R v BZW[2024] QSC 260

SUPREME COURT OF QUEENSLAND

1. [1]
   BZW (the accused) was tried on an indictment which contained four counts:

   1. count 1 – burglary by breaking in the night while armed and in company;
   2. count 2 – murder;
   3. count 3 – malicious act with intent; and
   4. count 4 – assault occasioning bodily harm in company.
2. [2]
   Each count is alleged to have occurred on 26 December 2022, except for count 2.  It is alleged to have occurred on 27 December 2022 because that is the date on which it is alleged that Mrs Emma Louise Lovell died.
3. [3]
   To each count the accused pleaded not guilty.
4. [4]
   The trial commenced on 21 October 2024 without a jury after orders were made effecting a trial without a jury, pursuant to s 615 of the Criminal Code (Qld).  The prosecution case closed on 22 October 2024.  The accused elected not to give or to call evidence in his own defence.  Closing addresses were commenced on the afternoon of 22 October 2024.  Defence counsel completed her closing address on the morning of 23 October 2024. 
5. [5]
   Section 615B(1) of the Code provides that, in a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.  If an Act or the common law requires information or a warning or an instruction to be given to a jury in particular circumstances, the judge in a trial by a judge sitting without a jury must take the requirement or prohibition into account if those circumstances arise during the trial:  s 615B(3)(a).  The judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and, any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury:  s 615C(1).  The reasons for judgment must include the principles of law that the judge has applied and the findings of fact on which the judge has relied:  s 615C(3).
6. [6]
   What follows are my reasons for judgment (and verdicts) along with the principles applied.

Preliminary

7. [7]
   In arriving at verdicts I must act and have acted only on the evidence.  The evidence is comprised of the testimony of the witnesses, photographs, a plan, recordings contained on disks and various admissions.  The addresses of counsel did not constitute evidence.  Their addresses were their arguments or submissions about what verdicts I should reach and why I should reach them. 
8. [8]
   I have dismissed any feelings of sympathy or prejudice for or against anyone.  I have approached my task of reaching verdicts dispassionately deciding the facts on the whole of the evidence. 
9. [9]
   I may accept all of the witnesses’ evidence, some of it or none of it. 
10. [10]
    An accused person in a criminal trial is presumed to be innocent.  There is no burden on the accused to establish any fact, let alone his innocence.  Before a verdict or verdicts of guilty may be returned, I must be satisfied of the accused person’s guilt and satisfied of his guilt beyond reasonable doubt.  The prosecution bears the burden of proving guilt beyond reasonable doubt.  I must be satisfied beyond reasonable doubt of every element that goes to make up each of the offences charged.  I must also be satisfied beyond reasonable doubt about any fact which constitutes an indispensable link in a chain of reasoning towards an inference of guilt:  Shepherd v The Queen (1990) 170 CLR 573 at 579.  As separate charges have been pleaded I must consider each separately and consider and assess the evidence relevant to each charge to decide whether I am satisfied beyond reasonable doubt of every element of each charge. 
11. [11]
    Some evidence may directly prove a thing.  However, in addition to facts directly proved by the evidence I may also draw inferences from facts I find established by the evidence.  However, I can only draw reasonable inferences.  Any inferences must be based on facts I find proved by the evidence.  There must be a logical and rational connection between the facts I find proved and my deductions or conclusions.  I must not engage in intuition or guessing.  If there is an inference reasonably open which is adverse to the accused (that is, one pointing to his guilt) and an inference in his favour (that is, one consistent with innocence), I may only draw an inference of guilt if it overcomes any other possible inference as to leave no reasonable doubt in my mind. 
12. [12]
    Facts in issue may be proved by direct evidence or circumstantial evidence or by a combination of both types of evidence.  To return a verdict of guilty based substantially on circumstantial evidence it is necessary that guilt should be the only rational inference that can be drawn from the circumstances.  If there is any reasonable possibility consistent with innocence, I must find the accused not guilty.  This follows from the requirement that guilt must be established beyond reasonable doubt.
13. [13]
    Where a recording of images, whether still or moving, or of sounds, is admitted into evidence, the evidence consists of what I see and/or hear.  The prosecution and the defence made submissions about what could be seen on footage and about what could be heard on a recording.  Most importantly in this regard, the prosecution submitted that after the accused and H entered 19 Whitfield Crescent, I would be able to see the accused turn his head so that he was able to and did see a knife in H’s hand.  This submission was advanced as an inference I should draw from the turning of the accused’s head and his proximity to H because the prosecution acknowledged that the footage did not show the accused’s eyes. 
14. [14]
    The fact that the accused did not give evidence is not evidence against him.  It does not constitute an admission of guilt by conduct and cannot be relied on to fill any gaps in the prosecution case.  It proves nothing.  I do not consider it at all in deciding whether the prosecution has proved its case. 
15. [15]
    The prosecution called the following witnesses, each of whom was cross-examined:

    1. Mr Lee Lovell, an occupier of the dwelling (house) at 19 Whitfield Crescent, North Lakes;
    2. Ms Balhatchet, a neighbour who resided across the street;
    3. Mr Kincaid, Ms Balhatchet’s boyfriend;
    4. Mr Balhatchet, Ms Balhatchet’s father;
    5. Detective Sergeant Scott, an officer of the Queensland Police Service (QPS);
    6. Senior Constable Grace, an officer of the QPS; and
    7. Detective Senior Constable Lewis, an officer of the QPS.

Summation of some aspects of the evidence

16. [16]
    The prosecution admitted many facts relevant to the trial where the accused was in agreement with this being done, and the facts admitted are sufficient proof of those facts without other evidence.  As the prosecution and the defence agreed that the facts set out in exhibits 1 and 1A are admitted, I treat all those facts as proved.
17. [17]
    On the way this case was presented and litigated some of the admitted facts ultimately had little significance to either the elements of the offences or the real issues in the trial.  The admitted facts of central significance were as follows:

    1. On 26 December 2022 Mrs Emma Lovell and her husband, Mr Lee Lovell, and their two daughters resided in a house at 19 Whitfield Crescent, North Lakes.
    2. On and prior to that date a house situated at 7 Whitfield Crescent, North Lakes, was utilised as a residential home for young people.  A youth, DB, aged 17, lived at that address.  (Other evidence established that by road the end of the driveway at 7 Whitfield Crescent was 120 metres from the end of the driveway at 19 Whitfield Crescent).
    3. At approximately 11.28 pm on 26 December 2022 the accused and H entered the house at 19 Whitfield Crescent.  Entry was gained by opening the unlocked front door.  At the time of entry the accused was wearing a red cap.  At the time of entry H wore a Calvin Klein branded cross-body bag.
    4. At the time of entry the accused was in company with H.
    5. At the time of entry H was armed with a knife.
    6. The blade of that knife was approximately 115 millimetres in length and 15 millimetres in width.
    7. At approximately 11.29 pm on 26 December 2022 H caused the knife to penetrate Mrs Lovell’s chest and at or around the time of penetration H had the knife in his charge or under his control.
    8. Mrs Lovell died on 27 December 2022 and the cause of death was a stab wound to her chest.
    9. The stab wound was situated to the front and side of the chest.  The wound measured 32 millimetres long on the surface of the skin.  The wound track was estimated to be 130 millimetres long.  The wound tracked from the left to the right and upwards and towards the back.  It passed between two ribs, through the sixth intercostal space, into the chest cavity and there was a cut into the back of the left side of the heart.  The track ended in the left ventricle of the heart.  There were incisions to the posterior of the pericardial sac.  There were evenly spaced parallel oblique linear incisions on the front superior aspect of the seventh rib below the incision in the sixth intercostal space. 
    10. The other injuries observed at post-mortem examination were a red abrasion to the medial mid-forearm on the right arm and a horizontal linear abrasion and an oblique abrasion to the right forearm.  The pathologist examined the blade used to stab Mrs Lovell and observed that the stab wound on the skin of the chest was significantly wider than the width of the blade.  The dimensions of the wound, considered with the multiple shallow incised wounds on the inner surface of the pericardial sac and the wound to the left ventricle, suggested movement of the blade. 
    11. The finding of the incisions on the surface of the seventh rib supported the movement or twisting of the blade in relation to the body.
    12. The pathologist considered that at least moderate force, on a scale of mild, moderate to severe, was used to cause the stab wound. 
    13. At approximately 11.29 pm on 26 December 2022, H wounded Mr Lovell by stabbing him with a knife.  H caused a wound to Mr Lovell’s posterior arm and right scapular region, both involving the breaking of the true skin.
    14. Also, at approximately 11.29 pm, H assaulted Mr Lovell by kicking him and the assault caused Mr Lovell bodily harm, namely, bruising to his left eye, an abrasion to his chin and bruising to his central upper sternum.
    15. Early on the morning of 27 December 2022 the police found the blade of the knife used by H on the front lawn of 19 Whitfield Crescent.  The police found the accused’s red cap on the ground outside the front door to the house.  The police found a Nokia mobile phone in the garden bed next to the front door to the house and they found a Samsung mobile phone inside the Calvin Klein branded cross-body bag.  This bag was located on the front lawn at 19 Whitfield Crescent.
    16. The Nokia phone rang when the police dialled a number subscribed to the accused’s mother.
    17. The other phone did not belong to any member of the Lovell family.
    18. On 27 December 2022 the police searched the house at 7 Whitfield Crescent.
    19. On 3 January 2023 the police searched this house again.  On this occasion the police found the handle of the knife used by H on 26 December 2022.  The handle was found in the couch in the living room. 
    20. The handle measured about 10 centimetres.  The police measured the blade used by H as being about 11.5 centimetres.
    21. Microscopic examination showed that the blade and handle had once constituted a single object.
    22. DNA profiles consistent with both Mrs Lovell’s DNA and Mr Lovell’s DNA were found on the tip of the blade.
    23. On 3 January 2023 the police found three knives in the kitchen at 7 Whitfield Crescent.
    24. A fingerprint matching the fingerprint of H was found on the hallway wall near the door to Mr and Mrs Lovell’s bedroom.
    25. On 26 December 2022 H and the accused had been in each other’s company at the places and times listed below:
    1. At 9 pm at the 7-Eleven store on Halpine Drive, Mango Hill;
    2. At 9.26 pm outside the Mango Hill Tavern on the corner of Halpine Drive and Anzac Avenue, Mango Hill;
    3. At 9.30 pm outside the Mango Hill/North Lakes Police Station on Discovery Drive, North Lakes; and
    4. At 9.50 pm on the road outside 12 Dorrigo Court, North Lakes;

(Dorrigo Court is a street which runs off Whitfield Crescent and it meets Whitfield Crescent nearer to 7 Whitfield Crescent than 19 Whitfield Crescent).

26. Associated with these admissions were a number of photographs, which depicted, amongst other things, images of the accused and H at the above‑mentioned places.
27. The cameras installed at the front door and garage of 19 Whitfield Crescent were infrared cameras.

2. (bb)Infrared cameras have clear infrared light emitting diode (LED) surrounding the central lens of the camera.  At night the LED lights emit infrared light only, which to the human eye might be seen as a red glow.
3. (cc)These lights switch on when the camera senses a lack of ambient light.
4. (dd)These cameras are referred to as day/night cameras because they switch between the visible spectrum in daylight and then, when there is no daylight, they switch to infrared mode, using infrared illumination to “see”.
5. (ee)Infrared light has no colour as it is just luminance.  Objects appear whiter when they reflect infrared light and darker when they absorb it.  The image created is a black and white image.  An example of this is that a black jumper can appear as white in infrared light if it reflects infrared, and a white jumper can appear black if it absorbs infrared.
6. (ff)The police obtained security camera footage recorded on 26 December 2022 from a camera located at 32 Whitfield Crescent.  This footage recorded sounds as well as images.

18. [18]
    In addition to the admissions, which had been reduced to writing and made exhibits, the prosecution tendered other exhibits.  These comprised a hand-drawn plan of 19 Whitfield Crescent (exhibit 2); a photograph of the Balhatchets’ house (exhibit 3); a photograph of a section of Whitfield Crescent that depicted the Balhatchets’ driveway and the driveway at 19 Whitfield Crescent (exhibit 4); and a photograph of the area around the letterbox at 19 Whitfield Crescent (exhibit 5). 
19. [19]
    A disk containing camera footage from various places relevant to the movements of the accused and H prior to their arrival at 19 Whitfield Crescent and of their actions outside 19 Whitfield Crescent and in the area of the front door to the house, and the entry area inside the front door, was made exhibit 6.  This footage had been compiled so that it was in chronological order.  The times stamped on the various portions of footage were checked by the police to ascertain whether the times at which the events were recorded were, in fact, the correct times.  In those cases where the times stamped were inaccurate a notation was superimposed at the bottom of the footage noting, for example, that the time stamp was 23 minutes later than Eastern Standard Time.
20. [20]
    Another disk, which only contained footage recorded by the cameras at 19 Whitfield Crescent, was made exhibit 7.  In this exhibit the footage recorded from 19 Whitfield Crescent had been rendered into slow motion and the actions depicted had been slowed to about 25 per cent of the speed they actually occurred in.
21. [21]
    The footage and sounds recorded by the security camera system at 32 Whitfield Crescent was made exhibit 8.  This camera system was the only one which recorded sound.  Number 32 Whitfield Crescent was across the street from 19 Whitfield Crescent.  The footage showed nothing of any relevance.  The sounds it recorded were said to be relevant.  The prosecution contended that noises, screams and voices recorded on exhibit 8 came from 19 Whitfield Crescent.  The defence did not contend to the contrary.  The prosecution said that the statements “I’ll kill you” and “I’ll kill you too” could be heard on exhibit 8.  The defence contended that what could be heard was “I’ll kill you” and then a different voice, which the defence asserted was the accused’s voice, said something like, “nah brah”.  The defence said that shortly after that the words, “stop, stop, stop” then, after a brief pause, the word, “stop” could be heard.  The defence contended it was the accused who repeatedly said “stop”.  Of course, no onus of proof lies on the defence to prove that the accused made any of those statements.  When I listened to exhibit 8 I could hear a voice say “I’ll kill you” and “I’ll kill you”.  I could not hear a voice say “too” or “nah brah”.  I could hear a voice repeatedly say “stop”. 
22. [22]
    A disk containing footage from the camera above the garage at 19 Whitfield Crescent was exhibit 9.  It contained footage of occasions when motor cars drove past 19 Whitfield Crescent between 8.04 pm and 9.06 pm on 26 December 2022, but it did not otherwise contain footage of any person or persons.  This footage showed that when the camera above the garage detected a light source the image changed from infrared to an image which depicted objects in colour.  When the camera recorded in colour it became harder for me to see the images recorded than when it recorded in infrared mode.
23. [23]
    Mr Lovell gave evidence about what occurred inside his house after he was woken and about what occurred outside his house.  Ms Balhatchet, her father and her boyfriend each gave evidence about what they saw going on on the front lawn area at 19 Whitfield Crescent at the time after Mr Lovell had exited from the house.  I consider that all of these witnesses each gave their honest recollection of what they saw and heard.
24. [24]
    Mr Lovell said that his truck was parked in the driveway at his house.  He and Mrs Lovell went to bed at about 9.30 pm.  He thought the front door was locked.  Their two dogs were contained in the kitchen area.  He woke up to hear their smaller dog barking.  He turned over and saw that Mrs Lovell was looking at her phone.  She told him the front door was open.  He assumed it had come open of its own accord, as it had sometimes done in the past when it had not been locked.  He got up and moved quickly to his closed bedroom door.  He did not turn any lights on.  His wife was close behind him.  He opened the bedroom door and saw one male person in the hallway right in front of his bedroom doorway.  There was another male person coming from the living room area towards the hallway.  There were no lights on in the house.  He started to push the person who was nearer to him out of the house.  He said his purpose was to get both persons outside and detain them until the police could arrive.  As far as he knew he only wrestled with one person over the two metres or so that separated the bedroom door from the front door, though he conceded it was feasible that he had grappled with both persons as they made their way out of the house.  The wrestling continued out of the house onto the front lawn.  He did not know where his wife was at that stage.  He tried to force the person he was wrestling with onto the ground, but Mr Lovell either stumbled or fell down.  He thought that the person who then kicked him at least twice was the same person who had been nearer to his bedroom door.  He did not see where his wife was when he was being kicked.  He said one of the two persons ran into (in the sense of against) his truck, fell over and got up and ran off.  When he looked over at his wife she was standing, he called out to one of his daughters and then noticed that his wife was on the ground.  He did not know either of the persons who had been in his house.  He did not say the words “stop, stop, stop, stop” to anyone.  He had no recollection of anyone saying these words. 
25. [25]
    None of the witnesses from the Balhatchet house were aware of anything going on outside or near their house until, in the case of Mr Balhatchet, his dog barked, and in the cases of Ms Balhatchet and Mr Kincaid, they heard screaming.
26. [26]
    From her upstairs bedroom window Ms Balhatchet looked over towards 19 Whitfield Crescent.  She saw two persons fighting on the front lawn.  She saw punching and grabbing.  She recognised one protagonist to be Mr Lovell.  She saw him get dragged to the ground and saw a person stand over him and kick him.  She said she ran downstairs to alert her father and when she returned to the bedroom window she saw a second person she had never seen before run into and collide with the front left side of the truck parked on the driveway.
27. [27]
    Mr Kincaid got to the window after Ms Balhatchet.  He saw two people fighting over the top of another person who was on the ground.  He said he saw a fourth person in front of the truck, he seemed to be walking away.
28. [28]
    When Mr Balhatchet went out of his front door he saw a number of people, he could not say how many, fighting on the front lawn.  He recognised one to be Mr Lovell.  He went back inside and put his shoes on and when he came outside again he saw a person collide with the truck. 

The prosecution case

29. [29]
    The prosecution provided a document headed “Pathways to Conviction/Particulars”.  It was marked for identification with the letter “A”.  After the prosecution closed its case and after the accused elected not to give or to call evidence there was discussion with counsel about this document and the directions I needed to bear in mind in arriving at verdicts.  As a result of that discussion the prosecution produced an amended version of this document.  It was marked for identification with the letter “B”.  The defence did not oppose the making of the amendments made by the prosecution.  During the course of his closing address the prosecutor abandoned any reliance on the words “and was in joint possession of the knife” where those words appeared at the end of paragraph 5 under the heading “Count 1 …”.  Defence counsel did not oppose this amendment.
30. [30]
    The document marked “B” and headed “Pathways to Conviction/Particulars” does not constitute evidence.  It just sets out the bases in law on which the prosecution cast its case in relation to each count and it provided particulars about matters such as what it was asserted the accused knew in relation to count 1 and particulars of an alleged common intention relevant to counts 2 to 4.
31. [31]
    A person who does the act or makes the omission which constitutes an offence may be found guilty of committing the offence.  Also, a person who did not do the act or make the omission which constitutes the offence may be guilty of committing the offence too if he is proven to have been a party to the offence.  To prove that a person is guilty as a party to an offence the prosecution must prove, on evidence admissible against the alleged party, that someone (the perpetrator) did the act or made the omission constituting the offence and that the alleged party was complicit in the offence in at least one of the ways provided for by the party provisions of the Code.  The party provisions of the Code relied on by the prosecution in this case are s 7(1)(c) and s 8.
32. [32]
    In relation to the count of burglary (particularised as involving the intent as to steal) with the circumstances of aggravation that it involved a break, in the night, and in company, the prosecution case is that the accused was, like his companion H, a principal offender because the prosecution asserts the accused entered the house by means of a break, in the night and in company with H.  I am satisfied beyond reasonable doubt, having regard to the evidence referred to below, that the accused is guilty of burglary by breaking in the night and in company.  The real issue in relation to this count concerns whether he is guilty of committing this offence while armed.  The prosecution case is that it was H who was armed with a knife and that the accused aided him in this regard, and in this way the prosecution says the accused is a party to being armed by virtue of s 7(1)(c).  To establish this it is necessary for the prosecution to prove that the accused knew “the essential facts constituting or making up the offence that is being or about to be committed by the person he is aiding …”:  R v Jeffrey [2003] 2 Qd R 306 at 310.  This means that the prosecution must prove beyond reasonable doubt that the accused knew H was armed with the knife before the accused may be found guilty of the circumstance of aggravation of being armed with an offensive weapon.  Knowledge of the mere possibility that H was armed with a knife would not be sufficient:  R v Lowrie & Ross [2000] 2 Qd R 529 at 535. 
33. [33]
    The prosecution case on the count of murder is put in two ways.  However, in relation to each, the prosecution case is that H was the person who had the knife and he was the person who did the act which caused the death of Mrs Lovell.  In relation to the count of murder H is alleged to be the perpetrator or principal offender.  The prosecution says that the accused is a party to murder by virtue of s 8.  The prosecution set out to prove that H had an intention to kill or to do grievous bodily harm when he stabbed Mrs Lovell (s 302(1)(a)).  Failing that it set out to prove that her death was caused by means of an act (presenting the knife near to her and it penetrating her body or thrusting a knife at her and it penetrating her body) done for the unlawful purpose of stealing property from the house at 19 Whitfield Crescent while armed with a knife (s 302(1)(b)). 
34. [34]
    The prosecution case on the count of malicious act with intent is that H was the person who had the knife and H was the person who did the acts which caused the wounding of Mr Lovell.  In relation to this count, H is alleged to be the perpetrator or principal offender, and the prosecution says that the accused is a party to the malicious act with intent by virtue of s 8. 
35. [35]
    The prosecution case on the count of unlawful assault occasioning bodily harm is that H did the acts which caused Mr Lovell bodily harm.  H is alleged to be the perpetrator or principal offender.  The prosecution says that the accused is a party to the assault occasioning bodily harm by virtue of s 8. 
36. [36]
    I am satisfied beyond reasonable doubt on the evidence admissible against the accused that in relation to each of these counts there was a principal offender or perpetrator, being H, and that H murdered Mrs Lovell, unlawfully wounded Mr Lovell with intent to disable him, and unlawfully assaulted Mr Lovell and did him bodily harm.  The real issue in relation to the murder, malicious act with intent and assault occasioning bodily harm, is whether the prosecution has proved beyond reasonable doubt that the accused is guilty as a s 8 party to each of these offences. 
37. [37]
    Section 8 of the Code provides as follows:

“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.”

38. [38]
    In relation to each of these counts the prosecution has put its case based on s 8 as follows:

• The accused formed a common intention with H to prosecute an unlawful purpose, namely, to steal property from within the dwelling at 19 Whitfield Crescent, North Lakes while armed with a knife. (Pathways to Conviction/ Particulars MFI‘B’).

39. [39]
    In relation to murder, the prosecution says murder was a probable consequence of the prosecution of this unlawful purpose.  In relation to count 3, the prosecution says a malicious act with intent was a probable consequence of this unlawful purpose.  In relation to count 4, the prosecution says an assault occasioning bodily harm in company was a probable consequence of this unlawful purpose.
40. [40]
    As McPherson JA put it in R v Ritchie [1998] QCA 188 at page 5:

“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.” 

41. [41]
    In relation to each of counts 2, 3 and 4, the prosecution must prove beyond reasonable doubt:

    1. that there was a common intention to prosecute the unlawful purpose set out at paragraph 38 above;
    2. that the offence charged (in this case, murder, malicious act with intent, assault occasioning bodily harm in company) was committed in carrying out the prosecution of that unlawful purpose; and
    3. that the offence (murder, malicious act with intent, assault occasioning bodily harm in company) was of such a nature that its commission was a probable consequence of that purpose:  Stuart v The Queen (1974) 134 CLR 426 at 443. 
42. [42]
    The accused’s state of mind determines the content of the common intention to prosecute an unlawful purpose.  The common intention prescribes any restriction on the nature of the act done which the accused is deemed to have done.  The restriction may be referable to the circumstances in which the act was done or the result it effected:  R v Barlow (1997) 188 CLR 1 at 13-14.  Relying on this statement from Barlow, the Court of Appeal said in R v Huston [2017] QCA 121 at [44]:

“The common purpose question … requires a determination of what the common intention was, as distinct from what was intended by only one of them.”   

43. [43]
    McPherson JA put the issue about the common intention this way in Ritchie at page 6:

“Before some other individual can … 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 [court] be satisfied either that that 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.”

44. [44]
    Although his Honour was there concerned to explain the operation of s 8 in a case where the violence used exceeded that which had been agreed upon, the observations are helpful as a reminder that the first matter that needs to be considered in a case which relies on s 8 is what was it that the parties had agreed upon or understood to be their plan.
45. [45]
    Determining the accused’s state of mind requires me to determine by inference from all the circumstances what it was that the accused knew and agreed to.
46. [46]
    As to count 4, proof of the circumstance of aggravation of being in company requires satisfaction beyond reasonable doubt “that the force of two persons be deployed against the victim; it is not necessary that more than one participant actually strike the victim, and sufficient (and necessary) that the defendant and one or more other person or persons be physically present for the common purpose of … physically participating if required”:  R v Booth [2005] QCA 30 at [20].
47. [47]
    If the evidence leaves open the possibility that prior to the assault which occasioned bodily harm a person alleged to be a party withdrew from the prosecution of the alleged common purpose and communicated that fact to the perpetrator the alleged party will not be liable for the assault.  The communication must be timely.  A communication contemporaneously with the commission of the offence will not be timely:  Reg v Saylor [1963] QWN 14 at 36 - 37.

Counsels’ main contentions

48. [48]
    The prosecution submitted that, “central to a verdict of guilty, relevant to all counts is the actual finding that the accused … had knowledge at the time of the commission of all of the offences that his co-offender was in possession of a knife”:  Transcript of closing address, p 1-2, lines 29 - 31.  That is so with respect to the circumstance of being armed for count 1 and to counts 2 and 3.  The prosecution correctly acknowledged unless I could be satisfied that the common purpose was to steal from within the house while armed with a knife, I could not be satisfied beyond reasonable doubt that an offence of murder on either basis, or the alternative of manslaughter was a probable consequence:  Transcript of closing address, p 1-22, lines 6 - 10.     
49. [49]
    The defence case was that it could not be proven that in relation to count 1 the accused knew H was armed.  In relation to counts 2 to 4 the defence argued that it could not be proven that the common purpose extended to stealing from within the house while armed with a knife.  Additionally in relation to count 4, the defence case was that it could not be excluded that the accused had withdrawn from the agreed common purpose at the time that the bodily harm was done so that the bodily harm caused went beyond the ambit of the agreed common purpose and was not done in furtherance of it.
50. [50]
    Satisfaction beyond reasonable doubt that the accused knew before or at the time of entry to the house that H was armed is necessary for two reasons.  First, any circumstance of aggravation must be proved beyond reasonable doubt.  Second, establishing this knowledge is an indispensable link in a process of reasoning towards an inference about the commonly agreed purpose, that purpose providing the yardstick for whether the offences the subject of counts 2 to 4 were committed both in furtherance of it and were each a probable consequence of it.

What I can see from camera footage

51. [51]
    The evidence establishes that on the evening of 26 December 2022 the accused took up with H at about 9 pm at the 7-Eleven store on Halpine Drive, Mango Hill.  At 9.26 pm and 9.27 pm they walked side by side past the Mango Hill Tavern situated at the corner of Halpine Drive and Anzac Avenue, Mango Hill.  At 9.30 pm they walked side by side past the Mango Hill/North Lakes Police Station situated on Discovery Drive, North Lakes.  At 9.45 pm they walked side by side past the North Lakes Village Shopping Centre on College Street, North Lakes.  At 9.50 pm they walked along the road past a house situated at 12 Dorrigo Court, North Lakes.  Dorrigo Court intersects with Whitfield Crescent.  Three to four houses along from 12 Dorrigo Court was the house at 7 Whitfield Crescent.  This was the house utilised as a residential home for young people.  It was about 120 metres by road from this house to 19 Whitfield Crescent.  It is not possible to know where the accused went after he passed by 12 Dorrigo Court at 9.50 pm because there was no evidence as to either what he did, where he went or who he was with until he next appeared on security camera footage at 11.25 pm.  That security camera footage depicted four persons, whom the prosecution asserted (and the defence did not challenge) were the accused, H, DB and another youth called OD, walking past 16 Whitfield Crescent.  DB lived at 7 Whitfield Crescent.  It is possible that between 9.50 pm and 11.25 pm the accused was at 7 Whitfield Crescent and was there with H, but this is nothing more than speculation.  Having regard to the similarity between the blade and handle recovered from the lawn at 19 Whitfield Crescent and from the couch at 7 Whitfield Crescent respectively and the three knives found by the police in the kitchen at 7 Whitfield Crescent it is likely that the knife H had was taken from 7 Whitfield Crescent.  There is no evidence as to when he took it from there, if he did.  There is no evidence that the accused was present if or when he took it from there. 
52. [52]
    Returning to the sequence of events, the prosecution asserted that one of the group of four could be seen to try to open the door of a utility vehicle parked across the street from 16 Whitfield Crescent.  Although I could see a person move from the vicinity of a vehicle onto the road, I could not determine what, if anything, that person did to or at the vehicle.  At about 11.26 pm to 11.27 pm a security camera attached to 24 Whitfield Crescent recorded the group of four walking along the road.  The defence did not dispute that this footage depicted the group. 
53. [53]
    The next portion of footage came from the camera adjacent to the front door at 19 Whitfield Crescent.  This was the camera in which all the footage was in infrared.  At 11.27.47 pm H appeared waving his hand up towards the camera.  He then walked towards the front door and lowered the handle of the door with his left hand at 11.27.50 pm.  There was nothing in either of his hands at that stage.  The Calvin Klein bag was on his right hip area.  He opened the door slightly and then closed it.  At 11.27.58 pm he turned and held his thumb up in the direction opposite to the front door.  He then disappeared from view at 11.27.59 pm.  At 11.28.13 pm the accused approached the front door and proceeded to open it.  When he did this he was facing the door.  H came up behind him and removed a knife from his right hip area.  It appeared to me that the knife had been removed from the Calvin Klein bag.  The evidence of Detective Lewis was that the bag measured 21 centimetres by 18 centimetres.  It was big enough to conceal the knife or most of the knife.  The bag had a zipper too.  The accused was not facing in H’s direction when H did this.  H transferred the knife from his right hand to his left hand, but the accused was still looking the other way, that being into the house.  The accused then stepped inside the house and H followed him in.  While the accused was still in the range of the camera, but within the house, I saw him turn to his left.  His right hand removed a mobile phone from his right side and that hand moved in an upwards movement closer to where his face seemed to be.  When this occurred H still had the knife up in the air in his hand.  I cannot see that the accused looked at or towards the knife H was holding.  From what I could determine, from what I perceived was the accused’s left ear, the accused’s face remained facing down towards his phone before he turned back to the way he had been facing to go further into the house.  The accused and H then disappeared into the house. 
54. [54]
    As I could not see the accused’s eyes, and as his head and face did not turn completely back towards where H was with the knife and as there were no lights on in the house, I cannot be satisfied beyond reasonable doubt that the accused knew that H was in possession of the knife, notwithstanding their proximity to each other.  A reasonable possibility remains open on the evidence that the accused did not see or know of the knife.  The prosecution argued that the footage showed that H positioned the knife directly in front of the accused’s face as the accused turned to look.  However, this submission begs the question about what the accused’s purpose was in turning to his left.  As I have said, when or as he was doing so he removed a mobile phone from somewhere on his right side, and that object appeared to be flat in the palm of his right hand as he raised his hand nearer to where his face seemed to be.  More importantly though, it is not possible to be satisfied that H put the knife directly in front of the accused’s face as it seemed to me that H’s arm did not extend towards the accused.
55. [55]
    The prosecution acknowledged that the effect of the admissions made about the infrared function on the camera is that the person viewing the footage recorded by the camera might be able to see more than a participant in the activity could have seen:  Transcript of closing address, p 1-3, lines 27 - 32.  However, the prosecutor went on to argue that there was nevertheless a level of light in and around the entryway sufficient for the accused to see without difficulty.  It was said that H had enough light to see the camera when he first approached the door.  Yet, the admitted facts included that at night the LED around the camera’s lens emits infrared light which the human eye might see as a red glow.  So for all that can be known, H was alerted to the camera’s presence not by any street lighting, but by a red glow around the camera lens. 
56. [56]
    The evidence about street lighting proximate to 19 Whitfield Crescent is contained, amongst other places, in exhibit 3, which shows a streetlight outside the Balhatchet house, which was across the street and to the left of 19 Whitfield Crescent.  That light enabled Ms Balhatchet, Mr Kincaid and Mr Balhatchet to see some of the driveway and front yard area at 19 Whitfield Crescent.  Ms Balhatchet said she could see Mr Lovell’s front door from her upstairs bedroom window.  Mr Kincaid said that the streetlight shone clearly across the street, but the light only enabled him to see as far as the letterbox at 19 Whitfield Crescent.  Mr Kincaid only spoke of a light being on above the front door at 19 Whitfield Crescent, after he came across the street after those he had seen scuffling on the lawn area had gone.  Although Mr Balhatchet said in evidence-in-chief that when he went outside after his dog barked and he saw people fighting on the lawn, he could see that the Lovells’ front porch light was on, he conceded in cross-examination that he could not say if there was a light on or not.  Ms Balhatchet and her father, not being participants had the opportunity to observe.  Both said that a person ran into the truck and this was no doubt their honest recollection.  Yet, Detective Scott said that the driveway camera did not contain any footage of anyone running into the truck.  Had there been such footage he would have presented it, by which I understood him to mean that he would have brought any such footage to the attention of the prosecution.  Mr Lovell said that there were no lights on in their house when he got up after being woken by their dog.  He did not turn any lights on in their bedroom as he made his way to his bedroom door.  He said it was not pitch dark inside his house.  When he opened his bedroom door he could make out that there were two people inside his house.  He could make out the height of each and that the person right in the hallway outside their bedroom door probably had darker skin than Mr Lovell and was of a stockier build than what Mr Lovell was.  The other person, who was coming from the direction of the lounge towards the hallway when he opened his door, seemed smaller than the first person.  Mr Lovell never saw anyone holding a knife.  Had he done so, that might have been a circumstance militating in favour of a conclusion that the accused could have seen such too. 
57. [57]
    From all of this evidence I conclude that it was not pitch dark outside the front door to 19 Whitfield Crescent, after all both H and the accused could see to be able to get to the door area and turn the handle of the door without fumbling it.  Also, in the footage captured by the camera above the garage at 19 Whitfield Crescent can be seen a shadow cast by the truck parked in the driveway of 19 Whitfield Crescent.  The footage in which the shadow can be seen is not infrared footage, it is footage which depends upon the light cast by the streetlight.  It appears that the shadow was created by the truck having been illuminated to some extent by the streetlight.  It is very difficult to see what took place on the front lawn because the streetlight seems only to have illuminated part of the lawn.  However, from all of this evidence I am not able to determine whether any of the light available inside the entry area to the house was sufficient to enable the accused to see the knife but even if I could have concluded it was I cannot for the reasons set out at paragraphs 53 and 54 above be satisfied beyond reasonable doubt that the accused actually saw the knife.
58. [58]
    There was nothing I could see to suggest that the accused activated any torch function on his phone, if it had one.  I cannot be satisfied that any light emitted by his phone was sufficient to allow him to see the knife, but as I have said, I cannot be satisfied he was looking in the direction of the knife.
59. [59]
    As already stated, no evidence was put before the Court concerning what the accused did between 9.50 pm and when he next appeared on camera footage at about 11.25 pm to 11.26 pm.  It would be to speculate or to guess that he maintained company with H.  It would be to speculate or to guess in relation to what they discussed, if they did stay in each other’s company, and it would be to speculate or to guess to consider whether or not H showed the accused the knife prior to 11.27 pm.  As already noticed, there is a basis for inferring that the knife H had came from the house at 7 Whitfield Crescent, but even so that does not allow me to be satisfied beyond reasonable doubt on all of the evidence that the accused was aware H had the knife as they approached 19 Whitfield Crescent.  I do not regard Senior Constable Grace’s evidence that he found the accused in a double bed with another male person in a bedroom at 7 Whitfield Crescent in the early hours of 27 December 2022 as evidence that assists on the issue of knowledge of the knife.

What follows from the conclusion that the accused has not been proven to have seen or been aware of the knife

60. [60]
    I am satisfied beyond reasonable doubt that on 26 December 2022 the accused entered the house of Mr and Mrs Lovell, with intent to commit an indictable offence in the house.  It was an admitted fact that the accused and H entered the house.  The footage shows the accused entering.  I am satisfied beyond reasonable doubt that the accused’s intention was to steal, that is to take property capable of being stolen with the intention of permanently depriving the homeowners of it.  The fact that neither the accused nor H were known to the Lovells, the time at which the accused and H went to their front door, the failure to knock or otherwise announce their attendance and their cautious manner of entry, obviously looking to see if they would be noticed, are all facts from which it can be inferred that the intention was to commit the indictable offence of stealing in the house. 
61. [61]
    I am satisfied beyond reasonable doubt that entry was by means of a break, because the footage shows the accused opening a closed but unlocked front door.  There was an admission to this effect too.  I am satisfied beyond reasonable doubt this offence was committed in the night because the time on the footage was well after 9 pm.  I am satisfied beyond reasonable doubt that the accused was in the company of another, H, because there was an admission to this effect and their manner of approach to the door shows that they were in each other’s company.  However, not being satisfied beyond reasonable doubt that the accused knew that H was armed with a knife, I acquit the accused of the circumstance of aggravation of being armed with an offensive weapon.  In relation to any count charging an offence committed with circumstances of aggravation, a person may be found guilty of any offence established by the evidence with or without any of the circumstances of aggravation charged in the indictment:  s 575. 
62. [62]
    It should also be noted that defence counsel submitted that I could find the accused guilty of this count, but without the circumstance of being armed with an offensive weapon:  Transcript of closing address, p 2-14, line 1.     
63. [63]
    I am satisfied beyond reasonable doubt that on 26 December 2022 H caused the death of Mrs Lovell by stabbing the knife into her chest.  I am satisfied beyond reasonable doubt that there was no authorisation, justification or excuse for the killing.  I am satisfied beyond reasonable doubt that at the time he stabbed her he at least intended to do her some grievous bodily harm, that is to say, an injury likely to endanger her life.  I am satisfied of this having regard to:  the fact that he stabbed her, he did not slash at her, that he stabbed at the part of her body beneath which was her heart, that the implement used was a knife which H had taken to the house apparently concealed in his bag, that the force used was considered to be at least moderate force and having regard to the length of the track made by the knife (estimated to be 130 millimetres), and that the blade of the knife was about 115 millimetres long.  I am satisfied beyond reasonable doubt that the prosecution has proven murder pursuant to s 302(1)(a) – the first of the two ways it sought to prove murder. 
64. [64]
    I am, however, not satisfied beyond reasonable doubt, that the accused was a party to this murder.  This is because although I am satisfied that the accused and H had formed a common intention to steal property from within the house I am not satisfied beyond reasonable doubt that there was an intention common to both to do so while armed with a knife.  The evidence is not such that I can be satisfied beyond reasonable doubt that the accused knew H had a knife in his possession when they entered.  The common intention is critical because it defines the restrictions on the nature of the act or acts done by another, which the accused is deemed to have done.  I am not satisfied that the murder committed by H was committed in the furtherance of or the carrying out of their agreed, common purpose of entering unarmed in order to steal.  It does not, therefore, arise that I have to consider the third element of s 8 (probable consequence) in view of the failure of the prosecution to establish either of the first two elements.
65. [65]
    The reasons set out immediately above also mean that even if I had concluded that murder had been committed pursuant to the second way relied on by the prosecution (s 302(1)(b)), the accused would also not have been proven to have been a s 8 party to murder, because H and the accused have not been proven to have both or commonly intended to steal from the house while armed with a knife.
66. [66]
    Even though a person alleged to be a party to an offence pursuant to s 8 can be found guilty of manslaughter when it is established that the perpetrator has committed murder, I am not satisfied beyond reasonable doubt that the accused is guilty of manslaughter.  As I am not satisfied that both H and the accused intended to steal from the house while armed with a knife, I am not satisfied that an unlawful killing was committed in furtherance of or in the carrying out of the purpose I am satisfied they had in common, which was confined to stealing from the house, but not while armed.
67. [67]
    Liability on the basis of the accused being a party to a criminally negligent act need not be considered, in view of my conclusion that H stabbed intending to at least cause grievous bodily harm.  However, even if it had been a case of H causing death due to criminal negligence, I would not have found that the accused was a s 8 party to manslaughter due to my conclusion that I can only be satisfied beyond reasonable doubt the purpose they had in common was to enter and steal.
68. [68]
    I am satisfied beyond reasonable doubt that on 26 December 2022 H wounded Mr Lovell by stabbing the knife through the true skin on both his arm and shoulder region.  So much is proven by the admissions relevant to the issue of wounding.  I am satisfied beyond reasonable doubt that H caused the wounding unlawfully, because there was no authorisation, justification or excuse for it.  I am satisfied beyond reasonable doubt that at the time when he unlawfully wounded Mr Lovell, H intended to disable him.  I am satisfied that this was his intention because he caused not one but two wounds, and Mr Lovell was trying to restrain him and H wanted to get away from the house.
69. [69]
    I am, however, not satisfied beyond reasonable doubt that the accused was a party to either unlawful wounding with intent to disable or the alternative of unlawful wounding simpliciter.  This is because although satisfied they had formed a common intention to steal property from within the house, I am not satisfied beyond reasonable doubt that there was an intention common to both to do so while armed with a knife.  The common intention defines the restrictions on the nature of the act or acts done by another which the accused is deemed to have done.  I am not satisfied that the wounding committed by H was committed in furtherance of or in the carrying out of their agreed common purpose of entering the house unarmed to steal.  Again, this renders it unnecessary to consider the third element of s 8.
70. [70]
    I am satisfied beyond reasonable doubt that on 26 December 2022 H assaulted Mr Lovell by kicking him when he was on the front lawn outside the house.  I am satisfied of this because there was an admission that this occurred and I accept Mr Lovell’s evidence that he was repeatedly kicked.  Also, the footage of the activity on the lawn shows kicking motions towards Mr Lovell.  I am satisfied beyond reasonable doubt the assault was unlawful because Mr Lovell did not consent to these blows and there was no authorisation, justification or excuse for them.  I am satisfied beyond reasonable doubt that the assault occasioned bodily harm to Mr Lovell.  An admission was made that it did.   
71. [71]
    After breaking free from his entanglement with Mr Lovell, Mrs Lovell and H as all of them left the entry way I find that the accused ran across the front lawn towards the road.  His one remaining thong flew off his foot and he ran out onto the road where he fell over.  When he got up he did not run away or run further away, rather, he walked off the road and back onto the front lawn as H continued to grapple with Mr Lovell, with Mrs Lovell being immediately adjacent.  The accused stood in very close proximity to H and Mr Lovell as they struggled.  The distance between the accused and Mr Lovell and H increased, as the accused took a couple of steps backwards and Mr Lovell and H moved away from the accused, but the accused then walked towards where H and Mr Lovell were as H was kicking Mr Lovell.  The accused did not leave the front lawn until after H ran out onto the road.  I am satisfied beyond reasonable doubt from what I saw that the accused was in the company of H when H assaulted Mr Lovell, because I am satisfied from the actions I saw the accused perform that he was present on the lawn for the purpose of physically participating, if necessary, in the assault on Mr Lovell. 
72. [72]
    I am satisfied beyond reasonable doubt that having formed the intention with H to steal property from within the house, the assault which occasioned bodily harm in company was an offence committed in the furtherance of that purpose and also that its commission was a probable consequence of that purpose.  The assault on Mr Lovell occurred as H and the accused were attempting to get away from the house, after Mr Lovell had grabbed hold of at least one of them in the house.  The assault occurred outside on the front lawn of the house, so prior to either person having left the scene.  As it was an assault committed in the course of getting away, it was an act done for the unlawful purpose and in furtherance of it:  R v Georgiou & Ors; R v Georgiou & Anor; ex parte A-G (Qld) [2002] QCA 206 at [53] - [54].  I am satisfied beyond reasonable doubt that the assault offence was of such a nature that its commission was a probable consequence of the prosecution of the common purpose of entering the house to steal.  An assault occasioning bodily harm to an occupant of a house broken into at night was probable in the sense that it could well have occurred (Darkan v The Queen (2006) 227 CLR 373 at 398 [79]), because it is probable that a homeowner will take steps to resist persons entering his house uninvited at night and it is probable that the intruder would seek to defeat efforts to restrain him by assaulting the homeowner with his fists or feet sufficiently forcefully to do an injury amounting to bodily harm.
73. [73]
    I find that the circumstances do exclude beyond reasonable doubt the possibility that the accused made a timely withdrawal from the agreed common purpose.  The defence contention was that when H was kicking Mr Lovell when he was on the ground “this is where withdrawal comes into it [the accused] exhorted him not to.  He said, ‘stop, stop, stop, stop’ and ran over”:  Transcript of closing address 2-11, lines 29 - 30.  Even if it was the accused who said these words, uttering them contemporaneously with the commission of the acts relied on to constitute count 4 was not a timely withdrawal effective to render H’s acts other than as done in furtherance of the agreed common purpose.

Verdicts

74. [74]
    On count 1 the accused is guilty of burglary by breaking in the night in company but not guilty of the circumstance of aggravation of while armed with an offensive weapon.
75. [75]
    On count 2 the accused is not guilty of murder and not guilty of the alternative of manslaughter.
76. [76]
    On count 3 the accused is not guilty of malicious act with intent and not guilty of the alternative of unlawful wounding.
77. [77]
    On count 4 the accused is guilty of assault occasioning bodily harm in company.