R v OCP[2022] QSC 138

SUPREME COURT OF QUEENSLAND

Table of Contents

The indictment4

Overview5

The particulars8

Criminal responsibility8

The evidence – general matters9

Formal admissions9

Other evidence9

Oral testimony10

The Woodridge Group and the Gold Coast Group met on The Esplanade10

The Woodridge Group and the Gold Coast Group met again on the corner of Cavill Avenue and Surfers Paradise Boulevard15

Jack Beasley’s Group noticed the Woodridge and Gold Coast Groups at the Corner21

Jack Beasley’s Group moved to a bench while waiting for Izaiah and Rory to return from the shops/ATM23

Jack Beasley’s Group left the Corner23

The Woodridge Group decided to follow Jack Beasley’s Group along Surfers Paradise Boulevard24

The fight and its lead up25

The Gold Coast Group are told about the stabbing31

Darci confronted Maljay and HLC as they left Surfers Paradise on a tram32

The street check of Maljay and HLC32

The view32

Toxicological analysis of Jack Beasley’s blood33

My observations of the CCTV footage – up until the point at which the Woodridge Group follow Jack Beasley’s Group33

The fight, the stabbing and who saw what and when37

Statements made by the defendants39

OCP [Surname redacted] – interview40

Maljay Toala – interview42

HLC [Surname redacted] – interview48

Counsels’ closing addresses52

What I made of the defendants’ interviews58

My findings of fact60

The directions I gave myself63

The offences68

Darkan v The Queen70

Other authorities76

R v Ritchie76

R v Johnson; ex parte A-G (Qld); R v Johnson; ex parte A-G (Qld); R v Ward; ex parte A-G (Qld); R v Ward78

The Queen v Keenan79

R v Huston79

Reasoning to verdicts85

(a) An unlawful common purpose?87

(c) Was death or the doing of grievous bodily harm, objectively, a probable consequence of the unlawful common purpose?87

(b) Whether RSG acted in furtherance of the unlawful common purpose in killing Jack and doing grievous bodily harm to Ariki?91

Conclusion92

The indictment

1. [1]
   The defendants were charged on indictment with the following offences –

Count 1: That on the thirteenth day of December 2019 at Surfers Paradise in the State of Queensland, OCP, Maljay Toala and HLC, unlawfully did grievous bodily harm to Ariki Kio Waiariki-Katuke.

Count 2: That on the thirteenth day of December 2019 at Surfers Paradise in the State of Queensland, OCP, Maljay Toala and HLC, unlawfully killed Jack Phillip Beasley.

Count 3: That on the thirteenth day of December 2019 at Surfers Paradise in the State of Queensland, OCP, Maljay Toala and HLC, unlawfully did grievous bodily harm to Ariki Kio Waiariki-Katuke.

2. [2]
   They each pleaded not guilty to each offence.
3. [3]
   The trial was allocated to me.  Another judge of this Court ordered that the defendants be tried by a judge sitting without a jury. 
4. [4]
   In accordance with the law which applies to judge alone trials (Chapter division 9A, of Chapter 62, of Part 8 of the Criminal Code), I was required to apply, insofar as was practicable, the same principles of law and procedure which would have been applied had the defendants been tried by jury.  I was permitted to view a place or thing (and did so).  I was required to take into account the same warnings, instructions or information about evidence and procedure which a jury would have been required to take into account if the defendants had been tried by jury. 
5. [5]
   While a jury simply states its verdict – “guilty” or “not guilty” – I was required by law to prepare this written judgment, stating my verdicts; setting out my reasons for my verdicts; and including the principles of law which I applied, and the findings of fact which I made, to reach those verdicts. 

Overview

6. [6]
   This trial is about whether any of the three defendants are to be held criminally responsible for the unexpected, fatal, knife violence of their companion.
7. [7]
   On Friday night, 13 December 2019, Jack Beasley and his friend, Ariki Waiariki- Katuke, both aged 17, were stabbed, on Surfers Paradise Boulevard, by RSG [Surname redacted], a younger teen, who was a stranger to them. Jack died from a heart wound and Ariki suffered grievous bodily harm.
8. [8]
   RSG had travelled with four other teenagers from Woodridge to Surfers Paradise.  Three of those teenagers are the defendants before me: OCP [Surname redacted], Maljay Toala and HLC [Surname redacted].
9. [9]
   RSG brought with him a knife contained in a sheath and concealed in his tracksuit pants.  It appeared to be held in place by the waistband of his pants or underpants.
10. [10]
    The group (the “Woodridge Group”) walked around Surfers Paradise, including through the Friday night markets.  They had a barbeque at a barbeque area just up from the beach, and then “hung” briefly with another group of four young people, who were “doing “nangs”” on The Esplanade (the “Gold Coast Group”).  The Gold Coast Group included Hunter Terangi, Sarah Morgan, Isabella (Bella) Nathan and Josiah (Jizzy) Caltibiano.  (Nangs are nitrous oxide bulbs.  The evidence allowed me to infer that, when inhaled, nitrous oxide makes a user feel “high” or euphoric for a short time.)
11. [11]
    A little later that evening, the Woodridge Group met up with the Gold Coast Group again, on the corner of Cavill Avenue and Surfers Paradise Boulevard (an area which I will call “the Corner”).  The shops in that area include Royal Copenhagen Ice-Cream and Boost Juice.  They noticed Jack Beasley and his friends as they arrived at the same location.  There were some loose connections between the Gold Coast Group and Jack Beasley’s Group.  There was no connection at all between the Woodridge Group and Jack Beasley’s Group.
12. [12]
    Jack Beasley’s Group included Jack, Ariki Waiariki-Katuke, Joshua Morrison, Noah Sacco, Izaiah Kahika, Leticia Lucero, Shae Graham and Rory Atkin. 
13. [13]
    The groups congregated within metres of each other on the Corner.  There was some eye contact between them.  Bella attempted to hide from the people she knew in Jack Beasley’s Group and at one point “gave them the finger”– although no-one in Jack Beasley’s Group appeared to notice. 
14. [14]
    Jack Beasley’s Group were on their way to a party or gathering in a nearby apartment.  They’d paused at the Corner to allow two members of their group to buy cigarettes or withdraw cash.  A post-mortem analysis of Jack’s blood revealed the presence of MDMA.  It also revealed that he had previously consumed alcohol and used cocaine and was excreting those substances.
15. [15]
    Not long after Jack Beasley’s Group left the Corner to walk to the apartment, the Woodridge Group began to follow them.  The Woodridge Group had to jog, or walk at pace, and cross a road, to catch up to Jack Beasley’s Group.  The Woodridge Group were keen for a physical fight with Jack Beasley’s Group. 
16. [16]
    The Woodridge Group caught up with Jack Beasley’s Group.  Their interaction was captured on security cameras (“CCTVs”).  What I made of the CCTV footage is discussed below.  For the moment, it is enough to note that a fist fight started between the groups.  Within seconds of its starting, RSG pulled out his knife; and within no more than 30 seconds, he had “dipped” or stabbed Ariki – then Jack – then Ariki again. 
17. [17]
    RSG’s knife pierced Jack’s heart muscle, causing extreme blood loss.  Jack’s heart was unable to function, and he died from a heart attack. 
18. [18]
    RSG’s knife penetrated two centimetres into Ariki’s chest and one centimetre into his back.  Those wounds endangered Ariki’s life, but he received medical treatment and did not die.  His injuries amounted to those defined by our criminal law as “grievous bodily harm”.
19. [19]
    After Jack and Ariki were stabbed, the Woodridge Group ran off.  Not long thereafter, some of their faces were all over social media.  They were all ultimately identified and charged with relevant criminal offences.
20. [20]
    RSG has pleaded guilty to the murder of Jack Beasley and to committing, intentionally, grievous bodily harm upon Ariki Waiariki-Katuke.^[1]  Another member of the Woodridge Group, PLA [Surname redacted], has pleaded guilty to the manslaughter of Jack Beasley and unlawfully doing grievous bodily harm to Ariki Waiariki-Katuke.  RSG and PLA will be sentenced after the conclusion of this trial.
21. [21]
    The question for me was whether any of the three defendants on trial, OCP, Maljay or HLC, were criminally responsible for killing Jack or causing grievous bodily harm to Ariki, even though they did not inflict the stab wounds; expect RSG to use his knife in the fight; or intend or foresee their fight with Jack Beasley’s Group ending in death or grievous bodily harm. 
22. [22]
    The Crown alleged that the defendants were criminally responsible for Jack’s death and Ariki’s grievous bodily harm under section 8 of the Criminal Code.  That is, the Crown alleged that the defendants were liable as parties to an unlawful common purpose with RSG (and PLA [Surname redacted]) to pursue, assault and do physical harm to members of Jack Beasley’s Group; where the acts causing death and grievous bodily harm were done in furtherance of the unlawful common purpose, and death and the doing of grievous bodily harm were probable consequences of the unlawful common purpose. 
23. [23]
    The Crown framed its case on the basis that the unlawful common purpose did not involve the bringing of a weapon to the fight; or knowledge on the part of the defendants that RSG had the knife on his person. 
24. [24]
    CCTV footage of the fight was played to me at trial.  Like a jury, I was required to keep an open mind until all of the evidence was presented to me, and I had heard counsels’ addresses.  Therefore, I did not study the CCTV footage in detail during the trial.  I did not focus on the conduct of each separate defendant during the fight until I reached the point of my deliberations.  It was then that it became clear to me that Maljay and HLC (but not OCP) saw RSG holding the knife in his hand during the fight and involved themselves in the fight after seeing him so armed.  However, the Crown did not allege that – even if the unlawful common purpose in its original form did not anticipate RSG bringing his knife into the fight – Maljay, HLC and RSG were parties to an escalated common purpose which did involve the use of the knife.  Nor did the Crown allege that Maljay and HLC were criminally responsible for RSG’s actions on the basis of their encouragement of him (once he pulled out the knife) under section 7 of the Code.^[2]
25. [25]
    Thus, the critical question for me, in determining the guilt of each defendant, was whether I was satisfied beyond reasonable doubt that Jack’s death and Ariki’s grievous injuries were, objectively, probable consequences of the fight the defendants had in contemplation: namely, a fight which did not involve weapons, between young men of similar size and age, who were unknown to each other, in which the defendants did not intend or anticipate or expect to do serious harm to Jack or anyone in his group.
26. [26]
    Another question for me was whether the Crown had proved, beyond reasonable doubt, that RSG’s use of the knife in the fight was in furtherance of the common purpose: that is, whether the Crown had negated, beyond reasonable doubt, the possibility that RSG was acting completely beyond any purpose in common with the defendants.
27. [27]
    For the reasons set out in detail below, I was not satisfied, beyond reasonable doubt that a death or the infliction of grievous bodily harm were, objectively, probable consequences of the sort of fight each of the defendants had in contemplation.  Nor was I persuaded, beyond reasonable doubt, that RSG’s actions were in furtherance of the purpose the defendants shared with him.
28. [28]
    I was therefore not satisfied, beyond reasonable doubt, that the defendants bore criminal responsibility for RSG’s unexpected knife violence, causing Jack’s death and Ariki’s injuries.  It was my duty therefore to find each of the defendants “not guilty” of every count on the indictment. 
29. [29]
    In reaching verdicts in this matter, I was required to act impartially, unswayed by prejudice or emotion and I did so.  But decent members of the community observing this trial could not help but be struck by the senseless tragedy of it all, and the unsettling insight it offered into the casualisation of violence among some of our young people.

The particulars

30. [30]
    The Crown particularised the case against each defendant as follows –

Criminal liability in this matter arises pursuant to section 8 of the Criminal Code.

RSG [Surname redacted] unlawfully killed Jack Beasley and caused grievous bodily harm to Ariki Waiariki-Katuke.

The Crown contends that each of the defendants was a party to a common unlawful purpose with RSG [Surname redacted] and PLA [Surname redacted] to pursue and unlawfully assault the group which Jack Beasley and Ariki Waiariki-Katuke were a part of and cause them physical harm.

The unlawful killing of a member of that group and the infliction of grievous bodily harm to a member of that group was a probable consequence of that plan.

Criminal responsibility

31. [31]
    When a group of people embark on an unlawful common purpose, each member of the group is criminally responsible for (that is, guilty of) the criminal act or acts expressly contemplated by the unlawful common purpose and for a criminal act done by any one of them, in pursuance of the unlawful common purpose, which was a probable consequence of the unlawful common purpose. 
32. [32]
    In this trial, the Crown alleged that the defendants shared an intention to pursue and unlawfully assault and cause physical harm to the members of Jack Beasley’s Group; and that death and the infliction of grievous bodily harm were probable consequences of the prosecution of that shared intention.  A critical issue in this trial was the nature and scope of the assault each defendant had in contemplation because its nature and scope would determine its probable consequences. 
33. [33]
    I was required to find a defendant guilty of Jack Beasley’s manslaughter and Ariki Waiariki-Katuke’s grievous bodily harm if I was satisfied, beyond reasonable doubt, that –

    1. (a)
       the particular defendant and RSG [Surname redacted] and PLA [Surname redacted] formed a common intention to prosecute an unlawful purpose with each other;
    2. (b)
       RSG killed Jack and caused grievous bodily harm to Ariki in the prosecution of the unlawful common purpose; and
    3. (c)
       viewed objectively, manslaughter and the doing of grievous bodily harm were probable consequences of the prosecution of the unlawful common purpose – that is, consequences which may well have occurred, given the nature and scope of the common purpose contemplated by the particular defendant. 
34. [34]
    At the close of the Crown case, the defendants argued that they had no case to answer because of the way in which the Crown had framed or particularised its case.  They argued that it was simply not possible (almost as a matter of law) for a finder of fact to conclude that a killing, or the doing of grievous bodily harm, were probable consequences of an unlawful common purpose to pursue, assault and do physical harm without further qualification, such as “serious physical harm”; or “with knowledge that one of the parties to the unlawful common purpose had a knife”. 
35. [35]
    I gave that argument very careful thought, but was ultimately persuaded that a finder of fact, acting reasonably, could conclude that death and grievous bodily harm were probable consequences of an unlawful common purpose to pursue, assault and do physical harm, even where serious harm or the possession or use of weapons was not contemplated by the parties to the unlawful common purpose.  Of course, whether a finder of fact would so conclude, beyond reasonable doubt, would depend on the nature and scope of the assault in contemplation.

The evidence – general matters

Formal admissions

36. [36]
    The following admissions were made by the parties, jointly–

    1. (a)
       RSG [Surname redacted] unlawfully killed Jack Beasley on 13 December 2019.
    2. (b)
       RSG [Surname redacted] caused a 2 cm penetrating wound to the antero- latero chest wall of Ariki Waiariki-Katuke on 13 December 2019. That injury caused grievous bodly harm to Ariki Waiariki-Katuke.
    3. (c)
       RSG [Surname redacted] caused a 1 cm penetrating wound to the posterior chest wall of Ariki Waiariki-Katuke. That injury caused grievous bodily harm to Ariki Waiariki-Katuke.
    4. (d)
       Exhibit 5 is a compilation of CCTV footage seized by police recorded on 13 December 2019.
37. [37]
    Those admissions were sufficient proof of the facts stated therein, without the need for further evidence of those facts.

Other evidence

38. [38]
    The movements of the Woodridge Group on the Friday night, including the stabbings by RSG, were captured by CCTV cameras which were in several locations from Woodridge to Surfers Paradise.  The footage from the cameras was tendered in various forms – including (but not only) chronological compilations of footage from various cameras and slow-motion edits. 
39. [39]
    I have studied the CCTV footage of the defendants’ movements and the fight and its aftermath in detail. 
40. [40]
    The story revealed by the CCTV footage was contextualised by oral evidence from the members of the Gold Coast Group and Jack Beasley’s Group.  Although the ability of the individual young people in those groups to recall the detail of the evening varied, and although, understandably, their evidence was not perfectly consistent, their evidence, considered as a whole, in the context of the CCTV footage, produced a cohesive narrative. 
41. [41]
    Also, the Crown tendered maps of the relevant area, still photographs, recorded interviews with each of the defendants (with transcripts and the documents drawn by, or shown to, the defendants during their interviews), and recorded interviews with two witnesses who were under 16 in December 2019 (with transcripts).

Oral testimony

42. [42]
    An outline of the oral evidence of the Crown witnesses follows.  I have attempted to recite it in chronological order.^[3] 
43. [43]
    One of the matters in contest, and about which there was a lot of evidence, was whether the Woodridge Group had been talking about “hitting a lick on” – that is, robbing someone to obtain drugs or money – before their pursuit of Jack Beasley’s Group.  However, it was not alleged by the Crown that the Woodridge Group had any plans to rob a member of Jack Beasley’s Group.  In effect, the Crown alleged that the Woodridge Group were looking for a fight for the sake of it.  Arguably, although not much was made of it despite all the evidence about it, the Woodridge Group’s conversations about hitting a lick on reflected their attitude to violence, which in turn, arguably, gave some context to the nature and scope of the fight they had in contemplation.

The Woodridge Group and the Gold Coast Group met on The Esplanade

44. [44]
    Hunter was 15 years old in December 2019 and 18 at the trial.  She was a member of the Gold Coast Group.
45. [45]
    She was interviewed by police on 14 December 2019.  Her interview was recorded, and the electronic record of it was tendered under section 93A of the Evidence Act (Qld) 1977 as part of her evidence-in-chief (“93A evidence”).  A transcript of Hunter’s 93A evidence was tendered as an exhibit without objection.  She also gave oral evidence in court, covering the same ground.
46. [46]
    Hunter explained in her 93A evidence how she met the Woodridge Group and their interest in Jack Beasley’s Group.  The CCTV footage shows that the Woodridge Group spent some time at a barbeque on The Esplanade before “hanging” with the Gold Coast Group at a bench a few metres away from the barbeque.  The Gold Coast Group were “doing nangs”.  The groups separated and went their own way for a short while, before they met up again on the corner of Cavill Avenue and Surfers Paradise Boulevard.
47. [47]
    Hunter said –

[M]e, Sarah, Jizzy and Bella were walking along the beach and we’ve seen a group of boys and they approached us, we thought they were going to take our stuff because they came up to us in like a big group and um they were asking us where they could get drugs from, where they could like bash people to get drugs

and me and Bella just walked off like acting drunk acting like we didn’t know what we were talking about, we sat down for a little bit though

and then um we came, we started walking along the beach towards Cavill

48. [48]
    She explained how she and her friends knew each other, including that Josiah was Bella’s “ex”. 
49. [49]
    Hunter said nothing about “doing nangs” in her 93A evidence – but in oral evidence-in-chief, she said she and her friends were doing nangs on The Esplanade.  They’d bought them from a shop near the Q1.  They bought two boxes of 10.  She explained how the contents of the nang were consumed from a balloon.  She said that the effect of a nang on her lasted about 30 seconds.  She thought they (at least the girls) had one each while they were walking “on the road to come to the park”. 
50. [50]
    She elaborated on her first meeting the Woodridge Group in her 93A evidence.  She said –

… they just came up to us like um shit like that like they stand over us or something

And then they started talking to Jizzy

We thought that Jizzy knew them because they were like talking for a little bit with Jizzy

And they asked us for cigarettes, they asked us who they could do over for drugs like do we know anyone who sells drugs on the coast

Um I’m familiar with a few of their faces um pretty sure I’ve seen them at like parties up in Brisbane but they were saying like they’re from Mount Druitt in Sydney they were like yeah we’re originally from like Sydney but didn’t give names or where they are living now

51. [51]
    She described first seeing the Woodridge Group at the area of the barbeque and the toilets.  She said –

… they seen us girls first and they came up to us like do you guys have any cigarettes and then they seen Josiah walk behind us and then they like sort of stood back a little bit and they started talking to him and me and Isabella walked off and we sat down first

We were just sitting there and all the group of boys came up to us

And they were just like standing around us while we were sitting down

And that’s when we got up and walked after that

52. [52]
    Hunter was asked what she meant when she said the Woodridge Group were standing over her group.  She said, “Like they came up to us like in a big group like they just looked really intimidating like”.  She continued –

Cause at first they were like to us do you guys have any drugs or do you guys have any cigarettes and all that stuff and we were just like “no”.

53. [53]
    She agreed that when the Woodridge Group first approached her group they were asking where they could get drugs from or who they could bash to get drugs from.  She was asked by one of the police officers interviewing her (Plain Clothes Constable Sly) to tell him more about this and she said immediately –

So their specific words were “who can we hit a lick on” which means like bashing and then taking their stuff.

54. [54]
    She was asked who of the Woodridge Group asked who they could “hit a lick on”.  She said, “all of them”.  She said that she and Bella looked at each other; the Woodridge Group “kept on asking us”; and that’s when she and Bella walked off and sat down.  She said Josiah was talking to them.  Sarah was with him but followed the girls “a little bit after” and sat down with them. 
55. [55]
    She said that, after that, the Woodridge Group came and “surrounded” them and “telling us to “set someone up” for them”.  The Woodridge Group said that they did not know their way around and did not know anyone. 
56. [56]
    Hunter said she, Bella and Sarah walked off first (from the bench) whilst Josiah was still talking with the Woodridge Group.  Then they walked through Surfers Paradise and ultimately sat on the seats outside Woolworths (that is, the bench on the Corner).
57. [57]
    In court, she was shown CCTV footage of herself, Sarah and Bella, at a bench, on The Esplanade, not far from the barbeque (which was out of shot).  She and Sarah were sitting on the bench.  Bella was standing up.  Hunter was consuming a nang.  She thought Josiah was still with the Woodridge Group at that point in time. 
58. [58]
    She was asked whether anyone from the Woodridge Group joined the girls.  Consistently with her 93A evidence, she said one did (CCTV footage showed it was PLA).  She thought she offered him a nang.  She said, he asked whether “we” knew anyone “that he could hit a lick on”.  She said she and the girls said they didn’t.
59. [59]
    She thought that the balance of the Woodridge Group then came over (also confirmed by CCTV footage).  She said there was conversation “amongst all of us” and that “they” were asking the same thing: whether she (and her friends) could think of anyone on the coast they could hit a lick on.  She thought a few of the Woodridge Group were asking who they could hit a lick on, but she was not sure if all of them did.  She and the girls then made their way to Cavill Avenue.  In court, she could not remember whether Josiah was with them.  She said she did not hear the conversation between Josiah and the Woodridge group – although she thought the group said they’d come from “up Brisbane ways”. 
60. [60]
    Sarah was 14 and a half in December 2019.  She was 16 at trial.  An electronic record of her interview with police on 14 December 2019 was tendered as part of her evidence-in-chief, under section 93A of the Evidence Act.  A transcript of it was tendered without objection.
61. [61]
    Sarah was first asked to tell police “everything” about the stabbing at Surfers Paradise, starting at the “very beginning”.  She said –

So me and a few other friends came to Surfers

We bumped into a group of boys and they were talking to one of the boys we were hanging out with and they were asking oh can you get someone to like get us drugs blah blah blah and asking if we could like give them drugs and we said no and then me – we all went to go get food so we left them

And this was at – near the beach and they were sitting at a barbeque and then we walked off and went to go get food

And then we came near the tram stop and then they all rocked up and came next to us and Iz and all that and Jack sitting on the opposite side of us and the group of boys were sitting with us and they were asking if we um wanted a drink of anything

And then they kept on staring at the people opposite of us and then we went – we walked straight ahead we went to Macca’s and then they walked the other direction and followed those people to the IGA

And then someone told me that apparently there was a stabbing and we walked past the IGA – we saw the crime scene.

62. [62]
    She told police that Josiah was 18 and Lebanese.  She explained that one of Josiah’s mates was supposed to get an apartment for the night.  They waited for him until 9 pm but he did not come, so they went home.
63. [63]
    She explained that she first encountered the Woodridge Group while her group was walking across the beach.  She said –

the boys walked up to the barbeque and they were like “are you from Sydney” ‘cause I heard Josiah has an accent

and they started talking to Josiah

and when they came over me Bella and Hunter went and sat on the park bench like further away from them and then we walked over

and the Jizzy was just – Josiah was just talking to them

and then me Bella and Hunter wanted to go so we left and then he just followed

That was the first time we saw that group of boys.

64. [64]
    A little later, she said that when “they” first came over, “they were asking us for a ciggy”.  She said “Josiah and them were talking and they were like – he was asking where are you from and I remember one of the boys saying I’m from Cook Island and then Jizzy was like oh I’m from … Sydney and two of the other boys were like yeah we’re from [indistinct?  either Sydney or Mount Druitt]”.  She said “they” were asking her group to give them drugs, but her group did not have any.  She continued –

And they were like “do you know anyone” and we were like “no” and they were like “oh ok”.  Then they were talking about robbing people most of the night when they were talking … They were talking about like trying to get money to get drugs and like ciggies.

65. [65]
    She could not say exactly what the Woodridge Group said because she wasn’t really listening.  She was talking to Bella and Hunter, although she heard part of their conversation.
66. [66]
    She said she thought Josiah knew them because they were “hugging and stuff” but he said he’d never met them in his life. 
67. [67]
    She repeated that her group walked past the Woodridge Group at the barbeque.  She suggested that Josiah’s accent – which I observed was strong – caught the attention of the Woodridge Group and they shook his hand. 
68. [68]
    She said when she, Bella and Hunter were sitting down, “they were all” asking them for drugs or whether they knew anyone who could “gee us [the Woodridge Group] on”.  Sarah was asked what she thought they meant by that, and she said “Like … they wanted to like rob someone basically … so not like pay the person for the drugs like just take drugs off them and go”.  
69. [69]
    In her oral evidence-in-chief, Sarah said that her group had consumed nangs that evening.  She said, in effect, that she did not stay with Josiah while he was talking to the Woodridge Group.  She went and sat down on the bench next to the barbeque with Hunter and Bella.  She was not too sure whether she or one of the other girls spoke to the Woodridge Group before getting to the bench. 
70. [70]
    She said she was “pretty sure” that next, one of the Woodridge Group came up to the girls and asked them for a nang.  She could not describe the boy (obviously, PLA).  She was pretty sure they gave him their last nang and he sat down next to them and “started doing it”.  She was “pretty sure” “a couple” of the Woodridge group came up (to the girls) “and that’s when Josiah was talking to them as well”.  She could not remember what they were talking about.  She could only remember them asking Josiah where he was from. 
71. [71]
    Under cross-examination by counsel for Maljay she maintained that she was “pretty sure” that there was conversation about drugs after Josiah and the balance of the Woodridge Group joined PLA and the girls at the bench – although she gave evidence to the contrary at committal.
72. [72]
    She said she could not remember a conversation with Maljay about drugs.  She could not remember whether Maljay was present when there was a conversation about drugs at the beach – but he could have been.  She said she “mainly did not have a conversation with a lot of them”.  She was just sitting down, listening to their conversation, which included their conversation with Josiah.  She did not recall any interaction with Maljay.  Under cross-examination by counsel for HLC, she agreed that he did not say anything in particular to her at that time. 
73. [73]
    Bella was 19 at trial.  She said that the plan was for the Gold Coast Group to “do shishas” and then get an apartment with a friend, after he’d finished work.  However, they were underage and unable to purchase shishas so they walked around instead.  They bought and consumed nangs. 
74. [74]
    She saw the Woodridge Group, whom she did not know, just hanging around a table by the beach.  She said she, Hunter and Sarah sat down on a bench and one of the Woodridge Group came over and sat next to them.  Josiah had previously spoken to the Woodridge Group – but she did not hear what was said. 
75. [75]
    She could not remember what happened, or any conversation she had, with the first boy from the Woodridge Group who came over to the girls.  She remembered Josiah asking the Woodridge Group where they were from.  She thought one of them said “from Brisbane”.  She remembered Josiah giving one of them his number.
76. [76]
    She said that one of the boys asked if they knew where he could get drugs – but she could not recall who asked.  The question was asked when “everyone was there”.
77. [77]
    Josiah gave very little evidence of substance.  He was an unimpressive witness.
78. [78]
    He said he was with “that Bella girl and her friends”, Hunter and Sarah, at Surfers Paradise on 13 December 2019.  He remembered meeting a group of boys at The Esplanade but could not remember what he was doing before he met them.  He thought he was doing nangs that night.  He said he was hanging out with the boys and they had a chat.  He found out one of them was from Sydney or something.  He said there “probably” was talk about drugs that night, but he did not know “specifically” that there was.  He did not remember using drugs other than the nangs.  He was probably going to a party that night. 
79. [79]
    Under cross-examination by counsel for OCP, he was reminded of his evidence at a Crime and Corruption Commission hearing into this matter and agreed that there was “definitely not” any talk of drugs or of them robbing anybody at the beach.

The Woodridge Group and the Gold Coast Group met again on the corner of Cavill Avenue and Surfers Paradise Boulevard

80. [80]
    The Woodridge Group and the Gold Coast Group met a little later at the Corner.
81. [81]
    Sarah described her second encounter with the Woodridge Group (at the Corner) in her 93A evidence as follows –

… we were sitting near the tree and the bin and then the group of boys comes up to us and they were like “do you want a drink or anything” being nice

And then they’re like “oh do you know anyone that will give us drugs” asking again

We’re like “no we don’t” …

One of the boys pointed out a group of boys which was Jack’s group and all that and then we had no idea what was going on and one of then started like walking directly where Jack and all that were walking.

82. [82]
    In response to other questions about this second meeting, she said –

And then the boys came up to us.  We saw – because some of my friends were in that group – like one of my friend’s cousins is in that group that they were walking with and um.  Hunter and Bella were saying “oh look it’s Jack and all of them” and they caught us looking at them and they started laughing at us so we started laughing and then we were trying to set them up with the boys cause they were sitting with us but we weren’t trying to do anything.

83. [83]
    She said that Jack Beasley’s Group was about 10 steps away from her “and then the boys were looking at ‘em”.
84. [84]
    Of Jack Beasley’s Group, she said she remembered seeing Izaiah – who was her best friend’s cousin.  She said she saw Bella’s cousin, because Bella pointed him out.  She said she saw Jack, Darci and Ariki.  (Darci, Ariki’s brother, was not in fact with Jack Beasley’s Group that evening, although Sarah saw him later that night, after the stabbings.)  She said, “we were hiding from them because we did not want them near us”.  She said, “we were annoyed and mad because [indistinct] didn’t get that apartment and we were like – we didn’t know what to do”. 
85. [85]
    She said the Woodridge Group were being nice to them and asking whether they wanted a drink/Gatorade/food.  She said she was not really listening to their conversation, but they were talking about their nationalities – which is where she “got Cook Island from and Caucasian”. 
86. [86]
    She was asked whether there was any tension between the Woodridge Group and Jack Beasley’s group and she said –

A little bit [indistinct] I don’t really think that Jack’s group noticed but they walked off and they – the boys – were eyeing them while they were walking off

And um me and Bella looked at them like what’s going on

And then Josiah was like “Oh do yous wanna go get pizza” and I was like “yeah let’s go get pizza” cause I was hungry and we walked and then they started walking that way

And I got confused

I was like I would tap Bella and I was like “do you know what’s happened” and she’s like “no”.

87. [87]
    In her oral evidence-in-chief, she was asked how she became aware of, or took notice of, Jack Beasley’s Group.  She said, “The boys were asking if they could hit a lick on someone, I’m pretty sure”.  Their words were, “Do you know anyone that we could hit a lick on”.  She understood that expression to mean “rob” someone. 
88. [88]
    She said the boys asked them about someone to hit a lick on about five minutes after Jack Beasley’s Group arrived and also on the beach.  She could not say who of the Woodridge Group spoke about hitting a lick on or robbing.  She said it was probably two or three of them, but she was not too sure.  She said, in effect, that the conversation at the beach about hitting a lick on happened after others from the Woodridge Group joined PLA at the bench. 
89. [89]
    Coming back to why it was that she noticed Jack Beasley’s Group, she said –

Because one of the boys in the other group pointed out Jack’s group.  And when they said, “Like what about them?”, Bella pointed out that her cousin was in that group … So she said, “Don’t go for them because my cousin’s in that group”. 

90. [90]
    Sarah could not remember who from the Woodridge Group asked this about Jack Beasley’s Group.
91. [91]
    She thought she knew one of Jack Beasley’s Group because her friend was a cousin of that person.  She said again that after Jack Beasley’s group left the area, one of the Woodridge Group followed; then two of them; “and then they all went”. 
92. [92]
    She could not recall any conversation when Jack Beasley’s Group walked off.  She could not remember any interaction between the groups.  There was no calling out.  She could not remember any gesturing. 
93. [93]
    Under cross-examination by counsel for OCP (Mr McGuire), Sarah accepted that her account to the police in her 93A evidence was accurate.  She accepted that it included nothing about “hitting a lick on” or robbing. 
94. [94]
    Mr McGuire put certain parts of Sarah’s evidence at the committal hearing to her, intending to establish that any conversation about drugs (at the beach) occurred when only PLA was with her (and Hunter and Bella).  She said that she was pretty sure that the conversation about drugs happened when the other boys were with them.  It was put to her that it might have been before the rest of the group walked over to her and she said “I’m not too sure.  Maybe.  It might.  I’m not honestly quite sure”. 
95. [95]
    She was taken by Mr McGuire to her statement to police that “they all” were asking whether they (the Gold Coast Group) knew anyone who could “Gee” them on and confirmed that “Gee” was short for “getting” them on and had nothing to do with robbing anyone.  However she added, “but later that term was used”. 
96. [96]
    She agreed that it was possible that any talk about drugs (during her second encounter with the Woodridge Group) took place before Jack Beasley’s Group arrived. 
97. [97]
    She was questioned with a view to establishing that the first time she’d said that Bella told the Woodridge Group not to do anything to Jack Beasley’s Group because it included her cousin was in the witness box, but she maintained that her testimony was correct, as follows –

MR MCGUIRE:  Can I suggests today’s the first time you’ve said that, about Bella saying, “You can’t hit them up, because one of them’s my cousin”? --- I’m pretty sure I said that in my statement. 

All right.  Have you – you’ve, obviously, spoken to the other girls at some point about all of this? --- Yeah.

Okay? --- But Bella said something about Jack Beasley’s group to those boys that came up to us and saying not to go near them, at one point.

98. [98]
    She agreed that Josiah became friends with the Woodridge Group and that he was the one who was mostly talking to them.  The girls were largely chatting among themselves. 
99. [99]
    She agreed that Bella was trying to hide from her cousin at one point, because she did not want to get in trouble from her mother for being out. 
100. [100]
     Sarah explained in her 93A evidence that the Woodridge Group followed Jack Beasley’s Group as they walked down towards the IGA “like straight after”. 
101. [101]
     She explained that, when she said the Woodridge Group were eyeing Jack Beasley’s Group off, –

They were like death staring at them like – looking at their clothes and looking at their shoes and looking at what they had

…

Then they – one of them – two of them started walking off and then they all followed and then one of the boys who was sitting down and then he didn’t know what was happening, so he got left behind and then he started running and then I saw him running and that’s why [indistinct] I tapped Bella and I was like “why is he running”.

102. [102]
     She was asked what two people followed to start with.  She said “two of the FOBS”.  One of those two was in “trackies and a black hoodie”.  She forgot what the other one was wearing.  She said, “I’m pretty sure one of them told like the rest to come so they all followed”.
103. [103]
     She said she saw one of the boys running, because he had been left behind.  She agreed that that was when she tapped Bella and was like “do you know what’s happening”.  She said, “It looks like weird if they’re following our mates and then he’s running”.  She said Bella said, “he’s probably just running to catch up to the group”.  She said she was “like ok” and did not think anything of it. 
104. [104]
     Asked later about what she thought the Woodridge Group were doing when they were looking at the clothes et cetera of the members of Jack Beasley’s Group, she said, “like they were looking like if they had anything valuable like to take off them or anything” but “we didn’t think much of it”: “like we thought they were gonna do nothing”. 
105. [105]
     She said, when she asked Bella what was going on, she (Sarah) “thought they were gonna get hurt” so she was worried.  She was asked why she thought Jack Beasley’s group were going to get hurt and she said, “because the boys walked after them … that’s a little bit weird”.  She said Bella told her they (the Woodridge Group) would not do anything because there was 10 of Jack Beasley’s Group and only six of the Woodridge group. 
106. [106]
     Under cross-examination, she agreed that she had noticed only a bit of staring between the Woodridge Group and Jack Beasley’s group which she did not think anything of at the time.  She was shocked to hear that there had been an incident in which two boys were stabbed.  She agreed that, on social media, there were accusations that she and her friends had set it up and Bella received threats.  She agreed that she was concerned that it may have looked like they set it up.  She agreed that she wanted everyone to know that she did not really know the Woodridge Group. 
107. [107]
     She denied that her telling police that the Woodridge Group were looking at the clothes or shoes of the members of Jack Beasley’s Group was “something she got in her head” after learning about the stabbing.  It was suggested to her that she noticed nothing untoward between the two groups at the time, other than staring, but that she and her friends had “reconstructed later” that the Woodridge Group must have been looking at the clothes on those in Jack Beasley’s Group, or what they had, in order to rob them.  She said, “Maybe, correct, I guess”.  She agreed that that was not based on anything the Woodridge Group said to her.  It was reconstructed later from the fact that they were staring. 
108. [108]
     Under cross-examination by counsel for HLC, Sarah agreed that she thought HLC was trying to get Hunter’s Instagram (handle); he was a little bit shy; and she was left with the impression that he was “really just hanging around with the rest”.  (Bella was cross-examined about HLC’s temperament too.  It was suggested that apart from conversation about Hunter’s Instagram, he was “a fairly quiet boy”.  Bella said, “I guess”.) 
109. [109]
     Bella said the group were at the top of Cavill, waiting for their friend to finish work.  After the Woodridge Group joined them, one of them asked again if her group knew anyone they could roll for drugs.  She said, “They asked if we knew anyone they could hit a lick on”. 
110. [110]
     She was shown footage of Jack Beasley’s Group arriving.  She said she knew Jack, Shae, Josh and Izaiah.  She went to school with Jack and Shae.  She was also friends with Shae’s brother.  Josh was a family friend she went to school with.  Izaiah was the cousin of a friend of hers.  She said she thought she waved at Shae at one point, but otherwise she did not interact with them.  She was then shown CCTV footage of her hiding behind Hunter.  She said she hid because she was embarrassed.
111. [111]
     She could not recall any interaction or conversation between the groups while Jack Beasley’s Group was standing in front of the ice-cream shop.  She was asked whether there was any conversation within her group about Jack Beasley’s Group.  She said –

I did hear one of them said – asked – after they asked who they could roll, ask if – like suggest their group – Jack’s group.  And I was like, “No.  Those are my – I know them”.

112. [112]
     She could not say who said that.  She thought it was said while she was sitting down. 
113. [113]
     She said there was no talk between the groups after Jack Beasley’s Group moved to the bench.
114. [114]
     Under cross-examination, it was suggested that the first time Bella used the phrase “hit a lick on” was in the court room.  She agreed.  She had not used that phrase in her statement or in her evidence at committal.  Other questions asked of her suggested that she used the term after speaking with Hunter and Sarah about it.  She was asked why she used the expression for the first time in the courtroom and she said she had not previously been asked for the specific words.
115. [115]
     She said that she did not know who of the Woodridge Group asked about hitting a lick on, but there were two references to robbing while everyone was present.  She accepted that, although it was said while everyone was present, she could not say who was within earshot of its having been said or who took part in conversation about it. 
116. [116]
     She agreed that she made no reference to Jack Beasley’s Group being robbed in her statement to police.  She agreed that the first time she mentioned anything about the Woodridge Group being interested in robbing Jack Beasley’s Group aSwas in court. 
117. [117]
     Also, her reply to a text from Shae asking her about who she was with was put to her.  Her reply read –

Bruv on my mum’s life, I don’t know who they are.  They were asking us if we could get them on, and we just left.

118. [118]
     She said that her statement to Shae was true.  It was put to her that she was not trying to hide anything from Shae, and she said, “No.  I just didn’t want to explain to her in detail how I was with them … why I was with them”.  She agreed she said nothing about them wanting to rob anyone.  A portion of her evidence at the committal about not including information about the Woodridge Group wanting to rob someone in her reply to Shae was put to her.  At the committal, she said there was talk of a robbery for drugs, but she did not tell Shae because she was shocked about what had happened.  She was asked whether she’d forgotten that.  She said, “I think maybe”.  Mr McGuire asked her again (at trial) why she did not say anything to Shae about it, and she said, “I didn’t feel like I needed to at the time”.
119. [119]
     Under cross-examination by counsel for Maljay, she said she did not think that Maljay spoke to her.  She did not talk to him.  She did not know if he said something to someone else.  While it was noisy outside Boost Juice, you could still hear people who were close to you. 
120. [120]
     Bella thought the question about whether the Woodridge Group could hit a lick on Jack Beasley’s Group took place when that group had moved to sit on the bench. 
121. [121]
     In her 93A evidence, Hunter referred the Woodridge Group’s interest in Jack Beasley’s Group as a group they could “do”.  She said –

… we were sitting outside the Woolworths shopping centre and we seen Jack and his mates sit like directly sort of across from us

and those boys came up to us again and they asked us the same question

um two of them sat down next to me they asked me for cigarettes and stuff and

um yeah they just kept asking us where they could get drugs from

and then we got up, well I got up and started walking off but

and Jack and his group of friends had already walked off

before that they were walking on the main road near the Novotel and um yeah I got up, Bella and Sarah got up

and then those group of boys were like “can we do them” and Bella was like “no, no like my cousin is in that group you can’t do them” and as we went to go get up those boys walked in the same direction of Jack and his group of friends

And yeah and that’s the last we seen or heard of them

122. [122]
     She elaborated on this a little later in her 93A evidence.  She said that while she, Bella, Sarah and Josiah were “sitting around” on the bench, she saw “Jack and Bella’s cousin and a few of their mates”, including two girls, standing about 10 metres away from them before moving to a seat to the left of Hunter’s group.  She said it was then that the group of boys (the Woodridge Group) came up to them again.  She said the boys asked “the same stuff” – whether they had any cigarettes and if they had “sussed them a set up for a lick”.
123. [123]
     Hunter said that Jack Beasley’s Group did not pay any attention to them.  She said that “at first” Bella was trying to hide from her cousin and Jack (probably to avoid getting in trouble from her parents and because she used to have a crush on Jack). 
124. [124]
     In her evidence-in-chief in court, Hunter said that she saw the Woodridge Group again while she was sitting on the bench at the Corner.  She said the Woodridge Group came up to them and, she thought, asked them the same thing: “Are you sure [you] don’t know anyone … we can hit a lick off”.  She said that was said by the boy in the Woodridge Group with the grey jumper (PLA [Surname redacted]).  She thought he was the “main one” doing the talking.
125. [125]
     Broadly consistently with her 93A evidence, she said that she noticed Jack Beasley’s Group – although she did not know if she noticed them ‘straight away”.  She said Bella said, “There’s Jack and some of his friends”.  She said nothing was said to Jack Beasley’s Group as they walked past the Woodridge/Gold Coast Group.  She did not recall whether anyone gestured towards them.  She did not think anything was said by the Gold Coast Group about Jack Beasley’s Group when his group was in front of the ice-cream shop.  She did not think/could not remember anything being said between the Woodridge Group and Jack Beasley’s group.  There was no talk among the Woodridge/Gold Coast Group about Jack Beasley’s Group “until we all got up”. 
126. [126]
     Josiah could not remember what he was talking to the Woodridge Group about.  He said he had no memory of seeing Jack Beasley’s Group and did not recall any interaction between the groups.  He said he did not know that someone had been stabbed until the next day.  He had no memory of being at the tram stop later that night.
127. [127]
     Under cross-examination by counsel for OCP, he agreed that his impression of the Woodridge Group was that they just wanted to have a party: have fun.  He said, “There was no talk about robbery, nothing”. 

Jack Beasley’s Group noticed the Woodridge and Gold Coast Groups at the Corner

128. [128]
     Ariki (19 years old at trial) said that he, Jack and Josh met at Rory’s house before heading into Surfers Paradise on the night of the thirteenth of December.  They each had a couple of beers then travelled to Surfers Paradise by tram.  Noah (aged 20 at trial) was at Rory’s too, for 15 or 20 minutes, during which time he had one beer.  Noah saw Jack drinking one or two beers at Rory’s place.  He said he did not see Jack consume MDMA (but in fact, as noted above, Jack had consumed MDMA).
129. [129]
     The boys got on the tram at Helensvale.  Izaiah (aged 19 at trial) met up with them at the tram stop.  The girls in their group, Shae and Leticia, got on the tram at the next stop, Parkwood. 
130. [130]
     They all got off the tram at the “main stop” in Surfers Paradise, the Cavill Avenue Light Rail Station.  They walked to the Corner. 
131. [131]
     Ariki noticed “a group on the corner”.  He thought they had looked over at “us” and that “we” looked back at them – but that was it.  He was pretty sure no one from his group said anything to the Woodridge/Gold Coast Group, although he accepted, under cross-examination by counsel for OCP, that he said to Jack something like, “They’re eyeing us up”.  He accepted that there was “unease” between the two groups. 
132. [132]
     Under cross-examination by counsel for Maljay, he said “maybe” someone from one of the groups said “What are you looking at cunt” – but he doubted it.  (Noah could not remember anything like that being said.  Izaiah said it was not possible that that was said by anyone from either group.)
133. [133]
     “At first glance” (upon arrival at the Corner) Josh “noticed” “the boys”.  He recognised two of the girls they were with – Isabella and Hunter.  He did not remember any interaction between the groups as he walked past.  He thought he looked over at them and that was it. 
134. [134]
     Noah noticed the Woodridge/Gold Coast Group “eventually”.  He did not know the girls in that group, but thought one was “from school”.  Noah took no notice of that girl.  He recalled nothing being said to his group as they walked past the Woodridge/Gold Coast Group.  He did not see any of his group look at the Woodridge/Gold Coast Group or take any notice of them. 
135. [135]
     Izaiah saw the Woodridge/Gold Coast Group when he arrived at Cavill Avenue.  He noticed the way “someone” looked at him, or his group, “not in a friendly way”.  He did not say or do anything to the Woodridge/Gold Coast Group.  Nothing was said by either group.  He did not recognise anyone in the Woodridge/Gold Coast Group.  Nor did he remember any girls in that group. 
136. [136]
     Rory (aged 20 at trial) noticed the “large” Woodridge/Gold Coast Group.  He did not recognise any of them.  Whilst giving evidence, he did not recall whether anything was said between that group and his group.  He did not recall any gestures from the Woodridge/Gold Coast Group. 
137. [137]
     Under cross-examination by counsel for OCP, the following part of his statement to police was put to him –

As we were near the group, I saw Ariki say hello to the gang.  Ariki didn’t know them or anything.  He just said hello, being polite.  He said something like, “Hey, how’s it going?” And some of the people from the gang said “Hey” back. 

138. [138]
     He said that he was not aware of an exchange of looks between the groups.  But his evidence at committal was put to him, in which he’d said, after saying there was no interaction between the groups, “Well, I think they might have been looking at us, but there was no communication at all”. 
139. [139]
     It was not expressly put to Rory that his prior statements about Ariki saying “hello” or the Woodridge/Gold Coast Group looking at them were true. 
140. [140]
     Leticia noticed Bella among the Woodridge/Gold Coast Group.  She said “we” knew her from school and “we just sort of looked at her”.  She did not recognise anyone else in the group.  She thought she might have said to Shae “I think that’s Bella” and she thought Shae, who knew Bella, might have waved at her.  But that was about it for any interaction between the groups.  She said there was no discussion in her group about the Woodridge/Gold Coast Group.  She said they barely even noticed them.
141. [141]
     Shae (who was 20 at trial) noticed the Woodridge/Gold Coast Group.  She observed that they were a pretty big group but did not pay too much attention to them.  She recognised Isabella.  She had been at Shae’s high school and Shae dated her brother “for a little bit”.  Shae said she “kind of waved” at Isabella but that was it.  She could not recall any interaction between the groups apart from her wave.  She thought Isabella might have given a little wave back, but she could not recall.  She thought she waved at Isabella while her group were standing in front of the ice-cream shop. 
142. [142]
     Under cross-examination by counsel for OCP, Josiah agreed that he gave truthful evidence before the Crime and Corruption Commission when he said that there was talk about drugs at the beach (about MDA and “coke” being better in Sydney) but that there was not really a conversation about drugs at Boost Juice.  He agreed that he was telling the truth when he said to the Commission that the Woodridge Boys said, “Oh, there’s nothing to do here.  We want to party”, but that nothing specifically was said about drugs.  He agreed that he was telling the truth when he said to the Commission that there was no talk about robbing someone for money; and that he was telling the truth when he said the Woodridge Group did not ask him whether he knew anyone they could do over for drugs.  He added, at the Commission, that the Woodridge Group might have had a different conversation with the girls in his group, because they did not tell him about Mount Druitt.

Jack Beasley’s Group moved to a bench while waiting for Izaiah and Rory to return from the shops/ATM

143. [143]
     Jack Beasley’s Group waited for two of its members (Izaiah and Rory) to go to the 7-Eleven for cash, cigarettes, or to use an ATM.  The CCTV footage shows they waited first in front of the ice-cream shop then moved to a bench which ran parallel to Cavill Avenue.
144. [144]
     The view of the scene which I attended clarified that the bench occupied by Jack Beasley’s Group was not far from the bench occupied by the Woodridge/Gold Coast Group – much closer than it appeared in the CCTV footage – and generally in the line of sight of the Woodridge/Gold Coast Group as they sat on, or stood around, their own bench on the Corner.
145. [145]
     Noah knew of no interaction between the groups when his group were sitting on the bench.  He heard nothing said between the groups – although someone from his group said “they” were staring at them – and he told his group not to stare or look at them.  Under cross-examination, Noah accepted that he was concerned about some angst building up between the groups. 
146. [146]
     Ariki said that while the groups were on their respective benches, he could see members of the Woodridge/Gold Coast Group looking at him and he was looking back towards them “every now and then”.  He did not say anything to them.  Shae did not recall any interaction between the groups while they were on their benches.  She did not hear anyone say anything.  Izaiah did not notice the Woodridge/Gold Coast Group when he returned to his group (after going to the 7-Eleven). 

Jack Beasley’s Group left the Corner

147. [147]
     Jack Beasley’s Group left the Corner to go to the gathering or party.  Leticia explained that they were off to the Wyndham Apartments.  They walked along Surfers Paradise Boulevard. 
148. [148]
     Noah said that as his group were heading down Surfers Paradise Boulevard, he did not look at the Woodridge/Gold Coast Group.  Izaiah said he had nothing to do with them.  He did not make eye contact with them.  Leticia said there was no interaction between the groups as her group was leaving the area.  Shae said the same thing. 

The Woodridge Group decided to follow Jack Beasley’s Group along Surfers Paradise Boulevard

149. [149]
     In her 93A evidence, Hunter said that when Jack’s group started walking towards the Novotel on the main road, “they were like “do you know those boys” like “who are they”.  She said Bella was like “nah you can’t touch them like that’s my cousin”. 
150. [150]
     Hunter said she got up and started walking “knowing what was going to happen”.  She said –

… and then they started moving towards those boys and they were like, they were like yeah let’s go boys like let’s go and then Bella, Sarah and Jizzy started walking towards me and that’s the last we seen of them.

151. [151]
     Hunter said that the boy asking whether her group knew the boys in Jack Beasley’s group and saying “let’s go” was the “dark looking Asian one”.  She had described him earlier in her 93A interview as follows –

… he was dark um he looked like sort of Asian but he’s probably like Samoan or something.  I don’t know where I know him from but I’ve seen him like a few times I think … he was a little bit chubby … he’s maybe a little bit taller than me and he was wearing I think he was wearing all black … he had a shaved head … I’m pretty sure he was wearing a T-shirt and some white track pants or something but in the photos I’m pretty sure he was wearing a jumper … [he looked about] 16 or 17

152. [152]
     She distinguished this “dark looking Asian one” from (a) a boy with fair skin, wearing all black with black TNs and a black TN hat, with, she thought, blond hair, who was later on the tram without a shirt (HLC [Surname redacted]); (b) the other boy on the tram (Maljay Toala); (c) the boy who sat next to her with a side bum bag – Louis Vuitton or Gucci – wearing a black top, black TNs and shorts and a hat; white skin but tanned (OCP [Surname redacted]).  I infer that the chubby, dark looking Asian one to whom she referred was PLA.
153. [153]
     She said that the rest of the Woodridge Group were “just like sort of getting ready” – and gestured to demonstrate them doing up their clothing.  (See the recording at 34:04 – 34:10).  She was asked, “Getting ready for what” and she said, “to go do them over I guess”.  She said the Woodridge Group were “like staunching up, like shirting up and stuff”.  But she was “like nah like they’re not going to do anything they’ve gone now” (I presume she meant Jack Beasley’s Group) but they “got the call” – that is, the call later in the evening to say there had been a stabbing near the IGA.  (The CCTV footage does not show a member of the Woodridge Group “shirting up” before following Jack Beasley’s Group, but Maljay pulled a singlet over the bottom half of his face while following Jack Beasley’s Group.)
154. [154]
     In her evidence-in-chief in court, she said that there was no talk within the Woodridge/Gold Coast Group about Jack Beasley’s Group “until we all got up”.  She said –

… when we all got up and they went their way – as in, the boys that we were sitting down with – I think they, kind of, just started walking fast after Jack’s group started walking away.

155. [155]
     She was asked whether there was any conversation among the Woodridge Group, or with her, about Jack Beasley’s Group as they walked off.  She said she thought “they” were just like, ““Let’s go boys”.  Like, “We’ve got this”, or something”.  She did not remember who of the Woodridge Group said that.  She said that the Woodridge Group followed Jack Beasley’s Group, as they walked towards the Novotel.  She described the speed at which they left as “a fast walk”. 
156. [156]
     Josiah was shown the CCTV footage of the Woodridge Group leaving the area to follow Jack Beasley’s Group, including his shaking OCP’s hand but he could not expand upon what was going on at the time.  Josiah said, under cross-examination by counsel for HLC, that he could not remember any whistling; nor did he recall anyone yelling out or saying “oi cunt”. 

The fight and its lead up

157. [157]
     Izaiah was walking with Rory, at the back of the group.  He said his group was “pretty spread out”.  He said that one member of the Woodridge Group came up to him “a bit before the IGA”.  From photographs, he identified OCP as that person.
158. [158]
     OCP asked Izaiah whether “the boys walking in front” of Izaiah were his “boys”.  Izaiah said they were.  OCP asked Izaiah to call them over.  Izaiah called out to them – although he could not remember who he called out to.  He was still with Rory.  When he called out, the rest of the group turned to see what was going on.  Izaiah did not notice anyone but OCP at this point. 
159. [159]
     Then, “they” walked to the front, to get in front of everyone – that is, the person he spoke to “and a couple more”.  He did not realise that they were the same people he’d seen at Cavill Avenue.  He thought the same person (OCP) then said, “We’re going to go for a walk”. 
160. [160]
     He said the Woodridge Group “just got in front of us and started, like, trying to walk us somewhere”.  At that stage, the Woodridge Group were facing away from Jack Beasley’s Group.  According to Izaiah, that changed when his group said they were not going for a walk.  He said one of the boys at the front of his group – he was not sure who – told the Woodridge Group they were not going.  Then the Woodridge Group – he thought there were four of them – “turned around” and two of the four “started shaping up”.  He said his group tried to keep walking and then “they” pushed Jack.  Jack threw his cigarette at the person who pushed him and then the fight “kicked off”.  Izaiah remember the people at the front “charging” at Jack and Ariki.  He remembered Jack falling over.  When the fight broke out, Izaiah was “towards the front, at the side a bit”.  When he saw members of the Woodridge Group running at Jack and Ariki, he ran in.  He “grabbed a guy off Jack” and wrestled with him a couple of metres away.  Then it was pretty much over.  He did not see anyone armed with anything.  He only saw the injuries on Ariki and Jack when it stopped. 
161. [161]
     Under cross-examination, Izaiah agreed that while he thought it was OCP who asked him whether the boys in front of his were his boys, he was possibly wrong.
162. [162]
     The following part of his statement, which he’d provided to police the day after the fight, was put to him –

We had been walking for about five minutes.  At this stage Rory and I were about 10 metres behind Josh, Jack, Ariki and Noah, when Rory and I were approached by a group of five Māori males from behind.  I didn’t recognise any of these males and I’d never seen any of them before.  They started asking Rory and I to call our boys over so we could go for a walk.

163. [163]
     Izaiah’s testimony from the committal hearing was also put to him – where he said that, to start with, it was not just one or two, it was the five members of the Woodridge Group.
164. [164]
     Then, his statement to the prosecutor, from 6 May 2022, was put to him in which he identified “the one in the grey jumper” ([Surname redacted]) as the person who had asked whether he was with the boys ahead.  He was asked whether he remembered saying that to the prosecutor Mr Fuller and he said, “I think I remember saying it was the other one after that … about five seconds after”. 
165. [165]
     I assumed his prior statements were put to show the changes in his recollection about OCP approaching him.
166. [166]
     Izaiah agreed that it was readily apparent that some members of the Woodridge Group wanted to fight his group.  He agreed that he was not “politely declining” – he was being upfront and told them to “fuck off”.  He said he understood that the Woodridge Group were inviting his group for a fight, and he agreed that once the fight started, he “got into it”. 
167. [167]
     The CCTV footage of what was occurring just prior to the fight breaking out was shown to him.  He agreed that (on the footage) it sounded like Jack was saying to OCP and PLA “what what” – but he could not remember that.  He was asked whether he remembered what PLA said to Jack as he was pointing across the road (as shown on the footage) and he said “He said, “Come down here” and was motioning towards a place to go and fight.
168. [168]
     Rory was at the back of Jack Beasley’s Group, with Izaiah, as they walked to the apartment.  He said, “We started walking down, and then we noticed one of them come up behind us or beside us”.  He said he first noticed the Woodridge Group as they were “calling out as they were running down”.  He said the Woodridge Group was trying to get the attention of his group.  He could not recall if he turned to look when they were calling out.  He said one of the Woodridge Group put his arm around Izaiah and started asking “various questions and stuff”.  He identified that person (though he was not 100 per cent sure) as OCP [Surname redacted] from photographs shown to him.  He said OCP said, “Come for a walk” and “What are you guys up to tonight” and asked questions about where they were going “and stuff”.  OCP was the only one doing the talking.  The other members of the Woodridge Group were a metre or two metres behind OCP.
169. [169]
     Rory recalled that his group was configured with himself and Izaiah at the back; Josh, Noah and the girls in the middle; and Jack and Ariki at the front.  He said Izaiah said to OCP, “Move your arm off me”, or “Get off me” or something along those lines.  When the members of his group turned around Jack told the Woodridge Group to go away and leave them alone.  He said that the Woodridge Group “started getting frustrated, and … started moving closer towards everyone else at the front”.  When they got to the front, that’s when the fight started, where they “started exchanging words and slurring and pushing”.
170. [170]
     He accepted, under cross-examination, that he might have been wrong about/he was not 100 per cent sure of his identification of OCP as the person who put his arm around Izaiah.  His statement to police, in which he described that person, was put to him.  That person’s description did not match OCP’s and he accepted that he may have been mistaken when he said that it was OCP who spoke to Izaiah. 
171. [171]
     Also under cross-examination, he agreed that he accepted that he told Mr Fuller on 6 May 2022, that “they” put their arms around Izaiah; “Izaiah was just saying “No””.  He was not sure if the girls got involved/said no.  He agreed that he told Mr Fuller that “they” called out to Jack and he said, “Fuck off”.  I assumed the questions were designed to make the point that he had not identified OCP as the person who put their arm around Izaiah or called out to Jack. 
172. [172]
     Rory said that when the Woodridge Group started walking through Jack Beasley’s Group, Jack and Ariki were at the front, as were all of the members of the Woodridge Group.  The first thing that happened was that “they” pushed Jack.  Rory thought Jack pushed back and then “they” hit him.  He continued –

Then the fight just, kind of, started, and then they started hitting Ariki and Ariki hit back.  And then one of the pushed Jack to the ground, and that’s when – yeah.

173. [173]
     He said that he did not “really” get involved in the fight.  He could not recall punching or grabbing anyone or anyone punching or grabbing him.  He saw a hoodie over someone’s head but did not otherwise see anyone with a covered face.  He saw Jack injured when he was pushed to the ground.  He saw Jack and Ariki hit a few times.  He could not recall anyone else from his group being involved in the fight.
174. [174]
     Rory did not know what to do when he saw Jack injured.  He was overwhelmed and upset.  He identified PLA as the person who pushed Jack.  He said PLA was “just getting angry” at that stage and saying, “Let’s fight”. 
175. [175]
     Under cross-examination by counsel for OCP, Rory said he remembered Jack taking off his bag and his hat to get ready to fight.  He agreed that it was pretty obvious that there was going to be a fight.  He agreed that Jack was shaping up to one person and Ariki to another.  He could not recall PLA inviting Jack across the road. 
176. [176]
     Josh was also at the back.  He thought there was a “little conversation” when “they” caught up with his group.  He could not remember who “they” were.  Josh thought that the people who caught up with him were trying to stop his group.  He thought one of them went around to the front of his group to stop them. 
177. [177]
     Noah thought that someone – it might have been Josh – said that the Woodridge Group were following them.  He was not too sure what he did.  But it wasn’t long after that that “they just walked through our group and kind of broke us up”.  He could not remember whether anything was said.  He said one member of the Woodridge Group stopped his group – but he did not know who.  He said that as the Woodridge Group walked through his group –

… he, like, stopped in front of us, like, I think they might have said something to someone else.  I don’t know

MR FULLER:  So when they stopped in front of you was the first time you can recall something being said?--- Yeah.  Well, he, like, walked in the middle and then turned around and started squaring up.

178. [178]
     By reference to photographs, he identified OCP as the person who turned and squared up.  He was asked what happened after “that person” went through and turned around, and he said –

He started – what happened, they told us to walk around the corner and then we just said, “No.  Like, we’re not walking around the corner, and we don’t know who you are” you know what I mean.  And then they – they just really wouldn’t take no for an answer.

MR FULLER:  So who was doing the talking? --- I think it was OCP.  I’m not sure though.

Okay.  What about in your group?  Who was responding to them? --- Well, I was just saying we didn’t want to fight.  I don’t know if the others were talking, but I was just saying, you know, we didn’t want to fight.

What happened then? --- Yeah, I guess they just wouldn’t take no for an answer and kept fight – kept trying to fight us.

All right.  Now a fight happened.  Can you recall how that started?  What’s your memory of it? --- Not really.  It all kind of – it’s just blurry for me now, hey.  It just went really fast.

All right.  Did you end up in a fight with anybody? --- Nah.  I said we didn’t want to fight, and I remember someone was in front of me with a knife.  That’s when I took a step back and said, you know, we don’t want to fight, obviously. 

179. [179]
     He thought the guy with the knife was in a hoodie.  He said he went into shock when he saw the knife.  He thought he saw Ariki involved in the fight.  He did not see Jack.  He did not see RSG use the knife.
180. [180]
     Under cross-examination, this part of the statement Noah had given to police (shortly after the incident) was put to him –

The next thing, the group walked up through the middle of us, and one of them wanted to fight Izaiah, and they were saying for us to go around the corner.  One of them wanted to fight Jack.  One wanted to fight me.  They wanted to fight all of us.

181. [181]
     Noah agreed that that was in his statement.  He was not asked whether it was true.  I assumed that it was put to show a different recollection of things, or perhaps in support of the argument that the fight in contemplation by the defendants was a consensual one.
182. [182]
     Noah agreed that it got to the stage that it was apparent that there was going to be a fight.  He agreed that people were getting angry “on both sides”. 
183. [183]
     Ariki thought he was trailing at the back when the fight started – with the rest of his group in front of him.  He was pretty sure Jack Beasley might have been at the front.  He said –

One of the boys was at the back and he walked past me and I’m pretty sure I said, ‘How’s it going?” to him and he said – asked if I was rolling with them and I said, “Yeah” and then he went all quiet and that’s when I thought something was up.

184. [184]
     Ariki could not describe the person he spoke to.  When shown a photograph of the Woodridge Group he said he recognised PLA [Surname redacted] and RSG [Surname redacted] but could not remember whether he spoke to one of them. 
185. [185]
     He heard someone say to Jack “Come for a walk down the alleyway”.  Ariki was still at the back of the group when that was said.  He could not remember Jack’s response. 
186. [186]
     Josh too heard someone say “Come down this alley” but he could not identify who spoke.  He said, “It was just back and forth conversation, and next thing [indistinct] started – or there was this big fight that broke out”.  He thought it was Jack who engaged in the back-and-forth conversation, but he did not remember. 
187. [187]
     Josh remembered seeing a glimpse of the knife but after that, he could not remember anything.  He said he did not get involved in the fight himself.  He did not remember hitting anyone.  He did not remember whether anyone hit him.  He could not remember whether he saw Ariki being injured – although he saw Ariki’s injuries when the fight came to an end.  He saw Jack injured but could not say whether he saw him injured during the fight.  He could not remember Jack or Ariki fighting with anyone.
188. [188]
     Under cross-examination, it was established that Josh incorrectly told police, in a statement which he gave very soon after the incident, that all of the Woodridge Group had masks on and three of them had knives.  (I noted that at least two of the Woodridge Group held Gatorade bottles, which Josh may have mistaken for weapons.)
189. [189]
     For Ariki, everything from the fight starting until he ended up in hospital was “a blur”.  He did not realise that he was injured during the fight.  He did not realise that he was injured until he saw Jack injured.
190. [190]
     He could not remember being in a fight with anyone in particular.  He could not remember throwing punches himself, although in cross-examination, he remembered shaping up to someone from the Woodridge Group and he accepted that his “expectation” was that he was “going to have a fight with this other fellow”.  He did not see anyone else in his group involved in the fight – although in cross-examination, he agreed that Jack was shaping up to another member of the group.  He did not hear anything said while the fight was going on. 
191. [191]
     To support an argument that the fight between the groups was consensual, counsel for OCP suggested to Ariki that, from his point of view, he thought the groups were going to fight.  Ariki actually thought the Woodridge Group intended to “rob” Jack, as follows –

MR McGUIRE:  … from your point of view you thought you were going to be having a fight with the other group; correct? --- Correct.  With the group that was trying to rob Jack.

With the group that was trying to? --- Rob Jack.

Rob Jack.  Where did you get that idea from? --- From when he said, “Come for a walk down the alleyway”.

All right.  Did you not take that as an invitation to a fight? --- Yes. 

192. [192]
     Ariki had seen Jack drink beers earlier.  He did not see Jack “take any eccies” [MDMA].  Ariki knew that Jack’s brother was a good fighter or boxer and that Jack used to train with him.  He agreed, “hundred per cent”, that Jack was not the type of person to get pushed around.
193. [193]
     Josh agreed, in cross-examination by Mr McGuire, that his perception of things was that the Woodridge Group wanted to fight his group.  He agreed that he recalled someone saying “Come down this alley.  Let’s have a crack; let’s have a fight”.  He agreed that he perceived that the Woodridge Group wanted to have a fight, “and then it got to the stage where there was going to be a fight”.  He did not remember Jack or Ariki shaping up.
194. [194]
     Leticia said “it all sort of happened” when her group was in front of the IGA.  She said it happened really fast.
195. [195]
     She thought she and Shae were on either side of Jack at the front of their group, just having a conversation.  She thought she remembered “some of the boys coming around the side of us and they were trying to say, “Come on.  Let’s go for a walk.”  You know, trying to act all tough”.  In cross-examination, she described it as “trying to act hard” and added “but they’re not”.  She understood that the Woodridge Group were inviting a fight. 
196. [196]
     She did not recognise the boys as the boys who had been near her group outside the Paradise Centre.  She thought there were four or five in the Woodridge Group.  She did not know who, or how many, asked them to go for a walk. 
197. [197]
     She said she was not at the front of her group when the boys walked around her.  She thought she had turned and then “they’ve just sort of [indistinct] I don’t know if they’ve surrounded us or they’re like, in front of us … But they’re, like, everywhere. 
198. [198]
     She was asked how she recalled the fight breaking out.  She said –

I think someone was having words with Jack and Shae was holding on to him.  I was holding on to Shae and I think it just got a bit intense so I pulled Shae away from, like, the conflict.  And then it just sort of broke out.

199. [199]
     She could not really remember what was said between the person and Jack.  She could not really recall who from her group was involved in the fight.  She could not really describe the fight, although she remembered seeing Jack pushed to the ground.  She did not remember seeing Ariki or Izaiah.  She did not see anyone with a weapon or a knife.  She thought someone may have shouted “knife”, but she could not be 100 per cent sure.  She and Shae kind of stood back and did not become involved in fight.  She could not remember whether anyone else from her group stood back with her and Shae.  She did not see anyone getting injured during the fight, but she saw Ariki bleeding afterwards (when he pulled up his shirt) and she saw Jack, lying on the ground near the IGA. 
200. [200]
     Shae recalled being at the front of the group with Jack and Leticia with the rest of the boys “just a little bit behind” them.  She, Jack and Leticia were talking – although she could not say about what.  As they walked (and talked) she heard a few of her friends say things like “Go away” and “Fuck off”.  She turned to see what was happening.  She saw a few people that she (and her group) did not know “kind of mixed in with the boys” who were at the back of her group” maybe four of five of them.  She did not really know what was happening, but she could remember the boys saying “fuck off” and “go away”.  Then she turned around to the front and saw that “some” of the Woodridge Group had come around in front of them.  They said “Come around the corner” and “let’s go”.  She said she held Jack’s shirt and said, “Can we just go to the party” – because it was not far away – “but they just kept yelling and – and then I think Ticia pulled me off Jack, and then I think the fight just happened real quick”.
201. [201]
     She thought two or three from the Woodridge Group had come up around her to the front.  She could not recall what they were wearing but they were darker clothes.  She was not sure how many of the two or three were talking.  As to what Jack said to them, Shae could not recall although she felt like he was telling them to leave her group alone and to go away. 
202. [202]
     As to how the fight started, she thought that one of the Woodridge Group “went to go hit” and that was when Leticia pulled her away from them.  She could not really remember from there.  She saw Jack, Ariki, Josh and Noah involved in the fight.  She saw Jack pushed to the floor at one point.  She thought Josh yelled out that “they’ve” got knives.  She did not see anyone armed with a knife. 
203. [203]
     After the Woodridge Group ran off, she saw Ariki lift up his shirt to reveal blood on his chest and she saw Jack on the floor with blood everywhere.

The Gold Coast Group are told about the stabbing

204. [204]
     Later that night, Shae sent a message to Bella to ask her if she knew who the Woodridge Group were.  She said Bella said she did not know them. 
205. [205]
     As above, Hunter explained that she heard that evening that there had been a stabbing.  One of Jack’s family friends called Bella and was crying on the phone.  Another sent a text to Bella to say he’d passed away.  Bella said Shae messaged her to tell her what had happened.  She agreed under cross-examination by counsel for OCP that Shae asked her who she had been with that night and called them “fucking dogs”. 

Darci confronted Maljay and HLC as they left Surfers Paradise on a tram

206. [206]
     Bella explained that, later that evening, she was walking near the tram and she saw Darci (Ariki’s brother) and two of the Woodridge Group.  Bella told Darci that those two were the boys she had been with earlier.  She said Darci went on the tram and asked them whether they stabbed his brother.  She thought they said “no”.  Then Darci recorded them on his phone. 
207. [207]
     Sarah and Hunter gave similar evidence.  She said “we” told Darci that the boys on the tram were involved.  It was “pretty intense” with Darci at the tram.  He was going off and wanted to kill them.  He told the boys on the tram that he would remember their faces.  She said Bella told Darci that the two boys on the tram were involved.  She said the boys said they had nothing to do with it and they looked scared. 
208. [208]
     Darci himself (who was 21 at trial) gave evidence that he received a phone call from Ariki at about 8.30 pm.  Ariki told Darci he’d been injured.  Darci drove to the IGA.  By the time he arrived, Ariki had been taken to hospital.  Josh and Izaiah told him what happened.  He looked around Surfers Paradise for the persons responsible and ended up at the tram stop.  He was shown CCTV footage of his getting on the tram and speaking to Maljay and HLC.  He had only a vague recollection of how he came to identify them.  He said he asked them, before they got onto the tram, whether they knew anything about what had happened.  They said they didn’t and that they had already been spoken to by police.  He accepted, under cross-examination by counsel for Maljay, that, before he followed Maljay and HLC onto the tram, he shook Maljay’s hand and walked away (as per Maljay’s statements to police).  He was then told by “the girls” that Maljay and HLC were involved, and that is when he became angry and had “an interaction” with them.  He confirmed that he took a video of Maljay and HLC on his phone so that he could remember who they were “and posted it everywhere”.

The street check of Maljay and HLC

209. [209]
     Police found Maljay and HLC sitting behind the markets, close to the beach, at about 8.27 pm – after the stabbing.  They were “street checked” – that is, asked for identification and searched.  That street check was captured on the police officers’ body worn cameras.  The defendants denied any knowledge of the incident.  Nothing incriminating was found during the search.  Police informed them that, if they were stopped by police again, they could inform police that they had already been searched and, in effect, cleared of any involvement in the offences.

The view

210. [210]
     On day 5 of the trial, 20 May 2022, I travelled to Surfers Paradise to view the location of the stabbing and relevant surrounds.  The view clarified for me relevant distances – including the distances between the groups of young people on the Corner.  It also clarified for me the distance covered by the Woodridge Group in their pursuit of Jack Beasley’s Group.  The CCTV footage suggested that the groups were more distant from each other than they in fact were on the Corner. 

Toxicological analysis of Jack Beasley’s blood

211. [211]
     Toxicological analysis of Jack Beasley’s blood after his death detected no alcohol.  However, MDMA was detected at a concentration of 1.4 milligrams per litre.  Benzoylecgonine was detected but not quantified: it was present at less than 0.01 milligrams per litre.  Lignocaine was detected at 1.7 milligrams per litre.
212. [212]
     MDMA is an amphetamine – a stimulant drug.  On the basis of the toxicology results, it was not possible to say anything about its effect on Jack’s behaviour because its tolerance in individuals is widely variable.  As a stimulant, MDMA tended to drive up the heart rate and blood pressure, to improve blood flow.  Also, it could affect behaviour and judgment.  But without knowing more about the amount ingested by Jack, its concentration, and his previous or habitual use, it was not possible to interpret its effect upon him on 13 December 2019. 
213. [213]
     The presence of benzoylecgonine indicated that Jack had ingested alcohol and cocaine previously, and that those substances were still being excreted from his body.  The fact that neither alcohol nor cocaine were detected indicated that their use was “historic”. 
214. [214]
     The lignocaine was probably administered by first responders as a local anaesthetic in the course of emergency treatment.

My observations of the CCTV footage – up until the point at which the Woodridge Group follow Jack Beasley’s Group

215. [215]
     The CCTV footage of the Woodridge Group revealed to me that they “hung out” as a group of five on a “balanced” basis.  The footage did not suggest that there was an obvious leader or an obvious tag-along. 
216. [216]
     PLA, RSG and Maljay were wearing hooded jackets.  For most of the evening, when he had his jacket on, RSG had the hood up.  PLA and Maljay sometimes had their hoods on, and other times had their hoods off.  HLC was wearing a cap which he did not take off.  OCP had no head covering.  Their clothing was black, mostly branded, streetwear.  OCP, Maljay and PLA wore cross-body bags.  HLC wore a cross-body bag and carried a white plastic shopping bag.  RSG carried nothing.  Maljay wore sunglasses, including at night.  With the exception of Maljay’s singlet (see below) I did not read into their choice of clothing an intention to become involved in something which would warrant the need for them to disguise themselves in some way.
217. [217]
     Knowing that RSG had a knife down his pants explains why he was often touching the waist/crotch of his tracksuit pants.
218. [218]
     Maljay was the most animated of the group in that he was dancing light heartedly in the early stages of the evening. 
219. [219]
     At the barbeque, at times, OCP appeared aloof and focused on his phone.  But at other times, he was cooking or interacting with the other boys. 
220. [220]
     All of the Woodridge Group were engaged in barbequing the meat – either actively or as observers.  Unquestionably, by the time of the barbeque, all of the members of the Woodridge Group were aware that RSG [Surname redacted] had a knife concealed on his person.  At the barbeque, the knife was in full view and used openly.  The CCTV clearly shows PLA, OCP and Maljay using the knife to barbeque the meat.  It seems to show HLC using the knife at one point – although I cannot be certain about that.  Regardless, as I said, it was used openly.  I also concluded that the defendants understood that RSG carried the knife for the purpose of at least defending himself from a physical assault if necessary.  There was no other reasonable explanation for his being in possession of it. 
221. [221]
     At one point, while they were waiting for the meat to cook, Maljay changed into RSG’s hoodie.  Maljay took off his own hoodie.  He was wearing no shirt underneath it, but he had a black singlet around his neck and upper torso.  His arms were not through the arm holes of the singlet.  Unquestionably, he was “wearing” the singlet in anticipating of using it to conceal the lower part of his face.
222. [222]
     Maljay changed into RSG’s hoodie and ultimately draped his own hoodie over a tree.  RSG was wearing a t-shirt underneath his hoodie. 
223. [223]
     Maljay asked RSG to take a photograph of him, using Maljay’s phone.  Maljay pulled the singlet over the lower part of his face and pulled his sunglasses on.  He held his right hand across his front – displaying a sideways index and middle finger (like a sideways peace sign).  There was no evidence about the significance or meaning of his hand gesture, although the prosecutor suggested it was a gangster pose.  Maljay was happy with the photo.  Then, HLC, PLA and Maljay had a photograph taken together.  RSG used HLC’s phone.  Maljay was dressed as before and posed with a sideways middle and index finger.  PLA [Surname redacted] had his grey hoodie draped over his head and the knife tucked into the waistband of his pants, with some of the handle showing.  His hand was deliberately in a gesture involving three of his fingers.  HLC’s pose was unremarkable.  HLC was not happy with the first photograph taken of the three of them, so RSG took another.
224. [224]
     Not long after the photographs were taken, RSG asked Maljay for his hoodie back and they each returned to their original clothes. 
225. [225]
     While waiting for the meat to cook, HLC engaged in an extremely brief play fight with RSG; PLA and Maljay engaged in a brief play fight; and HLC and RSG engaged in a second brief playfight.  I read nothing into that behaviour. 
226. [226]
     At around 19:36:20, the attention of the Woodridge Group was drawn to the Gold Coast Group.  The Woodridge Group left the barbeque, although their meat was still on it.  At this point, RSG had the knife.  The CCTV footage confirmed the account given by the girls in the Gold Coast Group that there was some interaction between the groups before the girls sat down on the bench (at the intersection of The Esplanade and Laycock Street) – leaving Josiah briefly with the Woodridge Group.  Then PLA joined the girls; followed by OCP and HLC, with Josiah.  RSG and Maljay took the meat off the hot plate before joining the others.  They put it onto one of the meat trays it came in, and Maljay placed it on the bench next to PLA.  HLC ate a piece of meat while they were still in the company of the Gold Coast Group.
227. [227]
     The Woodridge Group and the Gold Coast Group appeared to be interacting all together – although it is fair to say that the girls (especially Hunter and Isabella) seemed more interested in each other than they were in the Woodridge Group.  PLA took a balloon from Hunter to consume a nang.  Hunter lent her lighter to Maljay.  OCP gave Josiah his phone and Josiah entered his phone number into it.
228. [228]
     Hunter and Isabella were the first to break away from the combined group and walk off down The Esplanade.  Sarah and Josiah followed.  PLA shook Josiah’s hand and embraced him twice before Josiah left.
229. [229]
     The Woodridge Group remained at the bench for a short while.  All of the boys ate the meat and conversed together.  HLC collected his white plastic bag from where he’d left it near the barbeque.  Then, after a little while, the Woodridge Group left the bench (19:47).  Maljay carried HLC’s white plastic bag so that HLC could eat.  The boys walked around Surfers together.  There was no obvious leader, although PLA and [Surname redacted] tended to lead and HLC and RSG tended to hang at the back.  There was no one who was obviously excluded from the group, or only tagging along.  By the time they reached the Hard Rock café, some of the group had drinks: it looked like blue Gatorade in Maljay and RSG’s case and orange Gatorade in HLC and OCP’s case. 
230. [230]
     The Woodridge Group reached the Gold Coast Group on the Corner at about 8 pm (20:00).  Upon their meeting, the Woodridge Group talked to Josiah.  The girls kept to themselves. 
231. [231]
     At about 20:02, Sarah kicked Josiah gently to get his attention.  Bella showed him something on her phone, while the Woodridge Group talked among themselves.  Josiah then spoke on the telephone while HLC moved to sit down one “space” away from Hunter (who was sitting next to Bella – with Sarah standing).  A moment later, OCP filled that space.  Two people were between Bella and the other end of the bench.  PLA moved to sit on the other side of those two people, who left not long thereafter.  Then their space was filled by Maljay. 
232. [232]
     While HLC, OCP, Hunter, Bella, Maljay and PLA were on the bench (sitting in that order, from left to right as I looked at the footage), Sarah spoke to Josiah and RSG.  RSG in fact had two Gatorade drinks.  At approximately 20:05:18, RSG gestured with one bottle in front of PLA and Maljay.  His gesture may have been interpreted as incriminating (an upper cut style gesture) but a completely innocent interpretation of it was also open – and that is the interpretation I gave it.
233. [233]
     At about 20:05:38, Jack Beasley’s Group arrived at the Corner.  Jack and Josh were at the front of their group.  Jack was closest to the Woodridge/Gold Coast Group.  He and Josh glanced at the Woodridge/Gold Coast Group as they walked past them.  Bella turned to look at Jack Beasley’s Group when they arrived at the Corner.  No one from that group appeared to acknowledge her.  She hid behind Hunter, who was sitting beside her on the bench.  As she hid behind Hunter, RSG, PLA and Josiah all turned to look at Jack Beasley’s Group.  HLC and OCP were looking in their direction, but it is impossible to know if they were looking at them.  Maljay was on his phone and did not appear to notice that Bella was hiding.
234. [234]
     Not long after Jack Beasley’s Group congregated outside the ice-cream shop, Bella “gave them the finger” – although no-one in Jack Beasley’s Group noticed.  While they were outside the ice-cream shop, Jack Beasley’s Group kept to themselves.  While they waited for Josh and Izaiah, the girls were speaking to Noah and Jack.  Ariki and Rory were talking to each other.  At about 20:07:46, Ariki walked away from the group.
235. [235]
     At about 20:07:52, Bella, Maljay and RSG seemed to be pointing towards Jack Beasley’s Group.  Josiah appeared to then look over at them.
236. [236]
     At about 20:08:06, PLA [Surname redacted], Josiah, HLC and OCP appeared to look at another group of young people who arrived at the Corner.
237. [237]
     When Jack Beasley’s Group moved from their position in front of the ice-cream shop to the bench which ran parallel to Cavill Avenue, they appeared to look over at the Woodridge/Gold Coast Group.  Rory appeared to look at the other group the longest before taking his seat on the bench.  Eye contact between both groups was easy.  The view demonstrated to me that they groups were not as far apart as they appeared on the CCTV footage.  Bella seemed to be attempting to hide from Jack Beasley’s Group as they sat on the bench.  PLA [Surname redacted] and HLC looked over at Jack Beasley’s Group while they were on the bench. 
238. [238]
     Josh and Izaiah returned to Jack Beasley’s Group at about 20:08:39.  On their way to the bench, they stopped and talked to Noah – who remained a couple of metres away from the bench – having stopped to look at something on his phone.  Josiah seemed to notice their return.  Ariki returned at about 20:09:00.  He walked up to Noah.
239. [239]
     At 20:09:03, PLA, Josiah and HLC were clearly looking at Jack Beasley’s Group.  OCP, Maljay and RSG might have been as well.  Josiah showed a particular interest in them, as did PLA.
240. [240]
     At about 20:09:15, Noah and Ariki joined the rest of their group at the bench.
241. [241]
     At about 20:09:20, Jack Beasley’s Group left the corner – with Jack leading and Rory and Izaiah at the back. 
242. [242]
     PLA and HLC appeared to be the first of the Woodridge Group to notice that Jack Beasley’s Group left the Corner.  At 20:09:33, PLA and HLC were clearly looking at Rory and Izaiah.
243. [243]
     Almost as soon as Jack Beasley’s Group left the Corner (when Rory and Izaiah walked past the donut shop), HLC picked up his white plastic bag – although he waited several seconds before following them.  At 20:09:48 (before he began to follow Jack Beasley’s Group), HLC was standing beside an information sign near the bench.  At 20:09:55 – while looking at PLA – HLC cocked his head in the direction of Jack Beasley’s Group (a “let’s go” type of motion) and, at that point, he and PLA began to follow them.  (I acknowledge that HLC’s head movement is a little hard to pick up on the CCTV, but I am confident of it.)  They were followed by Maljay, then RSG.  Maljay forgot his Gatorade bottle and ran back to the bench to retrieve it.  OCP was “detained” by Josiah, who engaged him in an extended farewell.  None of the Woodridge Group appeared to be in a particular hurry as they left the Corner.  Although Maljay “dashed in” to retrieve the Gatorade, he did not leave at pace.
244. [244]
     It is impossible to know whether the Woodridge Group congregated (after being joined by OCP or Maljay) immediately before setting off with determination after Jack Beasley’s Group.
245. [245]
     While the Woodridge Group did not appear to be in a particular hurry when they left the Corner, by 20:11:28, the Woodridge Group (bar Maljay) were jogging to catch up to Jack Beasley’s Group.  OCP and PLA were in the lead, followed by HLC and RSG, with Maljay at the rear – walking and adjusting his singlet to cover his face.  Other exhibits (maps) established that the Woodridge Group travelled about 200 metres, including crossing a road (Hanlan Street), to catch up with Jack Beasley’s Group.  The view confirmed that following Jack Beasley’s Group required commitment. 
246. [246]
     Jack Beasley’s Group was walking along at an average pace.
247. [247]
     At the relevant time, Jack was at the front of his group with Shae and Leticia; Josh and Ariki were next, with Rory and Izaiah at the rear.  Various people at various times walked between the members of the group.
248. [248]
     By the time they reached the Novotel, HLC was also at the front of the group (his white bag is obvious).  At 20:11:25, as they were catching up to Jack Beasley’s Group, OCP was leading, followed by PLA, HLC and RSG.  Maljay was still adjusting his singlet and was a little further behind.  A few shops past the Mint Real Estate premises (20:11:32) the Woodridge Group slowed to a quick walk because they were then not far behind Rory and Izaiah. 

The fight, the stabbing and who saw what and when

249. [249]
     At 20:11:39 or 40, it looks like OCP put his arm out to touch Izaiah from slightly behind to get his attention.  PLA flanked Izaiah on the road side of the footpath.
250. [250]
     The suspect timeline footage then shifted to another camera with audio.  It does not show clearly the initial interaction between OCP and Rory/Izaiah.  But it seems that PLA was also present for it (at the back of the group). 
251. [251]
     The CCTV footage showed Jack, Ariki and the girls turning around to face those at the back of their group.  It also showed that OCP and PLA walked past Jack and the girls. 
252. [252]
     This brought me to just before the start of the fight.
253. [253]
     The CCTV evidence included close ups and slow-motion versions of the fight and the stabbing – as well as “normal” vision of it.  I took care to ensure that I evaluated the evidence of the conduct of the defendants at the critical time in real time – relying primarily upon the close ups. 
254. [254]
     Jack can be heard on the CCTV saying to OCP and PLA “What” three times in an incredulous way.  OCP turned around twice to respond to Jack.
255. [255]
     OCP and PLA strode ahead – initially past Jack Beasley.
256. [256]
     Meanwhile, Maljay – singlet up over the lower part of his face and hood on – moved to Jack’s left.  At about the same time, RSG, who was behind Leticia, moved around her, on the road side of the footpath.  Jack became aware of Maljay to his left and appeared to say something to him (at 20:13:03).
257. [257]
     At 20:13:04, PLA invited Jack across the road.  RSG was then in line with Leticia, with his hands at his waist.  HLC was behind Noah.  Ariki was holding his hands up.  He was behind HLC, and the other members of his group. 
258. [258]
     By 20:13:05, PLA was face to face with Jack.  Maljay watched their interaction.  As PLA spoke to Jack, RSG reached for his knife. 
259. [259]
     At 20:13:06, PLA pushed Jack with both hands.  Maljay, RSG and HLC were watching.  At 20:13:07, OCP came up behind PLA.  OCP was drinking his Gatorade.  Shae held onto Jack’s right arm, and then let go to point at, and say something to, PLA (at 20:13:08).
260. [260]
     At about the same time, Jack flicked his cigarette at PLA.  The rest of the Woodridge Group were watching.  Shae attempted to intervene by touching Jack and addressing PLA.  OCP was to PLA’s left.  Maljay was to PLA’s right.  RSG and HLC had moved closer to OCP and PLA. 
261. [261]
     At 20:13:09, PLA and OCP both moved towards Jack.  RSG, HLC and Maljay held back.  Shae attempted to get between Jack and PLA and OCP.  Jack took off his backpack. 
262. [262]
     At 20:13:10, Shae was still attempting to intervene and stop any fighting. 
263. [263]
     At 20:13:12, Jack cast off his hat.  Ariki was just behind Jack.  OCP was shaping up.  Maljay, HLC and RSG were hanging back – with RSG closest to OCP. 
264. [264]
     At 20:13:14, OCP dropped his Gatorade bottle freeing both hands.  He was by then facing Ariki.  Jack was behind Ariki.  PLA was also hanging back a little. 
265. [265]
     OCP was facing off with Ariki.  Jack moved away to the shop side of the footpath.  PLA moved to back up OCP, leaving Ariki to deal with two on one.
266. [266]
     At 20:13:17, RSG pulled out his knife and pointed it at Josh.  Noah (who was also close) held his hands in a “surrender” pose.  Maljay was immediately behind RSG when he pulled out the knife.  I am satisfied that he saw it (indeed, he said as much in his interview with police).
267. [267]
     At 20:13:18, while Ariki was distracted by OCP, PLA swung at him (Ariki) and seemed to connect.  It was then that Jack moved in. 
268. [268]
     Jack grabbed PLA from behind (20:13:19).  Both of them went to the ground.  At about the same time, Ariki swung at OCP. 
269. [269]
     Jack, on the ground, used his feet to defend himself and shuffle back towards the road (20:13:21).  OCP appeared to kick at him once.
270. [270]
     At about 20:13:21, Ariki began to chase OCP.  RSG then pulled Ariki’s top from the back (with his left hand) and stabbed him with the knife, in his right hand.  At the time, Maljay and HLC were looking in RSG’s direction.  HLC dropped his white plastic shopping bag and briefly showed interest in Joshua. 
271. [271]
     Jack and PLA were still on the ground.  Izaiah – still with his backpack on – confronted OCP who was moving towards Jack. 
272. [272]
     It is clear to me that Maljay saw RSG stab Ariki.  I do not think HLC saw RSG actually stab Ariki the first time – but he saw him, knife in hand, pull on Ariki’s top just before he stabbed him.
273. [273]
     Having stabbed Ariki once, RSG drew back – with his knife in full view. 
274. [274]
     HLC was not at that point looking directly at him, or the knife – his focus was on the fight involving Jack – who was still on the ground, confronted by at least OCP, with PLA getting up. 
275. [275]
     Ariki came in to assist Jack.  Maljay hit him with his Gatorade bottle.  Izaiah also came to assist Jack. 
276. [276]
     Jack managed to get up from the ground and ran at RSG – who had his knife in front of him.  HLC was looking directly at RSG.  RSG thrust his knife into Jack’s chest. 
277. [277]
     HLC was looking at RSG as he backed into the entrance to Paradise Towers, with his knife still exposed. 
278. [278]
     HLC then pushed Rory away. 
279. [279]
     Ariki went to help Izaiah and landed a punch on OCP.
280. [280]
     HLC and RSG both moved towards Ariki.  RSG stabbed the front of Ariki’s chest.  Maljay was watching.  Then HLC engaged Ariki in a fight. 
281. [281]
     Immediately after RSG stabbed Ariki the second time, Maljay ushered RSG away from the fight.  Whilst being ushered away, RSG returned the knife to its sheath – with Maljay pausing momentarily to allow him to do so.
282. [282]
     At about the same time, PLA and OCP were on Izaiah. 
283. [283]
     HLC shaped up to Ariki, who shaped up in reply.  HLC seemed to be saying “come on” to Ariki.  They swung at each other (HLC swung first).  Noah tried to break up their fight.  HLC realised that OCP and PLA were about to run off.  He stopped swinging at Ariki and ran off with them.
284. [284]
     As I mentioned, Maljay ushered RSG away from the fight.  They ran off – with Maljay well ahead.  HLC, PLA and OCP followed – also running.
285. [285]
     RSG caught up with Maljay by the time they reached the bottleshop on Hanlan Street.  At about 20:13:30, Maljay offered his fist to RSG and they “fist bumped”.  The other three caught up to them on Hanlan Street and thereafter they strode with purpose towards the beach. 

Statements made by the defendants

286. [286]
     Each of the defendants was interviewed by police within a day of the stabbings.  I have outlined below the features of their interviews which I considered particularly relevant.  This outline does not necessarily follow the order in which things were said by a defendant during his interview.  I have, in some instances, collected together a defendant’s various statements about one topic. 

OCP [Surname redacted] – interview

287. [287]
     OCP was interviewed on 14 December 2019 from 3.45 pm until 5.01 pm.  He was then aged 16.  He was interviewed in the presence of a barrister, Chris Rosser, with his mother as his support person.  He was crying from time to time during the interview.  His mother comforted him.  Often he held her hand.  He said he was anxious about the interview. 
288. [288]
     After being informed that he was being questioned about the homicide/grievous bodily harm, he said that he went to Surfers Paradise on the night of the thirteenth “trying to have a good time”.  He said he got into a fight; had people on him; the fight ended; and he went to the beach and had a swim.  He had a sleep, and when he woke up, his face was on social media.
289. [289]
     He said he and his “mates” were in the fight, but he did not even know his mates “legal names”.  He knew his mates as Mal, PLA, and his (OCP’s) brother RSG.  He did not mention HLC.  He said there were other people involved in the fight, but he could not remember how many.  He was asked how the fight began, and he said, “Just over stupid stuff … People were staring and … someone threw a smoke on my mate”. 
290. [290]
     He said the people he had the fight with were older, normal, teenagers.  He could not describe what they looked like.
291. [291]
     He was asked to provide “good detail” of the fight.  He said –

So, they just staring …Walked up to them.  Asked them why and where they’re from

And I told him to get his mates fast, and then, he just got angry; threw a smoke; flicked the smoke, cigarette

…

Then I got angry

And the rest of there’s (??) just, happened too fast.

292. [292]
     He said maybe the smoke was coming for him, but it hit one of his mates.  He did not know which mate – but the one that was next to him.
293. [293]
     He did not remember the number of teenagers in the group he fought with. 
294. [294]
     The interview was suspended, at his mother’s request, to allow OCP to speak to her (from 4.06 pm util 4.14 pm).  When it resumed, he was shown photographs of the Woodridge Group.  He identified his brother, “Mal”, and PLA.  He said HLC, who was also in the photographs shown to him, was with them, but he did not know his name.  A little later in the interview, he said the name “HLC [Surname redacted]” sounded familiar.
295. [295]
     He was shown a still taken from the CCTV footage before the fight broke out.  He was asked to explain what was going on.  He said, “I’m arguin’”.  He said he was arguing about the staring and the flicking of a cigarette. 
296. [296]
     The police interviewing OCP pressed him for more detail about what started the fight and how it ended up where it did.  Before he answered he asked for a break and to have a rest.  The interview was paused from 4.30 pm until 4.39 pm.
297. [297]
     Upon its resumption, he was reminded that, before the break, he was going to explain the fight in more detail.  He said –

So, cigarette got flicked

And turned into a fight

I was outnumbered

And I needed help

I was scared

Three people on me.  That felt like.

And then they all let go of me.

And we got away.

298. [298]
     He was told that, during the fight, one person was stabbed twice, and that person was in hospital with injuries consistent with grievous bodily harm.  Another person was stabbed in the chest and died later in hospital.  He was asked who had the knife.  He said, “I dunno”.  He said he did not know a knife was involved until the morning of the fourteenth.  He said he found out about the knife from social media. 
299. [299]
     He was asked what the plan for being at Surfers Paradise was.  He said, “just have a good time with … us boys”.  He denied that there were discussions about trying to find drugs or get drugs off someone. 
300. [300]
     He said the group bought meat from Woolworths for a barbeque – steak and kebabs.  He was asked whether they used cutlery.  He said “nuh”.  At that point, his mother reminded him that he did not have to answer anything if he did not want to.  He said they “cooked it, flipped it, put it in, like, a container and ate it”. 
301. [301]
     He said the “guys” ran to the beach after the fight because there were police and they’d just had a fight and he did not want to get into trouble for having a fight.  He went swimming so police would not see him.
302. [302]
     He was asked what he thought the end result of the fight was.  He said “what do you mean?”.  The questioning continued –

SCON JEFFREY:  Well.

[SURNAME REDACTED]:  It all happened so –

SCON JEFFREY:  There was a—

[SURNAME REDACTED]:  Fast –

SCON JEFFREY:  Guy that was stabbed in the chest.  What, what, what did you think had happened?

[SURNAME REDACTED]:  I didn’t think [anything] of that.  I didn’t know that happened until next morning.

SCON JEFFREY:  Okay.  So, what did you think happened?

[SURNAME REDACTED]:  I just thought it was a fight.

SCON JEFFREY:  Okay –

[SURNAME REDACTED]:  They let go of me –

SCON JEFFREY:  Alright –

[SURNAME REDACTED]:  And then I looked on the ground, picked up my phone, and then we went off to the beach, had a swim … I got my aunty to pick me up … ‘Cause I didn’t wanna get in trouble for a fight. 

303. [303]
     He said his aunt also picked up RSG and PLA.  He was pretty sure that Mal and HLC used public transport to get home.  Incidentally, he told police that he was from Sydney.  He said he left his clothing at the beach because he did not want to get in trouble.  He said he knew that getting into a fight was wrong.  He said “it’s just regret”. 
304. [304]
     The interviewing police told OCP that CCTV footage showed that it was RSG with the knife who had stabbed “the two guys” and they wanted to know where the knife was now.  At that point, OCP’s mother interrupted and said, “… He has already told you.  He does not know, he didn’t see anything”. 
305. [305]
     He said all of the Woodridge Group went swimming.  He said he handed himself in because he’d seen himself on social media.  Despite further questioning about the knife and its use, OCP made no admissions against interest. 
306. [306]
     He was asked whether there was anything else he wished to say, and he said –

Nuh, we’re all sorry.  That’s, very sorry, for [everythin’].  It’s not us …

Like fighting.  It ain’t the type of people we are, and not what we stand for

307. [307]
     He said, in effect, that the clothing they all wore was the type of clothing they wore in the “area” they were all from.  It was what they felt comfortable in.  He was conveying that they had not dressed for a fight.  A little later, he said he was sorry for “causing trouble”. 

Maljay Toala – interview

308. [308]
     Maljay Toala was interviewed by police on 16 December 2019, between 4.13 pm and 5.38 pm at the Beenleigh Police Station.  He was then 18 years old, and about a month shy of his 19^th birthday. 
309. [309]
     He was told that police were conducting a murder investigation.  He was told that Jack Beasley was the deceased and that Ariki Katuke had been injured. 
310. [310]
     He was born in American Samoa, and had travelled to Australia, via New Zealand, in 2007.  He was educated to year 11 and living independently when interviewed. 
311. [311]
     He was asked what he knew about “an incident” outside IGA at 8.10 pm on the Friday before the interview.  He said, “Ah, it was just like a brawl”.  He was asked how it came about and he said –

Oh, we were all sitting next to the Cavill like, near this Cavill station, the tram …And like, we were sitting there, and these guys started calling out to us.  But I like wasn’t paying attention … Until one of the boys said, “oi do you just go one on one with them” … They said let’s go have a brawl with them … So, we took a walk.  We followed them.  I was like following from the back.  And all of a sudden it just broke out, the brawl … It was supposed to be one on one but then, everyone started jumping in.  So, I just in for, for one of the boys that was getting jumped on … I pushed him out the way and then I turned around.  And I seen, I seen that kid just go on the ground … He was pissing out blood [indistinct] to me that, then I just took off … And like I ran back, and he was just staring us in the eyes.  And he was just pissing out blood … And I was just looking at him … And I told the boys, “let’s just go”.  And we just took off … And I caught the train back home.  That’s, that’s like what happened. 

312. [312]
     He said he was with “PLA” that night, and “two brothers” whose names he did not “really know”; and a “white kid named HLC”.  He said they’d met at Street Uni and travelled together to the Gold Coast. 
313. [313]
     He said between 6 pm and 8 pm, they walked around and had a barbeque. 
314. [314]
     He said at first, “we didn’t know about no stabbing or nothing …[til] this morning” but contradicted that statement later in his interview.  
315. [315]
     He said he got a message from the brother of the “guy that’s in hospital right now … the Māori one” (Darci).  He said, in effect, that Darci blamed him (on Instagram) for the injury to his brother and Maljay said it was not him and that he did not have a knife on him.  Darci told Maljay that his brother had said that someone had covered his face and Maljay said “like, no.  That wasn’t me”.
316. [316]
     He identified the boys he was with in a photograph shown to him during his interview.  He identified RSG as “the one that stabbed”.  He said he only knew the brothers “by face” not by name.  He identified PLA and HLC by their first names.  He knew that OCP was older than RSG. 
317. [317]
     He said he had only known the [Surname redacted] brothers and HLC for a few days, but he’d known PLA for four years.  He’d met the [Surname redacted] brothers and HLC at Street Uni on the Tuesday before Friday 13 December 2019.
318. [318]
     He said that, from about 2 pm until about 8 pm, he was not really talking to anyone but PLA.  He was sitting next to PLA on the train to the Gold Coast.  They were talking about “nothing really”.  He was playing his music and not paying attention.  Later in his interview he said he just said “hello” to the other three.  He said that HLC was talking to us (he and PLA) but that the brothers did not talk much.
319. [319]
     He said that the reason they went to the Gold Coast was to “go for like a little walk” and that Cavill was “the closest in mind”. 
320. [320]
     He said when they arrived, they went straight to Woollies and got two packets of kebabs to barbeque.  He said they stayed at the barbeque area for about an hour.  He said they all cleaned the barbeque.  They did not have barbeque gear, so they used the sauce from the kebabs in lieu of “spray”. 
321. [321]
     He was asked how they were doing the cooking and he said the younger brother had “his little knife”.  He said PLA was doing the cooking because he was the only one who wasn’t lazy.  He said the knife was a small one, like a fishing knife, that he had “stashed” in a case “under” his “stomach”.  He said that they needed the knife to turn the meat because it stuck to the barbeque plate.  He said, in effect, “we” tried turning the meat with a stick but that did not work and “we tried to look for something and he pulled it out [and said] use this”. 
322. [322]
     He said they did not finish the meat and they gave their leftovers to a homeless lady.  He said RSG cleaned his knife in the toilets (which were close).  He confirmed that he was aware that the knife was kept by RSG in a “knife case” on his “waist”.  He described the knife as a normal fishing knife with a black handle and a silver blade: a “normal full knife”.  He drew the knife for police.  He said it was not “that big” – only 15 centimetres. 
323. [323]
     He confirmed that a photograph taken on an iPhone was of himself, PLA and HLC at the barbeque.  He agreed that PLA had the knife at his waist in the photo. 
324. [324]
     He was asked again about his assertion that Jack Beasley’s group called out to them.  He said he and the “guys” sat down for a bit “just talking to each other and having a smoke”.  He continued –

And then like all of a sudden like of, HLC says that, um, they got an eye problem or something like that … like they were like [indistinct] staring at us … and I think one of the brothers yelled out.  And they’re like walk home … And then they said come have a brawling.  And they kept walking … But like, one of the boys screamed out like “what cunt”.  “What are you looking at?”  Something like that.  And they said have a brawl … some shit like that … And I’m like I’m just sitting there on my phone …

325. [325]
     He said he was not really paying attention, and continued –

‘Cause I look up and my boys like “come come let’s go”.

326. [326]
     He was asked who said that and he said, “all the boys”.  He said the first group “walked straight down to like near the IGA”.  He was on his phone and then “the boys” were like “hurry up, let’s go” –

… And like, they were like, some like PLA and that were in front of me … I was just trying to put stuff in my bag … [My group] was just like right behind [Jack Beasley’s group] … like following along.  So I put my stuff in my bag … And all of a sudden, they just turned around. 

327. [327]
     He seemed to be suggesting that someone from Jack Beasley’s group said “some shit like that” and that his group decided “let’s have a go at him” and it broke out from there. 
328. [328]
     He claimed that as he was following Jack Beasley’s group, he was trying to put his stuff in his bag and “all of a sudden they just turned around and “said a mouthful”.  He said the guys from the other group said, “we don’t even know you and shit” and it went from there.  It broke out.
329. [329]
     He said, in effect, that “we” were initially “at the back” of Jack Beasley’s group but got in front of them at the IGA.  He agreed his group walked through Jack Beasley’s group.  He said “they stopped” and he was “walking around ‘em”.  And then “they started jumping in”.  “They were like have a go [indistinct] … and then just broke out”. 
330. [330]
     He said “mostly it was like all of us” who said “let’s have a go”.  He said, in effect, that after that “everyone went at it”.
331. [331]
     He was asked what he thought would happen.  He said “I don’t really know.  ‘Cause sometimes when we go like brawls don’t really happen … But we like, like we actually got into their faces.  Like the brothers got into their faces and shit.  And they like they turned around and stood their ground … And it … just happened from there”.
332. [332]
     He was asked why they wanted to fight.  Maljay said that he was not looking for trouble and he thought it was “gonna be one on one”, so that “they could have like a clean go … and finish on them.  But then it just changed.  One of the brothers jumped in.  The other bro jumped in.  And they jumped in …”
333. [333]
     He said four of his group fought but he did not know about HLC.  He thought “a lot of” Jack Beasley’s group were fighting.  He said three of Jack Beasley’s group were on “the older brother”.  Two were on PLA.  He said he ran over to protect PLA who was on the ground.  He said he “[saw] this kid drop to the ground … holding his chest”.
334. [334]
     He said the fight broke out “in the blink of an eye”.  He was “standing there” and then “all of a sudden, I just look and everyone’s on the ground and stuff”.  He said all of Jack Beasley’s Group “shaped up”.  He said “the guy that got stabbed … he just dropped down and started screaming.  And like I froze for like a-, two minutes … and blood was just pissing out … And I just grabbed PLA and said, “let’s go” and we just ran off”.
335. [335]
     He agreed that he had explained previously that someone from his group said “what cunt” to Jack Beasley’s Group after HLC said they had an eye problem.  He said he knew there was going to be a fight, but he did not know “if [Jack Beasley’s group] gonna actually like admitted (sic) to it.  ‘Cause they’re pretty young”.  He agreed that he did not know if they were “gonna stand up or … wait for someone to take the first hit”.
336. [336]
     He said his group followed Jack Beasley’s group for “only like two minutes”.  He said the groups did not really talk while his group was following.  He said he was just walking and “all we did was stare at them”.  He said the older brother was doing the talking.  He was mostly the one in front.  The “one on one” was either going to involve OCP, Maljay himself or PLA.  But it had not been decided because “no one knew who was going to throw the first hit”. 
337. [337]
     As to who of the other group they were going to fight – he thought it was going to be “the Māori one”: that was the only one he was “eyeing” the whole time.  He looked “pretty hearty and stuff … pretty solid”.  He said he was waiting for him to take the first hit.
338. [338]
     He said his group got in front of Jack Beasley’s Group and “they shaped up.  Like all of them … So we just started shaping up”.
339. [339]
     He said OCP was saying something like “you got an eye problem cunt”.  And the guy in front was saying “we don’t even know you or some shit like that” and it started from there.
340. [340]
     He said he knew the person who was “pissing out blood” had been stabbed.
341. [341]
     He clarified that “the younger brother was gonna fight” – but that HLC was not – he was “a quiet one”.  He said he knew the younger brother had the knife “but my mind wasn’t like that”.  He said he didn’t think he was going to stab anyone with it: “Like I didn’t even know he was gonna dip, any, like stab anyone”.  Before it was gonna be like a brawl … and then brawl turned into like, all I heard was someone just drops to the ground yelling …”
342. [342]
     During the fight, he saw PLA and OCP fighting – using their fists.  He did not see RSG “til he ran over to like the other ones and dipped him”.  He saw RSG with the knife in his right hand.  He saw him dip or jab it into the Māori.  He demonstrated what he meant by “dipping” the knife with an in and out motion.  He said he did not see RSG stab Jack Beasley, but he saw him on the ground “screaming”.  He understood Jack Beasley had been killed.  He was able to identify him as the person in the white pants.  He knew he had a bag.
343. [343]
     He said that after the fight “we” told PLA and the older brother to “knock off”.
344. [344]
     He agreed that all five of them ran to the beach.  He said that RSG was “pretty scared”.  They spoke about how he “took it too far”.  He said RSG said, “I wasn’t supposed to do it”.  He said RSG was not really saying much because he was shocked about it.  They wanted to get away before the police found them.  They were all “scared-ish”. 
345. [345]
     He discussed the “street check” on the beach when he was with HLC [Surname redacted]. He said the other three were swimming at that time.  They were all “sketching up”.  He said they split up because they knew police would be searching for a group of five.  He threw his jumper away – aware of the cameras – and the other defendants were doing the same with their clothing.  He changed into a shirt he had with him in his bag (“the LA one”).  He explained that he had a singlet around his neck. 
346. [346]
     When he was later asked to explain why he changed his clothes he said “if it was just a brawl then I wouldn’t mind.  I’ll still wear the same stuff …  But then it was just too far … The stabbing ... So I just chucked it away”.   
347. [347]
     He said when he saw Ariki stabbed he “was like “what the fuck””. 
348. [348]
     He agreed that he had his singlet over his face when the fight happened because there were cameras: “And like it was gonna be a brawl.  But then stabbing came in.  And I just took it off.  And just ran off”.  He was asked why he pulled the singlet up over his face if he thought there was going to be “a street fight”.  He said –

Oh, ‘cause I was, nuh.  Just because that’s who I am.  Felt like, like putting it up … But I didn’t know about no stabbing or nothing.

349. [349]
     He said nothing was going through his mind when he pulled the singlet up and put his hoodie on.  
350. [350]
     He said that he did not tell the police what occurred when he was approached on the beach because that was his “first time seeing anyone get stabbed”.  He did not want to “get done” for it.  He repeated that they were “sketching out” that they were going to get caught.  The brothers told him they were getting a lift out of Surfers Paradise. 
351. [351]
     He was asked about Darci approaching him and HLC on the tram.  He said Darci had asked him whether he had seen any “young kids running around” or “Islander youngies running around” because there had been a stabbing.  He said “no” and Darci shook his hand.  He said, in effect, that he did not know Darci, but assumed Darci shook his hand because he (Maljay) looked “like a kiwi”.  Then, Darci jumped on the train and tried to grab HLC and asked whether he was “the cunt” who’d stabbed his brother.  Maljay said no – HLC was not. 
352. [352]
     He said that there was no time when he contemplated taking any property from Jack Beasley’s group.  He said, “No … It was mostly a brawl”. 
353. [353]
     The interviewing police officer (Senior Constable Fry) said he did not understand why Maljay’s group wanted to fight Jack Beasley’s group.  Maljay said he did not want to fight them.  He was asked whether his group wanted to, and he said “I don’t even know.  ‘Cause they just said let – let’s go … So this was last minute.  And I couldn’t like get in front of them.  ‘Cause there was a whole load of crowd of them.  And like they were stopping and like they were saying shit to me … So, they just broke up on there”.
354. [354]
     He said no one in his group had been drinking alcohol or taking drugs that night.  He said he was, in effect, too full from food to fight.  He claimed he did not want to fight for that reason.
355. [355]
     He said that the “Lebanese fella” (Josiah) knew Jack Beasley’s group.  He said he did not remember talking to the girls who were with Josiah.  But he remembered talking to Josiah.  He said a few members of his group were talking to the girls with Josiah, but he wasn’t because he had “a missus” and he was on his phone texting her. 
356. [356]
     He said he asked Josiah where he was from, and he said Sydney and Maljay told him that he had “two boys” who were from there, referring to the [Surname redacted] brothers.  He said he was not paying attention to Josiah whom he described as “all over the place” (consistent with Josiah’s presentation in court). 
357. [357]
     He remembered one of the girls saying “that’s Jackson” – but that was the only thing he could remember.  She said that to “one of her mates” – not to Maljay.  He said he looked over, then looked away, because he did not know who Jackson was.
358. [358]
     He said HLC was “sketching out” about what had happened.  It was his “first time”.  Maljay told him not to think about it.  HLC wanted Maljay to come over to his house, but Maljay said no – he had to go home.  He said he too was “sketching out hard” and kept “hearing stuff in his head.  Like imagine … if they pulled up and shit”.  But he tried not to think about it.  He was playing his music, but HLC kept talking about it.
359. [359]
     The people he was afraid of “pulling up” were Gold Coast people.  He said he knew that people from the Gold Coast were “pretty dangerous” and that is what he was “sketching out” about.  HLC kept saying “no names”.  He said he (Maljay) was freaking out about it when he got off the train and was walking home. 
360. [360]
     He contacted OCP to ask, “you guys all good”.  OCP said “yeah” and Maljay informed him that he had just gotten home.  OCP instructed Maljay to delete their messages (which were on Instagram).  He said he spoke to “the brothers” again the next morning.  He woke up, and checked Seven News and it reported that a teenager had been stabbed to death.  He “started freaking out”.  He sent a text to (I infer) OCP who said that Maljay should come over to talk. 
361. [361]
     OCP arranged for his aunt to collect Maljay and bring him to her house.  Maljay said when he got there “they were all depressed and stuff”.  It seems that PLA was there too.  He said [Surname redacted]’s family told them they had to “hand themselves in” and that there was “no use hiding”.  He said they felt sorry for RSG, because he was only young, and he was “sketching out” and saying “sorry” to “us”.  Maljay said RSG was saying sorry because he “got us involved in the stabbing … stuff.  He just … took it too far”.  Maljay said, in effect, that that was his impression of it too.  He said, that was what he told PLA when they got to the house.
362. [362]
     He said “they” (OCP) sent a text to HLC, who said he did not want to be a part of it so “we” left him out of it.  He said PLA did not want to go to the police – he was “sketching out”. 
363. [363]
     He said he went with the [Surname redacted] brothers to police.  It is not entirely clear, but it seems PLA went with them as well – with some hesitation.  Maljay said he wanted to present to police, but they told him not to.  They told him he was not in the picture (I think referring to photographs on social media).  They told him he was not a part of it.  Maljay also said PLA did not want him to bring up the stabbing anymore – he did not want to think about it.
364. [364]
     He said he had “chucked away” into the rubbish at the brothers’ house the pants and the shoes he was wearing on the night of the thirteenth.  He said he threw it out because he knew someone had died and wearing the clothes made it “flash back”.  He said he could still picture what happened. 

HLC [Surname redacted] – interview

365. [365]
     HLC was interviewed on 14 December 2019, from 1.02 pm until 2.21 pm.  He was then 16 years old.  His grandfather was present as his support person. 
366. [366]
     His house had been searched that morning.  He was told then, and it was repeated during the interview, that police were investigating the murder of a 17-year-old at Surfers Paradise the night before, and the wounding or stabbing of “another fella” in the same incident.
367. [367]
     HLC told police that he lived with his mother, his sister, and his sister’s boyfriend.  It seems that his sister delivered a baby that morning.  He was on Lexapro for depression.  He completed year 11 in 2019 – although he was not happy with his marks.  He wanted to be a bricklayer. 
368. [368]
     He was asked to tell police what he had done the day before.
369. [369]
     He said he went to ‘Street Uni” at Woodridge to hang out with mates.  But it started raining and there was “nothing to do”, and then “one of my mates and his mate said, “just come down to Surfers”. [Surname redacted] said he went with them “cause there was nothing else to do”.  He continued –

… Then we were walking around Surfers for a bit, but then after that there’s like, group of guys, like we’re walking and they were just yelling out stuff and then we went up to them and then someone pushed someone, and then after that there was just a fight that broke out.  And the fight, like one of my friends were like getting jumped by like three other guys, and then the other boys are having other fights.  And then I pushed one of these guys off my mates and then I had a fight with him.  And then after that there was just heaps of yelling and that.  So, we ran.  And then we went to the beach, we were walking up and down the beach for a bit and I was sitting along, opposite Macca’s at this thing near the beach and then these police came up to me and my mate, and then they’re asking us questions if we were involved in the incident that night ‘cause we like kinda descript ah, d- like matched the description …

370. [370]
     HLC said he spent the night before at the house of one of the boys whom he’d “recently met”.  That boy’s aunty picked HLC and the boy up from the Beenleigh train station.  He said “everyone” went to that boy’s house.  He’d met the boy at Street Uni.  I inferred that he was referring to OCP – although HLC claimed not to know his name.
371. [371]
     He said he met “H” at Street Uni too.  I inferred that he was referring to RSG, based on his description of “H’s” clothing.  This was confirmed by HLC later in the interview when he was shown some photographs.
372. [372]
     After spending the night of 12 December 2019 with OCP, HLC and OCP went back to Street Uni on 13 December 2019.  He said “the one I stayed at his house” (OCP); “that H guy” (RSG); “this other guy”/“Samoan, chubby-ish and just chinny eyes” (later identified by HLC from photographs as PLA [Surname redacted]) and “that Maljay” went to the Gold Coast.  HLC thought the [Surname redacted] brothers and PLA were Maljay’s “boys”.  
373. [373]
     He described his journey to Surfers Paradise.  He was asked to tell police (Senior Constable Lamperd) “everything that happened from the minute [he] stepped off the tram until [he] saw [Jack Beasley’s group]”. 
374. [374]
     He told police, in effect, that they were just walking around, including through the markets on The Esplanade.  He said he thought he (and the others) were at Surfers Paradise for over an hour or two before they saw Jack Beasley’s group.  He was asked when he first saw Jack Beasley’s group.  He said he was sitting “up here” (at the Corner, outside Boost Juice) and that Jack Beasley’s group was “like giving us stuff”.  He continued –

… they were sitting further down just yelling out stuff.  [He did not know what they were saying] … they were just like yelling out stuff and that’s why we went and followed them ‘cause we didn’t know what they were saying, and then they like shaped up to us here, and that’s when the brawl broke out … [He said he heard them “whistling and that”] … like, “oi, cunt” and all this.  And then we were leaving it and then they were walking down so we just followed them.  ‘Cause we just thought it would be just a [??normal/little fight] …But then that’s when I heard someone got stabbed.

375. [375]
     He was asked how he knew Jack Beasley’s group were yelling out to his group.  He said, “Cause they were like looking in our direction a bit”.  He was asked what he talked about (with his group) when Jack Beasley’s group started yelling out.  He said –

[Indistinct] go find them, see where they’re going and that and see if they come back.  And we followed them, and then the guy with the cap, he turned back, he’s like, “why youse following?” And then that’s when I think the, the guy with the U-S-A pushed him or he pushed him or something… and then that’s how everyone just jumped in.

376. [376]
     He was not sure who said, “let’s go and follow them”.  He appeared to nominate Josiah Caltabiano.  He said that “this other random guy” who was not with “any of us” said “go follow them” and we were like “(??) alright we’ll just go then”. 
377. [377]
     He said he did not talk to RSG (H) when he was “walking down there”.  He said, pointing to a photograph, “I was talking to this guy at the back” – “that’s the one we were fighting with” (Ariki).  He said the guy was “just like, “what’s happening?”” and he ([Surname redacted]) was like: “I don’t know, I’m just following them”.  He said after that he “walked down to the front area” and “they had a fight”.  He said he was back “here” as per the photo, exhibit 29, and he saw “the guy in the grey shirt come” and he “pushed him off”: he did not even punch him.  He continued –

And then the guy I was talking to at the back um, was jumping this one, the one I stayed at his house [OCP] … him and three others ah, came and pushed him off, just shaped up to him.

378. [378]
     He said when it had “all finished”, he went back towards Boost Juice and then onto the beach, “trying to like get out of there”.  They all split up and he went with Maljay.  He confirmed that that was when police spoke to him at the beach.  Then he and Maljay went back to Cavill Station, and home.
379. [379]
     He said he did not know anything about anyone being stabbed that night until the police told him at the beach that there had been a fight near Cavill Station and someone had been stabbed.
380. [380]
     He said he’d gone to Surfers Paradise with the others because he was bored.  He was asked “what was the fun that you were going to have in Surfers Paradise” and he said ‘nothing”.  He said –

Like, I don’t know about them, but they probably like wanted to like just get some, like a phone or something, or shoes, I don’t know [indistinct] … Their business

381. [381]
     He said that meant “find someone, take their stuff”.  He confirmed he meant “steal their stuff”.  He said he was eavesdropping on the conversation between the other boys, on the train on the way to the coast.  He said he had his earphones in and did not really listen much.  He said he was sitting by himself on the train – behind the set of four seats.  (The CCTV footage shows that he was not.)
382. [382]
     He did not know who spoke about getting someone’s shoes or phone.  He said he did not join in the conversation about it.  He said he asked them what they were doing and they said, “there’s like nothing”.  He said, “they were just bored and that” and then they started talking to each other. 
383. [383]
     He said he did not see any of the boys with a knife.  He said he did not see a knife when the fight happened.  Nor did anyone mention a knife during the conversation.
384. [384]
     He was “friends” with OCP on Instagram – though he said he did not know his name was OCP.  OCP’s Instagram handle was [Redacted].  He was asked whether he had spoken to Maljay about what had happened.  He said “Yeah … I just like, talkin’ about the fight and that …But we were pretty shocked as soon as the police told us that someone got stabbed though”.  He said he spoke to his sister’s boyfriend about what had happened.  He told her boyfriend that he “had a fight and that in Surfers” and “heaps of stuff”.
385. [385]
     He said, in effect, that it was never his intention that night to be in a fight.  He said he went in to help a mate who had three people fighting him.  He said he dragged people off his mate and then he “shaped up”.  He said: “They hit me, … he tried to hit me, I lean back, and then I hit him once I’m pretty sure … And then like, we, I was just looking around, and then everyone ran so I ran as well”.  He said he was not aware that someone had been stabbed. 
386. [386]
     He said he was not sure whether any of the boys he was with were brothers.  He recognised OCP’s name, whose Instagram handle was on his phone.
387. [387]
     He was asked whether he got any food whilst he was at Surfers Paradise.  He said some homeless people gave them meat which they barbequed.
388. [388]
     He was taken back to the part of his interview where he said Jack Beasley’s group were “leaving it”, which he explained meant walking away from his group.  They were not shouting things while they were walking away.  He said his group followed Jack Beasley’s Group from “not that far – 20 metres”.  He was asked why they followed Jack Beasley’s group and he said –

‘Cause like the other boys were following them.  I knew there was gonna be a fight ‘cause they were following them

389. [389]
     He said it was Josiah who was saying “these guys” were calling out and who said “just go with them [indistinct?  He did not want us with them] I think”.

Counsels’ closing addresses

390. [390]
     Mr Fuller QC for the prosecution made submissions to the following effect in his closing address –

     1. (a)
        The nature of the common purpose is central to the extension of criminal liability to the defendants for the death of Jack and the grievous bodily harm done to Ariki.
     2. (b)
        The common unlawful purpose contemplated the use of group violence against the members of Jack Beasley’s Group by one or more of the Woodridge Group and the use of fists and feet.  There was no real motive for the violence: it was violence for violence’s sake.  The unlawful purpose contemplated resistance (by Jack Beasley’s Group) to the violence used; and the use of a degree of force to overcome that resistance.  Evidence of contemplation of the use of a degree of force to overcome Jack Beasley’s Group’s resistance might be found in the evidence of –

        1. the pursuit by the Woodridge Group of Jack Beasley’s Group for some distance;
        2. conversations by members of the Woodridge Group designed to work out the numbers in Jack Beasley’s Group (such as “are they with you”. “are you rolling with them”);
        3. a confrontation where there was no option on the part of Jack Beasley’s Group not to engage;
        4. a willingness on all of the Woodridge Group to engage; and
        5. group assaults on individuals.
     3. (c)
        That a person in Jack Beasley’s Group was confronted by the force of more than one of the Woodridge Group gave “flavour” to the unlawful common purpose of the defendants.
     4. (d)
        The question for me was whether an unintended death and the doing of grievous bodily harm were probable consequences of the unlawful common purpose, as per Darkan (see below) in the sense that they could well happen.
     5. (e)
        Punching and kicking can cause death in a variety of ways, especially if a person is vulnerable.  A group assault on the street is an uncontrolled fight in an uncontrolled environment.  It can involve a knock to the ground; a hit to a vital area or blows from multiple people upon an unprepared target.  In that same context, there can be grievous bodily harm by way of the breaking of a bone, the loss of an eye, or the impairment of breath.  A group melee increases the risk of death or grievous injury because “you” don’t have control over the choices made by others in the group or the level of violence inflicted by others – and that is the point of section 8. 
     6. (f)
        The blows struck during the altercation, and their fatal outcome, were done in the furtherance of the unlawful common purpose of doing violence.
     7. (g)
        None of those involved in the fight anticipated a fatal outcome from their actions.  “… [W]hen you look at the involvement of RSG [Surname redacted] in the fight itself, other than the three strikes with the knife, he doesn’t take an active part other than to threaten others to keep them out of the fight to assist his compatriots”. 
     8. (h)
        I might find that it was about the thrill of the fight, the intimidation, the testosterone, the opportunity to laud it over others.  Maljay Toala’s fist pump with RSG [Surname redacted] after the event, knowing what had happened to Jack Beasley, spoke to that.
     9. (i)
        The common purpose here was senseless violence.  The Woodridge Group was arrogant enough to believe that they could easily deal with Jack Beasley’s Group, which it had under observation for some period of time.  The Woodridge Group had a size advantage and a self-belief that there was no risk to them engaging in a fight with Jack Beasley’s Group – which is why they followed them and why at least two of them celebrated their success afterwards.  The defendants’ subjective belief as to the parameters of the violence contemplated rendered them liable under section 8 for RSG [Surname redacted]’s actions.
     10. (j)
         With respect to the question whether RSG [Surname redacted]’s actions were in furtherance of the common unlawful purpose, I was to consider the role of those in Jack Beasley’s Group; their attempts to de-escalate and defend themselves; and whether the ultimate altercation was contrived or manufactured by PLA [Surname redacted] and at least OCP [Surname redacted].
     11. (k)
         The evidence supported findings that –

         1. the Woodridge Group were comfortable in each other’s company;
         2. there was no evident hierarchy and no one appeared to be separate from the group;
         3. the photograph taken at the barbeque reflected the defendants’ view of themselves and their attitude towards violence: namely as gangsters;
         4. the knife was first produced at 7.03 pm; it was in a sheath, tucked into RSG’s pants.  It was a sizeable weapon;
         5. PLA [Surname redacted] first handled the knife at 7.18 pm;
         6. Maljay, OCP and RSG handled it whilst cooking – in clear view of HLC;
         7. RSG collected it from the barbeque and put it back in its sheath when the Woodridge Group started talking to the Gold Coast Group;
         8. OCP lied to police when he said he did not know there was a knife;
         9. [Surname redacted] lied to police when he said he did not know there was a knife;
         10. Maljay accepted (in his interview) that a knife was used and that he saw it used by RSG to injure Ariki;
         11. The defendants talked about drugs, and taking them forcefully, with the Gold Coast Group;
         12. HLC nominated Josiah as the person who suggested that the Woodridge Group go after Jack Beasley’s Group and there was other evidence of his confederacy with the Woodridge Group – although it had no bearing upon the verdicts; and
         13. there was a discussion about Jack Beasley’s Group when they arrived on the Corner – including a discussion about the Woodridge Group engaging violently with them.
391. [391]
     Mr Fuller then took me through the CCTV footage, starting at 1.22.06 of exhibit 5 and the oral evidence of the witnesses.  I will not set out everything he pointed out, but on the strength of it, he made the following submissions –

     1. (a)
        any suggestion that Jack Beasley’s Group behaved in any way to start the fight ought to be dismissed;
     2. (b)
        the way the Woodridge Group pursued Jack Beasley’s Group reflected the commonality of their purpose;
     3. (c)
        there was a contrived or manipulated engagement with Jack Beasley’s Group and the placing of them in a position where the confrontation had to take place;
     4. (d)
        Jack Beasley’s Group were confronted with the combined force of the Woodridge Group; and
     5. (e)
        RSG [Surname redacted] produced his knife.  Mr Fuller said (of the evidence of RSG’s moving his hand to remove his knife from its sheath), “Now, that doesn’t go to the knowledge that he was going to produce the knife by the others.  But it shows again the behaviours of somebody who is part of this group, expecting violence, and preparing himself for what he then does, which is produce the knife, and that occurs … and that’s well and truly before there’s any interaction other than [Surname redacted] pointing the arm, and this is the first act of violence and it doesn’t come from Jack Beasley”.
392. [392]
     Mr Fuller observed that when RSG’s knife was out, Jack Beasley had actually withdrawn and was standing with Izaiah and Rory.  Josh and Noah were “sidelined” because RSG was in front of them with the knife.
393. [393]
     Mr Fuller submitted that, during the fight, the Woodridge Group were engaged with each other, and acted in protection of each other and in delivering blows.  He continued, “and of course the irony is that the blows which were fatal were delivered by somebody who really took no part in the fight, other than to deliver those blows”.
394. [394]
     Mr Fuller submitted that RSG’s violence was in furtherance of the common unlawful purpose to “visit violence” upon Jack Beasley’s Group.
395. [395]
     Mr Fuller then took me through the defendants’ interviews – pointing out obvious omissions and untruths.  He submitted that the Woodridge Group not only anticipated, but had planned, violence for the sake of it.  All of the Woodridge Group actively participated in the pursuit of Jack Beasley’s Group – immediately interacting with them when they caught up to them, intending to wreak violence upon them.  Then Mr Fuller said, “[Y]our Honour would have no difficulty in finding there was a common unlawful purpose and the parameters of that involved group violence.  But the Crown can’t make any statement with respect to the use of the knife.  It then falls to the issue of the probable consequence of group violence”.  “Probable” meant something that could well happen.  The focus was on the level of harm in contemplation.
396. [396]
     Mr Hynes for HLC described his client’s actions and emphasised that he continued to hold his grocery bag after the violence broke out.  He said the fight went on for 29 seconds and HLC held on to his grocery bag for 14 of those 29 seconds.  His name barely rated a mention because he was the quiet one; who was disinterested; who looked like he might have been just hanging around the others.  He thought there would be a “little” fight.  He emphasised the need for me to be satisfied beyond reasonable doubt of the probable consequences of the fight in HLC’s contemplation.  It was not enough to appreciate that one punch may kill – tragic consequences can follow from innocuous acts.  Common sense would tell me that serious consequences like death or grievous bodily harm were not probable consequences of a fist fight.  Take RSG out of the equation and there were no other injuries. 
397. [397]
     Mr Hynes did not press me to accept his client’s version of events (as per his interview with police).  He submitted that his client was not a master manipulator.  He may well have been simply reconstructing events having been spoken to about a death the night before. 
398. [398]
     Mr Hynes submitted that HLC’s belief that there was to be a little fight could not be negated in any way.  That was his understanding of the common purpose.  Referring to Huston (see below), he urged me to take great care before concluding that HLC was responsible for RSG’s violence.  He reminded me that, on the Crown case, the common purpose did not involve a subjective intention that serious harm would be done.  The common purpose did not entail anything of sufficient seriousness to reach the necessary threshold.  The Crown had been unable to negate the rational hypothesis that the common purpose was to get involved in a consensual fight. 
399. [399]
     He submitted that evidence of the staring or the pursuit did not assist me to resolve the question whether there was to be a consensual fight or an assault.  He pointed to evidence which he submitted indicated that Jack Beasley accepted the invitation to fight.  He submitted that the Crown case, at its highest, “was five boys, engaging in an unarmed fist fight with a bigger group of boys, of roughly the same age, holding the subjective intention that no serious physical harm would be done”.  The Crown could not negate that possibility that the common purpose was for a member or members of the Woodridge Group to get into a consensual fight with a member or members of Jack Beasley’s Group.  Even if some members of the Woodridge Group contemplated an assault upon Jack Beasley’s Group – that is, a non-consensual fight – there was no clear evidence that HLC had such an assault in contemplation. 
400. [400]
     He invited me to look at HLC’s actions in the fight itself.  He said he approached Noah, but Noah did not want to fight.  Then he “walked down” to Rory, but did not fight him.  He “threw his first punch or blow towards anybody only at a time when OCP was in a tussle with two others”.
401. [401]
     He submitted that his client carrying his plastic bag and his Gatorade indicated that he was unprepared for what was to follow: RSG [Surname redacted] acted on his own.  HLC believed that he was “following a group that was following others for a small fight”.
402. [402]
     Ms Morgan for Maljay submitted that his only act of violence was to strike someone with an apparently empty Gatorade bottle.  She submitted that I ought not to allow the senseless, tragic and disturbing outcome of the fight to obscure the real issues in the trial, which revolved around section 8.  The Crown had not excluded, beyond reasonable doubt, the reasonable hypothesis that the fight Maljay had in contemplation involved a challenge to other boys of similar age, greater in number, of approximately the same size, to a fist fight – rather than an assault to inflict physical harm.  Although the difference was subtle, it was a difference.  There was no plan to surprise Jack Beasley’s Group with an assault.  There was an invitation to “go around the corner”.
403. [403]
     Ms Morgan submitted that there was no doubt that members of the Woodridge Group were the instigators of the fight and that they were determined and persistent to engage the other boys in a fight.  She added that it may well have been that they were bored and had nothing better to do.  But it was not alleged by the Crown that the unlawful common purpose entailed the use of a knife. 
404. [404]
     Referring to Keenan (see below) she submitted that the means intended to be used in this case – fists – were relevant to the question whether RSG’s using a knife was a probable consequence of the unlawful common purpose. 
405. [405]
     There was no history between the groups.  There was no revenge or robbery motive: “The fight seemingly was caused [by] an excess of testosterone and stupidity”.  Death or grievous bodily harm were not probable consequences of a fist fight.  It was possible that they might occur – but where the intended means (as alleged by the Crown) did not encompass an intention to do serious harm, the offence committed well exceeded the common purpose. 
406. [406]
     Ms Morgan noted that, before the fight started, Maljay was holding a plastic drink bottle, HLC was carrying a shopping bag, and OCP and PLA were bare handed.  That was significant in light of the fact that the Crown did not allege that the defendants went into the fight “consciously aware” that RSG had a knife.  It was theoretically possible that, in a street fight, someone might punch hard and cause another to suffer serious injury – but that was not what happened here.  The means intended to be used to commit the offence (fists) were relevant to whether RSG’s conduct constituted an escalation of violence beyond that which was a probable consequence of the unlawful common purpose (referring to Huston).  She submitted that RSG acted alone, for reasons of his own, independent of the common purpose to engage in a fist fight.
407. [407]
     Ms Morgan submitted that when the common purpose was formed (while the defendants were at the Corner) Maljay was using his mobile phone with his earphones in.  There was no evidence that he said anything or adopted any statements attributed to anyone else.  He told police he had heard things said – but there was no evidence that those things were said or heard.  There was no detailed strategic considered planning session resulting in the common unlawful purpose. 
408. [408]
     There was no evidence that Maljay was present for discussions involving drugs at the beach or was an active participant in a conversation about drugs or robbery on the Corner.  She submitted that, “The statements attributed to the co-accused in relation to the drugs or robbery would only be admissible against Mr Toala if they were made in relation to a common purpose to obtain drugs or rob someone.  The Crown does not allege such a purpose.  So, in my submission, that evidence, as far as Mr Toala is concerned, is completely irrelevant”. 
409. [409]
     She submitted that Maljay presented as an immature young man in his police interview.  She did not press his version of things as something I ought to accept.  However she urged me to accept that he was doing his best to tell police what had occurred from his perspective.  He said, in effect, that a fight was not inevitable.  He did not know whether anyone in Jack Beasley’s Group would stand up.  But he was willing to become involved if they did.  His use of the word “brawl” was an apt description of what occurred.  Picking up his drink was an odd thing to do if he anticipated attacking someone.  She submitted, in effect, that I ought not to read anything incriminating into the fact that Maljay covered his face.  He did that because he knew there would be cameras.  He thought the fight was going to be a one-on-one and it was at first. 
410. [410]
     The Woodridge Group challenged Jack Beasley’s Group to a fight.  They didn’t just come up behind them and jump on them.  OCP and PLA [Surname redacted] keep on walking until Jack Beasley called out “what?”  It was then that they turned around and there was a confrontation. 
411. [411]
     Ms Morgan submitted that it was important to view the fight in real time – not in slow motion so as to ensure I understood the perspectives of those involved.  Having regard to the short duration of the fight, it was not surprising that recollections differed. 
412. [412]
     Ms Morgan seemed to acknowledge that Maljay saw RSG stab Ariki and Jack during the fight (as per his statements during his interview and his description of Jack Beasley doubling over with his hands across his chest).  She said, “He takes in what has happened, grabs RSG by the shoulders and runs”. 
413. [413]
     She referred to Maljay’s post offence conduct and submitted that it was capable of an explanation other than as reflecting a consciousness of his guilt – but the prosecution did not rely on his post offence conduct for that purpose.  She acknowledged “contact” between the hands of Maljay and RSG after the fight.  She said it was capable of many interpretations including “It is okay”; “We got away” “Are you okay?” “You’re not alone”.  It was not necessarily a “well done mate” gesture. 
414. [414]
     She reminded me of the need to take care and be precise in determining the unlawful common purpose.  The nature and degree of the violence contemplated was relevant.  She reminded me that the prosecution did not allege that the defendants intended serious harm to Jack Beasley’s Group.  Nor was it alleged that the defendants had in contemplation anything other than a fist fight or an assault with fists.
415. [415]
     She submitted, “There is certainly no evidence from which it can reasonably be inferred that Maljay … shared in an escalating intention held by RSG [Surname redacted] to inflict more serious violence than was originally contemplated by the common purpose”.  Whilst in some fist fight cases, death or grievous bodily harm might be probable consequences, that was not the case here.  That would mean a manslaughter or grievous bodily harm would be committed in practically every pub in the city on a Friday night and we know that is not the case.  Any common purpose was last minute.  The adrenaline was pumping and they were caught up in the moment, without a chance to process what was going on.  Whilst someone might be seriously hurt as a theoretical possibility when groups of young men engage in a fist fight – that is not an objectively probable consequence.  RSG went beyond the scope of the common purpose.  He was acting independently. 
416. [416]
     Mr McGuire for OCP submitted that it was no trivial matter to shoehorn his client into liability for someone else’s unreasonable and unforeseen actions.  To convict OCP, I needed to be satisfied, beyond reasonable doubt, that death or grievous bodily harm was a probable consequence of the level of violence intended by all – that is, that the planned violence was of sufficient seriousness to allow me to reach that conclusion.
417. [417]
     Mr McGuire also observed that whilst the Crown could have alleged that OCP [Surname redacted] shared in the expanded intention – that is, RSG’s intention to inflict more violence than had first been planned – that was not alleged. 
418. [418]
     Mr McGuire asked rhetorically, if the unlawful common purpose had been to assault, why did the defendants not do that.  Why invite a fight?  If a rational hypothesis, open on the evidence, was that the common purpose was to engage in a consensual fight, then OCP had to be acquitted.
419. [419]
     Even if I were satisfied, beyond reasonable doubt, that the Woodridge Group (or some of them) had an unlawful common purpose – I would be left with a reasonable doubt that OCP was part of it.  OCP had his headphones on whilst travelling on the train and was glued to his phone.  OCP was, as Sarah said, not aware what was going on (when the group left).  He left 20 seconds after they did.  He was saying “good bye”.  He was not interested in Jack Beasley’s Group.  If he was part of any common purpose, he became part of that purpose after he caught up with his group.  There was an invitation to fight – but then OCP walked away.  But Jack Beasley was not backing down.  He asked, rhetorically, if OCP had been stabbed – what would the prosecution say about Jack Beasley’s actions?  Jack had been challenged to a fight.  He was a testosterone-filled young boxer with stimulant in his system.  He was “more than happy” to take the Woodridge Group on.  He could have let them pass.  He could have stopped and put distance between them.  He could have walked into a shop.  OCP was walking away but Jack Beasley continued to engage.  He provocatively threw the cigarette in PLA’s face.  He took off his hat and bag and shaped up.  PLA lashed out at Ariki.  Jack Beasley jumped in to help his friend – and things escalated.
420. [420]
     Mr McGuire acknowledged that OCP told lies during his interview with police about his knowledge of the knife.  He reminded me that the prosecution relied upon them as credit lies only.  It was “painfully obvious” that he was trying to protect his younger brother. 
421. [421]
     Further, death or grievous bodily harm were not probable consequences of a fist fight.  Referring to Keenan, he submitted that what had occurred here was that no serious harm was intended, and that which had occurred well exceeded the common purpose. 

What I made of the defendants’ interviews

422. [422]
     On the whole, I found all of the defendants mostly untruthful in their interviews and I accepted very little of what they told police.
423. [423]
     In brief, with respect to OCP [Surname redacted] –

     1. (a)
        I rejected any suggestion from him that the fight started because Jack Beasley’s Group had been staring at the Woodridge Group – that was a lie.
     2. (b)
        I accepted broadly his outline of his experience of the fight – that it felt like three people were on him.
     3. (c)
        I found that he lied when he said he did not know a knife was involved until the morning of the fourteenth of December.  He knew RSG had a knife on him at least by the time they were barbequing meat.  And it was an affront to common sense to suggest that he was not told, immediately after the fight, by his brother or anyone else that Jack and Ariki had been stabbed.
     4. (d)
        I found that he lied when he said there was no talk about drugs.
424. [424]
     In brief, with respect to Maljay Toala –

     1. (a)
        I rejected any suggestion from him that the fight started because of conduct of any kind on the part of Jack Beasley’s Group – that was a lie.
     2. (b)
        I accepted that someone from his group suggested “a brawl” with Jack Beasley’s Group.
     3. (c)
        I rejected his statements to the effect that his understanding was that it was to be a “one-on-one”.
     4. (d)
        I accepted his evidence that he knew RSG had a knife – at least from when the Woodridge Group were at the barbeque.
     5. (e)
        I accepted his evidence that he knew RSG had the knife “stashed” in a case “under his stomach”.
     6. (f)
        I rejected his statements which tended to suggest that he was only half interested in what was going on because he was distracted by his phone – he followed Jack Beasley’s Group with enthusiasm and pulled up his singlet to disguise his face as he approached them, expecting that an assault was about to take place.
     7. (g)
        I accepted his evidence that the older brother (OCP) was doing most of the talking in the lead up to the fight – bearing in mind that this was not evidence against OCP.
     8. (h)
        I accepted his evidence that he was eyeing “the Māori” (Ariki).
     9. (i)
        I accepted his evidence that he saw RSG stab Ariki.
     10. (j)
         I accepted his evidence that he did not see RSG stab Jack, but he saw Jack afterwards “screaming”.
     11. (k)
         I rejected his statement that he did not know about “no stabbing or nothing” – he said he saw it happen, at least to Ariki.  Indeed, he said it was the first time he had seen anyone stabbed.
     12. (l)
         I rejected, as nonsense, his statement to the effect that he was too full, from food, to fight.
     13. (m)
         I inferred, from his reference to it being HLC’s first time, that it was not his (Maljay’s) first street “brawl” – but I did not use propensity reasoning.
     14. (n)
         I took into account, in determining his guilt on a section 8 basis, his statements to the effect that RSG had taken the “brawl” too far.
425. [425]
     In brief, with respect to HLC [Surname redacted] –

     1. (a)
        I rejected his statements to the effect that Jack Beasley’s Group had done anything to provoke the fight – they were just lies.
     2. (b)
        I thought it was probable that Josiah had suggested to the Woodridge Group that they take on Jack Beasley’s Group – or at least encouraged their own inclination to do so.
     3. (c)
        I rejected his evidence that he knew nothing about anyone being stabbed until the police spoke to him at the beach – he saw RSG with the knife in the fight.
     4. (d)
        I accepted his statements to the effect that he understood that others in the Woodridge Group were interested in “stealing” “stuff” from someone at Surfers Paradise.
     5. (e)
        I rejected his statements that he did not see any of the boys with a knife – he knew RSG had a knife, at least from the time of the barbeque.
     6. (f)
        I rejected his statements that he did not see the knife when the fight happened – he saw RSG with it, if not actually use it.
     7. (g)
        I rejected his statements to the effect that he did not know (until he was told) that someone had been stabbed during the fight.
     8. (h)
        I accepted that he knew there was going to be a fight when he followed Jack Beasley’s Group.
     9. (i)
        I rejected his statements to the effect that he was not interested in a fight – I found that he was keen and that he and PLA were the first to leave the Corner to follow Jack Beasley’s Group.  Also, the CCTV footage of the fight reveals that, once he decided to join in, HLC was enthusiastic.

My findings of fact

426. [426]
     I found that the defendants knew that RSG had a knife concealed on his person, at the latest, at the barbeque area.  The knife was used by most of them, if not all of them, in full view of the others.  I found that the defendants knew that RSG carried the knife to use as a weapon – not for some innocent purpose – because there was no other reasonable explanation for his having it on him.  Indeed, none was suggested.
427. [427]
     I found that every member of the Woodridge Group was aware that at least one member of their group was interested in obtaining drugs without payment (“hitting for a lick on”) on the strength of the evidence of the conversations between members of the Woodridge Group and members of the Gold Coast Group. 
428. [428]
     I accepted the evidence of the three girls in the Gold Coast Group about the nature of the conversations they had, or overheard another member of their group having, with a member or members of the Woodridge group – that is, conversations about a desire to obtain drugs, including without paying.  The evidence of the three girls was persuasive because of its broad consistency – particularly bearing in mind their youth and lack of sophistication.  I had no concerns that they had colluded about their evidence, although I have no doubt that they talked to each other about what they recalled of the evening.
429. [429]
     It was completely understandable that the Woodridge Group would raise the topic of drugs with the Gold Coast Group because the Gold Coast Group were openly “doing nangs”.  Also, they had discussed drugs being better in Sydney with Josiah. 
430. [430]
     I found that at least one member of the Woodridge Group asked more than once whether the Gold Coast Group could, in effect, identify for them a target to “hit a lick on”. 
431. [431]
     It was artificial to approach that evidence – as the separate defendants implicitly suggested that I should – on the basis that, unless there was evidence that a particular defendant mentioned drugs or “hitting a lick on”, or evidence that he had heard it being discussed, he had no awareness of it.  The defendants were together for hours.  It was an affront to common sense to suggest that they had no shared interest in the things they might do at Surfers Paradise; and an affront to common sense to suggest that any one of the defendants heard nothing about drugs or the possibility of hitting for a lick on.
432. [432]
     I found that the Woodridge Group took an interest in Jack Beasley’s Group.  That was apparent from the CCTV footage of the groups on the Corner, and obvious, of course, from all that followed.  But the Crown did not allege that the Woodridge Group was interested in Jack Beasley’s Group as potential targets for a robbery.
433. [433]
     I found that the Woodridge Group were interested in a fight with Jack Beasley’s Group.  .I found that members of the Woodridge Group were staring at Jack Beasley’s Group: “eyeing them up”. 
434. [434]
     I found that the Woodridge Group made it plain to the Gold Coast Group that they wanted to engage with Jack Beasley’s Group in a way that involved violence.  I found that Josiah encouraged them but that it troubled the girls.  The Woodridge Group was (obviously) unmoved by Bella’s request that they leave Jack Beasley’s Group alone because she knew one of them
435. [435]
     I found that the Woodridge Group determined, as a group, to pursue Jack Beasley’s Group for the purposes of a fight.  Because of the way in which the Crown presented its case, I did not need to reach a conclusion about their motivation for the fight, but it seemed that it was, at the least, “something to do”. 
436. [436]
     I found, on the strength of the CCTV footage, that PLA and HLC were particularly keen.  I found that HLC cocked his head at PLA to encourage him to leave the Corner and follow Jack Beasley’s Group.  I found that, at least by the time they began a determined pursuit of Jack Beasley’s Group, every member of the Woodridge Group planned to engage Jack Beasley’s Group, or some of them, in a fight. 
437. [437]
     Whilst OCP was the last to leave the Corner, he ended up leading the group in the pursuit, together with PLA [Surname redacted].
438. [438]
     Maljay’s dashing in to retrieve his Gatorade reflected his enthusiasm for the plan to fight Jack Beasley’s Group – as did his preparing himself by raising his singlet up to cover the lower half of his face and putting his hood on. 
439. [439]
     I found that OCP approached Izaiah; asked him who his “boys” were; and invited him (and his “boys”) to “go for a walk” – an invitation to fight. 
440. [440]
     I found that no one in Jack Beasley’s Group was interested in any sort of fight with the Woodridge Group, for the sake of it, or for any other reason.  I found that members of Jack Beasley’s Group told the Woodridge Group more than once to “fuck off” and to leave them alone.
441. [441]
     I found that Jack Beasley’s Group did absolutely nothing to provoke the Woodridge Group in any way. 
442. [442]
     Although Jack engaged with OCP and PLA, by asking “what what what” in an incredulous way – I found that he did not thereby invite a fight.  He was acting protectively and courageously to make the point that his group had done nothing to attract the attention of the Woodridge Group.  His “what what what” was a command to PLA or OCP to explain themselves. 
443. [443]
     I found that PLA used Jack’s engagement as an opportunity to invite him (again) to a fight in a secluded spot.  PLA was the first to act aggressively and thereafter, Jack and Ariki and Izaiah acted to protect themselves.  Noah and Josh were kept out of the way by RSG’s knife.  Rory tended to be on the fringe of the fight. 
444. [444]
     I have outlined above what I made of the fight itself.  I found that the Woodridge Group acted collectively.  Whilst OCP and PLA played dominant roles, Maljay and HLC were keen to engage physically with Jack Beasley’s Group at the right moment (perhaps when they perceived OCP or PLA “in trouble”). 
445. [445]
     Because of the way in which the Crown framed its case, while I had to consider what each defendant did during the fight, I had to focus on the fight in the defendants’ separate contemplation while they were still at the Corner – not in the moments before they entered the fight themselves.
446. [446]
     I have outlined above the conduct of each of the defendants in the fight.  None of them used weapons.  OCP was one of the first two to act aggressively – using his fists after dropping his Gatorade bottle.  He also kicked at Jack at one point.  He entered the fight with his cross-body bag still on.  He was engaged in physical fighting when his brother pulled out his knife and used it, and I was not persuaded that he saw it.
447. [447]
     Maljay and HLC held back for a little bit.  Maljay went in after Ariki was stabbed.  He used his Gatorade bottle to hit.  HLC went in after Ariki was stabbed.  Although he appeared initially unsure about what to do, he quickly assumed an aggressive demeanour and was engaging in a fight of sorts with Ariki before he left the scene.
448. [448]
     The fight was over quickly because RSG had used his knife three times, causing fatal and grievous injuries, within less than 30 seconds of it starting.  The fact that the fight was over quickly said nothing about the assault in contemplation by the Woodridge Group at the Corner. 
449. [449]
     I found that the Woodridge Group ran away once they appreciated – either because they saw, or because they heard from one of their number – that RSG had done serious harm to Jack and Ariki.
450. [450]
     I found that Maljay and RSG’s fist bump reflected their perception that they had been “victorious”.  I was invited by the Crown to use this evidence to determine Maljay’s understanding of the level of harm contemplated by him when the common purpose was formed at the Corner.  However, I found that the fist bump only gave colour to Maljay’s view of that which had in fact occurred – that is, that RSG had stabbed Jack and Ariki.  I found that the fist bump could not be used to draw any inference about what Maljay had in contemplation at the Corner, before the fight began (which, on the Crown case, was an assault which did not involve an appreciation that RSG might use his knife).
451. [451]
     I found that, before making their way to the beach, all of the Woodridge Group knew that Jack Beasley had been stabbed and was in a serious way.  I found that all of the defendants knew that Ariki had been stabbed.  It was an affront to common sense to suggest that, say, Maljay alone knew that Jack was “pissing out blood” but said nothing about that to anyone else, or that RSG did not disclose to OCP what he had done.  Further, on my evaluation of the evidence, Maljay and HLC saw RSG use the knife, either on Jack or on Ariki, or both. 
452. [452]
     I found that the Woodridge Group separated and discarded their clothing because they knew they had been involved in a fight which had serious consequences.  However, I was not asked to infer guilt for the offences of manslaughter or the doing of grievous bodily harm from their post-offence conduct. 

The directions I gave myself

453. [453]
     In evaluating the evidence, and in determining the guilt or otherwise of each defendant, I was required to apply relevant law and procedure.  Accordingly, I directed myself as follows in relation to the burden and standard of proof; the way in which I was to use evidence; the inferences which I was permitted, or not permitted to draw, et cetera:

     1. (a)
        The burden rests on the prosecution to prove the guilt of the defendants.  Each defendant is presumed innocent and there is no burden on him to establish his innocence. 
     2. (b)
        For the prosecution to discharge its burden of proving the guilt of a defendant of an offence, it is required to prove, beyond reasonable doubt, that the defendant is guilty of that offence. 
     3. (c)
        For me to find a defendant guilty of a particular offence, I must be satisfied, beyond reasonable doubt, of every element of that offence and the basis of the defendant’s criminal responsibility for it.  If I am left with a reasonable doubt about the guilt of a defendant, my duty is to acquit; that is, to find that defendant not guilty.  If I am not left with any such doubt, my duty is to convict; that is, to find the defendant guilty. 
     4. (d)
        Proof beyond reasonable doubt is the highest standard of proof known to the law.  It may be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities.  To succeed in a civil case, a plaintiff must persuade the finder of fact that its claim is more likely than not.  In a criminal trial the standard of satisfaction required for conviction is much higher: the prosecution must prove the guilt of each defendant beyond reasonable doubt.
     5. (e)
        In reaching my verdicts, I must not be influenced by public opinion about these offences in general, or in this particular case, nor what I might expect public opinion to be about any particular verdict I might return. 
     6. (f)
        In reaching my verdicts, I must dismiss all feelings of sympathy or prejudice: whether it be sympathy for, or prejudice against, any of the defendants or anyone else – including the deceased, his parents, his family, or his friends.  Emotion has no part to play in my decision.  I must approach my duty clinically and dispassionately.
     7. (g)
        I must decide the case on the evidence presented to me in court and only on that evidence. 
     8. (h)
        I must not take into account any outside information or other outside influence.  I must not make my own inquiries or investigations about the case or anyone connected with the case. 
     9. (i)
        I viewed the crime scene and its surrounds at Surfers Paradise.  I considered such a view desirable and gave necessary directions for it in accordance with section 52 of the Jury Act 1995 (Qld).  I appreciated that the prosecutor was of the view that seeing the crime scene and it surrounds would assist me to resolve the issues which arose in this case and to understand and apply the evidence.  Defence counsel did not suggest otherwise.  The view was to be used to assist me to understand and apply the evidence – but it was not itself evidence. 
     10. (j)
         I may accept evidence in whole or in part.  It is for me to decide whether I accept the whole of what a witness says or only part of it or none of it.  I may accept or reject such parts of the evidence as I think fit.  It is for me to decide whether a witness is telling the truth and correctly recalling the facts about which he or she has testified.  If I decide to accept a piece of evidence, it is for me to decide the weight or significance it should have.
     11. (k)
         In this case, I was required to draw inferences from proven facts – including, critically, inferences as to the nature and scope of the assault in contemplation by each defendant.  In other words, I was required to use evidence circumstantially; I was required to use facts, which I accepted, in an indirect or circumstantial way, as pointing to the existence of another fact. 
     12. (l)
         When I am using evidence circumstantially, I must not draw an inference from it consistent with the guilt of a particular defendant, unless I am satisfied that it is the only rational inference which can be drawn.  If the evidence, used circumstantially, gives rise to competing reasonable inferences, one which points to a defendant’s guilt and another which points away from it (that is, points to his not being guilty, or his “innocence”) then I am required to give the defendant the benefit of the doubt and not draw the guilty inference.  In other words, if the evidence used circumstantially raises a reasonable possibility or hypothesis consistent with the innocence of a particular defendant, it is my duty to find that defendant “not guilty”. 
     13. (m)
         In drawing inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence.  I must not engage in speculation or conjecture to fill in any gaps in the evidence. 
     14. (n)
         Although the defendants have been tried together, each is entitled to have his case decided solely on the evidence admissible against him.  In this case, apart from the interviews given by each of the defendants – which are only admissible in the case concerning that defendant – the evidence presented by the prosecution was admissible against each of the defendants. 
     15. (o)
         No adverse inference may be drawn from the fact that the defendants have been charged with a homicide offence and grievous bodily harm offences; nor because one of them is in custody on remand. 
     16. (p)
         Nor may any adverse inference be drawn from the fact that the defendants were guarded by Corrective Services Officers while in the dock during the trial; nor from the fact that HLC was separated by glass from the other two defendants.  Defendants are so guarded and positioned routinely in the criminal courts. 
     17. (q)
         I was aware that the defendants had screens/monitors in front of them in the dock.  I was aware that they had to look down whilst seated in the dock to view the screen as relevant evidence was played or displayed.  I must not read anything adverse to a defendant into the fact that, whilst recordings were played or photographs or other documents were displayed, he was looking down. 
     18. (r)
         I must not draw an adverse inference against any defendant from the fact that the CCTV depicted certain defendants committing minor or trivial infringements such as traveling on public transport without paying, or littering.  Indeed, I must treat those minor infringements as totally irrelevant. 
     19. (s)
         If I were to find that the defendants at times contemplating the consumption of drugs, or the commission of a robbery to obtain money or drugs, I must not reason from that finding that the defendants were the sort of persons who would commit the offences charged. 
     20. (t)
         Although I am aware that RSG [Surname redacted] has pleaded guilty to murder and intentionally doing grievous bodily harm, I must not take his pleas into account in deciding the case against the defendants before me.  His pleas to those offences are irrelevant. 
     21. (u)
         Although I am aware that PLA [Surname redacted] has pleaded guilty to manslaughter and doing grievous bodily harm, I must not take his pleas into account in deciding the case against the defendants before me.  His pleas are irrelevant.  I must not speculate about the basis upon which he entered those pleas or the reasons why he entered those pleas.
     22. (v)
         A defendant is presumed innocent until the prosecution adduces sufficient evidence to allow a finder of fact to reach a conclusion of guilt beyond reasonable doubt.  A defendant is entitled to insist that the prosecution prove its case against him – if it can.  The defendants in this case did not have to give, or call other people to give, evidence on their behalf or otherwise produce evidence.  That was their right.  The defendants were not obliged to add to the evidence of the prosecution.  The fact that a defendant did not get into the witness box and give evidence is not evidence against him.  It does not constitute an admission of guilt by conduct.  Nor may it be used to fill in any gaps in the prosecution case.  It proves nothing at all.  I must not assume that, because a defendant gave (or called) no evidence, that adds in some way to the case against him.  I must not consider it at all in deciding whether the prosecution has proved its case beyond reasonable doubt.  The fact that the defendants did not give evidence does not make the prosecution’s task any easier.  It does not change the fact that the prosecution is responsible for proving the guilt of the defendants beyond reasonable doubt.  
     23. (w)
         In this case, each of the defendants was interviewed by police and recordings of their interviews were tendered as part of the Crown case.  The question for me in this trial is whether I am satisfied of the guilt of each defendant on each charge on all of the evidence placed before me, which, in the case of each defendant, includes their interview with police. 
     24. (x)
         What each defendant said during his interview with police may only be used in the case concerning that defendant. 
     25. (y)
         To the extent that an interview contains a statement against the interest of a particular defendant, I may only act on it if I am satisfied that the statement amounts to an admission of guilt and that it is true and accurate. Also, it is only evidence against that defendant.
     26. (z)
         A critical issue here is the nature and scope of the assault contemplated by each of the defendants.  Generally, the defendants suggested in their interviews that the assault in their contemplation was a relatively minor one; or one which happened suddenly; or one which was provoked in some way by Jack Beasley’s Group; or a one-one-one fight, the probable consequences of which would not include an unintentional killing or doing of grievous bodily harm.  I do not need to positively accept the statements made by a defendant to police about the assaults before acting on them to the benefit of the defendant.  If I think that what a particular defendant had to say is true, or might be true, then I need to consider whether that gives rise to a reasonable doubt about the guilt of the defendant.  If I do not accept a defendant’s account to police, then it simply does not form part of the evidence which I accept.  And the question for me remains whether a particular defendant is guilty of each offence beyond a reasonable doubt on the evidence I do accept.  Although I have confined the above directions to the statements made by the defendants about the assault in their contemplation, they apply to all self-serving statements made by the defendants during their interviews. 
     27. (aa)
         The transcripts which I was given of the defendants’ interviews with police are aids only – nothing more than the opinion of another person about what was said.  It is for me to determine what was said by each defendant during their interview. 
     28. (bb)
         If I conclude that a defendant deliberately lied to the police (about, for example, the conduct of the members of Jack Beasley’s Group or their knowledge of the knife) then that is relevant to the credit of that particular defendant.  But it is for me to decide whether a defendant’s lie in fact affects their credibility.  The mere fact of telling a lie is not evidence of guilt.  I must not reason that, because a particular defendant has lied, he is guilty of any or all of the offences charged.  I am to bear in mind that a defendant may lie for many reasons, including out of panic or shame.  If I think there is an innocent explanation for the lie, then I should take no notice of it. 
     29. (cc)
         Upon request, OCP [Surname redacted] was given breaks during his police interview.  He was reminded by his mother or lawyer that he was not required to answer questions.  It is a fundamental rule of our criminal law that a person accused of an offence is not obliged to answer police questions.  A person accused of an offence has a right to silence before trial – that is, a right to say nothing at all to police.  I must not use the fact that OCP [Surname redacted] took breaks during his interview, or that those supporting him reminded him of his rights, against him.  It would be wrong of me to reason that his mother or lawyer were concerned that he had something to hide or that he might say something which would implicate himself in this offending.  He was entitled to the breaks, entitled to have his mother and lawyer present; and entitled to act on the police caution.  I must not use the breaks, or his not answering certain questions, against him in any way. 
     30. (dd)
         Although the defendants are being tried together, I must give the cases against each of them and for each of them separate consideration.  I must separately consider the evidence admitted in relation to each defendant (whether for or against him) and I must return separate verdicts in respect of each defendant. 
     31. (ee)
         Each defendant is entitled to have me consider each charge separately.  I am required to return separate verdicts on each charge. 
     32. (ff)
         Two of the Crown witnesses, Hunter Terangi and Sarah Morgan, were children at the time they were spoken to by police.  Their conversations, or interviews, with police were electronically recorded and the electronic record was tendered under section 93A of the Evidence Act 1977 (Qld).  The electronic record formed part of their evidence-in-chief.  The receipt of the evidence of children in this way is routine.  I must take care though not to give it disproportionate weight and I must ensure that I do not consider it without also considering the cross-examination of Hunter or Sarah.
     33. (gg)
         The 93A evidence was accompanied by transcripts of the recordings which the parties wished me to have during my deliberations.  Those transcripts are an aid only.  They are an unknown person’s opinion about what the witness said.  It is what I saw and heard which is evidence.  And if I heard something which differed from the transcript, then my view is to prevail.
     34. (hh)
         In estimating the weight to attach to the evidence of Hunter and Sarah, I am to have regard to all of the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of their 93A evidence, including whether the statements made during their 93A evidence were made contemporaneously with the occurrence of the facts to which they related – in this case, the statements were made the next day; and whether either girl had any incentive to conceal or misrepresent the facts.  In this case, it was suggested, in effect, that the girls were desirous of ensuring that they were not blamed for the conduct of the Woodridge Group or the stabbings.  That was something I was required to take into account.
     35. (ii)
         I must be careful not to place undue weight on the 93A evidence because I was able to watch it/hear it more than once.  (Although, sitting as a judge alone, I was provided with a trial transcript.  I could read it as many times as I wished to – but of course, I had no visual record of the evidence.)
     36. (jj)
         The expert evidence in this case was limited to the evidence of the pathologist, Andrew Read, and was not at all controversial.  Nevertheless, I directed myself that the ordinary rule is that a witness may speak only as to facts and may not express an opinion.  An exception to that rule is that persons duly qualified to express an opinion within a particular area of expertise may do so on relevant matters within the field of their expertise.  The fact that such a witness is referred to as an expert does not mean that their evidence is automatically to be accepted.  I am the sole judge of the facts and am entitled to assess and accept or reject opinion evidence as I see fit.  It is also up to me to decide what weight or importance I give to the opinion, or indeed, whether I accept the opinion at all.  If the facts upon which the opinion is based are not established to my satisfaction, then the opinion may be of little weight.
     37. (kk)
         The expert gave evidence by way of audio/video recording.  In accordance with section 39R of the Evidence Act, I must not give his evidence any more or less weight, or draw any inference for or against a defendant, only because he gave his evidence in such a manner. 

The offences

454. [454]
     With respect to the offences, I directed myself as follows.
455. [455]
     For a defendant to be convicted of a particular offence, I must be satisfied, beyond reasonable doubt, of every element of the offence.
456. [456]
     In the case of manslaughter, the elements are that, on the date and at the place nominated in the charge –

     1. (a)
        A particular defendant;
     2. (b)
        Unlawfully;
     3. (c)
        Killed;
     4. (d)
        Jack Beasley.
457. [457]
     In the case of unlawfully doing grievous bodily harm, the elements are that, on the date and at the place nominated in the charges –

     1. (a)
        A particular defendant;
     2. (b)
        Unlawfully;
     3. (c)
        Did grievous bodily harm;
     4. (d)
        To Ariki Waiariki-Katuke.
458. [458]
     Although the defendants were each charged with unlawful killing and unlawfully doing grievous bodily harm, they did not do the acts which caused death or grievous bodily harm – RSG [Surname redacted] did.  The admissions made jointly (set out above) meant that the only issue for me was that set out in (a) above in each case.  That is, the issue for me was whether a particular defendant was criminally responsible for/guilty of the unlawful killing or the unlawful doing of grievous bodily harm.
459. [459]
     As explained above, the Crown alleged that each defendant was criminally responsible for Jack’s death and Ariki’s grievous injuries under section 8 of the Criminal Code.
460. [460]
     Section 8 states –

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.

461. [461]
     For section 8 to apply, the parties must have a common intention to pursue an unlawful purpose.  The commonality of their intention may be express or implied.  The nature and scope of the common purpose is critical to the application of the balance of the elements of section 8. 
462. [462]
     The nature and scope of the common purpose are to be determined subjectively.  In McAuliffe v The Queen (1995) 183 CLR 108 at 113 – 114, the High Court observed that the doctrine of common purpose (my emphasis) –

… applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design.  The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party …[S]uch a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime.  The understanding or arrangement need not be express and may be inferred from all of the circumstances.  If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission … [I]n accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.

463. [463]
     It is not enough that the offence committed is a probable result of the prosecution of the common purpose.  The offence must be committed in the prosecution or furtherance of the common purpose. 
464. [464]
     Whether an offence is done in the prosecution, or furtherance, of the common purpose will depend on the nature and scope of the common purpose and the circumstances in contemplation when the common purpose was formed.
465. [465]
     Whether an offence is of such a nature that its commission was a probable consequence of the common purpose is to be determined objectively.  It is immaterial that a particular defendant did not appreciate or foresee that such an offence was a probable consequence.  In accordance with Darkan v The Queen (2006) 227 CLR 373, the question is whether an offence was of such a nature that its commission would be considered, objectively, something which may well happen in the prosecution of the common purpose, bearing in mind its nature and scope.
466. [466]
     To ensure I applied that test correctly, I considered Darkan (and the other cases referred to by counsel) in detail. 

Darkan v The Queen

467. [467]
     Howard Darkan, Gwendoline Deemal-Hall and Marlow McIvor were convicted of the murder of Deemal-Hall’s ex-husband, Kalman Toth.  The prosecution relied on section 8 for all defendants and also on section 9 for Deemal-Hall.  Both of those section refer to the “probable consequence” of, in section 8, an unlawful common purpose and, in section 9^[4] of carrying out the counsel to commit an offence.
468. [468]
     Deemal-Hall had a grievance against her ex-husband.  She recruited three men to cause him harm – Darkan, McIvor and a man called Bowen.  When the offenders, and the deceased, were all together, Darkan started a fist-fight with the deceased.  Then McIvor hit the deceased on the back of the neck with a pickaxe handle.  The deceased fell to the ground and covered his face.  Darkan and McIvor kicked him for a good while.  Then, watched by Deemal-Hall, Darkan took the pickaxe handle from McIvor and hit the deceased with it for a couple of minutes around the ankles and knees, before moving up his body to his ribs.  The deceased was crying for help.  Bowen took the pickaxe handle from Darkan and gave it to McIvor.  He told McIvor to get rid of it and not to give it back to Darkan.  But Darkan took the pickaxe handle from McIvor and hit the deceased in the head with it as if “he really meant it this time”.  The deceased died from aspiration of blood due to severe facial trauma.
469. [469]
     According to Bowen, Deemal-Hall told the men that she wanted someone to “fix him [the deceased] up; that she would pay whoever would “fix it up”; or that she “just wanted someone to get into him”.  Under cross-examination, Bowen agreed that the plan was to give the deceased “a touch up … and nothing more than a touch up”.  There had been no discussion of a plan to kick the deceased or to use a weapon on him.
470. [470]
     At trial, the jury were directed on the meaning of “probable consequence” as follows: “Now when I speak of probable consequence, it means that it’s a real possibility or a substantial cause (sic) or a real chance that that event would happen”.  In appeals against conviction, it was argued that that was a misdirection.  The High Court agreed, but dismissed the appeals, applying the proviso.
471. [471]
     The direction complained of was given in the context of directions about section 9 of the Criminal Code, and before the trial judge had directed the jury on section 8. 
472. [472]
     As to the meaning of “probable consequence”, Gleeson CJ, Gummow, Heydon and Crennan JJ explained that the context in which the phrase appeared affected its meaning (footnotes omitted) –

[23] There are two preliminary points to be made about the use of the word “probable” in expounding and applying rules of law.

[24] The first is that the application of legal tests that turn on questions of probability will vary with the context in which the question is asked.  That is “probability” can denote a variety of degrees of confidence.  Probabilities can be of different degrees of strength.  This has been recognised in relation to the construction of criminal statutes.  It has been recognised outside that field as well …

[25] The second preliminary point is that whatever precise meaning the word “probable” bears in a particular context, it is usually used to establish a contrast to what is “possible”.  Thus the Concise Oxford English Dictionary defines “possible” as that which “may exist or happen, but that is not certain or probable”. 

[26] In Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Lord Reid said of the word “probable” as used in judgments:

“It is used with various shades of meaning.  Sometimes it appears to mean more probable than not, sometimes it appears to include events likely but not very likely to occur, sometimes it has a still wider meaning and refers to events the chance of which is anything more than a bare possibility.”

The New Zealand Court of Appeal said that those shades of meaning could be found in ordinary popular speech as well as in judgments:

“The two most common meanings are ‘more probable than not’ and what Lord Reid described as ‘likely but not very likely’.  We prefer, for present purposes, to say that a probable event, in this second sense of the word, means an event that could well happen.  These two most common meanings are both descriptive of a stronger prospect of occurrence of an event than is conveyed by the word ‘possible’.  We see no justification for reading ‘probable consequence’ in s 66(2) [of the Crimes Act 1961 (NZ), the equivalent to section 8 of the Code] as ‘possible consequence’.  On the other hand we do not think that it can be said that ‘more probable than not’ is clearly the primary meaning of the word.  It is of course used a great deal in that sense, but so much depends upon the context in which and the purpose for which it is used in any particular case.  Our inquiry must therefore be to ascertain the meaning of ‘probable’ which will best ensure the attainment of the objects of s 66(2).

[27] In this case the possible meanings of “probable” which were referred to were, in descending order of likelihood:

1. (a)
   more probable than not;
2. (b)
   a probability of less than 50/50, but more than a substantial or real and not remote possibility;
3. (c)
   a substantial or real and not remote possibility;
4. (d)
   a possibility which is “bare” in the sense that it is less than a substantial or real and not remote possibility.

The parties agreed that (a) and (d) were incorrect.  It was also agreed that (c) was wrong.  The appellants contended that (b) was correct.  The respondent contended that if (b) was correct, the trial judge’s direction did not diverge from it.

[28] Before the arguments advanced by the appellants are considered, it is desirable to examine the history of ss 8 and 9 of the Code; the reasoning advanced in the Queensland authorities in support of the direction impugned in this case; the points of construction of ss 8 and 9 on which the parties are agreed; and why the parties are correct in their agreement.

473. [473]
     Their Honours embarked on that examination from [29] to [61].
474. [474]
     During that examination, their Honours observed that the history of the sections did not offer any decisive reason for selection of one rather than another construction of “probable consequence” in sections 8 and 9 ([40]).  Nor did the language of the Code ([41]).  Their Honours considered Brennan v The King (1936) 55 CLR 253, the only prior authority of the High Court on the meaning of “probable consequence” in section 8 or its equivalents.  That decision was considered by the Queensland Court of Appeal in R v Hind & Harwood (1995) 80 A Crim R 105, in which it was said, drawing on Brennan, that section 8 was satisfied if a consequence was a real or substantial possibility.  Their Honours agreed with the appellants that there was nothing in Brennan which allowed for that point of view.  Nor did any of the other authorities referred to in R v Hind & Harwood support the conclusion that “a probable consequence” in section 8 means no more than “a substantial or real chance”.  Nor was that conclusion supported as a matter of principle.  Their Honours referred to as “sound” the respondent’s acceptance that “a probable consequence” meant more than a consequence that was reasonably possible, or which had a possible chance of coming to pass ([61]). 
475. [475]
     At [72], their Honours stated that they considered “sound” the criticism that, in directing the jury as above, the trial judge “failed to steer a course between saying that a probable consequence was one which was more likely to occur than not (which would have been unduly generous to the appellants) and saying that a probable consequence was a real or substantial possibility or chance (which he in fact said, and which was unduly harsh to the appellants).  The reasons why it was sound were –

[74] First, the context in which the expression “a probable consequence” appears must be borne in mind … Accessorial liability is old, but it is an exception to the general rules of criminal responsibility.  Persons liable under s 7, s 8 or s 9 need not be present at the scene of the crimes for which they are convicted, and the fact that those crimes might be committed by the principal offender may have never entered their heads.  In construing “a probable consequence” in ss 8 and 9, the extent to which it is likely that Parliament has created strict or vicarious liability in accessories must be considered.

[75] Secondly, the key word in ss8 and 9 is “probable” not “possible”.  The word “probable” has diverse meanings, but all common usages of it suggest a more exacting standard than “possible”.

[76] Further, whatever the common law in the late 19^th century was in relation to the problem dealt with by s 8 of the Code, it is clear that now at common law, an accessory is liable if the principal offender’s crime is “foreseen as a possible incident of the common unlawful enterprise”.  Although the law has long recognised accessorial liability, it has also long attempted to lay down limits to the accessorial liability of a person who shared a common purpose with a wrongdoer, or who instigated a wrongdoer to commit a crime.  The alleged accessory is not to be liable for everything a principal offender did, either vicariously or absolutely.  Over time the law has employed different techniques for placing accessorial liability within just limits while continuing to give it substantial room for operation.  The common law protects against excessively wide liability by demanding actual foresight, albeit of a possibility.  Under ss 8 and 9 of the Code the function of protecting against excessively wide liability turns on the need for the probability of outcome, independently of the alleged accessory’s state of mind.  If under ss 8 or 9 of the Code the expression “a probable consequence” were construed so as to make a possible consequence sufficient, there would be liability in an accessory for whatever the principal offender did, since the fact that the principal offender did it shows that it was possible, and there would be no protection against excessively wide liability.

[77] Authority in other jurisdictions with similar legislation stresses the contrast between “probable” and “possible” …

[78] The difficulty in defining “a probable consequence” is that once it is accepted that “probable” does not mean “on the balance of probabilities” and that it means more than a real or substantial possibility or chance, it is difficult to arrive at a verbal formula for what it does mean and for what the jury may be told.

[79] 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.  [Footnote 79:  R v Gush [1980] 2 NZLR 92 at 94 per Richmond P, Richardson and O'Regan JJ; R v Hagen, Gemmell and Lloyd unreported, Court of Appeal of New Zealand, 4 December 2002 at [46] per Tipping, McGrath and Anderson JJ.]^[5]

[80] In this case, the s 8 question is whether “the offence” – murder by killing the deceased with intent to do some grievous bodily harm – was a “probable consequence” of the prosecution of the common intention of the appellants to prosecute the unlawful purpose of assaulting the deceased.  In this case, the s 9 question is whether “the facts constituting the offence actually committed” – the killing of the deceased with intent to do some grievous bodily harm – are “a probable consequence” of carrying out the second appellant’s counsel.

[81] 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”.

476. [476]
     Their Honours concluded that the jury had been misdirected.  The direction carried the risk of leaving the jury with the impression that the appellants could be found guilty in relation to outcomes which, while more than merely possible, in that they were substantial or real, were not probable.  Their Honour’s continued (at [82]), “Hence, contrary to the respondent’s submissions, the direction that was given by the trial judge was flawed in that it did not convey the idea that the consequence to be looked for was “a probable or likely outcome”.  (I noted the introduction of the word “likely” at this point.)
477. [477]
     Having stated that the appeal was to be decided in favour of each appellant, their Honours then considered the application of the proviso, and concluded that the appeals should be dismissed, because no substantial miscarriage of justice had actually occurred.
478. [478]
     Their Honours accepted that – independently of section 8 – Darkan was guilty of murder under section 7(1)(a) or (c).  He either unlawfully killed the deceased with an intention to do him grievous bodily harm; or he aided McIvor in unlawfully killing the deceased with that intention.  On the issue of intention, I noted that their Honours said at [89], “An invitation to inflict a bashing at night in a lonely place in company of a man of violent disposition is an invitation intentionally to inflict grievous bodily harm”.  Similarly, the evidence established that McIvor killed the deceased with the relevant intention and was liable on a section 7(1)(a) basis, and if not, a section 7(1)(c) basis, in that he assisted Darkan, knowing of Darkan’s intention to do grievous bodily harm.
479. [479]
     Their Honours also accepted that Deemal-Hall’s guilt had been established on a section 7(1)(d) and section 9(1) basis.  Her counsel submitted that all she intended was “a touch up”, the probable consequence of which would not include an intentional killing.  That submission was rejected.
480. [480]
     At [105], their Honour’s said (my emphasis) –

Having asked for something to be done which involved three men assaulting as violent and strong a man as the deceased, having seen without protest a long and brutal beating administered, having failed to show any concern for the deceased after she left, having failed to respond to the deceased's cry for assistance communicated to her by Bowen, and having thereafter lied to the police and others about her lack of knowledge of the deceased's movements on the evening on which he died, it is not possible to avoid drawing a strong circumstantial inference that the intentional infliction of grievous bodily harm on the deceased was what the second appellant wanted to happen and what she wanted the assailants to do. She counselled an assault on the deceased which involved at least one, and probably both, of the first and third appellants attacking the deceased with intent to cause him grievous bodily harm in such a manner that murder – an unlawful killing with intent to cause grievous bodily harm – was a probable consequence of carrying out her counsel. It was a probable consequence because the assault directed at the deceased was a beating up, it was probable that the deceased, a violent man, would resist the beating up with violence of his own, and it was probable that the assailants would form an intent to cause grievous bodily harm during the fight even if they had not done so before it started. Hence the second appellant was rightly convicted of murder pursuant to s 302(1)(a), s 7(1)(d) and s 9(1).

481. [481]
     I note again that their Honours made no reference here to the use of weapons. 
482. [482]
     Kirby J agreed that there had been a misdirection but would not have applied the proviso.  His Honour said at [129] (my emphasis) –

For the reasons given by the other members of this Court, that instruction was erroneous.  It did not comply with the language of the Code.  Indeed, from internal evidence within the Code, where the word "likely" is quite commonly used, it appears clear that the choice of the word "probable" was deliberate.  This conclusion is reinforced when the frequency of the general distinction between "probable" and "possible" in legal usage is recognised.  It is strengthened still further by contrasting the differential usage of language in the comparable provisions of the codes of different countries, suggesting a deliberate and careful choice of words in the Griffith Code that became the model for Australian codification.  It is also reinforced by a reflection on the commonsense conclusion that a decision-maker will find it somewhat more difficult to decide (to the requisite standard) that events are "a probable consequence" of propounded activities than would be the case if all that needs to be shown is that they are a "possibility" or a "chance" (including if those words are qualified by the adjective "real").  Many more consequences are possible, even really possible, than are probable.  Reaching a conclusion on possibilities and chances is easier for the mind than having to decide that something is "a probable consequence" of other people's actions and purposes.

483. [483]
     At [133], his Honour agreed with the plurality that, if elaboration on “a probable consequence” were required, a jury might be told that they would regard as probable something which “could well have happened”.

Other authorities

484. [484]
     I was referred to several other cases during the “no case” application and in closing addresses.  They included R v Ritchie [1998] QCA 188; R v Johnson; ex parte A-G (Qld); R v Johnson; ex parte A-G (Qld); R v Ward; ex parte A-G (Qld); R v Ward [2007] QCA 76 (Ward was the only appellant in this case.  He, and the Johnsons were respondents to the Attorney General’s appeals against their sentences); The Queen v Keenan (2009) 236 CLR 397; and R v Huston [2017] QCA 121.

R v Ritchie

485. [485]
     The deceased, Hockey, lived with Ritchie and her stepson (OCP) and his girlfriend (Sercombe).  Hockey was prone to violence and was conducting himself violently on the relevant night.  He owed OCP and Sercombe money and Ritchie wanted him out of her unit.  Because of the way in which Hockey was conducting himself, Sercombe rang Ballinger and asked him to come to the unit to “scare” Hockey, to make him leave.  Ballinger was with other people (Woods, Williams and Leivers) at the time he received the call.  He told them he had to go to Currumbin to “hit a guy up there and tell him to leave”.  He and his companions arrived at the unit.
486. [486]
     Ballinger, Williams and Leivers hit, punched and kicked Hockey and told him to get out of the unit.  After his hands were tied, and he was lying on the floor, Leivers cut off his jeans with a knife, leaving his buttocks exposed.  Ballinger hit him with a baseball bat.  He was pushed into a van and gagged to stop him from shouting and screaming.  OCP struck him about the head with hand weights.  The van was driven some distance away, to a river.  It was allowed to roll into the river, with Hockey sill in it.
487. [487]
     Hockey died from skull fractures inflicted by OCP with the weights.  Ritchie was said to be criminally responsible for his murder under section 8.  She was convicted but successfully appealed against her conviction on the basis that the trial judge had misdirected the jury about section 8.  Of section 8 and the concept of escalating violence, McPherson JA, with whom Helman and Chesterman JJ agreed, said (from page 5 – 7) (my emphasis) –

The practical effect of s 8 is, in substance, to impose criminal responsibility for an unintended, but objectively not unexpected, result of carrying out an unlawful plan or purpose …

…

A matter that is critical to criminal responsibility of any kind under s 8 is proof of a common intention on the part of two or more persons to prosecute an unlawful purpose.  The Crown is required to prove not only that on their part a common intention existed and what that intention was, but also that it was to be prosecuted “in conjunction with one another”; that is to say, jointly or together.  In cases like the present …, it has become evident that it is possible for two or more persons to start off with a limited common intention of using physical force of a relatively moderate degree against their victim.  Matters may, as is often said, then “get out of hand” to such an extent that one or more of the original participants engage in acts of violence against the victim going beyond the level of force initially contemplated.

Before some other individual can, in circumstances like that, be held criminally responsible under s 8 for an event (such as the death of the victim) that ensues from such acts of excessive violence that are not his or her own, it is essential that the jury be satisfied either that the event was a probable consequence of the level of violence originally intended by all; or that that other individual shared in the expanded intention to inflict more serious violence than had first been planned.  Otherwise the intention will not be “common” to him or her.  The expression “escalating” violence is sometimes used to describe actions which take place after a relatively modest beginning; but it is necessary, if s 8 is not to produce serious injustice, to establish that an accused person alleged to be responsible under its terms be proved to have formed and to have shared the intention to inflict more serious violence that was originally in the common contemplation of all concerned.  Such proof may, and in many cases can only, be derived by inference from acts done, rather than words spoken, by the particular accused at the time in question, in which event the attention of the jury must be directed to the circumstances alleged to show that that individual fully shared the escalating common intention.  In such cases, the very real possibility needs to be borne in mind that, starting with a common intention to inflict a moderate degree of violence on a victim, the intention of some, but not all, of the participants may, in the course of the assault, progress far beyond that of one of their number, who continues to share with them no more than the original and limited common intention to use moderate force.  The possibility that the intentions of the participants may diverge after being formed in common was recognised in R v Jervis …

488. [488]
     Of the direction given to the jury on section 8, McPherson JA held that it had the potential to mislead the jury.  There is no need for me to discuss that aspect of the case. 

R v Johnson; ex parte A-G (Qld); R v Johnson; ex parte A-G (Qld); R v Ward; ex parte A-G (Qld); R v Ward

489. [489]
     Ward was convicted of manslaughter and assault occasioning bodily harm (AOBH).  He was in a group which included the two Johnsons (brothers, Clayton and Clinton) and others.  They were in a park.  The deceased and the AOBH complainant were in a group of four persons walking through the park.  Clayton Johnson, having just been involved, together with his brother and Ward, in a fight with a person called Dion, said to one of his companions, in the presence of Ward, “Don’t worry about Dion.  There’s some fellows up there, let’s go get them” (or something similar).  Clayton Johnson and Ward went off “in the direction of the deceased’s group”.  Ward armed himself with a stake.  He punched the AOBH complainant in the head and struck him in the arm with the stick.  Contemporaneously, about 20 metres away, Clayton Johnson punched the deceased in the head.  The deceased fell and died.  Just before that punch, Clinton Johnson punched the deceased from behind. 
490. [490]
     Ward appealed against his conviction for manslaughter, arguing inter alia that there was no basis for the application of section 8, because there was insufficient evidence of the requisite common intention to prosecute an unlawful purpose, and because the death of the deceased could not have been a probable consequence of such a prosecution.  His appeal against conviction was dismissed.  At [29] de Jersey CJ set out the evidence which provided the foundation for the conclusion that there was the necessary “common intention to prosecute an unlawful purpose”, namely (my emphasis) –

… the uttering of the words, “let’s go get them” or such like, by Clayton Johnson in the presence of the appellant and others, said with reference to the deceased’s group; the departure of the appellant and the Johnsons forthwith, at pace, in the direction of the deceased’s group, a not insubstantial distance away, a distance apparently on the evidence traversed with deliberation; the appellant arming himself with the stake in the course of the pursuit; and the immediate eruption of violence when they met the deceased’s group, with no provocation from the latter.

491. [491]
     At [30], his Honour found that a jury could well have regarded the death of the deceased as a probable consequence of the prosecution of that unlawful purpose, “something which “could well happen” – acknowledging the scope of the plan, the emergent character of its formation, and the alacrity attending its implementation – reflecting the determination of those party to it.  It was plainly open to the jury to infer a death could well result from a fist fight, and in addition there was the involvement of the stake.
492. [492]
     At [53], Holmes JA (as her Honour then was) agreed with the Chief Justice that a verdict of guilty on a section 8 basis was open: “The jury was entitled to be satisfied that Ward by both his words and his conduct agreed to take part in a group assault on the passers-by, and that that kind of attack in company could well result in death. 
493. [493]
     Mullins J (as her Honour then was) agreed with both insofar as Ward’s appeal against conviction was concerned.

The Queen v Keenan

494. [494]
     In Keenan, the High Court held (4:1) that the section 8 question (or one of them) for the jury was not whether the conduct itself (which amounted to the offence) was a probable consequence of the common purpose, but whether the conduct was an offence of such a nature that its commission was a probable consequence of the common purpose.
495. [495]
     Keenan and three others were parties to a plan to seriously harm Coffey.  Coffey was shot in the spine.  He did not die but was left with paraplegia.  Keenan did not fire the shots and there was no evidence that the use of a gun was part of the plan.  But there was evidence that Keenan knew that one of the parties was carrying a bat.  Keenan was charged with attempted murder, alternatively, doing grievous bodily harm with intent.  Both of those offences required an act done with a specific intention (either to kill or do grievous harm).  The trial judge directed the jury that, to convict, it was necessary for them to be satisfied, beyond reasonable doubt –

“(1) that there was a common intention to prosecute an unlawful plan.  You must consider fully and in detail what was any unlawful purpose and what its prosecution was intended to involve;

(2) that the offence of attempted murder, or alternatively doing grievous bodily harm with intent, was committed in the prosecution or carrying out of that purpose.  You must consider carefully what was the nature of any actual crime committed; and

(3) that any offence in fact committed was of such a nature that its commission was a probable consequence of the prosecution of the purpose.”

496. [496]
     Keenan was acquitted of attempted murder and convicted of doing grievous bodily harm with intent.  His conviction was quashed by the Court of Appeal, which found that the trial judge had misdirected the jury.  The Court of Appeal said that it was not the “generic offence” of doing grievous bodily harm with intent which the jury had to consider as a probable consequence, but rather “the act which rendered [the shooter] liable to punishment, namely, discharging a bullet or bullets and so causing grievous bodily harm”.  Inherent in its reasoning was the notion that the common purpose had to incorporate the use of a gun.  The Court of Appeal held that the common purpose was either to assault with fists or involved the use of a bat.  It concluded that the use of the gun was entirely outside the unlawful common plan.
497. [497]
     The High Court allowed an appeal from the decision of the Court of Appeal.  The question for the jury was not whether the act of shooting which did occur was an offence of such a nature that its commission was a probable consequence.  The question for the jury was whether the conduct constituting the offence of such a nature that its commission was a probable consequence of the prosecution of the common purpose.  
498. [498]
     Kiefel J (as her Honour then was), with whom Hayne, Heydon and Crennan JJ agreed, explained the purpose of section 8 and the way in which it operates (footnotes omitted) –

[102] The purpose of s 8 is to extend criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed.  The section limits the extension of that responsibility by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose …

[103] Section 10A of the Code^[6] makes plain that criminal responsibility extends to any offence that is a probable consequence of the prosecution of the common purpose, regardless of what offence is proved against the principal offender.

…

The common purpose

[114] The approach taken by the Court of Appeal to a finding of common purpose was doubtless influenced by its view that the proper identification of the offence actually committed was the shooting which caused the grievous bodily harm.  That factor informed its opinion of what was necessary for the plan to be carried out, if the respondent was to be held criminally responsible.

[115] In answering the questions, as to the nature of the offence committed and what was the common purpose, it is necessary to bear in mind how s 8 operates.  The ultimate question which the section poses – whether the offence is of such a nature as to be a probable consequence of the common purpose – is directed to the connection between the offence and the common purpose.  It is that connection which is the basis for criminal responsibility.  The section’s test for connection does not suggest as necessary an approach which imports the act involved in the offence into the finding of common purpose.

[116] The operation of an identical provision was described by Dixon and Evatt JJ in Brennan v The King in these terms:

“The expression ‘offence … of such a nature that its commission was a probable consequence of the prosecution of such purpose’ fixes on the purpose which there is a common intention to prosecute.  It then takes the nature of the offence actually committed.  It makes guilty complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence.”

[117] The inferences available as to what the common purpose may have been in a given case will depend upon the evidence, viewed as a whole.  Section 8 does not require the connection, between the offence actually committed and the common purpose to be prosecuted, to be established at the point when the common purpose is determined as a fact.  It provides for the requisite connection to be determined by the application of the test, whether the offence was the probable consequence of the common purpose, after that purpose has been ascertained. 

[118] In some cases, where physical injury or death has resulted, the evidence may identify an unlawful purpose which involves the carrying out of a specific act.  In Stuart v The Queen it was to light a fire in a nightclub, where persons would be present, in order to extort money from operators of nightclubs in Brisbane.  And the carrying out of an act, to cause physical injury, may be directed to a specified person.  In R v Johnston, to which the Court of Appeal directed attention in its reasons, it was said:

“where there is a plan to do an act of a specific kind to a person, for example to assault him by punching him, an act of an entirely different kind, for example, by shooting him, would not be an act of such a nature that its commission was a probable consequence of the prosecution of that plan.”

Davies JA went on to say:

“However here … the jury [was] entitled to infer that the common intention to which the appellant was a party was to do serious harm to [the victim] by whatever means seemed appropriate to ensure his silence.”

Similarly in Brennan and in Barlow it could be inferred that the plan involved the use of such violence as was necessary.  In Brennan it was necessary that the caretaker be overpowered in order that the robbery succeed.  The question which arose for the jury was “whether the death which ensued from the force employed can … be considered a probable consequence” of the plan.  Dixon and Evatt JJ held that it could, if the purpose in which he appellant concurred “made it likely that his confederates would, if necessary, use violence and such a kind or degree of violence as would probably cause death”.

[119] It is not to be expected that every plan involving the infliction of physical harm will be detailed and include the means by which it is to be inflicted.  However it may be possible to infer what level of harm is intended and from that point to determine whether the actual offence committed was a probable consequence of a purpose so described.

[120] An inference about the level of harm involved in the common purpose to be prosecuted may be drawn from the general terms in which an intended assault is described, the motive for the attack, the objective sought to be achieved, amongst other factors.  Three cases usefully illustrate such an approach.  In Varley v The Queen, the intention, similar to that stated in the present case, was to beat or “rough up” the deceased.  It was held that the plan involved such violence as might encompass the use of a baton or cosh by the police involved.  In Johnston, it was said that the jury could infer that the plan was to inflict serious harm upon the victim for two reasons: it was intended to punish him for threatening to go to the police and, more importantly, to ensure he did not do so.  The inference was therefore possible that, “a probable consequence of the prosecution of this plan would be that serious injury would be inflicted … by whatever means seemed appropriate to achieve those ends”.  Those means, it was held, included the use of a weapon such as a knife.  And in R v Jeffrey it was decided to beat up the victim and then to do so again to prevent him remembering the first attack.  It could therefore be inferred that an assault of sufficient serious was contemplated such that death was a probable consequence.

[121] Where a method by which physical harm is to be inflicted has been discussed, or may be inferred as intended, it does not follow that the use of any other means will prevent a person being held criminally responsible.  In some cases the means intended to be used may permit an inference as to the level of harm intended.  An offence involving such harm may be a probable consequence of such purpose whatever means came to be used.  It may be otherwise where the intended means suggests no serious harm was intended and the offence committed well exceeds such a purpose.

[122] The author of Foster’s Crown Law contemplated that criminal responsibility would follow: “if the principal in substance complieth with the temptation, carrying only in circumstance of time or place, or in the manner of execution …”  In Markby v The Queen and in Varley the use of the weapon in question was seen as an unexpected incident in carrying out the common purpose, even if its existence was not known to the secondary offender.

[123] In the present case the trial judge was right to direct the jury to consider the common purpose for which the prosecution contended, namely that serious harm was to be visited upon Coffey.  Such an inference could be drawn from the evidence identified by his Honour, particularly that concerning the respondent’s motive for the attack, vengeance, and the inferences which might be drawn as to his level of hostility to Coffey because of Coffey’s duplicity.  Far from limiting the inference which might be drawn about common purpose, the evidence with respect to the use of the bat supported one of a general purpose, to inflict serious harm.  There can be no doubt that such a weapon is capable of inflicting grievous bodily harm, even if a gun may do so more efficiently.  It would be an odd result of the respondent could be criminally responsible for grievous bodily harm inflicted by means of a baseball-type bat but not by means of a gun, when the level of harm intended was achieved.

[124] There can be no difficulty, in a case such as the present, in describing the unlawful purpose as the infliction of serious physical harm.  In such a case it is not correct to approach the determination of the common purpose by reference to the means and thereby determine the connection to which the objective test in s 8 is directed.  Further, the test to be applied under s 8 is as to the probable consequences of the common plan, not what the parties might have foreseen.  Even if the respondent had no anticipated that a gun might be used, he may nevertheless be held criminally responsible where it was used and caused the very level of harm that had been intended.  In a case involving an objective of this kind the means actually used may not assume importance in the determination of probable consequence. 

Directions as to inferences

[125] A common purpose involving the use of the bat to assault Coffey is not different in nature from that of which the trial judge spoke, one to occasion Coffey serious harm.  Such a purpose does not support a conclusion of the respondent’s innocence of the offence of grievous bodily harm.  An inference that something less than serious harm was intended might have qualified to support the respondent’s innocence …

…

The nature of the offence

…

[134] The trial judge identified the nature of the offence as the doing of grievous bodily harm and identified the question posed by the section.  His Honour told the jury that they must be satisfied beyond reasonable doubt that an offence of grievous bodily harm [with intent] (or attempted murder) was committed in the prosecution of an unlawful common purpose.  If they were, they then had to consider whether they were satisfied beyond reasonable doubt “that the nature of the offence committed was such that its commission was a probable consequence of the prosecution or furtherance or carrying out of the common unlawful purpose”.  His Honour then directed the jury as to the test of probable consequence and how it might be applied.  His Honour did not advert to the fact of the shooting as the cause of the grievous bodily harm but this would have been apparent to the jury.

[135] The Court of Appeal may have been concerned that if the offence was to be understood as involving the infliction of grievous bodily harm and the common purpose involved a similar objective, the jury might consider that it was obliged to conclude that the offence was a probable consequence of that plan.  In such a situation the jury would have been so obliged.  But such a conclusion would not merely reflect the factual coincidence between offence and common purpose.  That situation could only arise if the jury had found the common purpose to involve the infliction of such a level of physical harm.  The means employed to achieve that level of harm, the shooting, does not assume significance to such a finding.  The absence of a direction that the shooting was the offence for the purposes of s 8 could not have affected the reasoning of the jury to a verdict.  In these circumstances there was no miscarriage of justice.

499. [499]
     Keenan’s conviction for doing grievous bodily harm with consent was, in effect, restored. 
500. [500]
     After noting that the purpose alleged by the Crown was the purpose of inflicting some serious harm on Coffey, Hayne J (with whom Heydon and Crennan JJ agreed) said –

[86] 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 followed from the fact that what is a “probable consequence” is to be determined objectively.

[87] In considering that objective question it will always be necessary to pay very close attention to what is identified as having been the common intention to prosecute an unlawful purpose.  But is it necessary to bear steadily in mind that formation of the common intention to prosecute an unlawful purpose may not have been accompanied by any consideration, let alone detailed consideration, of what was to be done, how it was to be done, and who was to do what to bring about the intended purpose.  In such cases there will be no direct evidence that the parties to the common intention adverted to the possibility that an offence of the nature of the offence that was committed would be committed; there will be no evidence that the parties to the common intention were aware that commission of the crime that was committed was a probable consequence.  Yet as Gibbs J said in Stuart v The Queen, “in fact the nature of the offence [may be] such that its commission was a probable consequence of the prosecution of the common unlawful purpose”.

[88] Whether it was, is a question for the jury.  It is a question that in this case required an examination of what inferences were to be drawn from the whole of the evidence.  While it may be accepted that the evidence did not require the inference that the common intention was to inflict serious physical harm on the victim by whatever means seems appropriate and were available, that inference was open and could be drawn beyond reasonable doubt.

…

501. [501]
     After setting out the ways in which the Court of Appeal erred, his Honour said –

[91] As Kiefel J demonstrates, the real issues at the respondent’s trial were whether there was a common intention and what was that intention.  Whether the shooting of the victim was an offence of such a nature that its commission was a probable consequence of the unlawful purpose depended upon what that intention was.  And the trial judge rightly told the jury to consider whether the shooter had acted “independently of and outside the common intent, or was [his carrying a gun his] reflection of a reasonable means of implementing” the common intention.  It was neither necessary nor appropriate for the trial judge in this case to do more.

R v Huston

502. [502]
     Huston intended to rob a drug dealer.  He was concerned that the dealer might have others with him, so he recruited Krezic to help.  Krezic had a knife with him.  Huston told him explicitly not to use it and “just to use his hands”.  Huston told him he didn’t want to go for killing someone.  Krezic stabbed the drug dealer nine times – two of which, to the aorta and the kidney, were the likely fatal wounds.  After the stabbing, Huston said to Krezic numerous times, “What the fuck did you do that for?”  Huston was convicted of murder, but his conviction was quashed and a re-trial ordered, because the trial judge had not identified for the jury the evidence which was relevant to the question of the nature of the common unlawful purpose. 
503. [503]
     Another ground of appeal, which did not succeed, concerned the directions on “probable consequence” during which the judge occasionally used the word “likely” instead of “probable”.  The Court held that there was no reasonable prospect that the occasional use of the word “likely” caused the jury to apply a “less demanding test”, rather than follow the specific direction of the need to be satisfied that a “probable consequence” of the unlawful purpose was that the person attacking the deceased would have the intention of doing the deceased a least grievous bodily harm.  In dealing with that ground of appeal, the Court observed at [28] that requiring the prosecution to prove, beyond reasonable doubt, a “probability of outcome” was a “necessary protection to prevent an excessively wide liability for an alleged party to an offence”. (my emphasis)
504. [504]
     With respect to the successful ground of appeal, the Court said at [44] that the common purpose question “requires a jury to consider the states of mind of each of the participants” (my emphasis):

… It requires a determination of what the common intention was, as distinct from what was intended by only one of them.  As Brennan CJ, Dawson and Toohey JJ said of this question in R v Barlow, the intention of a party may be determinative of the extent of that party’s criminal liability because that intention defines what their Honour’s called “the content” of the common purpose”.  As they observed, “[t]hat common intention prescribes any restriction on the nature of the act done or omission made which the secondary offender is deemed to have done or made”. 

505. [505]
     At [45], the Court dealt with the notion of an expanded or escalating common purpose –

Where the purpose is one which will or may involve the use of actual violence, there will often be an issue, as there was in the present case, as to what was the level of violence which was commonly intended.  In another such case, R v Ritchie, McPherson JA (with the agreement of Helman and Chesterman JJ) said (my emphasis):

“Before some other individual can … be held criminally responsible under s 8 for an event (such as the death of the deceased) that ensues from such acts of excessive violence that are not his or her own, it is essential that the jury be satisfied either that the event was a probable consequence of the violent originally intended by all; or that that other individual shared in the expanded intention to inflict more serious violence than had first been planned.  Otherwise, the intention will not be ‘common’ to him or her.  The expression ‘escalating’ violence is sometimes used to describe actions which take place after a relatively modest beginning; but it is necessary, if s 8 is not to produce serious injustice, to establish that an accused person alleged to be responsible under its terms be proved to have formed and to have shared the intention to inflict more serious violence than was originally in the common contemplation of all concerned”.

506. [506]
     The Court accepted that there was evidence which supported the defence case that the stabbing of the deceased was not a probable consequence of that which Huston and Krezic had intended, because Huston had expressly rejected the use of the knife in the plan to rob the deceased.  The Court said that if the jury accepted that evidence, then they could have concluded that it was outside the common intention that a level of violence where a weapon – in particular a knife – would be used.  The jury could have found that the common intention included a restriction on the nature of the offence for which the secondary offender would be criminally responsible. 

Reasoning to verdicts

507. [507]
     As above, I was required to find a defendant guilty of Jack Beasley’s manslaughter and Ariki Waiariki-Katuke’s grievous bodily harm if I was satisfied, beyond reasonable doubt, that –

     1. (a)
        the particular defendant and RSG [Surname redacted] and PLA [Surname redacted] formed a common intention to prosecute an unlawful purpose with each other;
     2. (b)
        RSG killed Jack and caused grievous bodily harm to Ariki in the prosecution of the unlawful common purpose; and
     3. (c)
        viewed objectively, manslaughter and the doing of grievous bodily harm were probable consequences of the prosecution of the unlawful common purpose – that is, consequences which may well have occurred, given the nature and scope of the common purpose contemplated by the particular defendant. 
508. [508]
     I was satisfied of (a) beyond reasonable doubt in relation to each defendant.  I was not satisfied of (b) or (c) beyond reasonable doubt in relation to any defendant.  It was my duty therefore to acquit each defendant of every count. 

(a) An unlawful common purpose?

509. [509]
     Each of the defendants submitted that the prosecution had failed to establish, beyond reasonable doubt, that their common purpose was unlawful.  Each defendant argued that all they had in contemplation was a “consensual fight” with Jack Beasley’s Group.  They argued that a consensual fight was to be distinguished from “an assault” – with involved a lack of consent on the part of Jack Beasley’s Group.  Each argued that, if I was left thinking it was reasonably possible that all a defendant had in contemplation was a consensual fight, then that defendant had to be acquitted of every offence.
510. [510]
     There was very little elaboration on the nature of the “consensual fight” said to be in contemplation by the defendants – except in the case of Maljay who told police he thought there was to be a “one-on-one”. 
511. [511]
     I found it fanciful to think that these youthful defendants, intent on a fight for something to do, gave any thought at all to the “rules” of their intended engagement with Jack Beasley’s Group.  I rejected the suggestion that the Woodridge Group had in contemplation only some sort of evenly balanced affair – where each blow was met with a blow of equal force; which only happened if Jack Beasley’s Group wanted it to happen; and which ceased whenever Jack Beasley’s Group wanted it to cease.  The Woodridge Group wanted to fight with Jack Beasley’s Group.  As far as they were concerned, there was nothing else to do at Surfers Paradise.  And they wanted to “win”. 
512. [512]
     Members of Jack Beasley’s Group made it plain, more than once, that they had no interest in a fight with the Woodridge Group.  They did not know the Woodridge Group.  They had not spoken to them or otherwise engaged with them beyond perhaps glancing at them.  They could not fathom why the Woodridge Group were interested in them.  And they had a party or a gathering to go to just a short distance away.
513. [513]
     Members of Jack Beasley’s Group told the Woodridge Group more than once to “fuck off” or to go away or to leave them alone.  But the Woodridge Group did not leave them alone.  I found that they were not going to drop their plan lightly.  They’d covered some distance to confront Jack Beasley’s Group.
514. [514]
     Also, I struggled to understand how Jack Beasley’s Group could have consented to a fight with the Woodridge Group – which included RSG [Surname redacted] – without knowing that RSG [Surname redacted] was armed (even though I was required to consider this matter on the basis that the nature of the fight in contemplation by the Woodridge Group was not one which anticipated RSG’s possession or use of the knife).  How could Jack Beasley’s group meaningfully consent to a fight with the Woodridge Group without being informed that RSG was concealing a knife?  Although I raised this issue, no-one touched on it in their closing submissions.
515. [515]
     Although Jack and Ariki ultimately prepared themselves to fight – I found that that was at a time when they had no real choice about the matter.  PLA became violent – despite Jack Beasley’s Group asking to be left alone.  I found that Jack Beasley’s incredulous “what what what” was not an invitation to fight.  It was his attempt to demonstrate that he was affronted by the conduct of the Woodridge Group.  It was perhaps his attempt to show that he was not going to let his friends be pushed around.  But it was not in any real sense his acceptance of the “invitation” to engage in a fight with the Woodridge Group.  Nor could it be said that he was in any position to consent to a fight with the Woodridge Group, not knowing that one of their number was wearing a knife.
516. [516]
     I rejected Maljay’s statements that he thought the fight would be a “one on one”.  While I am not suggesting that he bore an onus, he pointed to no evidence which would provide a basis for that belief.  And there was nothing about the approach to Jack Beasley’s Group to support it.  Nothing suggested that it was intended that each group would, for example, nominate one of their number to fight, or that there would be any attempt to set ground rules, pairing one young man off with another.
517. [517]
     I was satisfied, beyond a reasonable doubt, that each of the defendants were parties, with RSG and PLA, to an unlawful common purpose to pursue, assault and cause physical harm to the members of Jack Beasley’s Group.  I was satisfied, beyond reasonable doubt, that the defendants did not only have in contemplation a “consensual fight”.
518. [518]
     As to the nature and scope of that purpose, the Crown did not allege that the Woodridge Group intended to do anything more than “physical harm” with fists and perhaps feet, after pursuing and assaulting Jack Beasley’s Group. 
519. [519]
     The Crown did not allege that the Woodridge Group initially (at the Corner, when the common purpose was formed) intended Jack Beasley’s Group serious physical harm. 
520. [520]
     Plainly RSG’s purpose escalated to the point at which he intended very serious harm, somewhere between the Corner and when he pulled out his knife to fight.  But the Crown did not allege that the intention of any of the defendants escalated in common with RSG.  The case was conducted on the basis that the defendants never intended serious harm.
521. [521]
     I found that the Woodridge Group wanted to win.  I found that their unlawful common purpose contemplated resistance from Jack Beasley’s Group and that they would use their fists and perhaps their feet, as a group, to win over Jack Beasley’s Group.  I found that the extent of the harm subjectively contemplated by each of the defendants was limited to the sort of bruises, knocks and cuts young men sustain when they get into an unarmed fight.
522. [522]
     The question for me then was whether an unintended death or the doing of grievous bodily harm were probable consequences of the level of violence contemplated by the defendants’ unlawful common purpose.

(c) Was death or the doing of grievous bodily harm, objectively, a probable consequence of the unlawful common purpose?

523. [523]
     I will deal with this question before dealing with the question whether RSG’s actions were in furtherance of the unlawful common purpose.
524. [524]
     In accordance with my extensive review of the authorities, the “probable consequence” question for me was to be approached and understood as follows –

     1. (a)
        The practical effect of section 8 is, in substance, to impose criminal responsibility for an unintended, but objectively not unexpected, result of the carrying out of an unlawful plan or purpose.
     2. (b)
        The law aims to place limits upon accessorial liability/responsibility, ensuring that it is not excessively wide, whilst also giving it substantial room for operation.  The law is concerned to ensure that the application of section 8 does not produce serious injustice. 
     3. (c)
        The protection against excessively wide criminal responsibility under section 8 is found in the need for proof, beyond reasonable doubt, of probability of outcome – that is, a party bears criminal responsibility for the crimes of another, if crimes of that nature were probable consequences of their common purpose – independently of the party’s state of mind. 
     4. (d)
        Probable consequences of an unlawful common purpose are determined objectively.  In this case, it does not matter that a particular defendant did not intend or anticipate or foresee the fight with Jack Beasley’s Group ending with manslaughter or the doing of grievous bodily harm.
     5. (e)
        A finding that an offence is a probable consequence of an unlawful common purpose requires more than it being a substantial or real possibility of occurring.  Many more consequences are possible, even really possible, than are probable.  Reaching a conclusion on possibilities is easier for the mind than having to decide that something is “a probable consequence” of the actions and purposes of others.
     6. (f)
        The expression “a probable consequence” means that the occurrence of the consequence must be probable as distinct from possible, but it need not be more probable than not.  It must be probable in the sense that it could well have happened. 
     7. (g)
        The focus of the question is on whether the nature of the offence committed is such as to be a probable consequence of the common purpose, bearing in mind the scope and content of the common purpose.
     8. (h)
        When considering whether an outcome is a probable consequence of a common purpose, the means by which the outcome was achieved is not always relevant but it may be.  It may be relevant where the common purpose involved the carrying out of a specific act.
     9. (i)
        Here, the question is not whether a fatal or near fatal stabbing was a probable consequence of the Woodridge Group’s plan to pursue, assault and do physical harm.  The question is whether an unintentional death (however so caused) or the doing of grievous bodily harm (by whatever means) were probable consequences of the common plan as alleged.  In other words, the question is whether the kind and degree of violence contemplated by the common purpose or plan to pursue, assault and do physical harm was such as to make death or the doing of grievous bodily harm a probable consequence of it. 
     10. (j)
         A matter critical to criminal responsibility under section 8 is proof of common intention.  It is possible for two or more persons to start off with a limited common intention of using physical force of a relatively moderate degree against their victim.  Matters may then get “out of hand” to such an extent that one or more of the original participants engages in acts of violence beyond the level of force initially contemplated.  Before a person may be held criminally responsible for an act of excessive violence committed by another, the finder of fact must be satisfied, beyond reasonable doubt, that the event (here, death or grievous bodily harm) was a probable consequence of the level of violence originally intended by all or that the other person shared in the principal actor’s expanded intention to inflict more serious violence than had first been planned.  In the present case, RSG plainly exceeded the original plan alleged by the Crown.  But the Crown did not suggest – and I was therefore not required or permitted to consider – whether any of the present defendants shared in his expanded intention. 
525. [525]
     In this case, treating the case against each defendant separately, I could find nothing in the words or conduct of any defendant or in any of the evidence to suggest that the group attack they had in contemplation was the sort of attack which carried, objectively, as more than a substantial possibility, death or grievous bodily harm as outcomes. 
526. [526]
     It was not alleged by the Crown that the defendants intended serious harm.  Nor was it alleged by the Crown that they intended to rob anyone in Jack Beasley’s Group.  And the Crown disavowed any suggestion that the unlawful common purpose contemplated the presence of the knife on RSG’s person during the fight. 
527. [527]
     I found that the Woodridge Group were motivated to fight for the sake of it.  They were prepared to fight as a group without any thought to one-on-one “fairness”.  And, as Mr Fuller said, they were arrogant enough to believe that they could easily deal with Jack Beasley’s Group.  They approached them confidently.  They presented as tough.  They were keen either as participants or as spectators.  But there was nothing for the Woodridge Group to avenge; nor any history between the groups; nor any grudge; nor any purpose to the fight – things which might have motivated serious violence. 
528. [528]
     Objectively, notwithstanding their inflated views of themselves, the fight contemplated, and indeed embarked upon by the defendants, was a scrappy sort of fist fight.
529. [529]
     It is true that force delivered via fists and feet may possibly cause serious injuries and sometimes death.  And it is true that there were no rules applying to the fight in contemplation.  But to say that something tragic may possibly happen in a fist fight is not enough to render the defendants criminally responsible for RSG’s unexpectedly violent behaviour using a weapon they had not anticipated would be used in the fight.
530. [530]
     On the evidence in this case, I was not persuaded that death or grievous bodily harm were anything more than possible consequences of each defendants’ common purpose. 
531. [531]
     In other words, I was not persuaded, beyond reasonable doubt, that, objectively viewed, the fight in contemplation by any of the defendants was one which could well result in death or grievous bodily harm – applying the authorities as outlined above.  Those outcomes were possible and tragically, they occurred.  But it cannot be said that the violence the defendants had in contemplation was such as to warrant a finding, beyond reasonable doubt, that death or the doing of grievous bodily harm were outcomes of it which were more than just possible, every substantially possible, but which could well happen. 
532. [532]
     As discussed above, Mr Fuller suggested that, in Maljay’s case, I might read into his fist bump with RSG, after the stabbing, his contemplating a level of violence which carried, as a probable consequence, whether he intended it or not, death and grievous bodily harm.^[7]  I concluded that I could not use that gesture to infer anything about the level of violence contemplated by Maljay when the unlawful common purpose was formed.  I could not negate the possibility that the fist bump related to RSG’s behaviour in the fight, which, as explained below, went well beyond the scope of the unlawful common purpose. 
533. [533]
     The Crown having not persuaded me, beyond reasonable doubt, that death or grievous bodily harm were probable consequences of the nature and scope of the fight the defendants contemplated, I was required to find each of the defendants not guilty.

(b) Whether RSG acted in furtherance of the unlawful common purpose in killing Jack and doing grievous bodily harm to Ariki?

534. [534]
     Having found that an unintentional killing and the doing of grievous bodily harm were not, beyond reasonable doubt, probable consequences of the unlawful common purpose, there was no need for me to dwell on this final aspect of section 8.  It is enough to say that I was not persuaded, beyond reasonable doubt, that RSG acted in furtherance of the common unlawful purpose by stabbing Jack and Ariki. 
535. [535]
     The Woodridge’s Group’s purpose was to fight for the sake of it.  The defendants did not intend serious harm.  They wanted to show off their prowess or strength or toughness.  They did not anticipate that RSG would use his knife in the fight.  Killing and seriously injuring the other young men within seconds of the fight starting was wholly outside their purpose. 

Conclusion

536. [536]
     As explained above, I was not satisfied, beyond reasonable doubt, that any of the defendants were guilty of any of the offences charged on the indictment.  In other words, I was not satisfied, beyond a reasonable doubt, that they bear criminal responsibility for RSG’s unexpected actions and their tragic consequences. 
537. [537]
     RSG acted well beyond anything that, objectively, fell within the probable consequences of the defendants’ plan to pursue and fight with Jack Beasley’s Group. 
538. [538]
     It was my duty therefore to find each defendant “not guilty” of every count and to discharge them all on the indictment.