that Daniels placed garbage bags containing items used to clean the unit in the toolbox on Breton and Triscaru.^[193]  This was said by the Crown to be inconsistent with the boot ride hypothesis.
    6. The post-offending conduct relied on by the Crown, noting the limitation placed on it.

Focus on Thrupp’s involvement

Support for the particularised case

89. [89]
    As to the offences of murder, the table below identifies the acts which the Crown said rendered Thrupp liable under s 7.  As will appear, those acts too had been identified in particulars of the Crown case of murder and they also were the acts which were identified in the question trail which formed part of the trial judge’s directions to the jury.  The final column identifies evidence which supported the allegations.

90. [90]
    As to the offences of torture, the table below identifies the acts which were said have been done by Thrupp.  As will appear, they also were the acts which were identified in the question trail which formed part of the trial judge’s directions to the jury.  The final column identifies evidence which supported the allegations.

Other relevant evidence

91. [91]
    Harrington’s evidence was that in the early hours of the following morning he had asked Thrupp what had happened, and Thrupp had said “[Breton and Triscaru] were begging for their lives and then he shot them in the head, and then they put holes in the toolbox, and that they sunk it, and they put rocks and tyres on it to help sink it.”^[227]  The suggestion that Breton and Triscaru had been shot was falsified by the pathologist’s evidence.  Further, there were no bullet holes in the toolbox.
92. [92]
    Harrington said that Thrupp had also said “I don’t know why we had to do that to Tabita”, and that “he said that [Breton], he didn’t really give a fuck about, but like, he broke his one rule that he – that he made to his Mum that, like, he’s never hurt a woman”.^[228]
93. [93]
    Thrupp was detained by police on 10 February 2016 and his mobile phone was obtained from him.  However it had been damaged by being almost snapped in half.^[229]
94. [94]
    When arraigned before the jury, Thrupp pleaded not guilty to each count of murder but guilty to the natural alternative of manslaughter.  The Crown did not accept those pleas of guilty in satisfaction of the counts of murder.
95. [95]
    The Crown argued that the following evidence was relevant as post-offence conduct demonstrating a consciousness of guilt as to the unlawful killings of both Breton and Triscaru (but not of their intentional killing):

    1. staying at the Evolution Apartments with the other participants;
    2. his text statement to Daniels on 9 February 2016 “I'm going to see a lawyer tomorrow and give him a scenario of what happened but I'm not going to tell him what we done just some expert perpectives of a proffessional [sic]";
    3. his text communications with Daniels about the police being at the Tav; and
    4. destroying his mobile at about the time he was detained by police.

Evidence as to the state of Thrupp’s knowledge and intention at relevant times

96. [96]
    The evidence as to the state of Thrupp’s knowledge and intention at relevant times comprises of the inferences which may be drawn from the above-summarised evidence, but in particular the evidence:

    1. that he was involved in a discussion with Tahiata and Daniels in which Tahiata said that “he was going to do it”,^[230] the inference being at least that Tahiata was going to dispose of the toolbox with Breton and Triscaru in it;
    2. that he placed garbage bags containing items used to clean the unit in the toolbox on Breton and Triscaru;^[231]
    3. that Thrupp was with Tahiata at Scrubby Creek at the time Breton and Triscaru were killed;
    4. of the conversation between Harrington and Thrupp referred to at [71] above; and
    5. the post-offending conduct relied on by the Crown, noting the limitation placed on it.

Focus on Taiao’s involvement

Support for the particularised case

97. [97]
    As to the offences of murder, the table below identifies the acts which the Crown said rendered Taiao liable under s 7.  As will appear, those acts had also been identified in particulars of the Crown case of murder, and they also were the acts which were identified in the question trail which formed part of the trial judge’s directions to the jury.  The final column identifies evidence which supported the allegations.

98. [98]
    As to the offences of torture, the table below identifies the acts which were said have been done by Taiao As will appear, they also were the acts which were identified in the question trail which formed part of the trial judge’s directions to the jury.  The final column identifies evidence which supported the allegations.

Other relevant evidence

99. [99]
    Harrington’s evidence was that after he and Taiao met with Tahiata at Mudgee Street, Taiao asked Harrington if he knew “a place where to burn the Courier”.^[249]  Harrington suggested Beaudesert, and began driving in that direction, stopping to purchase a can of petrol which Taiao paid for.^[250]  Harrington was stopped by police in Beaudesert for a random breath test.^[251]  Taiao and Harrington were taken to a police station and questioned about the vehicle.  The police officer involved in the traffic stop ascertained that the vehicle belonged to Breton and attempted to make contact with him which, for obvious reasons, was unsuccessful.^[252]
100. [100]
     Harrington’s evidence was that once the police released him he noticed that Taiao had Breton’s mobile phone.^[253]  Harrington said he was able to identify Breton’s phone because he had seen the photo of Daniels on it.^[254]  Harrington observed Taiao “disabling all the apps” on the phone.^[255]  A police officer gave evidence that a mobile phone had been taken from Taiao that had last been used by a phone number registered to Triscaru,^[256] the inference being that the mobile phone had belonged to her.  A police officer who was involved in the traffic stop gave evidence that he had seen a red jerrycan in the rear of the vehicle^[257] and the Courier was later recovered with a fuel can in it.^[258]
101. [101]
     Harrington’s evidence was that once he had returned to the Tav with Taiao in the early morning of the following day Taiao had said to him “Just stop thinking about it.  Just pretend like it never happened”.^[259]
102. [102]
     A police officer gave evidence that Taiao’s mobile phone had been obtained and analysed, and it was determined that there were a number of searches in relation to the “missing trio” made on the phone.^[260]
103. [103]
     Ms Caton - who was Taiao’s partner^[261] in January 2016 - gave evidence that she met Taiao at Evolution Apartments.^[262]  She said that in the apartment the news had been playing on the TV, and “[w]e had seen the victims’ faces… we had seen them on the news coverage and then [Daniels, Taiao, Thrupp and Mariri] had a discussion with themselves which I was unsure of what was said”.^[263]  When she asked Taiao about what had happened, “[h]e just said he had no idea what I was talking about”.^[264]  When asked whether Taiao said anything about what might happen to him, she said “[h]e just said he will take the blame… He didn’t say [for] anyone in particular, he just said that he will take the blame for it, for what had happened”.^[265]
104. [104]
     A police officer gave evidence that on 3 February 2016 Taiao attended Logan Central Police Station; he was not a suspect at the time.^[266]  The subsequent interview was recorded.^[267]  Taiao claimed to have never met Breton or Triscaru.^[268]  That was false.  Taiao was asked about the evening on which he and Harrington were stopped by police at Marsden in Breton’s car; he claimed that Harrington had told him it was Harrington’s car.^[269]  Taiao said that had needed a lift home and that Harrington had coincidently driven past him in Marsden and picked him up.^[270]  He said that Harrington had wanted to stop in Beaudesert to visit his friends or cousin’s house.^[271]
105. [105]
     Taiao was asked to give a statement to this effect and repeatedly questioned why a statement would be required from him, because “I've done nothing” and “it feels like I’m gonna get done for something”.^[272]  He said “I didn’t even know any of this shit was gonna happen”,^[273] followed by “[t]hat was the first time I went to Beaudesert… I wasn’t even supposed to go to Beaudesert”,^[274] and then “[I] don’t even know anything”^[275], “I didn’t even know this shit was gonna happen”.^[276]  Taiao said “I’m getting pressured to do something. I don’t wanna do anything”.^[277]  The interview was stopped shortly thereafter and Taiao left the station.^[278]
106. [106]
     The Crown argued that evidence of lies which Taiao told in his interview with police were evidence demonstrating a consciousness of guilt as to the torture and as to the unlawful killings of both Breton and Triscaru (but not of their intentional killing):

     1. that he had never met Breton or Triscaru;
     2. that on the night he was intercepted by police at Beaudesert, he had been picked up by Harrington in the Ford Courier at a roundabout at Marsden;
     3. that Harrington told him that that Ford Courier was Harrington’s vehicle.
107. [107]
     The Crown argued that the following evidence was relevant as post-offence conduct demonstrating a consciousness of guilt as to the torture and as to the unlawful killings of both Breton and Triscaru (but not of their intentional killing):

     1. going to Beaudesert with Harrington to burn the Ford Courier including giving Harrington money to buy petrol for burning that vehicle;
     2. telling Caton, “He would take the blame for it” after seeing news reports about missing people.

Evidence as to the state of Taiao’s knowledge and intention at relevant times

108. [108]
     Taiao, like Daniels, was not present at the time the toolbox containing Breton and Triscaru was placed in the water.  The evidence as to the state of his knowledge and intention at relevant times comprises of the inferences which may be drawn from the above-summarised evidence, and, in particular, the significance to be attributed to –

     1. Harrington’s evidence that he directed Harrington to the location where Harrington heard the “Is it done?” conversation between he and Tahiata.^[279]
     2. Harrington’s evidence as to the content of the “Is it done?” conversation between he and Tahiata.
     3. Harrington’s evidence that once he had returned to the Tav with Taiao in the early morning of the following day Taiao had said to him “Just stop thinking about it.  Just pretend like it never happened”.^[280]
     4. The lies and post-offending conduct relied on by the Crown, noting the limitation placed on that evidence.

Focus on Walker’s involvement

Support for the particularised case

109. [109]
     As to the offences of murder, the table below identifies the acts which the Crown said rendered Walker liable under s 7.  As will appear, those acts had been identified in particulars of the Crown case of murder and they also were the acts which were identified in the question trail which formed part of the trial judge’s directions to the jury.  It will be recalled that Walker was not charged with torture.  The final column identifies evidence which supported the allegations.

Other relevant evidence

110. [110]
     CCTV evidence shows that on 25 January 2016 Walker drove Daniels, Thrupp, Taiao and Mariri to Evolution Apartments in Brisbane City.^[284]
111. [111]
     Conway’s evidence was that in the following days she had participated in two conversations with Walker about that evening.
112. [112]
     She described the first conversation as follows:^[285]

“…tell us what was said?---He told me about a lady at the unit. He said that she was being hysterical and – and yelling at them.

What did she say?---She said that she was going to rat them all out.

Right. Going back to – maybe I neglected to ask you – did he – did [Walker] mention anyone else other than the boy as being present?---No.

All right, did he – he said he’s not going to – he said, “You’re not going to ring the police.” Did he say anything about his – how he had acted when he was there?---Yes.

What did he say?---He said he had to hold his composure because there was a person or the boss called John there.

Right, now going back to the second conversation you had about this, he’s mentioned this woman screaming out. Did he say what – anything had happened to her?---He said that she was punched in the face and knocked out. Did he say who did that?---No.

Did he say that – anything about the boy that had been there before?---Yes.

What did he say?---I had asked him where the boy was and he said he wasn’t – he was gone.

All right. Now did he make any mention of any other – any item?---Toolbox.

Yes. What did he say about the toolbox?---He said that he thought she may have been in the toolbox when he had seen the boy.

When he was there the first time?---Yes.

Right. Did he tell you when he had – when he had gone back, did he tell you when the second occasion he was there? See, he’s talking about the boy the first time, see, and then he says about another occasion that the girl – the woman may have been in the toolbox when you saw the boy?---Yes.

Did he tell you when that second occasion was?---No.

All right. Did he mention the toolbox on the first occasion when you went to the service station?---No.

All right. Now, did he tell you anything else that he may have done that evening, on the night of the 24th?---He said that they had driven to Cleveland.”

113. [113]
     Conway’s evidence was that she had seen news reports about Breton and Triscaru being missing, and that she was present when Walker talked to a friend about how “the police were still searching for another Islander male, and he believed it was him”.^[286]  She said that Walker had booked a ticket to New Zealand after he saw a news report that the bodies of Breton and Triscaru had been recovered and people had been arrested.^[287]  He flew back to New Zealand on 13 February 2016.^[288]
114. [114]
     Conway’s evidence was that she had stayed in contact with Walker after he returned to New Zealand, and that she had told him that the police had been in contact with her.^[289]  He had asked her not to say anything to them.^[290]
115. [115]
     A police officer gave evidence that on 22 November 2016 he and a second police officer travelled to New Zealand to speak to Walker at Te Awamutu Police Station.^[291]  Walker told the police officers that he had travelled to the Tav on 24 January 2016 to pick a car up, but that Taiao had told him that they would return it later that night.  He said that he left and on 25 January 2016 Taiao returned the car and asked for a lift in the city,^[292] then told him “that they’d kidnapped someone”.^[293]  Walker said he fled to New Zealand because he’d seen on the news that two people had been found dead, and that because he had lent his car to Taiao that “I just sorta had a, a feeling that someone come ‘round, asks me somethin’ and then I decided, no, I just freaked out”.^[294]
116. [116]
     The Crown relied on what were said to be lies told by Walker in his interview with police in New Zealand as demonstrating a consciousness of guilt as to the unlawful killings of both Breton and Triscaru (but not of their intentional killing):

     1. that he did not go inside the unit on 24 January 2016;
     2. that he saw nothing about what happened to the victims;
     3. that he did not get the Peugeot back when he asked for it and received it only later;
     4. that he first learnt about anything relating to the two victims when he took Taiao and Daniels to the hotel in the city when they told him that they had kidnapped someone and got rid of them;
     5. that he did not go into the Evolution Apartments or have any further contact with Taiao and Daniels after picking them up the next day.
117. [117]
     The Crown argued that Walker’s flight to New Zealand after seeing the news report was evidence demonstrating a consciousness of guilt as to the unlawful killings of both Breton and Triscaru (but not of their intentional killing).
118. [118]
     The Crown argued that the following evidence was relevant as post-offence conduct demonstrating a consciousness of guilt as to the unlawful killings of both Breton and Triscaru (but not of their intentional killing):

     1. Walker assured Thrupp on 2 February 2016 that he was supporting the group and acknowledged previous assistance; and
     2. Walker asked Conway not to talk to police.

Evidence as to the state of Walker’s knowledge and intention at relevant times

119. [119]
     Walker, like Daniels, was not present at the time the toolbox containing Breton and Triscaru was placed in the water.  The evidence as to the state of his knowledge and intention at relevant times comprises the inferences which may be drawn from the above-summarised evidence, but in particular:

     1. what Conway and Harrington observed of his demeanour whilst he was there;
     2. his questions directed to Harrington as to whether it was Harrington’s first time doing this;
     3. his admission to Conway about having to hold his composure because Daniels was there;
     4. his driving Daniels away when the convoy went in different directions; and
     5. the lies and post-offending conduct relied on by the Crown, noting the limitation placed on that evidence.

Consideration of Thrupp’s appeal

The appeal grounds

120. [120]
     Thrupp appealed on four grounds:

     1. Ground 1: The verdicts of the jury are unreasonable and cannot be supported having regard to the evidence.
     2. Ground 2: A miscarriage of justice occurred as a result of the trial judge failing to properly direct the jury as to the effect of the appellant’s pleas of guilty to manslaughter.
     3. Ground 3: A miscarriage of justice occurred because the Crown’s particulars for the s 7 case were deficient.
     4. Ground 4: A miscarriage of justice occurred because the Crown’s particulars for the s 8 murder case were either deficient or were otherwise wrong at law.
121. [121]
     Ground 1 relates to both the murder counts and the torture counts.  It must first be considered because if it were to be made good, Thrupp would be entitled to acquittals on those counts.  Grounds 2 to 4 relate to the murder counts.  If any one of grounds 2 to 4 were to be made good, then Thrupp would be entitled to a retrial in respect of those counts.

Appeal ground 1: Verdicts unreasonable and cannot be supported

Relevant principles

122. [122]
     Each appellant advanced as a ground of appeal that the verdicts were unreasonable and could not be supported having regard to the evidence.
123. [123]
     The following principles govern the consideration of this ground of appeal:^[295]

1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported: see M v The Queen (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ; Zaburoni v The Queen (2016) 256 CLR 482 at [56] per Gageler J; and GAX v The Queen (2017) 91 ALJR 698 at [25] per Bell, Gageler, Nettle and Gordon JJ.
2. An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand: see M vThe Queen at 492–493; SKA v The Queen (2011) 243 CLR 400 at [14] per French CJ, Gummow and Kiefel JJ; and Dansie v The Queen (2022) 274 CLR 651 at [12] per Gageler, Keane, Gordon, Steward and Gleeson JJ.
3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence): see SKA v The Queen at [22] and [24].
4. An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case requires the appellate court to 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 in doing so form its own judgment as to whether the prosecution has failed to exclude an inference consistent with innocence that was reasonably open: see Fennell v The Queen (2019) 93 ALJR 1219 at [82] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ; Coughlan v The Queen (2020) 267 CLR 654 at [55] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ; and Dansie v The Queen at [12].
5. The appellate court’s task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction: see Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ; M v The Queen at 492–493; and SKA v The Queen at [20].
6. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, “must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations”: M v The Queen at 493; and Dansie v The Queen at [16].
7. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case where the jury has been subjected to the seductive effects of a species of identification evidence^[296] that has in the past led to miscarriages of justice: see Fennell v The Queen at [81].
8. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act to set aside a verdict based upon that evidence: see M v The Queen at 494, quoted with approval in MFA v The Queen (2002) 213 CLR 606 at [56]; R v Dang Quang Nguyen (2010) 242 CLR 491 at [33]; Filippou v The Queen (2015) 256 CLR 47 at [12]; and Dansie v The Queen at [9].
9. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen at 494–495. See also R v Hillier (2007) 228 CLR 618 at [20] per Gummow, Hayne and Crennan JJ; Fitzgerald v The Queen (2014) 88 ALJR 779 at [5] per Hayne, Crennan, Kiefel, Bell and Gageler JJ; R v Baden-Clay (2016) 258 CLR 308 at [66] per French CJ, Kiefel, Bell, Keane and Gordon JJ; and Dansie v The Queen at [15].
10. The setting aside of a tribunal of fact’s verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact: see R v Baden-Clay at [65]–[66].
11. The appellate court’s reasons must disclose its assessment of the capacity of the evidence to support the verdict: see SKA v The Queen at [22]–[24]; BCM v The Queen (2013) 88 ALJR 101 at [31] per Hayne, Crennan, Kiefel, Bell and Keane JJ; GAX v The Queen at [25]; and Dansie v The Queen at [38].
12. The nature and extent of the appellate court’s task, in a particular case, will be informed by:
    1. the elements of the offence;
    2. the accused’s defence;
    3. the issues in contest at the trial;
    4. the manner in which the trial was conducted;
    5. whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
    6. the particulars of and the submissions made in support of the ground of appeal.

It was open to the jury to accept the inculpatory evidence of Harrington and Mareiti

124. [124]
     Thrupp’s argument in support of his contention that the verdict was unreasonable and not supported by the evidence advanced two propositions.  First, the undoubtedly correct proposition that the credibility and reliability of the evidence of Harrington and Mareiti was central to the Crown case.  Second, that, upon the record itself, the evidence of Harrington and Mareiti was so lacking in probative force that the jury were bound to hold a reasonable doubt as to his guilt after hearing their evidence.  Other appellants advanced a similar contention.  Accordingly, it is necessary to give specific attention to the general proposition that the evidence of Harrington and Mareiti was so inherently unreliable, that it must follow that the verdicts were unreasonable.
125. [125]
     Harrington’s involvement in the events which led to the murders of Breton and Triscaru resulted in his being charged on 13 October 2017 with two counts of assault and two counts of deprivation of liberty, and on 4 June 2018 being convicted on his own plea of guilty and sentenced to 18 months imprisonment wholly suspended for an operative period of 36 months.
126. [126]
     Mareiti’s involvement led to her pleading guilty to two counts of manslaughter and being sentenced to nine years’ imprisonment, to do about four and a half years, but if she failed to keep to the undertaking to give evidence in accordance with the statements, she was in danger of being sentenced or re-sentenced to 12 years, of which she would have to do a minimum of 80 per cent, so 9.6 years.
127. [127]
     Both witnesses had obviously obtained an advantage from their co-operation with the prosecution.  They accepted this proposition when giving their evidence.  Both witnesses told a version of events to the Court which inculpated the defendants in various ways, but which also inculpated themselves in certain respects.  Both told a version of events which exculpated themselves from the most serious offending, in particular by advancing their personal belief in the boot ride hypothesis.  The cross-examination of each revealed some other points, including of inconsistency, which sounded adversely to their evidence.
128. [128]
     The points both for and against the two witnesses were made in submissions before the jury and were summarised sufficiently for present purposes in the context of the warning which the trial judge gave to the jury:^[297]

“There are, however, some special warnings which I must have you take into account when assessing particular parts of the evidence, and these are matters you must take into account. First, the evidence of Lelan Harrington and Ms Mareiti. Both admit to being involved in events on 24 January 2016. Lelan Harrington pleaded guilty to offences of assault occasioning bodily harm whilst armed and in company and depravation of liberty in respect of each of Breton and Triscaru. Mareiti pleaded guilty to the unlawful killing of each of Breton and Triscaru. You should approach your assessment of the evidence of Lelan Harrington and of Mareiti with caution. A person who has been involved in an offence may have reasons of self-interest to lie or to falsely implicate another in the commission of the offence. Scrutinise each of their evidence carefully before acting on it. Lelan Harrington and Mareiti, having been involved in the offences to which they pleaded guilty, are likely to be of bad character. Each has been convicted previously of criminal offences. Each has longstanding mental health issues. Each was a regular user of illicit drugs and used illicit drugs on the day of question and on the proceeding days. For these reasons, their evidence may be unreliable and untrustworthy.

Moreover, each they have sought to justify their conduct or at least to minimise their involvement by shifting the blame wholly or partly to others. Perhaps, each has sought to implicate one or more of the defendants and to give untruthful evidence because he or she apprehends that he or she has something to gain by doing so. You have heard that each gave a statement to the police which had the effect of reducing his or her own sentence. They undertook to give evidence in accordance with that statement.

Under Queensland sentencing law, sentences may be reduced by the Court where the offender undertakes to cooperate with law enforcement authorities by giving evidence against someone else. If an offender receives a reduced sentence because of that sort of cooperation and then does not cooperate in accordance with the undertaking to give evidence, the sentence in proceedings may be reopened and a different sentence imposed. You can see, therefore, that there may be a strong incentive for a person in that position to implicate a defendant when giving evidence. You should therefore scrutinise the evidence of Lelan Harrington and Mareiti with great care. You should only act on each of their evidence if, after considering it and all of the other evidence in the case, you are convinced of its truth and accuracy.

Another matter is whilst it may be possible to identify some reasons which each may have had for giving false evidence, there may be other reasons for giving false evidence which are known only to Lelan Harrington and Mareiti. The evidence of each of Lelan Harrington and Mareiti, if not truthful, has an inherent danger. If it is false in implicating a defendant, it will nevertheless have a seeming plausibility about it because each will have a familiarity with at least some of the details of the offences.

The defence point to the differences in the accounts given by both Lelan Harrington and Mareiti when initially speaking to police and when giving evidence on other occasions, as well as their drug use and mental health issues and the obvious benefits each has gained by undertaking to give evidence against these defendants in support of an argument that each of Harrington and Mareiti is not telling the truth. On the other hand, the prosecution submits that each of Lelan Harrington and Mareiti is a truthful and reliable witness and relies on what the prosecution says is the inherent consistency in the accounts each has given over many occasions and the consistency between those accounts and the contents of the CCTV footage and the telephone records. Those are matters that you take into account when assessing whether you find each of them reliable and credible witnesses.

In view of the matters that I have touched upon, I direct you that it would be dangerous to convict any defendant on the evidence of Lelan Harrington or the evidence of Mareiti unless you find that that evidence is supported in a material way by independent evidence implicating the defendant in the particular offence. There is evidence coming from an independent source which is capable of supporting each of their evidence in a material way. That evidence is the CCTV footage from the complex and the various sites that were attended on that day and the telephone records. It is a matter for you as to whether you accept that evidence. If you do accept it, it is a matter for you whether you think it does support the evidence of each of Lelan Harrington and of Mareiti in this material way.

Keep in mind, however, that as each of Lelan Harrington and Mareiti is an accomplice, you cannot use the evidence of one as an independent source capable of supporting the evidence of the other. You must carefully scrutinise their evidence separately, assessing it against the other evidence you accept as reliable and credible to determine whether you accept the evidence of Lelan Harrington and the evidence of Mareiti as reliable and credible.

That does not mean that you cannot act on the evidence of Lelan Harrington and the evidence of Mareiti which you have found as reliable and credible when determining whether the Crown has proven a particular fact. If, having carefully scrutinised the evidence of Lelan Harrington and the evidence of Mareiti and considered in the context of the other evidence before this case, you do accept that each is reliable and credible, you can use each of their evidence when determining whether you are satisfied on the whole of the evidence that one or more of the defendants is guilty of one or more of the offences.”

129. [129]
     We reject the suggestion that the evidence of Harrington and Marieti was so lacking in probative force that the jury were bound to hold a reasonable doubt as to the guilt of Thrupp after hearing their evidence.  The points made against them as witnesses were obvious and were the subject of a clear direction.  The nature of the criticisms which can be made of their evidence is not such as would lead us to form the view that it was not open to the jury to accept the inculpatory aspects of their evidence.  What the jury made of their evidence was a classic issue for the jury.

Further consideration – section 7 case

130. [130]
     The previous discussion deals with and rejects the sole argument which Thrupp advanced in support of appeal ground 1.  It is a sufficient basis to reject that ground of appeal.  However, for completeness we should record that in our view it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of Thrupp on the offences of murder and torture, at the least on the basis of the s 7 case.
131. [131]
     The case against Thrupp was left to the jury that he was an aider pursuant to s 7(1)(b) or (c).  We have earlier identified how the evidence supported the Crown case of aiding and the evidence from which inferences might be drawn as to Thrupp’s knowledge.
132. [132]
     Having regard to that evidence, we make the following findings.
133. [133]
     It was open to the jury to be satisfied beyond reasonable doubt that Thrupp assisted Tahiata to place the toolbox containing Breton and Triscaru in Scrubby Creek knowing of his intention that they be killed or suffer grievous bodily harm.  Quite apart from Thrupp’s involvement in all the precursor events at the Tav, it was the two of them who drove the HiLux containing the toolbox to Scrubby Creek and then drove back without it.  It was obvious from both the evidence and the inherent nature of the task that lifting and manoeuvring the toolbox with two humans in it was more than a one-man job, although perhaps it was conceivable that once removed from the HiLux it could have been dragged along the ground by one person.  Anyone who placed the locked toolbox in the location in which it was later found must have intended death or grievous bodily harm to the two people locked in it.
134. [134]
     Even if the jury harboured some doubt as to the involvement of Thrupp in the final placement of the toolbox in Scrubby Creek, it was open to the jury to conclude that his involvement up to the time of the placement must have met the definition of aiding Tahiata in that process and for them to infer that Thrupp had the requisite state of mind.  That conclusion is also supported by the evidence expressed at [96] above.  It was not possible for Thrupp to try to rely on the boot ride hypothesis as a reasonable hypothesis consistent with innocence on the charge of murder.^[298]
135. [135]
     And as for his guilt on the offence of torture, having regard to the evidence referred to in the table at [90] above, it was certainly open to the jury to infer guilt on the basis that he was an aider pursuant to s 7(1)(b) or (c).  No argument to the contrary was advanced to this Court on behalf of Thrupp.

Further consideration – s 8 case

136. [136]
     For completeness, we will also briefly address the s 8 case in relation to the murder counts.  We do so having already explained why it was open to the jury to accept the inculpatory evidence of Harrington and Marieti.
137. [137]
     In order to establish the criminal responsibility of Thrupp pursuant to s 8 for the murders of Breton and Triscaru, the Crown would have to prove beyond reasonable doubt that –

     1. He participated with others in the subjective formation of an intention and/or entered into an intention already formed by others to detain Breton and Triscaru and place them into and keep them in a toolbox and then dispose of the toolbox with them still inside;
     2. in the prosecution of that unlawful common purpose, the offences of murder (namely the intentional killing of Breton and Triscaru) were committed by a principal offender or by principal offenders; and
     3. the intentional killing of Breton and Triscaru by the principal offender(s) was a probable consequence of the prosecution of the common unlawful purpose, when probable consequence is assessed objectively.
138. [138]
     The first element depends upon the proof of the nature of the common intention.  We conclude that it was open to the jury to find the Crown had proved the alleged common intention beyond reasonable doubt.  We reach this conclusion for the following reasons:

     1. It must first be appreciated that the alleged common intention was the antithesis of the alleged boot ride hypothesis.  That is because the alleged common intention was that a toolbox with two people locked inside would be disposed of with the people still locked inside, whereas the ultimate outcome of a boot ride is that the victims, having been sufficiently scared, will be released from where they are detained.
     2. It is true that Harrington and Marieti gave evidence supportive of the boot ride hypothesis and that they thought Breton and Triscaru would be released.  But the boot ride hypothesis was the aspect of their evidence which was the basis for their escaping being prosecuted for the same offending as the others.  In a very real sense, it was this aspect of their evidence which was the most suspect.  The jury was entitled to reject it.
     3. The question of course was not whether the evidence that Harrington and Marieti believed that the plan was to take Breton and Triscaru for a boot ride should be accepted, it was whether it was reasonably possible that the subjective common intention included the essential element of a boot ride, namely, that the victim would be released in the end.  If that was a reasonable possibility, then the Crown would not have proved the alleged common intention beyond reasonable doubt and the s 8 case would fail.
     4. The particular aspects of the violence dealt out to Breton and Triscaru and the manner of their detention did not bear the hallmarks of a boot ride.  Harrington’s remark that it was a “bit extreme though” was a gross understatement.
     5. The evidence was that Daniels was the person giving instructions and that he had a conversation with Tahiata and Thrupp in which Tahiata said “he was going to do it”.
     6. It was open to the jury to infer that the evidence concerning the cleaning up and then placing of the rubbish in the toolbox, strongly sounded against the boot ride hypothesis.  If the plan was merely to scare Breton and Triscaru and let them go there would be no need to clean up and place the evidence in the toolbox with them.  It does not seem to us that that view of the evidence is harmed by the fact that not all the rubbish was placed in the toolbox.
     7. The same could be said for the convoy of vehicles leaving the Tav.  If the plan was that Breton and Triscaru would be let free once they had been sufficiently scared, it could hardly be thought that there was a risk they would go to the police and disclose the nature of their involvement with the buying and selling of drugs and how it had led to them being tortured and taken on a boot ride.  There was no need for anyone to depart from the Tav except the people who were going to take Breton and Triscaru for a boot ride and let them go.  That everyone did depart in convoy in the circumstances revealed by the evidence was inconsistent with the boot ride hypothesis.
     8. Although the post-offence conduct earlier identified was left to the jury as demonstrating a consciousness of guilt as to the unlawful killings of both Breton and Triscaru (but not of their intentional killing) as the High Court observed in R v Baden-Clay:^[299]

“However, even if the evidence of post-offence conduct were neutral on the issue of intent, that alone would provide no basis to conclude that [the reasonable hypothesis said to be consistent with innocence] was open on the evidence led at trial.  To so conclude is to adopt an impermissible "piecemeal" approach to that evidence.  All of the circumstances established by the evidence were to be considered and weighed, not just some of them.”

9. By the time Breton and Triscaru were placed in the toolbox and locked in it for the final time, and then carried out to the HiLux to be driven away, the notion that the common intention to which at least Daniels, Thrupp, Taiao and Tahiata were party was that Breton and Triscaru would be released alive was fanciful.  It was open to the jury to be persuaded beyond reasonable doubt that the boot ride hypothesis was untenable and all those involved (particularly Daniels, Thrupp, Taiao and Tahiata) knew full well that the toolbox was going to be disposed of with Breton and Triscaru still tied up and locked inside.  In our view the only possible exception to that proposition was Walker, given his significantly reduced role when compared to the others.  We will come back to the question whether it was open to the jury to form the view that the boot ride hypothesis had been excluded beyond reasonable doubt in relation to Walker when addressing Walker’s appeal.

139. [139]
     It was certainly open to the jury to find the second element was established.  It was open to the jury to find that in the prosecution of the purpose of disposing of the toolbox with Breton and Triscaru locked inside it, the principal offender(s) fulfilled that purpose by disposing of it by intentionally killing Breton and Triscaru.  Before this Court it was argued that such a notion was flawed at law because the conduct in prosecution of the purpose was essentially the same as the purpose.  No authority was cited for that argument and it seems to us that there is no support for it in the text of the section.
140. [140]
     The only real remaining question is whether it was open to the jury to conclude that the third element had been proved beyond reasonable doubt.
141. [141]
     In considering this question it is important to recall that it follows from the fact that what is a probable consequence is to be determined objectively, that the question can be answered in the affirmative even if the possibility that the conduct actually committed would occur (namely the toolbox would be disposed of by being placed in Scrubby Creek) was not shown to have been adverted to by any participant in the common intention: see the quote from R v Keenan at [32] above.
142. [142]
     In our view the answer to the question we have posed depends upon the nature of the common intention which has been proved to have been formed.  If – as we have concluded – it was open to the jury to find that the Crown had proved beyond reasonable doubt that the common intention was that the toolbox would be disposed of with Breton and Triscaru still locked within it (rather than Breton and Triscaru being released), then the most likely outcome of that disposition (however it was actually done) was the death or grievous bodily harm of Breton and Triscaru.  On that basis it was open to conclude that the intentional killing of Breton and Triscaru by the principal offender(s) was a probable consequence of the prosecution of the unlawful purpose.
143. [143]
     The result is that it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of Thrupp on the offences of murder on the basis of the s 8 case.

Conclusion

144. [144]
     This ground of appeal fails.

Appeal ground 3: Miscarriage of justice by inadequate particulars and directions concerning requisite knowledge, belief or intent.

145. [145]
     In written submissions and oral argument in relation to ground 3, counsel for Thrupp clarified that Thrupp’s case was that the particulars were deficient in that they failed to identify the knowledge, intention or belief which rendered Thrupp criminally responsible pursuant to s 7 as an aider.  Counsel contended that the deficiency was neither remedied by the Crown during the trial nor adequately addressed in the trial by the trial judge’s directions to the jury on that issue, thereby occasioning a miscarriage of justice.

The particulars were inadequate

146. [146]
     The Crown case was particularised in a document which articulated the case advanced under s 7 and s 8 for the counts of murder in relation to each defendant.  The document advanced an introductory paragraph which related to both bases and then differentiated between the two bases by the use of two headings: “Section 7 liability” and “Section 8 liability”.  Under the first of those headings and in respect of each defendant the document then stated that the prosecution alleged that the particular defendant was a party to the murders by doing “any or all of” a number of acts identified by dot points.
147. [147]
     Thus the form of the document particularising the s 7 case was as follows^[300]:

“PARTICULARS

The prosecution alleges that [Triscaru] and [Breton] died on 24 January 2016 after being placed in a toolbox at [the Tav] and the toolbox was placed in Scrubby Creek at Kingston. Their deaths were caused by being detained in the toolbox and/or the toolbox being submerged in water. The prosecution alleges that the killing of both Triscaru and Breton was murder.

The prosecution will be presenting a case which alleges that each accused is criminally liable under either Section 7 and/or Section 8.

Section 7 Liability

The prosecution alleges that Daniels was a party to the murders of Triscaru and Breton by doing any or all of the following:-

[There followed dot points identifying the acts of aiding or counselling to which we have referred in the second column of the table at [81] above.]

The prosecution alleges that Thrupp was a party to the murders of Triscaru and Breton by doing any or all of the following:-

[There followed dot points identifying the acts to which we have referred in the second column of the table at [89] above.]

The prosecution alleges that Taiao was a party to the murders of Triscaru and Breton by doing any or all of the following:-

[There followed dot points identifying the acts to which we have referred in the second column of the table at [97] above.]

The prosecution alleges that Walker was a party to the murders of Triscaru and Breton by doing any or all of the following:-

[There followed dot points identifying the acts to which we have referred in the second column of the table at [109] above.]

148. [148]
     Although the dot points in each case referred to acts of counselling as well as acts of aiding, and the particulars do not identify which particular limb of s 7 was relied on, the Crown case was left to the jury in respect of each defendant only on the basis of aiding.
149. [149]
     The problem, however, was that the particulars document entirely overlooked the critical element of identifying the aspect of each alleged offender’s knowledge or intention which was alleged to render him liable under s 7.  The requisite state of knowledge or intention had to exist at the time of the alleged act(s) which rendered the offender liable for the offence.  It follows that the particulars were completely inadequate for their stated purpose.
150. [150]
     That inadequacy was exacerbated by the fact that the particulars advanced the proposition that each alleged offender was a party to the murders of Triscaru and Breton by doing “any or all” of the acts identified in the dot points.  This manner of phrasing the particulars has the same vice as the unfortunate proliferation of the use of “and/or” in particulars and may be criticised for the same reasons.^[301]  But more importantly, it alleges criminal responsibility as an aider for any or all acts which occurred at distinctly different times, and some of them at different places, without any identification of what knowledge or intention might have existed at those times and places.
151. [151]
     Of course, a defect in particulars will not necessarily lead to a miscarriage of justice.  What will be significant in most cases will be whether and, if so, how, the defect impacted the trial.  In this case, the problem was that the deficiencies in the particulars led to a deficiency in the way the case was left to the jury by the trial judge.

The trial judge’s opening remarks summarised the need to prove intention

152. [152]
     In his opening remarks, the trial judge gave the jury a snapshot of the elements of the offences of murder and of torture.  He then made these observations:^[302]

“Anyone who assists or encourages or counsels the person to do the criminal act may also be guilty of that offence, but only if you are satisfied beyond reasonable doubt that when the person assisted or encouraged or counselled the person who actually committed the criminal act, that person did so intending to help the person committing the criminal act knowing that that person was going to commit that offence.

A further section of our criminal law provides that if two or more people plan to do something unlawful together and in carrying out that plan an offence is committed, each of those persons is taken to have committed this offence. For the prosecution to prove a defendant guilty on that basis, it is necessary for you, the jury, to be satisfied beyond reasonable doubt that there was a common intention to prosecute an unlawful purpose, that the offence of murder was committed in the prosecution of car – of the carrying out of that purpose, and that the intentions killing of Breton and Triscaru was a probable consequence of the prosecution of that purpose.

Now, I will explain these concepts to you further, but it’s important for you to just understand what our law provides in relation to the offences that you are considering in your deliberations.”

153. [153]
     No criticism could be advanced to those observations given the purpose for which they were made.  They were, however, only introductory.

The Crown did not further clarify its case regarding intention

154. [154]
     The failure to identify the aspect of each alleged offender’s knowledge or intention which was alleged to render them liable under s 7 was not remedied by the Crown during the opening of the case at trial.  The Crown counsel made a desultory reference to intention as part of an unfocussed explanation of aiding and aiding by encouragement^[303], but did not identify any particular aspect of the intention that he intended to prove in relation to any of the alleged offenders.  He then simply summarised the narrative of the acts and omissions which each offender was said to have done and which the Crown contended would demonstrate that the alleged offenders were guilty.  The position was not improved during the closing address.
155. [155]
     It was obvious enough, however, that the defendants (who were all legally represented) were aware of the requirements of the law.  Thus:

     1. The question of intention was briefly addressed by counsel on behalf of Daniels, when he opened the case.  He pointed out that a critical part of being able to prove criminal responsibility as an aider was that “whatever they do has to be done with the knowledge that the person that they are assisting or counselling or encouraging has the intention either to kill or to cause grievous bodily harm” and submitted that the Crown case would fail against Daniels on that point.
     2. Counsel for Thrupp also made a brief opening on behalf of his client, stating that the prosecution must show that Thrupp either had an intention to kill or cause grievous bodily harm or was a party to an offence where at least one other had that intention.  He contended that intention was the primary feature in relation to Thrupp so far as the murder counts were concerned.
     3. Counsel for Taiao also made a brief opening but did not specifically address intention save to say that in order to discharge its onus the Crown would have to prove that Taiao was actually involved in the murder and torture, not merely involved in some conduct that occurred afterwards.

The directions in relation to the offences of murder

156. [156]
     The summing up addressed the provisions of s 7 in two ways.  First, the trial judge gave oral directions as to the matters which the Crown had to prove beyond reasonable doubt in order to render a defendant criminally responsible for the alleged offending.  Second, he provided the jury with a separate 5-page question trail for each defendant.  The trial judge took the jury through the question trails orally and then they were taken into the jury room.
157. [157]
     The trial judge relevantly gave oral directions to the jury that they could find each defendant guilty of murder only if satisfied beyond reasonable doubt of four things:^[304]

     1. First, that Breton and Triscaru were dead; that their deaths were caused by the toolbox in which they had been detained being submerged underwater in Scrubby Creek; that such deaths were not authorised, justified or excused by law; and that the toolbox containing them was submerged underwater intending to kill each of them.
     2. Second, that each defendant either in some way assisted the commission of the offences of murder or did an act with the purpose of assisting or enabling the commission of the offences of murder, even if that act did not in fact assist.
     3. Third, that each defendant assisted or did the act with the intention of helping the commission of the offences of murder.
     4. Fourth, that when each defendant assisted or did the act with that purpose, that defendant knew that Breton and Triscaru were placed in the toolbox and the toolbox was to be disposed of with them in it, intending that they be killed.
158. [158]
     The trial judge elaborated on the first point by explaining that it was directed towards the jury being satisfied beyond reasonable doubt that a perpetrator or perpetrators – that is the people who actually put the toolbox in the water – committed the offences of murder.^[305]  This was obviously a reference to the need for the jury to be satisfied that the offence of murder had been committed by a principal offender.
159. [159]
     The trial judge elaborated on the second point by explaining that the Crown had particularised individual acts which it said that the evidence had established were done by each defendant and which either assisted the commission of the offence of murder or which were done for the purpose of assisting or enabling the commission of that offence.  He said that it was a matter for the jury to decide whether each defendant undertook any or all of the acts which were alleged and whether the “acts assisted or were done for the purpose of assisting and enabling the commission of the offences of murder, even if the particular act did not in fact assist.”^[306]
160. [160]
     The trial judge elaborated on the third and fourth points by explaining:

“… even if [the first two points] are established on the evidence, each defendant can be found guilty of the offences of murder only if you are satisfied beyond reasonable doubt that when that defendant did any or all of the acts relied upon by the Prosecution in the case against that particular defendant, that particular defendant did so intending to help, knowing the toolbox in which Breton and Triscaru were detained was to be disposed of, intending that they be killed. If you are not satisfied that a particular defendant knew that those things were meant to be done, or if you have a reasonable doubt about it, you must find that defendant not guilty of murder.”^[307]

161. [161]
     The relevant part of the question trail for Thrupp which was left with the jury in relation to the count of the murder of Breton was as follows:

“[1] Are you satisfied beyond reasonable doubt that Breton was placed in the toolbox and the toolbox placed in Scrubby Creek with the intention that he be killed or suffer grievous bodily harm?

[2] If no to [1], your verdict is not guilty to murder but guilty of manslaughter.

[3] If yes to [1], are you satisfied beyond reasonable doubt that Thrupp, by doing any or all of the acts relied upon by the Crown in Annexure C, aided in the intentional killing of Breton?

[4] If yes to [3], your verdict will be guilty of murder.

[5] If no to [3], are you satisfied beyond reasonable doubt that Thrupp formed an intention or entered into an intention already formed by others to detain, place and keep Breton in a toolbox and then dispose of the toolbox with him in it?

[6] If yes to [5], are you satisfied beyond reasonable doubt that the intentional killing of Breton was the probable consequence of the prosecution of that purpose?

[7] If yes to [6], your verdict will be guilty of murder.

[8] If yes to [5] but no to [6], are you satisfied beyond reasonable doubt that the unlawful killing of Breton was the probable consequence of the prosecution of that purpose?

[9] Having regard to Thrupp’s pleas of guilty to manslaughter, your answer to [8] would be “yes” and your verdict will be not guilty of murder but guilty of manslaughter.

[10] Once that position is reached, there is no need for you to consider the alternate basis for finding Thrupp guilty of the manslaughter of Breton.”

162. [162]
     The “Annexure C” mentioned in question 3 was a dot point listing of the acts which the Crown had particularised.  As mentioned, we have identified those acts in the table at [89] above.
163. [163]
     The relevant part of the question trail left with the jury in relation to the count of the murder of Triscaru differed only in that her name was substituted for that of Breton.  Accordingly, it suffices to consider this ground by reference only to Breton.

Consideration

164. [164]
     Questions 1 to 4 of the question trail were framed on the basis that Thrupp’s liability was as an aider but not a principal offender.  Questions 3 and 4 frame the critical final questions the answers to which would result in a verdict guilty of murder as an aider pursuant to s 7.  Questions 5 to 9 addressed the s 8 case.
165. [165]
     Question 1 referred to intention at two different times and two different places (namely at the Tav where Breton and Triscaru were placed in the toolbox, and, later, at Scrubby Creek where the toolbox was placed in the lagoon).  But because the question was expressed in the passive voice it did so without identifying whose intention had to be considered in circumstances.  Although the use of the passive voice may legitimately be criticised for that reason, we think that in the context of this trial and the wording of question 3, it probably would have been taken to be a reference to the intention of the principal offender (ex hypothesi, on this basis, Tahiata).
166. [166]
     Question 3 then just asked the jury to consider whether Thrupp aided in the “intentional killing” “by doing any or all of the acts relied on by the Crown in Annexure C”.  The question did not specify whose intention was intended to be assessed.  Given the structure of the question trail, the jury would likely have interpreted the intentional killing as a reference to Tahiata’s intention, not that of Thrupp.  Nor was any mention made of Thrupp as aider needing to have any particular knowledge or intention at any particular time.
167. [167]
     The problem then was that without requiring any consideration at all of the existence of particular knowledge or intention of Thrupp, question 4 directed a verdict of murder if question 3 was answered in the affirmative.  That required the jury to reason in a way which was contrary to the law discussed at [18] et seq above because it did not require the jury to address the critical question whether, at the time Thrupp did the acts said to have constituted the aid, Thrupp knew that the principal offender(s) (whoever they were) intended to kill Breton or to do him grievous bodily harm or shared that intention.
168. [168]
     A question arises whether the error in the question trail should be regarded as reduced in significance in light of the fact that in his oral directions the trial judge did direct the jury concerning the need to prove the requisite state of knowledge and intent.  Thrupp’s counsel suggested there were deficiencies in the oral directions on the question of knowledge and intent because they did not articulate clearly what specific state of mind had to be proved against the defendant and when, referable to the alleged aiding acts it needed to be proved to exist.  There is a degree of merit in the submission, but it is unnecessary to address its significance.  Let it be assumed that one could reach the conclusion that the oral directions on that question were entirely satisfactory.  In our view that would not be sufficient to overcome the problem in the written question trail.
169. [169]
     The issue of the relationship between satisfactory oral directions and an unsatisfactory written question trail has been addressed by the New South Wales Court of Criminal Appeal in Hadchiti v R in the following way (emphasis added, citations omitted):^[308]

“First, the task when addressing a complaint as to a jury direction is as stated by Porter J, with the agreement of Wood and Pearce JJ, in Lin v State of Tasmania:

“[108] … [I]t is important for the Court to have regard to the overall impression which the whole summing up would have created in the minds of the jury: …. Small snippets from a summing up should not be wholly divorced from their context; questions of whether particular parts invalidate an otherwise proper summing up raise matters of fact, degree and general impression: ….”

….

We do not consider that the oral summing up, correctly emphasising the Crown’s obligation to prove beyond reasonable doubt, displaced the force of the seven-page written direction. It is not necessary to express a concluded view, but if the oral direction were considered alone, then we would very much doubt that the errors to which Mr Game pointed would have been sufficient to detract from the jurors performing their task in accordance with law. The weight of the address, considered as a whole, reiterated the obligation borne by the Crown to establish the elements of the offence beyond reasonable doubt. We would accept the Crown’s submission to that effect.

But it was the seven pages of MFI 19 which were taken into the jury room. It is to be presumed that since they commanded the jury to approach their task in a particular way (for example, If the answer to this question is no, then you must consider question 2) the jurors paid close regard to the document at the very time that they reached their verdict. That is after all what the trial judge instructed the jury to do in terms. Moreover, and decisively, to our minds, is the commonsense consideration that it would be the written document in the jury room which would decisively frame the jurors’ deliberations, as opposed to the jurors’ recollections of a lengthy oral address. We would respectfully adopt what Simpson J said of the effect of a written direction in Justins v R:

“[242] … [I]t must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions.”

…

There is a further point. In New Zealand, a jurisdiction where “question trails” of the nature of pages 2–7 of MFI 19 are more common, emphasis has been given to the importance of avoiding unnecessary length and complexity: …. In Budrodeen v R … this court emphasised the care that needs to accompany a question trail. We respectfully agree, and would add that it is important to bear in mind, especially if it be proposed to give a relatively lengthy written direction, an inevitable consequence of written directions as has been noted above. Where a direction to the jury is in part oral and in part written, then to the extent that the written document overlaps with the oral direction, the written document will tend to swamp the force of the oral direction in the jury room. It will do so because of (a) the power of the written word, (b) the fact that it is with the jury at the critical time, and (c) unlike the oral directions, it is apt to be read repeatedly.”

170. [170]
     And, more recently, in Cliff v R,^[309] Kirk JA referred with approval to Hadchiti and Lin and observed:

“The core point made in Hadchiti and related cases is that written directions are important and are likely to be relied upon by the jury. The very reason for providing them is the utility of having a document that can be reviewed and re-reviewed in the jury room. They must therefore be considered as a significant part of the context when examining whether the jury may have been led astray. In some cases, errors or infelicities in a lengthy oral address may not provide sufficient grounds to make out an appeal when viewed against what is contained in the written directions, or vice versa. Whether that is so depends upon the circumstances of the particular case. As this Court indicated in Beattie at [26], the effect of the summing up must be determined by considering the written and oral directions taken as a whole and in the context of the conduct of the trial.”

171. [171]
     We would apply the reasoning in Hadchiti and Cliff to the murder verdicts in the present case.  So far as the s 7 case was concerned this was a trial of some factual complexity, involving four defendants and the need to consider carefully whether the Crown had proved that each defendant did particular acts said to have amounted to aiding in the murder of Breton and Triscaru and whether each defendant had the requisite knowledge and intention at the time the acts were done.  The determination of the case was complicated by the fact that the acts which were likely the proximate cause of the deaths (that is placing the toolbox in the waters of a lagoon and weighing it down by concrete and tyres) were significantly removed both in time and in place from most of the alleged aiding acts.
172. [172]
     The oral directions took place for a little over an hour on a Wednesday afternoon and for a little over an hour on a Thursday morning.  There were four separate written question trails all of which were taken into the jury room.  The jury considered the matter for a little over 5 hours before returning with their verdicts.  In our view and for the reasons given the written question trail required the jury to reason in a way contrary to the law in relation to s 7 liability for murder.  The written question trail would have swamped the jury’s recollection of the oral directions concerning proof of requisite knowledge.  Whilst no objection was advanced by counsel which raised the present subject matter, it is difficult to see that there could have been any forensic justification for making that choice.  At the least the form of the directions would have been “prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict ... or 'realistically [could] have affected the verdict of guilt' ... or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial'”^[310].  In our view Thrupp has demonstrated that there was a miscarriage of justice in relation to the verdict of murder of Breton, and, it would follow, also of Triscaru.
173. [173]
     For completeness we observe that it is unnecessary to consider whether there was a similar problem in relation to those parts of the question trail which related to the s 8 case.  Even if there was not, this Court could not assume that the jury reached their guilty verdicts by reference to the s 8 path.  The relevant risk that the verdict was affected by the unsatisfactory question trail on the s 7 path would still exist.

Conclusion

174. [174]
     The consequence of finding that a miscarriage of justice occurred in relation to appeal ground 3 is that it becomes unnecessary to consider appeal grounds 2 and 4.
175. [175]
     The verdicts on the two counts of murder should be set aside and retrials ordered.

Consideration of Daniels’ appeal

The appeal grounds

176. [176]
     Daniels appeals on two grounds:

     1. Ground 1: The conviction for murder in respect of counts one and two should be set aside on the basis that it is unreasonable or cannot be supported having regard to the evidence.
     2. Ground 2: The trial Judge erred in his directions relating to post-offence conduct, in that he failed to direct the jury with respect of the offences of accessory after the fact to either murder or manslaughter, which were open on the evidence (particularly the alleged post-offence conduct evidence).
177. [177]
     Daniels also embraced the argument which had been advanced for Thrupp in relation to the directions given to the jury about knowledge, belief or intention in relation to ss 7 and 8 of the Criminal Code.  It is convenient to refer to that as his appeal ground 3.
178. [178]
     As expressed, ground 1 related only to the murder counts.  However, in written submissions in relation to that ground Daniels also submitted that he should succeed in relation to the torture counts.  We propose to treat it as though it was framed also to address those counts. It must first be considered because if it were to be made good, Daniels would be entitled to an acquittal.  Grounds 2 and 3 relate only to the murder counts.  If either were to be made good, then Daniels would be entitled to a retrial in respect of those counts.

Appeal ground 1: Verdicts unreasonable and cannot be supported

The argument

179. [179]
     Daniels argued that the evidence was insufficient to prove that he was guilty of murder.
180. [180]
     In relation to the s 7 case on the murder counts Daniels submitted:

     1. He was in Cleveland when the actual killings were said to have taken place;
     2. There was insufficient evidence to satisfy a jury beyond reasonable doubt that he had formed the relevant intent to kill;
     3. There was no evidence of contact between he and the co-accused who were said to have carried out the actual killings by placing the toolbox in the waterhole at or around the time of the actual killings.
     4. There was no evidence of statements attributable to him prior to the deaths of the deceased, or for instance during the ‘convoy’ consistent with the fact that the appellant intended to kill the two deceased or planned intentional killings.
     5. There were at least two competing hypotheses consistent with innocence that on the evidence, the jury could not have been persuaded had been excluded beyond reasonable doubt:

1. All that was intended or planned/agreed by the appellant was a “boot ride”; and
2. That those who had placed the toolbox in the waterhole had acted impulsively on a frolic of their own to dump the toolbox in the creek and that was outside any plan involving Daniels or any probable consequence of same.

181. [181]
     In relation to the s 8 case on the murder counts, Daniels submitted that there was insufficient evidence to satisfy a jury beyond reasonable doubt that the murder was an offence of such a nature that its commission was a probable consequence of the common purpose of carrying out the plan to detain, place, keep, and dispose of the two deceased in the toolbox.  He relied on the submission that the jury could not have been persuaded that the Crown had excluded the above-mentioned competing hypotheses consistent with innocence.
182. [182]
     In relation to the torture counts, he submitted -

     1. The evidence relied on with respect to the torture offences came from largely uncorroborated evidence of Harrington and Marieti; and
     2. The jury could not have been satisfied beyond a reasonable doubt that he intended his acts to inflict severe pain or suffering on Breton and Triscaru as against it not being enough that such suffering was the consequence of his acts, and that the acts were deliberate; and
     3. The medical evidence as to injuries (the broken arm and leg injury) was neutral in respect of whether or not either of the two paragraphs above was capable of proving Daniels intended his acts to inflict severe pain or suffering on Breton and Triscaru.

Consideration

183. [183]
     In our view it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of Daniels on the offences of murder and torture, at the least on the basis of the s 7 case.
184. [184]
     Daniels was not present at the time the toolbox containing Breton and Triscaru was placed in the water at Scrubby Creek.  The case against him was left to the jury that he was an aider pursuant to s 7(1)(b) or (c).  We have earlier identified how the evidence supported the Crown case of aiding and the evidence from which inferences might be drawn as to Daniels’ knowledge and intention.
185. [185]
     Having regard to that evidence, we reach the following conclusions.
186. [186]
     First, for reasons earlier expressed, it was open to the jury to accept the inculpatory aspects of the evidence of Harrington and Marieti.  That evidence alone was sufficient to justify Daniels’ guilt on the torture counts.  The contrary view was simply not arguable.
187. [187]
     Second, for reasons already expressed in relation to Thrupp it was open to the jury to conclude that the Crown had excluded beyond reasonable doubt the possibility that Daniels thought the intention was a boot ride.
188. [188]
     Third, in light of the foregoing analysis, the submissions advanced by Daniels and recorded at [180] above were not obstacles to the jury drawing the conclusion that Daniels shared the intention alleged by the Crown.
189. [189]
     Fourth, the aiding conduct supported by the evidence undoubtedly meets the definition of aiding discussed at [17] above.
190. [190]
     Fifth, whilst there is no evidence which supports the conclusion that Daniels intended that the precise manner by which the toolbox would be disposed of with Breton and Triscaru still tied up and locked inside was that it would be placed in Scrubby Creek, it seems to us that that does not matter.  It was open to the jury to conclude that the requisite intention was proved beyond reasonable doubt without the need for an additional piece of evidence of that nature.
191. [191]
     Accordingly, it was open to the jury to be satisfied beyond reasonable doubt of Daniels’ guilt as a party to the conduct of the principal offenders pursuant to s 7(1)(b) or (c) on the offences of murder.  For completeness, we would also conclude that for the reasons expressed in relation to Thrupp it was also open to the jury to find Daniels guilty of murder proved beyond reasonable doubt on the s 8 case.
192. [192]
     In our view the foregoing analysis is sufficient to justify the findings we make, but it should also be observed that if there were facts which explained or contradicted the hypothesis as to Daniels’ knowledge and intention which is to be inferred from the evidence, they were facts which were peculiarly within the knowledge of Daniels.  In R v Baden-Clay^[311], the High Court also noted:

“However, where an accused person with knowledge of the facts is silent, then as was said in Weissensteiner v The Queen:

"in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."

That passage was quoted with approval in RPS v The Queen.  The significance to be attached to what was said in Weissensteiner must be understood in its context, as explained in Azzopardi v The Queen.  Weissensteiner was not simply a case in which the accused failed to contradict direct evidence of other witnesses.  It was a case in which, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source.”

Conclusion

193. [193]
     This ground of appeal fails.

Appeal ground 3: Miscarriage of justice by inadequate particulars and directions concerning requisite knowledge, belief or intent

194. [194]
     The relevant part of the question trail for Daniels which was left with the jury in relation to the count of the murder of Breton was as follows:

“[1] Are you satisfied beyond reasonable doubt that Breton was detained and placed in a toolbox at the unit on 24 January 2016?

[2] If no, your verdict will be not guilty to murder and not guilty to manslaughter.

[3] If yes to [1], are you satisfied beyond reasonable doubt that the death of Breton on 24 January 2016 was caused by his placement in the toolbox which was itself placed in Scrubby Creek?

[4] If no to [3], your verdict will be not guilty to murder and not guilty to manslaughter.

[5] If yes to [3], are you satisfied beyond reasonable doubt that Breton was placed in the toolbox and the toolbox placed in Scrubby Creek with the intention that he be killed or suffer grievous bodily harm?

[6] If no to [5], your verdict is not guilty to murder but you must consider manslaughter.

[7] If yes to [5], are you satisfied beyond reasonable doubt that Daniels, by doing any or all of the acts relied upon by the Crown in Annexure A, aided in the intentional killing of Breton?

[8] If yes to [7], your verdict will be guilty of murder.

[9] If no to [7], are you satisfied beyond reasonable doubt that Daniels formed an intention or entered into an intention already formed by others to detain, place and keep Breton in a toolbox and then dispose of the toolbox with him in it?

[10] If yes to [9], are you satisfied beyond reasonable doubt that the intentional killing of Breton was the probable consequence of the prosecution of that purpose?

[11] If yes to [10], your verdict will be guilty of murder.

[12] If yes to [9] but no to [10], are you satisfied beyond reasonable doubt that the unintentional but unlawful killing of Breton was the probable consequence of the prosecution of that purpose?

[13] If yes to [12], your verdict will be not guilty of murder but guilty of manslaughter.

[14] If no to [9] – [12], are you satisfied beyond reasonable doubt that Daniels, by doing any or all of the acts in Annexure A, aided in the unintentional but unlawful killing of Breton?

[15] If yes to [14], your verdict will be not guilty of murder but guilty of manslaughter.

[16] If no to [14], your verdict will be not guilty of murder and not guilty of manslaughter.”

195. [195]
     The “Annexure A” mentioned in question 7 was a dot point listing of the acts which the Crown had particularised.  As mentioned, we have identified those acts in the table at [81] above.
196. [196]
     The relevant part of the question trail left with the jury in relation to the count of the murder of Triscaru differed only in that her name was substituted for that of Breton.  Accordingly, it suffices to consider this ground by reference only to Breton.

Consideration

197. [197]
     Questions 1 to 7 of the question trail were framed on the basis that Daniels’ liability for murder was as an aider but not a principal offender.  Questions 7 and 8 frame the critical final questions the answers to which would result in a verdict guilty of murder as an aider pursuant to s 7.  Questions 9 to 12 address the s 8 case.  Questions 14 to 16 address the case of aiding an unintentional but unlawful killing.
198. [198]
     Question 1 to 4 established the critical causation hypotheses.  Questions 5 and 6 then dealt with intention, but as was the case in relation to the similar questions posed in relation to Thrupp, they referred to intention at two different times and two different places (namely at the Tav where Breton and Triscaru were placed in the toolbox, and, later, at Scrubby Creek where the toolbox was placed in the lagoon).  And again because the question was expressed in the passive voice it did so without identifying whose intention had to be considered.  Indeed it is difficult to see how Question 5 could be construed as referring to Daniels’ intention, because there was no evidence he was at Scrubby Creek, so if the toolbox was placed in the water at Scrubby Creek with the intention that Breton be killed or suffer grievous bodily harm it could not have been Daniels’ intention, but must have been a reference to the intention of the principal offender (ex hypothesi, on this basis, Tahiata).
199. [199]
     Question 7 then just asked the jury to consider whether Daniels aided in the “intentional” killing “by doing any or all of the acts relied on by the Crown in Annexure A”.  The question did not specify whose intention was intended to be assessed.  Given the structure of the question trail, the jury would probably have interpreted the intentional killing as a reference to the principal offender’s intention, not that of Daniels.  Nor was any mention made of Daniels as an aider needing to have any particular knowledge or intention at any particular time.
200. [200]
     The problem then was that without requiring any consideration at all of the existence of particular knowledge or intention of Daniels, question 8 directed a verdict of murder if question 7 was answered in the affirmative.  As was the case in relation to Thrupp, that required the jury to reason in a way which was contrary to the law discussed at [18] et seq above because it did not require the jury to address the critical question whether, at the time Daniels did the acts said to have constituted the aid, Daniels knew that the principal offender(s) (whoever they were) intended to kill Breton or to do him grievous bodily harm or shared that intention.
201. [201]
     The significance of those errors must be evaluated in the same way as was done in relation to Thrupp.  The result is that in our view Daniels has demonstrated that there was a miscarriage of justice in relation to the verdict of murder of Breton, and, it would follow, also of Triscaru.

Conclusion

202. [202]
     The consequence of finding that a miscarriage of justice occurred in relation to appeal ground 3 is that it becomes unnecessary to consider appeal ground 2.
203. [203]
     The verdicts on the two counts of murder should be set aside and retrials ordered.

Consideration of Taiao’s appeal

The appeal grounds

204. [204]
     Taiao appealed on two grounds:

     1. Ground 1: That the judge at first instance erred in not excluding pages 14 to 18 of the evidence of his interview conducted by police on 3 February 2016.
     2. Ground 2: The verdicts are unreasonable and unsupported by the evidence.
     3. Taiao also embraced the argument which had been advanced for Thrupp in relation to the directions given to the jury about knowledge, belief or intention in relation to ss 7 and 8 of the Criminal Code.  It is convenient to refer to this as his appeal ground 3.
205. [205]
     Ground 2 relates to both the murder counts and the torture counts, although in his written submission on appeal, Taiao conceded that it was open for the jury to convict him of torture based on his presence without dissent up to the time that the toolbox was loaded on the HiLux.  Nevertheless, Ground 2 must first be considered because if it were to be made good, Taiao would be entitled to an acquittal on the murder counts.  Grounds 1 and 3 relate to the murder counts.  If either were to be made good, then Taiao would be entitled to a retrial in respect of those counts.

Appeal ground 2: Verdicts unreasonable and cannot be supported

206. [206]
     Taiao, like Daniels, was not present at the time the toolbox containing Breton and Triscaru was placed in the water at Scrubby Creek.  The case against him was left to the jury that he was an aider pursuant to s 7(1)(b) or (c).  We have earlier identified how the evidence supported the Crown case of aiding and the evidence from which inferences might be drawn as to Taiao’s knowledge and intention.
207. [207]
     Taiao argued that the Crown’s evidence did not exclude all reasonable hypotheses consistent with innocence.  In particular, and in relation to the s 7 case, Taiao argued that there were reasonable hypotheses that:

     1. the plan was not to kill but to take the people for a boot ride to Cleveland (and release them); and
     2. if there was a plan to kill, Taiao did not know about it until after the deaths occurred and therefore could not be said to have knowingly participating in the plan.
208. [208]
     This argument must be rejected for the same reasons as it was in relation to Daniels.  Taiao identified evidence which was said to be consistent with the boot ride hypothesis, but nothing so identified was sufficient to demonstrate that it was not open to the jury to reach the contrary view.
209. [209]
     In our view it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of Taiao on the offences of murder, for the same reasons as we have expressed in relation to Daniels’ appeal.
210. [210]
     This appeal ground fails.

Appeal ground 3: Miscarriage of justice by inadequate particulars and directions concerning requisite knowledge, belief or intent

211. [211]
     The relevant part of the question trail for Taiao which was left with the jury in relation to the count of the murder of Breton was as follows:

“[1] Are you satisfied beyond reasonable doubt that Breton was detained and placed in a toolbox at the unit on 24 January 2016?

[2] If no, your verdict will be not guilty to murder and not guilty to manslaughter.

[3] If yes to [1], are you satisfied beyond reasonable doubt that the death of Breton on 24 January 2016 was caused by his placement in the toolbox which was itself placed in Scrubby Creek?

[4] If no to [3], your verdict will be not guilty to murder and not guilty to manslaughter.

[5] If yes to [3], are you satisfied beyond reasonable doubt that Breton was placed in the toolbox and the toolbox placed in Scrubby Creek with the intention that he be killed or suffer grievous bodily harm?

[6] If no to [5], your verdict is not guilty to murder but you must consider manslaughter.

[7] If yes to [5], are you satisfied beyond reasonable doubt that Taiao, by doing any or all of the acts relied upon by the Crown in Annexure E, aided in the intentional killing of Breton?

[8] If yes to [7], your verdict will be guilty of murder.

[9] If no to [7], are you satisfied beyond reasonable doubt that Taiao formed an intention or entered into an intention already formed by others to detain, place and keep Breton in a toolbox and then dispose of the toolbox with him in it?

[10] If yes to [9], are you satisfied beyond reasonable doubt that the intentional killing of Breton was the probable consequence of the prosecution of that purpose?

[11] If yes to [10], your verdict will be guilty of murder.

[12] If yes to [9] but no to [10], are you satisfied beyond reasonable doubt that the unintentional but unlawful killing of Breton was the probable consequence of the prosecution of that purpose?

[13] If yes to [12], your verdict will be not guilty of murder but guilty of manslaughter.

[14] If no to [9] – [12], are you satisfied beyond reasonable doubt that Taiao, by doing any or all of the acts in Annexure E, aided in the unintentional but unlawful killing of Breton?

[15] If yes to [14], your verdict will be not guilty of murder but guilty of manslaughter.

[16] If no to [14], your verdict will be not guilty of murder and not guilty of manslaughter.”

212. [212]
     The “Annexure E” mentioned in question 7 was a dot point listing of the acts which the Crown had particularised.  As mentioned, we have identified those acts in the table at [97] above.
213. [213]
     The relevant part of the question trail left with the jury in relation to the count of the murder of Triscaru differed only in that her name was substituted for that of Breton.  Accordingly it suffices to consider this ground by reference only to Breton.

Consideration

214. [214]
     Questions 1 to 7 of the question trail were framed on the basis that Taiao’s liability for murder was as an aider but not a principal offender.  Questions 7 and 8 frame the critical final questions the answers to which would result in a verdict guilty of murder as an aider pursuant to s 7.  Questions 9 to 12 address the s 8 case.  And Questions 14 to 16 address the case of aiding an unintentional but unlawful killing.
215. [215]
     Question 1 to 4 established the critical causation hypotheses.  Questions 5 and 6 then dealt with intention, but as was the case in relation to the similar questions posed in relation to Thrupp, they referred to intention at two different times and two different places (namely at the Tav where Breton and Triscaru were placed in the toolbox, and, later, at Scrubby Creek where the toolbox was placed in the lagoon).  And again because the question was expressed in the passive voice it did so without identifying whose intention had to be considered.  Indeed, as was the case with Daniels, it is difficult to see how Question 5 could be construed as referring to Taiao’s intention, because there was no evidence he was at Scrubby Creek, so if the toolbox was placed in the Scrubby Creek with the intention that Breton be killed or suffer grievous bodily harm it could not have been Taiao’s intention, but must have been a reference to the intention of the principal offender (ex hypothesi, on this basis, Tahiata).
216. [216]
     Question 7 then just asked the jury to consider whether Taiao aided in the “intentional” killing “by doing any or all of the acts relied on by the Crown in Annexure E”.  The question did not specify whose intention was intended to be assessed.  Given the structure of the question trail, the jury would probably have interpreted the intentional killing as a reference to the principal offender’s intention, not that of Taiao.  Nor was any mention made of Taiao as aider needing to have any particular knowledge or intention at any particular time.
217. [217]
     The problem then was that without requiring any consideration at all of the existence of particular knowledge or intention of Taiao, Question 8 directed a verdict of murder if Question 7 was answered in the affirmative.  As was the case in relation to Thrupp and Daniels, that required the jury to reason in a way which was contrary to the law discussed at [18] et seq above because it did not require the jury to address the critical question whether, at the time Taiao did the acts said to have constituted the aid, Taiao knew that that the principal offender(s) (whoever they were) intended to kill Breton or to do him grievous bodily harm or shared that intention.
218. [218]
     The significance of those errors must be evaluated in the same way as was done in relation to Thrupp and Daniels.  The result is that in our view Taiao has demonstrated that there was a miscarriage of justice in relation to the verdict of murder of Breton, and, it would follow, also of Triscaru.

Conclusion

219. [219]
     The consequence of finding that a miscarriage of justice occurred in relation to appeal ground 3 is that it becomes unnecessary to consider appeal ground 1.
220. [220]
     The verdicts on the two counts of murder should be set aside and retrials ordered.

Consideration of Walker’s appeal

The appeal grounds

221. [221]
     Walker appealed on two grounds:

     1. Ground 1: That the verdicts are unreasonable and cannot be supported having regard to the evidence.
     2. Ground 2: The trial Judge erred in his directions relating to flight, lies and post-offence conduct.
222. [222]
     Walker also embraced the argument which had been advanced for Thrupp in relation to the directions given to the jury about knowledge, belief or intention in relation to ss 7 and 8 of the Criminal Code.  It is convenient to refer to this as his appeal ground 3.
223. [223]
     Ground 1 must first be considered because if it were to be made good, Walker would be entitled to an acquittal on each of the counts he faced.  If either ground 2 or ground 3 were to be made good, then Walker would be entitled to a retrial in respect of each count.

Appeal ground 1: Verdicts unreasonable and cannot be supported

224. [224]
     Walker, like Daniels and Taiao, was not present at the time the toolbox containing Breton and Triscaru was placed in the water at Scrubby Creek.  We have earlier identified how the evidence supported the Crown case of aiding and the evidence from which inferences might be drawn as to Walker’s knowledge and intention.
225. [225]
     To our minds the resolution of this appeal ground turns on whether it was open to the jury to conclude that the Crown had excluded beyond reasonable doubt the boot ride hypothesis in relation to Walker’s state of mind.  If it had not, then it would not have been open to the jury to conclude that he joined the particularised common intention, so s 8 would not form a pathway to guilt.  And if it had not, and it was a reasonable possibility that his state of mind was that Breton and Triscaru were to be taken on a boot ride, then it could not have been open to the jury to find that he knew the essential matters which constituted the offence of manslaughter because even on that hypothesis he needed to know that the conduct constituting the offence was occurring or would occur.  And that conduct could not include conduct which involved releasing Breton and Triscaru.
226. [226]
     The evidence reveals that Walker was present at the Tav on two occasions.  The evidence of Conroy is telling as to his state of mind when he left the Tav after the first occasion.  But notwithstanding having that state of mind he then returned to the Tav and stayed there for a little over 2 hours.  He later admitted that he had to keep his composure because the boss (namely Daniels) was there.  He interacted with Harrington when they were both in the garage.  He participated in the convoy by driving Daniels away from the Tav.  His presence was not neutral.  His voluntary and deliberate presence on that second occasion without opposition or real dissent was evidence of wilful encouragement or aiding of some unlawful activity.
227. [227]
     But the evidence does not reveal that he was party to the torture or the cleaning activities.  On the second occasion he was in the garage and had a much-reduced ability to see what was going on.  He was much further removed from the action that were the other appellants.  The notion that he might have thought that he was participating in a boot ride was not fanciful at all.  It seems to us that it was not open for the jury to conclude that that possibility was excluded beyond reasonable doubt.  It would then follow that we find that it was not open to the jury to conclude that his guilt of manslaughter was proved beyond reasonable doubt.
228. [228]
     It would follow that this appeal ground must succeed.  It was for these reasons that on 16 July 2024, we made the orders previously recorded.  In light of our conclusion it is unnecessary to consider the remaining appeal grounds.  However, because it is a ground which has succeeded in relation to the other appellants, we will, and for completeness, address appeal ground 3.

Appeal ground 3: Miscarriage of justice by inadequate particulars and directions concerning requisite knowledge, belief or intent

229. [229]
     We observe that even if we had reached a different view on appeal ground 1, appeal ground 3 would have succeeded, albeit for slightly different reasons to those expressed in relation to the other appellants.
230. [230]
     The relevant part of the question trail for Walker which was left with the jury in relation to the count of the murder of Breton was as follows:

“[1] Are you satisfied beyond reasonable doubt that Breton was detained and placed in a toolbox at the unit on 24 January 2016?

[2] If no, your verdict will be not guilty to murder and not guilty to manslaughter.

[3] If yes to [1], are you satisfied beyond reasonable doubt that the death of Breton on 24 January 2016 was caused by his placement in the toolbox which was itself placed in Scrubby Creek?

[4] If no to [3], your verdict will be not guilty to murder and not guilty to manslaughter.

[5] If yes to [3], are you satisfied beyond reasonable doubt that Breton was placed in the toolbox and the toolbox placed in Scrubby Creek with the intention that he be killed or suffer grievous bodily harm?

[6] If no to [5], your verdict is not guilty to murder but you must consider manslaughter.

[7] If yes to [5], are you satisfied beyond reasonable doubt that Walker, by doing any or all of the acts relied upon by the Crown in Annexure G, aided in the intentional killing of Breton?

[8] If yes to [7], your verdict will be guilty of murder.

[9] If no to [7], are you satisfied beyond reasonable doubt that Walker formed an intention or entered into an intention already formed by others to detain, place and keep Breton in a toolbox and then dispose of the toolbox with him in it?

[10] If yes to [9], are you satisfied beyond reasonable doubt that the intentional killing of Breton was the probable consequence of the prosecution of that purpose?

[11] If yes to [10], your verdict will be guilty of murder.

[12] If yes to [9] but no to [10], are you satisfied beyond reasonable doubt that the unintentional but unlawful killing of Breton was the probable consequence of the prosecution of that purpose?

[13] If yes to [12], your verdict will be not guilty of murder but guilty of manslaughter.

[14] If no to [9] – [12], are you satisfied beyond reasonable doubt that Walker, by doing any or all of the acts in Annexure G, aided in the unintentional but unlawful killing of Breton?

[15] If yes to [14], your verdict will be not guilty of murder but guilty of manslaughter.

[16] If no to [14], your verdict will be not guilty of murder and not guilty of manslaughter.”

231. [231]
     The “Annexure G” mentioned in question 7 was a dot point listing of the acts which the Crown had particularised.  As mentioned, we have identified those acts in the table at [109] above.
232. [232]
     The relevant part of the question trail left with the jury in relation to the count of the murder of Triscaru differed only in that her name was substituted for that of Breton.  Accordingly it suffices to consider this ground by reference only to Breton.

Consideration

233. [233]
     Questions 1 to 7 of the question trail were framed on the basis that Walker’s liability for murder was as an aider but not a principal offender.  Questions 7 and 8 frame the critical final questions the answers to which would result in a verdict guilty of murder as an aider pursuant to s 7.  Questions 9 to 12 address the s 8 case.  And Questions 14 to 16 address the case of aiding an unintentional but unlawful killing.
234. [234]
     Question 1 to 4 established the critical causation hypotheses.  Questions 5 and 6 then dealt with intention, but as was the case in relation to the similar questions posed in relation to Thrupp, they referred to intention at two different times and two different places (namely at the Tav where Breton and Triscaru were placed in the toolbox, and, later, at Scrubby Creek where the toolbox was placed in the lagoon).  And again because the question was expressed in the passive voice it did so without identifying whose intention had to be considered.  Indeed, as was the case with Daniels and Taiao, it is difficult to see how Question 5 could be construed as referring to Walker’s intention, because there was no evidence he was at Scrubby Creek, so if the toolbox was placed in the Scrubby Creek with the intention that Breton be killed or suffer grievous bodily harm it could not have been Walker’s intention, but must have been a reference to the intention of the principal offender (ex hypothesi, on this basis, Tahiata).
235. [235]
     Question 7 then just asked the jury to consider whether Walker aided in the “intentional” killing “by doing any or all of the acts relied on by the Crown in Annexure G”.  The question did not specify whose intention was intended to be assessed.  Given the structure of the question trail, the jury may well have interpreted the intentional killing as a reference to Tahiata’s intention, not that of Walker.  Nor was any mention made of Walker as aider needing to have any particular knowledge or intention at any particular time.
236. [236]
     The problem then was that without requiring any consideration at all of the existence of particular knowledge or intention of Walker, Question 8 directed a verdict of murder if Question 7 was answered in the affirmative.  As was the case in relation to Thrupp, that required the jury to reason in a way which is contrary to the law discussed at [18] et seq above because it did not require the jury to address the critical question whether, at the time Walker did the acts said to have constituted the aid, Walker knew that the principal offender(s) (whoever they were) intended to kill Breton or to do him grievous bodily harm or shared that intention.
237. [237]
     If Walker had been convicted of murder, then the significance of those errors would have had to be evaluated in the same way as was done in relation to Thrupp, Daniels and Taiao, and with the same result.  But Walker was only convicted of manslaughter.  It is difficult to see how the misdirection about appropriate reasoning in relation to counts on which he was not convicted could amount to a miscarriage of justice in relation to the count on which he was convicted.
238. [238]
     However, that cannot be an end to the analysis.  We do not know by which path the jury arrived at the verdict of manslaughter.  One possibility is that they did so by somehow proceeding via Questions 14 and 15.  In those circumstances a similar difficulty arises as arose in relation to the earlier directions.  We observe:

     1. As has been mentioned at [18] to [21] above, in order to be guilty of an offence as an aider to a principal offender the jury would have to be persuaded that at the time the defendant did the act(s) or said to have constituted the aid, the defendant knew the essential matters which constitute the offence committed by the principal offender.
     2. In the present context, the result would be that in order to establish criminal responsibility as an aider for the offence of manslaughter, the Crown would have to prove beyond reasonable doubt that at the time when Walker did the relevant act or acts which are said to have rendered him liable for manslaughter, Walker knew the essential matters which would constitute the offence of manslaughter committed by the principal offender(s) (whoever they were).
     3. The problem then is that Questions 14 and 15 do not identify what it was that Walker had to know.  In that respect it is the same error as in relation to Questions 7 and 8 and its significance must be evaluated in the same way as was done in relation to Thrupp, Daniels and Taiao.
239. [239]
     The result would have been that if we had rejected appeal ground 1, we would have formed the view that Walker has demonstrated that there was a miscarriage of justice in relation to the verdict of manslaughter of Breton, and, it would follow, also of Triscaru.  That would have justified setting aside those verdicts and ordering a retrial.

Conclusion

240. [240]
     As to Thrupp’s appeal, we would make the following orders:

     1. In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:

1. Appeal allowed.
2. Convictions set aside.
3. New trial ordered.

2. In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.

241. [241]
     As to Daniels’ appeal, we would make the following orders:

     1. In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:

1. Appeal allowed.
2. Convictions set aside.
3. New trial ordered.

2. In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.

242. [242]
     As to Taiao’s appeal, we would make the following orders:

     1. In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:

1. Appeal allowed.
2. Convictions set aside.
3. New trial ordered.

2. In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.

243. [243]
     As to Walker’s appeal, on 16 July 2024 we made the following orders:

     1. Appeal allowed.
     2. Convictions for manslaughter on counts 1 and 2 of the indictment set aside.
     3. Direct judgment and verdicts of acquittal of manslaughter on counts 1 and 2 of the indictment be entered.