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R v Torralba[2021] QSC 340

SUPREME COURT OF QUEENSLAND

CITATION:

R v Torralba [2021] QSC 340 

PARTIES:

THE QUEEN

v

NICHOLAS JAMES ANTHONY TORRALBA

(applicant)

FILE NO:

767 of 2020

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

14 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

25–26 November 2021

JUDGE:

Applegarth J

RULING:

Nicholas James Anthony Torralba has no case to answer on the indictment.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – MATTERS RELATIING TO PROOF – PRIMA FACIE CASE OR CASE TO ANSWER – GENERALLY – where three co-accused were charged with murder – where the Crown alleged the coaccused formed a plan to confront the deceased and steal his property and to use serious violence, if required – where the applicant arrived at the doorway to the room and stood there as the fatal stab wound was inflicted – where the applicant made a no case submission at the close of the Crown case – whether the evidence was capable of supporting a verdict of guilty of murder or manslaughter under s 7 or s 8 – whether the applicant has a case to answer

CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – AID, ABET, COUNSEL OR PROCURE – PRESENCE AT COMMISSION OF OFFENCE – where three co-accused were charged with murder – where the Crown alleged the co-accused formed a plan to confront the deceased and steal his property and to use serious violence, if required – where the applicant arrived at the doorway to the room and stood there as the fatal stab wound was inflicted – where the Crown alleged liability under s 7 – where the applicant made a no case submission at the close of the Crown case – whether the evidence was capable of proving that the applicant’s presence intentionally assisted, encouraged or aided the offence of murder or manslaughter, with the required knowledge – whether the evidence was capable of supporting a verdict of guilty of murder or manslaughter under ss 7(1)(b) or 7(1)(c)

CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE – GENERALLY – where three co-accused were charged with murder – where the Crown alleged the coaccused formed a plan to confront the deceased and steal his property and to use serious violence, if required – where the applicant arrived at the doorway to the room and stood there as the fatal stab wound was inflicted – where the Crown alleged liability under s 8 – where the applicant made a no case submission at the close of the Crown case – whether the evidence was capable of proving that the applicant joined in a plan with the co-accused (or one of them) to rob the deceased, with contemplation that serious violence or violence may be used – whether the evidence was capable of supporting a verdict of guilty of murder or manslaughter under s 8

Doney v The Queen (1990) 171 CLR 207, cited

Jefferies v Sturcke [1992] 2 Qd R 392, cited

May v O'Sullivan (1955) 92 CLR 654, cited

Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, cited

R v Beck [1990] 1 Qd R 30, cited

R v Bilick and Starke (1984) 36 SASR 321, cited

R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220, cited

R v Hill [2020] QSCPR 14, cited

R v Johnson & Ward; ex parte A-G (Qld) [2007] QCA 76, cited

R v Palmer [2005] QCA 2, cited

R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590, cited

R v Taylor [2021] QCA 15, cited

R v Walton and Harman [2001] QCA 309, cited

COUNSEL:

S Holt QC for the applicant

M Whitbread for the respondent

SOLICITORS:

McGinness & Associates for the applicant

Office of the Director of Public Prosecutions (Qld) for the respondent 

  1. [1]
    Mr Torralba faced trial for murder, along with his co-accused Mr Markovski and Mr Appleby.  The prosecution case was that Mr Appleby entered the deceased’s unit hoping to buy drugs on credit, and when that proved impossible became involved in a fight with Mr Frescon.  Mr Appleby armed himself with a knife or knives that he found in the unit.
  1. [2]
    During the fight between Mr Appleby and Mr Frescon, Mr Markovski ran into the unit, masked and carrying a knife.  He ran past Mr Appleby.  Mr Frescon threw a defensive punch at Mr Markovski as he approached and, at about the same time, Mr Markovski thrust his right arm, which was holding the knife, in Mr Frescon’s direction.  Mr Frescon was stabbed in the neck and the single stab wound caused him to die very quickly.
  2. [3]
    The prosecution case relating to the principal offender was that Mr Markovski stabbed Mr Frescon, and that Mr Appleby aided him by his presence and physical involvement in the fight within the unit.  Its alternative case was that if Mr Appleby killed Mr Frescon then Mr Markovski aided him by his presence and physical involvement.

The case against Mr Torralba

  1. [4]
    The prosecution case against Mr Torralba was different.  He only arrived at the doorway to the living room and stood there as the fatal stab wound was inflicted.  The formal particulars adopted the same form of words in respect of the s 7(1)(b) or (c) case of aiding as they did for the other defendants.  They alleged that Mr Torralba “by his presence and physical involvement intentionally aided enabled or otherwise encouraged” either Mr Appleby or Mr Markovski to unlawfully kill Mr Frescon and at the time he did so he knew that either or both of them intended to cause at least grievous bodily harm to Mr Frescon.  
  2. [5]
    The case as presented against Mr Torralba, however, was not one of physical involvement in a fight within the unit.  Instead, it was that his presence at the unit amounted to wilful encouragement or aiding.  The prosecution relied upon Mr Torralba’s knowledge that Mr Appleby intended to obtain illegal drugs from Mr Frescon to contend that his presence was “calculated” to assist in an assault on Mr Frescon.
  3. [6]
    The other basis upon which the prosecution sought to make Mr Torralba criminally responsible for murder or manslaughter was to allege that he formed a plan with Mr Appleby and Mr Markovski (or one of them) to prosecute an unlawful purpose, namely to confront Mr Frescon and steal his property.  The prosecution case was the plan contemplated, either expressly or by implication, that serious violence may be used against Mr Frescon in order to carry out the plan and that the murder of Mr Frescon (or, alternatively, his unlawful killing) was a probable consequence of the prosecution of that unlawful purpose.
  4. [7]
    The same formal particulars were given in respect of the separate s 8 cases against Mr Markovski and Mr Appleby.  However, the evidence presented against them in respect of a plan differed in significant respects from the evidence presented against Mr Torralba about a plan.  An important part of the prosecution cases against Mr Markovski and Mr Appleby was that a plan to rob Mr Frescon was formed by them earlier that evening when they were both on the Gold Coast and before they arranged for a friend to drive them to Brisbane.  
  5. [8]
    Mr Torralba was not at the Gold Coast.  He resided in Brisbane and knew Mr Appleby.  After arriving in Brisbane Mr Appleby and Mr Markovski went to Mr Torralba’s home, picked him up and then drove to New Farm.  From there they drove to Kelvin Grove where the driver parked the car some distance from Mr Frescon’s home.
  1. [9]
    During the drive to Kelvin Grove an important conversation occurred.  According to the driver, Mr Cassidy, he overheard Mr Appleby in the backseat say something like “we might have to just, like, you know, take the stuff off this person” to which Mr Torralba responded “we wouldn’t have to do that”.  Mr Cassidy accepted that Mr Appleby might have said “if he doesn’t give it to me, I might have to take his stuff off him”, to which Mr Torralba responded “you shouldn’t do that” or something like that.  In any case, the evidence of the conversation in the car between Mr Appleby and Mr Torralba is that Mr Torralba did not support Mr Appleby’s suggestion that if the drugs were not supplied on credit then Mr Appleby might have to take them off Mr Frescon.  Far from indicating that he was prepared to join in such a plan, the evidence indicates that Mr Torralba dissociated himself from it.  
  2. [10]
    The evidence of the conversation in the car indicated that Mr Torralba was not a party to a plan to steal drugs from Mr Frescon, let alone a plan to use serious actual violence against him to do so.  
  3. [11]
    Despite this evidence, the prosecution submitted that there remained a case against Mr Torralba under either ss 7 or 8 to convict him for murder or manslaughter.  The prosecution argued that plans and minds change and that this occurred here because Mr Torralba entered the unit knowing Mr Appleby’s intentions, such that there was a common intention “to do or be involved with violence or serious violence”.
  1. [12]
    There was, however, no evidence that Mr Torralba changed his mind and formed a plan with Mr Appleby and Mr Markovski (or one of them) to use violence or serious violence.  In addition, the evidence of the conversation in the car and Mr Torralba’s subsequent conduct does not support a reasonable inference that, at some ill-defined point, Mr Torralba changed his mind and joined in the alleged plan with Mr Appleby or Mr Markovski to confront Mr Frescon, steal his property and use serious violence, if required.
  2. [13]
    The case against Mr Torralba under s 7(1)(b) and (c) was that his conduct could not be categorised as “mere presence”.  The formal particulars unhelpfully referred to his involvement in a “joint criminal enterprise”,[1] but relied specifically on his “presence and physical involvement”. 
  3. [14]
    As noted, the case against Mr Torralba, as presented, did not concern any physical involvement in a fight.  It related to his presence.  It confronted the legal obstacle that mere presence is not enough.[2]  
  4. [15]
    The s 7 case against Mr Torralba that rested on his presence faced a fundamental factual obstacle.  The CCTV footage depicted his arrival at the scene several seconds after Mr Markovski had entered the room.  Mr Torralba stood in the vicinity of the doorway and did not enter further into the living room.  Critically, he only arrived and stood in the vicinity of the doorway at the time that Mr Markovski inflicted the fatal stab wound to the deceased’s neck.
  1. [16]
    How could his arrival and presence at that time have encouraged Mr Markovski to do the act upon which he was already engaged, particularly when he had his back to Mr Torralba and was seemingly unaware and unaffected by his presence? 
  2. [17]
    How could Mr Torralba have intended to aid the commission of an offence that occurred almost at the same time as he arrived, even assuming in the prosecution’s favour that Mr Torralba suddenly realised that Mr Markovski was about to kill Mr Frescon, rather than threaten him with a knife?  Did the timing of events mean that Mr Torralba simply could not have intentionally aided the commission of the homicide offence that was committed just as he entered the room? 

Mr Torralba’s no case submission

  1. [18]
    Mr Torralba’s submission that there was no case to answer based upon his presence was that there simply was no time for his presence to have been capable of making any difference (that is, by aiding, enabling or encouraging) the commission of the act that caused death.  He was physically just inside the entrance to the room and did nothing to assist.  He entered the room as the fatal blow was struck.  Apart from his presence not providing any encouragement to Mr Markovski who at that stage was already intent on attacking the deceased, the timing of Mr Torralba’s arrival at the scene at about the time the fatal stab wound was inflicted meant that there was no sound basis to infer that he formed an intention to provide support or encouragement to Mr Markovski to stab Mr Frescon, knowing that Mr Markovski intended to do an act or acts that killed Mr Frescon.  
  2. [19]
    These submissions about the case against Mr Torralba were made on the afternoon of 25 November 2021 during a break in the evidence when certain crime scene evidence belatedly requested by Mr Markovski was being obtained by the prosecution.  I considered the submissions and the evidence overnight.  The prosecution case closed on the morning of 26 November 2021.  A no case submission was then formally made by Mr Holt QC and the parties relied on their earlier submissions.  I then gave my decision and brief reasons to uphold the no case submission.  The need to proceed with the trial did not allow time at that point to give the fuller reasons that I had drafted.  These are my reasons.  They are published for the purpose of informing interested parties.  
  3. [20]
    The trial proceeded.  Mr Markovski was found guilty of murder.  Mr Appleby was found not guilty of murder and the jury was unable to agree on a verdict in relation to manslaughter.  His case is to be reviewed and I assume that he will face a trial for manslaughter as soon as reasonably possible early in 2022. 
  4. [21]
    In those circumstances it is important to emphasise that the case against Mr Torralba was a different case to the prosecution case against Mr Appleby.  After the case against Mr Torralba was disposed of, I instructed the jury that its disposition had no effect on the separate cases against Mr Appleby and Mr Markovski. 
  5. [22]
    I emphasise that I make no findings in these reasons about the prosecution case against Mr Appleby.  Even so, these reasons should not remain on the Court’s judgment website for more than a few weeks so as to allow interested parties to be better informed about my reasons for the decision I made on 26 November 2021.  I direct that they be taken down from that website by no later than 14 January 2022 so as to avoid any risk of prejudice to the trial against Mr Appleby.  

The elements required under s 7(1)(b) or (c) for a case against Mr Torralba

  1. [23]
    Under s 7(1)(b) and (c) a person is deemed to have taken part in committing the offence and may be charged with actually committing it if the person: 
    • does or omits to do an act for the purpose of enabling or aiding another person in committing the offence; or
    • aids another person in committing the offence.
  2. [24]
    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 that constitute the offence committed by the other person. 
  3. [25]
    Therefore, for a person to be liable under s 7(1)(b) or (c) for the offence of murder that person must have known, at the time he or she did the act to enable or aid the other person, that the act that killed the victim was done by the other person intending to cause death or grievous bodily harm.[3] 
  4. [26]
    Section 7(1)(b) requires the prosecution 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.  Section 7(1)(c) does not expressly state a similar requirement, but has been interpreted to require the prosecution to prove that the person intended to aid the other person in committing the offence.[4]
  5. [27]
    Therefore, to sustain its case against Mr Torralba under s 7(1)(b) or (c) the prosecution was required to satisfy the jury beyond reasonable doubt that: 
    1. Mr Torralba in some way assisted the perpetrator to commit the offence or did an act with the purpose of assisting or enabling him to commit the offence; and
    2. Mr Torralba assisted or did the act with the intention of assisting the perpetrator to commit the offence; and 
    3. when he assisted the perpetrator or did the act with that purpose, Mr Torralba knew the perpetrator intended to do acts that constitute the offence: acts that unlawfully kill in the case of manslaughter; and acts that unlawfully kill with an intent to cause at least grievous bodily harm in the case of murder.  
  6. [28]
    Simply stated, the prosecution case against Mr Torralba required proof beyond reasonable doubt that he had the required state of mind (intention and knowledge) at the time that he engaged in the relevant conduct.  The relevant conduct was not physical involvement in a fight with Mr Frescon.  It consisted of Mr Torralba’s presence.
  7. [29]
    Proof of mere presence at the scene will not suffice.  In a case in which the defendant’s presence is relied upon the prosecution must establish that: 
    1. (a)
      the intention behind the presence is to encourage the perpetrator to commit the offence; and
    2. (b)
      the effect of the presence is to encourage the commission of the offence.[5]
  8. [30]
    There was no direct evidence that Mr Torralba had the required intention or the required knowledge to establish the elements of criminal responsibility under s 7(1)(b) or (c).  The prosecution’s case in that regard depended wholly upon circumstantial evidence. 
  9. [31]
    In addition, the prosecution’s case against Mr Torralba under s 8 depended upon circumstantial evidence that he joined in a plan with Mr Markovski and Mr Appley (or one of them) to confront Mr Frescon and steal his property and that part of the plan was to use serious violence, if required.  There was no direct evidence that Mr Torralba was party to any such plan.
  10. [32]
    Because the prosecution’s case against Mr Torralba in respect of his intention to aid another defendant in committing the offence depended wholly or substantially upon circumstantial evidence, a finding of guilt based on s 7 would only be open if the alleged intent was not only a rational inference, but also was the only rational inference that could be drawn from the circumstances.  
  11. [33]
    Similarly, under s 8 a finding that Mr Torralba joined in the alleged plan had to be the only rational inference that could be drawn from the circumstances.  

The test on a no case submission in a case like this

  1. [34]
    If the case against Mr Torralba went to the jury then there would be a jury issue as to whether the relevant state of mind (intention and knowledge under s 7(1)(b) or (c)) or a decision to join in the alleged plan (s 8) was proven beyond reasonable doubt because it was the only rational inference that could be drawn from the circumstances.  
  2. [35]
    The issue on a no case submission is different.  The issue is whether the evidence is capable of supporting a verdict of guilty, not the jury question of whether it in fact supports a verdict of guilty beyond reasonable doubt.  
  3. [36]
    In a circumstantial case such as this, for an applicant to succeed on a no case submission the evidence must be such that the inference of guilt is incapable of being drawn beyond reasonable doubt. 
  4. [37]
    This follows from the general statement of principle in Doney v The Queen:[6] 

“[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”  

  1. [38]
    It also follows from the following statement of McPherson J (as his Honour then was) in R v Stewart; ex parte Attorney-General:[7] 

“…Only if the evidence had been such that an inference to that effect was incapable of being drawn beyond reasonable doubt could it be said that there was in law no material on which a verdict of guilty might be found; that there might remain a possible inference consistent with innocence did not serve to remove the question from the province of the jury.”

  1. [39]
    When a no case submission is made, the question of law to be decided is “whether on the evidence as it stands [the accused] could lawfully be convicted”.[8]
  2. [40]
    Applying Doney, a trial judge who is called on to rule on a no case submission must take the prosecution case at its highest.  The credibility, reliability or weight to be accorded to particular evidence are matters within the province of the jury to resolve.[9] 
  3. [41]
    Nor is it for a trial judge to consider whether a verdict of guilty returned by the jury on the evidence comprising the prosecution case might later be determined by the Court of Appeal to be unsafe or unsatisfactory. That is not the test.[10]
  4. [42]
    Evidence that has a tenuous character or an inherent weakness or vagueness should be the subject of a warning to the jury.  However, such evidence is still available to the jury for it to decide what weight should be given to it.[11] 
  5. [43]
    Burns J observed in Goldsworthy:[12] 

“… the task of the trial judge is to determine whether the evidence is capable in law of supporting a verdict of guilty. Thus, if the evidence in the Crown case is incapable of excluding all reasonable hypotheses consistent with innocence, the evidence will not be capable in law of proving the charge and there will be no case to answer in relation to it.”

  1. [44]
    That statement of principle is drawn from part of an influential judgment of King CJ in Questions of Law Reserved on Acquittal (No 2 of 1993).  King CJ went on to make an additional observation in which he attempted to put the principle in a different way.  Henry J discussed the “King rider” in R v Hill[13] and observed that it has the potential to cause confusion insofar as it may be taken to suggest that if the judge deciding a no case submission believes that there is a hypothesis consistent with innocence reasonably open on the evidence, he or she must find that there is no case to answer.  I agree with the observation of Henry J that this does not accord with the principles established in earlier authorities.  In particular, it is inconsistent with the statement of McPherson J in R v Stewart; ex parte Attorney-General quoted above.  The fact that there is an inference consistent with innocence does not remove the question from the jury.  
  2. [45]
    On a no case submission the issue is whether the evidence relied upon by the prosecution, taken at its highest, is capable of supporting a verdict of guilty.  In a case like this in which reliance is placed upon circumstantial evidence, the test is whether the prosecution is incapable of excluding all reasonable hypotheses consistent with innocence.[14]  If it is incapable of doing so the evidence will not sustain a verdict of guilty and the no case submission should be upheld. 

Distinguishing between the section 7 and the section 8 cases

  1. [46]
    In applying these principles it is necessary to: 
    1. (a)
      distinguish between the different legal bases for Mr Torralba’s alleged criminal responsibility under s 7(1)(b) or (c) and under s 8; 
    2. (b)
      appreciate that certain evidence may be relevant to each legal basis; and 
    3. (c)
      apply the test to evidence that is admissible in the case against Mr Torralba, not evidence that is admissible only in the cases against the other defendants, such as evidence of what Mr Appleby and Mr Markovski said and did when they were at the Gold Coast. 
  2. [47]
    Sections 7(1)(b) and (c), unlike s 8, did not require proof that Mr Torralba formed a “common intention” to prosecute an unlawful purpose.  The prosecution’s case against Mr Torralba under s 7(1)(b) or (c) did not require proof that Mr Torralba formed a plan with Mr Markovski and Mr Appleby (or one of them) of the kind alleged in the prosecution case under s 8, namely to confront Mr Frescon and steal his property, with part of the plan contemplating that serious violence may be used against Mr Frescon in order to carry out the plan.
  3. [48]
    The prosecution’s s 7 case had different legal elements to its s 8 case.  This is not to say, however, that the existence of the alleged plan was irrelevant to its s 7 case.  In theory, the existence of a plan may be a circumstance that is relevant to a person’s intention in being present at the scene of a crime and what the person’s presence may encourage the perpetrator to do.  The existence of a plan may be a circumstance that means that the case under s 7(1)(b) or (c) does not rest on a person’s “mere presence”.
  4. [49]
    The law firmly establishes that “mere presence” at the scene of the offence is not sufficient.  In R v Beck[15] Macrossan CJ (with whom McPherson J agreed) stated: 

“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.”

In that case, Beck’s wilful encouragement by her presence at the scene of the murder arose from her active involvement in what had gone on before in the abduction and rape of the victim.  Absent such a circumstance, one is left with a case of mere presence. 

  1. [50]
    In an earlier passage in R v Beck Macrossan CJ had stated:[16] 

“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 or a presence from which opportunity is taken can project positive encouragement and support to a principal offender.”

  1. [51]
    In Jefferies v Sturcke,[17] Dowsett J (with whom Williams and Ryan JJ agreed) explained that the first sentence of this passage, when read in context, made clear that

Macrossan CJ was “saying simply that presence may be some evidence of aiding rather than suggesting that presence is itself aiding”.  

  1. [52]
    In R v Taylor[18] Fraser JA (with whom Mullins JA and I agreed) cited the judgment of Macrossan CJ in R v Beck for the proposition that mere presence at the scene of a crime ordinarily does not amount to aiding under s 7(1)(c).  In R v Johnson & Ward; ex parte A-G (Qld) Holmes JA (as the Chief Justice then was and with whom Mullins J agreed) confirmed that the judgment of Macrossan CJ in R v Beck emphasises that “proof of mere presence at the scene of the offence will not suffice”.[19]
  2. [53]
    More generally, Macrossan CJ in R v Beck distilled the essence of criminal responsibility under s 7(1)(b) and (c) in writing:[20]

“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 aider, whatever the intention, unless support for the commission of the offence is actually provided.”

  1. [54]
    Applying those propositions to a case in which the prosecution relies upon presence, it is not possible to be an aider because one’s presence unwittingly or unintentionally provides some assistance to the offender in the commission of the offence and it is not possible to be an aider unless support for the commission of the offence is actually provided by one’s presence.
  2. [55]
    As part of its circumstantial case about the effect and intent of Mr Torralba’s presence, the prosecution relied on his earlier conduct.  It relied upon his conduct before his entry into the living room and submitted that it included his conduct in getting out of the vehicle when he might have remained in it.  The prosecution submitted that his presence at the unit was “at the very least” to obtain illegal drugs and that the inference was that he was present in case his assistance was needed.  According to the prosecution, by the time Mr Torralba arrived at the doorway he must have known that there was a violent confrontation between Mr Appleby and Mr Frescon so that his conduct could not be characterised as “mere presence”.  Instead, it was said to be “a calculated presence or a presence from which opportunity may be taken to project positive encouragement and support to the other offenders”.  
  3. [56]
    There is a crucial distinction between Mr Torralba’s involvement in a plan by Mr Appleby to obtain illegal drugs and his alleged involvement in the plan that is particularised for the purpose of s 8.  
  4. [57]
    In addition, for the purpose of s 7 it was not sufficient for the prosecution to prove that Mr Torralba intended to assist Mr Appleby to obtain illegal drugs.  The prosecution’s s 7 case required the prosecution to prove that Mr Torralba “by his presence and physical involvement intentionally aided, enabled or otherwise encouraged” the perpetrator to unlawfully kill Mr Frescon.  It required the prosecution to prove that Mr Torralba intended to aid the perpetrator in committing the relevant offence (murder or manslaughter), not the offence of obtaining illegal drugs or the offence of stealing.  The prosecution’s s 7 case also required it to prove that at the time he aided the perpetrator, Mr Torralba knew that the perpetrator intended to do acts that unlawfully killed and (in the case of the offence of murder) also knew that the perpetrator intended to cause at least grievous bodily harm.
  5. [58]
    To prove that Mr Torralba intentionally assisted the perpetrator to commit the offence of murder or manslaughter, it was open to the prosecution to rely upon circumstances that occurred before Mr Torralba came on the scene, including his involvement in a plan by Mr Appleby to obtain illegal drugs.  Proof that Mr Torralba was part of a plan to obtain illegal drugs was a relevant circumstance for the purpose of its circumstantial case in relation to s 7 concerning Mr Torralba’s intent and knowledge at the time he was present at the scene of the unlawful killing.
  6. [59]
    As for s 8, proof that Mr Torralba was a party to the particularised plan was not simply a circumstantial matter.  Proof that he formed a plan with either Mr Appleby or Mr Markovski to confront Mr Frescon and steal his property, and that the plan contemplated that serious violence may be used against Mr Frescon in order to carry out the plan, was an indispensable part of the prosecution’s case under s 8.
  7. [60]
    Against that background it is convenient to address the proposition that Mr Torralba was party to such a plan.  

Is there evidence that Mr Torralba was a party to the alleged plan?

  1. [61]
    Evidence that Mr Appleby and Mr Markovski formed a plan when they were at the Gold Coast was not admitted against Mr Torralba.  It was not suggested that anything said between them at that time was admissible against Mr Torralba according to the principles in Tripodi v The Queen[21] as applied in Ahern v The Queen.[22]
  1. [62]
    The conversation to which Mr Torralba was a party with Mr Appleby that occurred in the car somewhere between New Farm and Kelvin Grove does not show that Mr Torralba was a party to the plan particularised under s 8 or indeed any plan to steal.  Taken at its highest for the prosecution, that evidence proved that Mr Appleby intended to obtain drugs from Mr Frescon and was prepared to take them from him if that proved necessary.  A reasonable inference is that Mr Appleby was prepared to use force to do so.  The conversation in the car does not support the conclusion that Mr Torralba joined in Mr Appleby’s plan.  On the contrary, he dissociated himself from it.
  2. [63]
    At its highest for the prosecution, the evidence of the conversation in the car indicates that Mr Torralba supported Mr Appleby’s plan to obtain drugs from Mr Frescon, and that Mr Torralba did not support the idea that Mr Appleby should just take the drugs if they were not supplied on credit.  
  3. [64]
    Faced with the evidence that Mr Torralba opposed a plan by Mr Appleby to steal or to rob, the prosecution submitted in response to the no case submission that plans and minds change and that occurred here because Mr Torralba entered the unit with knowledge that violence was being used. Therefore the prosecution case about Mr Torralba being a party to the particularised plan rests not merely on his presence at the unit, but on his entry into the unit after a fight had broken out between Mr Appleby and Mr Frescon. 
  4. [65]
    It is true that Mr Torralba might have stayed outside.  However, his entry from outside, up the front stairs, through an open door and through a small anteroom to where he witnessed the fight is incapable of proving that his presence was intended to encourage Mr Appleby or Mr Markovski to commit the offence of murder or manslaughter.  
  5. [66]
    His arrival and presence is incapable of proving that he arrived with the intent required to establish responsibility under s 7, rather than with some other intention.  Such an intention would include an intent to persuade Mr Appleby to not fight (being a position consistent with the one he had taken in the car) or to diffuse the situation in some way.  
  6. [67]
    Mr Torralba’s conduct before arriving on the scene is relevant.  It includes getting out of the car, but this proved nothing on its own and added nothing to the circumstances that might support the intent required for s 7 or the common intention to prosecute the plan particularised under s 8.  Notably, after getting out of the car Mr Torralba did not accompany Mr Appleby to the unit in order to assist him in some way.  The car was parked some distance away from the unit.  It can be reasonably inferred that Mr Torralba was not in the vicinity of the stairs or front yard of Mr Frescon’s unit when Mr Frescon went to the front balcony and looked out.  Otherwise Mr Frescon presumably would have detected his presence and quite possibly closed the door.
  7. [68]
    There is no evidence that Mr Torralba accompanied Mr Markovski to the unit. He followed Mr Markovski and only entered the unit some time after Mr Markovski had done so.  When he arrived Mr Torralba stopped at the doorway to the living room.
  8. [69]
    The prosecution correctly says that plans can changed.  The difficulty is that the evidence does not support the conclusion that Mr Torralba’s plans changed and that he decided at some time or other to join the alleged plan.  
  9. [70]
    He did not join in the fight.
  10. [71]
    The existence of other explanations for Mr Torralba’s presence in the doorway of the living room does not necessarily exclude the hypothesis that his presence was part of a plan.  But the prosecution must be able to point to some evidence that he was party to such a plan.  The problem for the prosecution is that it was unable to point to any evidence that Mr Torralba changed his mind and decided to join in Mr Appleby’s plan. 
  11. [72]
    The proposition that Mr Torralba, having dissociated himself from Mr Appleby’s plan to take the drugs from Mr Frescon, changed his mind and decided to join in that plan, let alone a different plan in which serious violence was in contemplation, is speculative.  It is not a reasonable inference based on the evidence.
  12. [73]
    I conclude that, taking the evidence at its highest for the prosecution, the evidence is incapable of proving the plan particularised in the prosecution’s case beyond reasonable doubt.  It is incapable of excluding the reasonable hypothesis that Mr Torralba was not a party to that plan.  
  13. [74]
    Because the evidence is incapable of proving an essential element of the prosecution’s s 8 case beyond reasonable doubt, Mr Torralba had no case to answer in respect of the s 8 case.  
  14. [75]
    As discussed, evidence that Mr Torralba was party to a different plan, such as a plan to steal, might be a relevant circumstance in the prosecution’s s 7 case.  At its highest for the prosecution, the evidence supported a conclusion that Mr Torralba was involved in a plan to obtain drugs.  It does not support the inference that he was party to a plan to steal the drugs, let alone a plan to use serious violence to do so.  In fact, the evidence is that he dissociated himself from any plan by Mr Appleby to steal drugs from Mr Frescon.  

Is there a case to answer under s 7?

  1. [76]
    The s 7 case proceeds on a different legal basis to the s 8 case.  However, the absence of proof that Mr Torralba was party to a plan that involved stealing or violence has implications for the s 7 case.  Absent proof that Mr Torralba was party to what the particulars unhelpfully described as a “joint criminal enterprise”, the prosecution’s case was that Mr Torralba’s presence “intentionally aided, enabled or otherwise encouraged” the perpetrator to unlawfully kill Mr Frescon, and at the time he aided, enabled or otherwise encouraged the perpetrator he knew that the perpetrator intended to kill or cause grievous bodily harm to Mr Frescon (in the case of the offence of murder) or knew at the time he acted in aid that the perpetrator intended to do an act or acts that unlawfully killed. 
  2. [77]
    Is the evidence capable of proving that, by his presence, Mr Torralba intentionally aided, enabled or otherwise encouraged the perpetrator to unlawfully kill, and knew at the time he so aided the perpetrator that the perpetrator intended to commit the offence of murder or manslaughter? 
  3. [78]
    Mr Torralba’s presence was not that of a mere bystander who happened to be at the scene of a crime.  I should assume in the prosecution’s favour that Mr Torralba intended his presence to support, rather than hinder, Mr Appleby’s plan to obtain drugs.  Assuming in the prosecution’s favour that by the time he arrived at the unit, Mr Torralba had heard the fight between Mr Appleby and Mr Frescon, his presence might have been to extricate Mr Appleby from the fight rather than to assist Mr Appleby in it.  
  4. [79]
    In any event, the s 7 case against Mr Torralba in respect of the offences of murder or manslaughter was not that Mr Torralba was present in order to help Mr Appleby in some way or other.  It was not even that he intended to aid Mr Appleby to steal drugs or assault Mr Frescon.  The prosecution’s case against Mr Torralba under s 7 was that, by his presence, he intended to aid the perpetrator in committing the offence of murder (or at least manslaughter) and knew at the time he aided the perpetrator that the perpetrator intended to commit that offence.  It was not sufficient that his presence unintentionally provided some assistance or encouragement to the perpetrator in the commission of an unlawful killing.  The prosecution had to prove that Mr Torralba intended his presence to aid the commission of the offence of murder or manslaughter by the principal offender.  
  5. [80]
    The evidence demonstrated that Mr Markovski was the principal offender or perpetrator.  The CCTV footage clearly showed that Mr Frescon’s right neck was not injured before Mr Markovski stabbed him and that immediately after Mr Markovski stabbed Mr Frescon’s right neck the wound spurts blood.  
  6. [81]
    The issue then is whether Mr Torralba’s presence (irrespective of his intention) in fact encouraged Mr Markovski to stab Mr Frescon in the neck and whether Mr Torralba intended his presence to encourage Mr Markovski to commit the offence.
  7. [82]
    More precisely, on the no case application the issue is not whether Mr Torralba’s presence had that effect and was accompanied by that intent, but whether the evidence was capable of proving those elements beyond reasonable doubt.  In other words, was the prosecution incapable of excluding all reasonable hypotheses consistent with innocence?
  8. [83]
    In my view, the evidence, taken at its highest for the prosecution, was incapable of establishing the elements required under s 7(1)(b) or (c) beyond reasonable doubt. 
  9. [84]
    As previewed at the start of these reasons, a fundamental difficulty for the prosecution in proving intentional encouragement for Mr Markovski to commit the offence of murder or manslaughter is one of timing.  By the time Mr Torralba was present at the entry into the room Mr Markovski was in the process of inflicting the fatal wound.  Mr Torralba did not arrive at the scene immediately after Mr Markovski.  By the time Mr Torralba arrived Mr Markovski had his back to him.  Mr Torralba’s presence at that time (probably unknown to Mr Markovski) was incapable of aiding a fatal attack that already was in progress.  
  10. [85]
    In addition, the evidence was incapable of proving that Mr Torralba intended his presence to aid the commission of the offence of manslaughter, let alone murder. 
  11. [86]
    These conclusions are sufficient to dispose of the s 7 case against Mr Torralba.  They make it unnecessary to express a concluded view about whether Mr Torralba knew at the time he was present in the doorway that Mr Markovski intended to commit the offence of murder or manslaughter.  Things moved so quickly and unpredictably at that time that Mr Torralba probably did not grasp what Mr Markovski intended to do, other than aid Mr Appleby.  So the prosecution had difficulty in proving beyond reasonable doubt that Mr Torralba had the required knowledge at that time.
  12. [87]
    In summary, the evidence was incapable of proving beyond reasonable doubt that the effect of Mr Torralba’s presence at the scene was to encourage Mr Markovski to commit the offence of murder or manslaughter that he already was in the process of committing.  It also was incapable of proving beyond reasonable doubt that Mr Torralba’s intention in being present at the scene was to encourage the commission of either offence.  

Conclusion

  1. [88]
    The evidence, taken at its highest for the prosecution, was incapable of proving beyond reasonable doubt the elements of the prosecution s 7 case against Mr Torralba.  It was incapable of proving that his presence had the effect of encouraging Mr Markovski to stab Mr Frescon in the neck or that Mr Torralba intended that his presence would aid Mr Markovski in the commission of the offence of murder or manslaughter.
  2. [89]
    Taken at its highest for the prosecution, the evidence was incapable of proving beyond reasonable doubt that Mr Torralba joined in the plan alleged in the prosecution’s s 8 case.  
  3. [90]
    The evidence was incapable of excluding other reasonable inferences that could be drawn from the circumstances.  This was not a case in which the factual issue of whether other reasonable inferences were excluded beyond reasonable doubt had to be left to the jury.  The evidence was incapable of excluding all reasonable hypotheses consistent with innocence.
  4. [91]
    Therefore, the evidence was not capable in law of proving the prosecution case against Mr Torralba.  He had no case to answer in relation to the prosecution case against him.

Footnotes

[1]In 2005 the Court of Appeal stated that the phrase “joint criminal enterprise” is not used in the Criminal Code and adds nothing to its provisions:  R v Palmer [2005] QCA 2 at [17]. The Court followed earlier authority that the language of “joint criminal enterprise” is not usually helpful when discussing criminal liability under s 7(1)(b) or (c):  R v Walton and Harman [2001] QCA 309 at [30].

[2]See, for example, R v Johnson & Ward; ex parte A-G (Qld) [2007] QCA 76 at [35] and [48] (“Johnson”).  

[3]R v Taylor [2021] QCA 15 at [69] (“Taylor”).

[4]Ibid.

[5] See, for example, Johnson at [48].

[6](1990) 171 CLR 207 at 214–215 (“Doney”).

[7][1989] 1 Qd R 590 at 592 (Andrews CJ and Demack J agreeing).

[8]May v O'Sullivan (1955) 92 CLR 654 at 658.

[9]Doney at 214–215.

[10]Doney at 215.

[11]R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220 at [9] (“Goldsworthy”) citing Doney at 214. 

[12]Goldsworthy at [10] citing Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 at 5 per King CJ.

[13][2020] QSCPR 14 at 4. 

[14]See also the statement of King CJ in R v Bilick and Starke (1984) 36 SASR 321 at 337 that in a circumstantial case the question for the trial judge is: “On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilty of the accused?”.

[15][1990] 1 Qd R 30 at 37.

[16]Ibid.

[17][1992] 2 Qd R 392 at 395. 

[18]Taylor at [70]. 

[19]Johnson at [48].

[20]At 38.

[21](1961) 104 CLR 1.

[22](1988) 165 CLR 87.

Close

Editorial Notes

  • Published Case Name:

    R v Torralba

  • Shortened Case Name:

    R v Torralba

  • MNC:

    [2021] QSC 340

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    14 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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