R v James[2009] QSC 93

SUPREME COURT OF QUEENSLAND

1. Douglas J: At the close of the prosecution case each defendant submitted that he had no case to answer on the charge of manslaughter that each faces.  The basis of the submission was, in essence, that there was a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty; see Doney v The Queen (1990) 171 CLR 207, 214-215.  The first submission made by all defendants was that there was no evidence that any conduct of the defendants was a substantial or significant cause of Mr Amaya’s death or substantially contributed to it; see R v Sherrington and Kuchler [2001] QCA 105 at [4].  In making that submission they relied on the medical evidence called for the prosecution through a forensic pathologist, Dr Olumbe.  I shall return to his evidence later. 

2. It was also submitted for Mr James and Mr Tappin that the evidence did not establish that they provided assistance to Mr Thomas in the full knowledge of what he was alleged to have been doing, namely applying a choke hold to the deceased while all of them were restraining him on the ground outside the Royal Exchange Hotel, nor that they intended to assist, or consciously and knowingly provided assistance, in the commission of the offence alleged against Mr Thomas; see R v Sherrington and Kuchler [2001] QCA 105 at [17].  

3. Mr Fuller, for the prosecution, submitted that these were questions for the jury and needed to be set in the context of the whole of the evidence leading up to the death of Mr Amaya that was available to be considered by the jury. That evidence focussed on events at the Hotel in its beer garden and outside on the footpath where the deceased was restrained before he died. It may be useful to set it out in some detail to put these matters in their proper perspective.

4. There was evidence about the scene at the Hotel leading up to an assault by Mr Watters on Mr Horn which encouraged Mr Amaya to come to Mr Watters’ aid and attracted the attention of some security officers in or near the Royal Exchange Hotel’s beer garden, notably Mr Jay, Mr Bolland and André Carpenter. The evidence suggested that it was a reasonably busy night at the Hotel. Mr Neilsen’s evidence addressed that issue as did some of the other hotel staff. Mr Neilsen also spoke generally about the duties of security officers, their need to take into account the safety of other patrons at the Hotel and the different holds and techniques they were able to use to control unruly patrons.

5. The second episode on which the evidence focussed was when those security officers took Mr Watters and Mr Amaya in hand and directed them out of the beer garden and onto the street. During that period there was a stumble and possibly a fall involving Mr Amaya on or near the steps down from a raised area in the beer garden. Mr Watters also stumbled or fell together with the security guard leading him out ahead of Mr Amaya. Mr Amaya’s head may, before then, have been in a lock applied by a security officer. Ms Cunningham’s observation was that Mr Amaya fell while a bouncer still had him in a head lock at the steps.  That security officer was not one of the ones charged and may have been Mr Andrew Jay on some of the evidence.  Mr Amaya may have stumbled or have fallen onto the security officer accompanying Mr Watters.  He may also have attempted to punch that security officer.  Those events are captured to some extent on Ex 1, the DVD showing footage from the two security cameras, one in the lobby and one outside on High Street. 

6. Mr Bolland was one of the security officers who assisted to take Mr Amaya away from the interior of the beer garden to the footpath. He first observed Mr Jay trying to stop the fight involving Mr Watters and says that he grabbed Mr Amaya by the shirt and that another security guard came to assist him and the whole group moved downstairs. His evidence is that André Carpenter had hold of the larger man and that the smaller man grabbed at his shirt. His evidence then was that Mr Carpenter took hold of Mr Watters who was still trying to throw punches and that they fell over at the stairs with Mr Amaya being ripped from his hands. Mr Amaya went through the door first and Mr Bolland took Mr Watters outside and put him on the ground. At that stage he was still being physically aggressive and threatening to punch him. He observed Mr Tappin securing one arm of Mr Amaya, Mr Thomas on the other and Mr James at the back. Mr Jay came to his assistance in dealing with Mr Watters. He agreed in cross-examination that Mr Amaya was resisting and thrashing about when he was being removed from the premises and agreed that Mr André Carpenter pulled Mr Amaya away from him in the foyer area of the Hotel. He believed Mr Carpenter had a neck restraint on Mr Amaya in that area and dragged him backwards towards the exit onto the footpath with that neck restraint applied.

7. Mr Amaya continued to thrash and kick using his elbows and legs and struggling on the way out to the footpath. Mr Bolland’s evidence also was that a security officer should keep restraints on until the threat has gone and, even if the person being removed stops moving, it is still wise to keep the same level of restraint for some time in case the person is faking submission. He said that if patrons become unconscious the security officer should check the vital signs, try to bring the patron around and put them in a recovery position. He maintained Mr Watters under restraint for about two minutes because he was still resisting, thrashing around and threatening him. He was also concerned about other people around him potentially being harmed by Mr Watters.

8. The next sequence of events relates to what occurred on the footpath outside the Hotel with Mr Amaya. A large number of witnesses gave evidence of their recollections of the treatment of Mr Amaya outside the Hotel when he was secured and subdued on the footpath. The subsequent events after he ceased struggling when it seems likely he was unconscious and attempts were made to revive him which proved unsuccessful forms the final category of evidence that was lead through the witnesses.

9. Although there were some variances among the individual witnesses about which of the three defendants was where and the security camera footage cannot be relied upon to resolve some of those issues because of the number of people on the footpath obscuring the view, there was a consistent body of evidence to the effect that Vaughan Thomas had secured Mr Amaya’s left arm and shoulder area and Dean Tappin had secured his right arm. They placed him face down on the footpath at a stage when he was still struggling and flailing his arms and legs about. Subsequently Mr Richard James came in and secured his legs, probably by the figure four technique described by some of the witnesses which allowed him to restrain them without the application of significant force.

10. The evidence suggests that, at one stage, Mr Thomas had his right arm over the right shoulder of Mr Amaya and around his neck in a position where he may also have had his left arm under Mr Amaya’s left shoulder allowing him to hold his right hand or arm with his left hand. If that were the case it may have had its origin in a hold similar to a shoulder pin or universal vascular neck restraint which was regarded as a legitimate hold to be applied by a security officer. Mr Trenorden observed a choke hold placed on Mr Amaya before he was put on the ground but did not know who placed that hold on him. Mr Sergiacomi said that he thought that Mr Thomas’s hold was around the throat rather than with the hands clenched together under Mr Amaya’s chest. Some of the other evidence suggested that Mr Thomas’s right arm was around Mr Amaya’s neck but not in contact with his left arm. Mr Spurr’s evidence was that he could see Mr Thomas’s right hand clearly and that it was not clenched under the armpit with his left arm but was around the deceased’s neck.

11. That hold around the neck had the effect that Mr Amaya’s face was tilted up somewhat so that witnesses in front of him could see his face. There was a significant body of evidence that, at some stage during this hold on Mr Amaya, he continued to struggle for a time, that mucus or snot came out of his nose and that shortly after then he ceased to struggle. Ms Cunningham’s evidence was that the period between her observation of the mucus coming from Mr Amaya’s nose and the release of the restraints was short. Mr Nevell’s evidence was also that the hold was relaxed a little after the mucus appeared from Mr Amaya’s nose. Mr Sergiacomi expressed the view in cross-examination that the mucus could have appeared after the release of the holds on Mr Amaya.

12. The evidence suggests that the security officers would not have been able to see or at least have a good view of Mr Amaya’s face while he was being restrained in the positions described in the evidence. It seems likely that, at least while his right arm was around Mr Amaya’s neck, Mr Thomas’s head was close to the back of Mr Amaya’s head. Mr Tappin appears likely to have been in a position for a significant period when his face and body were pointed in a direction away from Mr Amaya as his back may have been up against Mr Amaya’s body and shoulder. Mr James was applying his hold at the feet of Mr Amaya.

13. The version of events placing Mr Tappin on the right of Mr Amaya and Mr Thomas on his left seems to be the most reliable based on the available video evidence and the preponderance of the oral evidence. Some witnesses had Mr Thomas and Mr Tappin in different positions, for example on the same side of Mr Amaya’s body or in the opposite position to the ones I have described. There is also evidence that Mr Thomas, at one stage, was holding Mr Amaya not around the neck but by an arm hold where his left hand was twisted up behind his back. The stage at which that hold was applied is uncertain but may have been after Mr Thomas relaxed the neck hold described by many of the witnesses. The evidence also seems to support the view that the leg hold applied by Mr James was applied after Mr Amaya was secured on the ground and was also likely to have been released before the holds on his upper body were released.

14. After the mucus appeared it seems that the restraints on Mr Amaya were relaxed. The period of the restraint appears likely, on the video evidence, to have been about two minutes or a little more.  The evidence of Ms Brown suggests that the holds had been released by 22:39:47 of the DVD when the fuzziness in the picture began.  After it was discovered, probably by Mr Tappin, that Mr Amaya was unconscious, he was placed in the recovery position and then determined attempts were made to revive him using mouth to mouth resuscitation and CPR.  The evidence is that Mr Amaya still had a pulse at this stage.  Mr James went to obtain the first aid kit and a resuscitation mask.  The ambulance was called quickly and attempts were made by ambulance staff to revive Mr Amaya but to no avail. 

15. Very few witnesses saw the whole sequence of events from the attack by Mr Watters on Mr Horn inside the beer garden to the attempts to revive Mr Amaya by Mr Tappin, the CPR administered by Mr Tappin and the nurse who was present at the Hotel and the treatment provided by the ambulance officers when they arrived.   One of the few who did see many of the events and was not affected by alcohol was the young medical student working at the Hotel, Mr Zellar.  Although he did not have all the events under observation through the whole episode he was also taken through the video in detail and was able to identify many of the relevant witnesses on it. 

16. Mr Neilson’s evidence about the difficulties associated with security officers dealing with aggressive customers was also significant. He drew attention to the need to assess their size, strength, level of aggression and of intoxication. He referred to the need to make choices extremely quickly and the danger that a small disturbance can quickly become a much bigger altercation especially when there is a large number of people present at a venue. His evidence was that it was not sensible to send people such as Mr Amaya away at the door of the Hotel and that it was useful to place him on the ground because of the possibility of more aggression from him. He said that it was preferable to take him away from the venue to avoid danger to other patrons and not to put him on his back because of the risk of further assaults by him.

17. He also said, however, that a neck restraint was a last option because it could be dangerous depending on the type of neck hold applied. He said it was preferable not to engage around the wind pipe and that one would not want to engage the Adam’s apple. He agreed when cross-examined by Mr Mulholland that a neck restraint was not a hold one would wish to apply but said that it depended on what was happening with the patron and the severity of his aggression to the security officer. He said that each security officer who had a person in a hold had to assess what he saw as to when it may be lessened or removed as if it was done too early one could lose control. In his re-examination he went into some more detail about the nature of different types of holds such as a rear naked choke hold, a guillotine hold and a sleeper hold. He also said that it was hard to assess what pressure was being applied by a security officer and that, if mucus was observed coming out of the patron’s nose, a security officer should monitor it and if he was gasping for air then give the patron air.

18. Mr Bolland could not remember having any concern about the holds he saw applied to Mr Amaya. In re-examination he said that one would never aim to render a patron unconscious and that sleeper holds had been used years ago. He described a sleeper hold as one on both sides of the neck and says that they stopped being used before May 2006.

19. Mr Jay’s evidence was characterised by inconsistency with the events shown on the video. He also gave inconsistent evidence to that first given by him to the police and with evidence he gave in the committal hearing. The evidence he gave in this Court changed from time to time, to the extent that there is a real risk that he was reconstructing what he observed rather than recalling clearly particular events. Mr Jay’s reliability is also affected by the fact that he was suffering from depression at the time and since for which he has been medicated. He gave the impression that he had been brooding on these events for some time and I formed the view that he does not now recall with reliable clarity what actually happened. His most significant evidence related to the alleged use of the head lock by Mr Thomas and his observation of Mr Amaya apparently trying to lift his mouth or face, perhaps to try to breathe while he was being secured.

20. The video appears to show Mr Jay immediately behind Mr Amaya as they come into view at or near the foot of the steps. Mr Watters appears to have been conducted into that foyer area not by Mr Jay but by another bouncer, perhaps André Carpenter. Ms Cunningham also identified Mr Jay by his number, 040, as the security person involved in the physical removal of the olive skinned man, Mr Amaya.

21. Mr Jay’s evidence about what occurred on the pavement outside was that Mr Thomas’s arms were up around Mr Amaya’s neck with his throat in the hook of his elbow. He was unable to say whether Mr Thomas had hold of his own right wrist with his left arm. He said that Mr Amaya was struggling and squirming and trying to buck a lot and also said that after 10 to 15 seconds of Mr Thomas’s hold being in place he believed that Mr Thomas lifted his forearm up and applied real constricting pressure at which Mr Amaya’s bucking slowed down. He said that Mr Thomas was holding Mr Amaya in a tight choker hold and noticed that after 15 seconds or so the bucking of Mr Amaya had stopped or slowed. He said that he was trying to lift his head up and that he was restrained after he stopped moving his chin for about another 15 seconds. He described the restraints as occurring over a period of about 45 seconds, during 10 or 15 seconds of which he was vigorously moved up and down by Mr Thomas’s arm and then after another 10 or 15 seconds he was released. He said that he did not see the holds change substantially.

22. Mr Jay also gave evidence that Mr Watters told the defendants, including Mr Thomas to get off Mr Amaya as they were hurting him. He disagreed that Mr Thomas’s left arm was under the shoulder of Mr Amaya as portrayed in Ex 8 and said that it was up over the shoulder towards the left side of the neck.

23. There was also some evidence from Mr Mackney about the training conducted for security officers. He described a number of holds that could be used and said that his firm’s employees have been told not to use choke holds. Mr Meredith was another manager of a security service who gave evidence that in recent times he had kept away from the use of neck restraints. Neither he nor Mr Mackney identified any problems with anything portrayed on the video shown to them but it did not clearly portray all the events that occurred on the footpath. Mr Green also gave evidence of a discussion including each of the defendants on 6 April 2006 where he gave demonstrations of various holds and said that the only legal and safe cardiovascular restraint was a shoulder pin.

24. Mr Mollenhauer gave evidence of Mr Amaya’s drug use. He said that he was a casual user of speed and saw him injecting speed on several occasions. On his observations Mr Amaya had been using methylamphetamines for about two years, regularly on the weekends but not during the week. His evidence was that Mr Amaya would not use the drug every single weekend, he would do so more regularly than not. By this Saturday night he had decided to stop using drugs which was one reason why they were celebrating with drinks at the Hotel. His recollection was that Mr Amaya had possibly used amphetamines a week or two before his death. He also occasionally used cannabis over the 18 months to two years before his death and usually smoked it out of a water pipe. Sometimes he would smoke cannabis and take methylamphetamine over the same weekend. He also was a cigarette smoker over the period that Mr Mollenhauer knew him. He did not regard him as an excessive drinker of alcohol having seen him intoxicated once before. This occasion, on the night of his death, he was the most affected by alcohol that Mr Mollenhauer had seen him for months. He said Mr Amaya was a man who was not into exercise.

25. On the night of the incident Mr Amaya and Mr Watters were drinking beer jugs turn and turn about from the observations of Mr Mollenhauer. He also gave evidence that the group including him and Mr Amaya would stay up on Friday and Saturday nights, subsisting on very little if any sleep before sleeping on Sunday night to go to work on Monday. He also gave evidence that Mr Amaya swallowed methylamphetamine a lot as well as injecting it.

26. Mr Watters’ evidence was not helpful in respect of the events of that night as his memory was obviously very badly affected. He was good friends with Mr Amaya having known him from school and having become better friends with him after they left school. He saw him two to three times a week. He said that on 20 May 2006 they had a few drinks at home before going out. What they drank was bourbon from cans, presumably mixed with soft drink. He agreed that they were under the influence when they arrived at the Hotel and drank beer in rounds of jugs. He had a vague memory of having been ejected from the Hotel and it appeared from his cross-examination that he had been ejected from hotels many times before. He said that Mr Amaya had not consumed anything other than alcohol that night.

27. His estimate of Mr Amaya’s methylamphetamine use was that it was not every week, perhaps once a month or less. He was not aware of him using a needle. He only very rarely saw him smoking cannabis and described him as not a big drinker at all but said that he smoked cigarettes daily.

28. Mr Amaya was described as morbidly obese, weighing 130 kgs for a height of 170 cms with a body mass index of 44. He also had scarring to the heart. There was no sign of asphyxia which led the prosecution to suggest in opening the case, that the combination of events brought on a heart attack or restricted the blood flow to Mr Amaya’s heart, that combination of events stemming from the neck restraint, the weight on his back, his size and his heart condition, leading to his death.

29. When Dr Olume gave his evidence and had been taken through the results of his examination of the deceased he was asked his opinion as to the cause of death. His answer at T11-23 ll.24-30 was not conclusive:

“I did not come to any particular cause of death.  I say the cause of death is not determined because there are multiple factors and I could not pinpoint which particular factor would have caused his death.  I would have preferred to say a constellation of findings which are difficult to disentangle, so that's why I put a cause of death is not determined.”

30. More significant were his answers at the end of his detailed cross-examination by Mr Mulholland QC at T11-60 to T11-63:

“Here you have a man who, because of his morbid obesity and his sick heart, could die at any moment?--  That's right.

Right?  You have said that the - that in your conclusion the major factors in the death were the morbid obesity and the  unhealthy heart?--  That's right.

Now, you said that the - that restraints imposed on Mr Amaya may have been factors in the death?--  That's correct.

But you could not quantify them?--  That's correct, because one could not quantify the adrenaline surge, and I cannot

really demonstrate that in post-mortem.

Now, accepting this to be the case, accepting the scenario put to you by Mr Fuller, that is to say the fact that there was this period of approximately 10 minutes after the restraints were released where Mr Amaya was alive and continued to breathe,we can therefore rule out vasovagal reflex?--  That's right.

We have ruled out the other possibilities in relation to an application of a neck hold?--  Yes.

You now were focused on the possibility of a catecholamine effect?--  That's correct.

Now, in this situation one knows, on the assumed facts, that Mr Amaya was subject to very energetic exertion inside the premises of the hotel entirely - or almost entirely due to his own efforts.  Follow what I mean?  He has intervened in a dispute, he has ended up falling down - or flinging himself down the stairs, he has struggled with the security vigorously  against the restraints being imposed upon him.  You know all that to be the case?--  That's correct, and that even compounds the problem in the sense that I don't know when the catecholamine effect comes into play.

Now, that really leads one to this conclusion inevitably, does it not, Dr Olumbe:  that so far as a catecholamine effect or factor in the death, it isn't possible to say whether such factor resulted from the exertion inside the premises or in the release of restraints on the ground outside.  Would you agree with that?--  I agree with that.

Certainly one cannot exclude as a reasonable possibility that any catecholamine effect or factor in the death was as a result of the exertion by Mr Amaya inside the premises as distinct from any release of restraints outside?--  Could you rephrase that again, please?

Yes.  Certainly one cannot exclude as a reasonable possibility that in so far as there was any catecholamine factor in the death, that that resulted from the exertion, as I've described it, of Mr Amaya inside the hotel as distinct from release of

the restraints outside?--  That's right.

Now, in the situation of such exertion inside the hotel combined with Mr Amaya's morbid obesity and his sick heart, those three influences may have been reasonably the only significant contributors to the death of Mr Amaya.  Would you agree with that?--  Excluding the restraint?

Significant contributors?--  I have difficulty with not incorporating the restraint context of it.

I'm not asking you to exclude the restraints.  I'm saying to you that in circumstances where you've referred to morbid obesity and the sick or unhealthy heart as being the major factors - that's what you told Mr Fuller?--  That's right.

I'm happy with that.

You told Mr Fuller that they were, in your view - because of all of the other matters that you referred to, you concluded that they were the major factors and other factors were lesser factors?--  That's correct.

Right.  Now, the other factor that you were referring to was really a catecholamine effect, as you've described it?--That's correct, and which I will suggest is a period of activity.

Right?--  Which includes the initial struggle within the hotel as well as the restraining component, which is also an activity, and all that will culminate with a catecholamine surge.

You're saying that you can't ignore the fact that there would have been exertion-----?--  That's right.

-----outside as well?--  That's correct.

Because that would have caused a catecholamine effect?--That's correct.

But it is correct to say that you can't apportion any - you can't quantify-----?--  That's correct.

-----the contribution made by any catecholamine effect resulting from inside as distinct from a catecholamine effect

outside?--  That's correct.

Do you agree with that?--  That's absolutely correct.

And therefore it follows, does it not, that you cannot say that the - so far as significant causes of the death was concerned, that was the morbid obesity, the unhealthy heart and the catecholamine effect from exertion inside the hotel?--

That's correct too.

Just dwelling on that so far as the exertion inside the hotel is concerned, in a situation where you have that catecholamine

effect, it isn't the case that the subject would die instantaneously as in the case of the vasovagal reflex?--  No.

So that what one may have happening here, if I can put it in as colloquial terms as I can, is that because of the condition of Mr Amaya's heart combined with his morbid obesity, combined with the exertion which we know about inside the hotel, that he was dying when he was placed on the footpath outside?--It's a possibility he was going through possibly an acute heart attack, or acute heart failure.

That is a reasonable possibility which cannot be excluded?--That's correct.

And in that situation where there has been heart failure of that kind, then you don't expect to see anything other than what you saw in relation to Mr Amaya?--  That's correct.

…

Finally, Mr Olumbe, I ask you if you agree with these propositions:  that the major or significant or substantial factors in the death of Mr Amaya were his morbid obesity and unhealthy heart?--  That's correct.

That a factor in the death was adrenaline due to exertion?--That's correct.

That you can't quantify in percentage terms that as a factor?--  That's correct.

That is adrenaline as a factor?--  That's correct.

That you can't differentiate between the adrenaline that resulted from the exertion of Mr Amaya inside the hotel and

the exertion which Mr Amaya had outside the hotel?--  That's correct.

And therefore, that you cannot say that Mr - that any restraint imposed on Mr Amaya outside the hotel was a

substantial or significant cause of death or significantly contributed to his death?--  That's correct.” (emphasis added)

31. As it is necessary for the prosecution to show that the conduct of the defendants was a substantial or significant cause of Mr Amaya’s death or substantially contributed to it, it is not surprising that the defendants argued that the evidence could not support such a conclusion.  Mr Fuller submitted, however, that the cause of death in this case was to be determined by the jury because it is a factual matter as to what the cause of death was.  He submitted they would be assisted by the original evidence of Dr Olumbe saying he did not know what the cause of death was because of the constellation of factors that he was unable to disentangle.  Mr Fuller submitted that the jury had sufficient evidence before them to enable them to determine the cause themselves. 

32. In this context he referred me to R v. Summers [1990] 1 Qd R 92 where an appeal was unsuccessful against a jury’s verdict that an appellant who savagely beat the deceased who immediately collapsed, lost consciousness and died was guilty.  On the appeal attention was drawn to evidence that the accused suffered from an intercranial aneurysm which the medical witnesses said ruptured because of the assault.  They conceded a very remote or extremely unlikely possibility of spontaneous rupture occurring at the same time as the assault which the jury must have rejected as a relevant cause of the death.  The Court of Criminal Appeal concluded that the remote possibility of spontaneous rupture did not mean that the verdict was unsafe and, in a passage at 94 on which Mr Fuller relied, drew attention to the primary role of the jury in reaching an ultimate conclusion as to the question whether the rupture of the aneurysm was caused by the assault, after taking the expert opinion evidence into account. 

33. There, however, the factual connexion between the assault and the death had been established both by the evidence of what occurred and by the medical evidence. Whether a remote possibility of another cause of death had been properly excluded was the issue. Here, it does not seem to me that the absence of satisfactory medical evidence linking the defendants’ conduct with the death of Mr Amaya can be ignored. Granted it is established that Mr Amaya was not exhibiting obvious signs of imminent death when he went to the Hotel but it has also been established that his heart was in poor shape and, because of that and his morbid obesity, he was at significant risk of a sudden death from the very type of activity he engaged in inside the Hotel.  Coupled with that is Dr Olumbe’s evidence that he could not say that any restraint imposed on Mr Amaya outside the hotel was a substantial or significant cause of death or significantly contributed to his death. 

34. Even if the jury were to reject that evidence and accept his earlier evidence that he could not identify a particular cause of death from a constellation of possibilities one is not left with any properly identified cause of death linked to the defendants that could be left to the jury. Mr Fuller argued that the evidence that Mr Amaya was struggling before the restraint, and after the restraint was released was unconscious and no longer struggling and died within minutes was sufficiently logical for the jury to determine themselves whether they considered the restraint was a significant contribution to his death. When that speculative conclusion is not supported by the prosecution’s own expert evidence, however, it seems to me that there really is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty; see Doney v The Queen.  

35. The situation is better described in the terms used by Macrossan CJ in Summers at 93 as follows:

“First, it is said that in the state of the evidence the trial judge should have taken the matter away from the jury. As to this there was undoubtedly evidence to be weighed and considered by the jury on the issue of causation. The effect of relevant aspects of this evidence will be summarised shortly. The case cannot be categorised as one where there was no evidence against the accused on a necessary issue and the trial judge acted quite properly in allowing the matter to go to the jury: see R. v. Sutton [1986] 2 Qd.R. 72 and Attorney-General’s Reference (No. 1 of 1983) [1983] 2 V.R. 410. This is not to say that there cannot be cases where the evidence led from the prosecution on a vital issue is heavily qualified by reservations expressed by the witnesses themselves or so tentatively expressed as to be barely advanced at all with the result that there is no evidence for consideration by a jury.” (emphasis added) 

36. It would not be right for the jury to be left to speculate for themselves about possible causes of death, based on the evidence of the struggle between Mr Amaya and the defendants, where the only available medical evidence dealing with the important issue does not support the conclusion they are required to reach. That they have had the advantage of hearing from all of the witnesses, unlike Dr Olumbe, does not allow them to fill in this gap in the prosecution case. Here the circumstances did not speak for themselves in establishing whether the conduct of the defendants was a substantial cause of Mr Amaya's death. One can imagine many cases where the converse would be more likely to be true, for example, where there had been a stabbing or shooting. Here, some medical or scientific evidence to link the conduct to the death was necessary, a fact recognised by the prosecution in calling Dr Olumbe. When his evidence clearly does not establish that the defendants' conduct was a substantial cause of the death then the prosecution has failed to prove a vital element of its case.

37. It is unnecessary for me to decide the further submissions for Mr James and Mr Tappin that liability had not been established against them under s 7(1)(a) or s 7(1)(c) of the Criminal Code because of the evidence suggesting that the holds applied by them were innocuous and the absence of evidence that they knew Mr Thomas was allegedly applying a choke hold.  Although the preponderance of the evidence relevant to those arguments favoured those defendants the submissions seemed to me to be more likely to deal with issues where there was evidence sufficient to go to the jury for them to assess, but I do not need to decide that. 

38. Because of the unsatisfactory nature of the evidence of the cause of death, however, I shall direct the jury to enter not guilty verdicts against each of the defendants.