Director of Public Prosecutions v McCartin (Ruling No 3)
[2022] VSC 723
•24 November 2022; Reasons delivered 25 November 2022
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0164
S ECR 2021 0165
S ECR 2021 0166
S ECR 2021 0167
S ECR 2021 0174
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN McCARTIN |
| CANDICE HARPER |
| JAMIE HOLT |
| JACINDA BROWN |
| DALE MILLER |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 24 November 2022 |
DATE OF RULING: | 24 November 2022; Reasons delivered 25 November 2022 |
CASE MAY BE CITED AS: | DPP v McCartin & Ors (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 723 |
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CRIMINAL LAW – Murder – Manslaughter – No case submission – Inferences.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Glynn and Ms D Manova | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused McCartin | Mr M McGrath and Mr M Sturges | Matthew White & Associates |
| For the Accused Harper | Mr A J Patton and Ms T Skvortsova | SLKQ Lawyers |
| For the Accused Holt | Mr R Backwell | Ann Valos Criminal Law |
| For the Accused Brown | Mr J Anderson and Ms K Mildenhall | Slades & Parsons |
| For the Accused Miller | Mr C Terry | Chris McLennan and Co |
HIS HONOUR:
The prosecution case has now closed. Mr C Terry, who appears on behalf of the fourth accused, Dale Miller, and Mr J Anderson, who appears with Ms K Mildenhall on behalf of the fifth accused, Brown, have each submitted that there is no case to answer in respect of charge 2 on the indictment, the charge of manslaughter, and that I should direct it that an entry of not guilty be made in respect of those charges pursuant to s 241 of the Criminal Procedure Act 2009.
In an earlier ruling on the admissibility of evidence of incriminating conduct, I have summarised the relevant facts in the case in some detail. I shall not repeat them in this ruling. The first three accused, McCartin, Holt and Harper are each charged with the murder of the deceased man, Ricky Rowlands. The prosecution case is that McCartin stabbed and killed Rowlands with murderous intent, and that Holt and Harper each guilty of the charge of murder on the basis that they intentionally assisted or encouraged McCartin to commit that offence. Miller and Brown are each charged with manslaughter. The prosecution case, as opened to the jury, is that on the evening in question, Brown had the knife, used by McCartin, in a bag carried by her when she and Miller attended outside the Ibis hotel in King Street. It is alleged that shortly before McCartin stabbed and killed Rowlands, Miller and Brown provided or gave the knife to Holt knowing that it was going to be used by Holt and McCartin together to stab Rowlands. Accordingly, it is alleged,, Brown and Miller each encouraged or assisted McCartin to do a lawful and dangerous act by which McCartin caused the death of Rowlands.
A substantial part of the prosecution case is based on CCTV footage, taken from various cameras that were in the vicinity of the incident in question, supplemented, to a limited extent, by evidence given by some bystanders as to parts of the relevant incident which they observed. The no case submissions, made on behalf of both Miller and Brown, are directed to inferences which the prosecution will invite the jury to draw from that body of evidence both as to particular acts performed by Miller and Brown, and as to the relevant intentions at the time. In short, it is submitted on behalf of both Miller and Brown that the jury could not rationally exclude inferences, consistent with their innocence, based on the evidence that has been adduced in the trial.
Legal principles
It is common ground between the parties that the principles, relating to an no case submission in such circumstances, have been sufficiently summarised in a previous ruling that I gave in Director of Public Prosecutions v Iliopoulos & Ors.[1] In that case, I set out the following principles:
(1)The test, which must be applied, is not whether the accused should be convicted. Rather the test is whether on the evidence the jury could lawfully convict the accused. In particular the test is not whether a verdict of guilty would be unsafe and unsatisfactory and thus liable to be set aside on appeal.[2]
(2)In a case in which the prosecution relies on inferences, the trial judge is not entitled to direct an acquittal where, at the conclusion of the prosecution case, the judge considers that there is still open, and not excluded, a reasonable inference consistent with innocence. Rather, in such a case, the test is whether the jury could rationally conclude that any inference or hypothesis, consistent with innocence, is not reasonably open on the evidence.[3]
(3)In applying that test, it is important to bear in mind that the drawing of inferences is essentially the function of the jury, as the sole judges of the facts in the trial.[4]
[1]DPP v Iliopoulos & Ors (Ruling No 3) [2016] VSC 132 (‘Iliopoulos’).
[2]Ibid [7].
[3]Ibid [9].
[4]Ibid [9]; R v Cengiz (1998) 3 VR 720, 721 (Ormiston JA), 735 (Harper AJA).
In Iliopoulos, I referred to a passage from the judgment of King CJ of the Court of Criminal Appeal of South Australia in a Case Stated by DPP (No 2) of 1993.[5] That passage bears repeating:
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.[6]
[5](1993) 70 A Crim R 323.
[6][10].
Submissions
Mr Terry based his application on behalf of Miller on three grounds.
First, he submitted, the jury could not rationally exclude the reasonable possibility that when Miller provided the knife to Holt, he intended that Holt, alone, would use the knife to stab Rowlands. Mr Terry submitted that the case of the prosecution would be different if Miller provided the knife for Holt, with the intention that Holt would use it, and that Holt in fact did use it and stabbed Rowlands. However, he contended, in the circumstances of this case, Holt’s role in the murder was as a secondary offender, or accessory, to McCartin. Mr Terry submitted that, in order to establish the guilt of Miller, it would not be sufficient for Miller to have intended that someone else, other than McCartin, stabbed Rowlands. In advancing that submission, Mr Terry went so far as to submit that, to prove the guilt of Miller, the prosecution must establish that the sole intention of Miller was that McCartin (and not Holt) use the knife.
The second submission made by Mr Terry was that the jury could not exclude as a reasonable inference consistent with innocence, that when Miller provided the knife with Holt, he only intended that the knife should be used as a weapon of deterrence against Rowlands. He noted that at the time at which the knife was handed to Holt, Rowlands was walking back towards the group, of which Miller, Brown, McCartin and Holt were members. After the knife was provided to Holt, he and McCartin engaged in a low level altercation. At that point, he submitted, Holt, who was then holding the knife, did not come any closer than two metres within the range of Rowlands. After the parties had moved out onto King Street, they then turned their backs on Rowlands and walked back towards the footpath. It was submitted that those actions by Holt (and McCartin) supported an inference that when Holt took the knife from Miller (and Brown), it was only then intended by Miller (and Brown) that the knife be used as an instrument of deterrence against Rowlands who was advancing towards them. It was submitted the jury could not reasonably exclude that inference.
The third point, relied on by Mr Terry, was that the jury could not exclude the inference, consistent with innocence, that the knife which McCartin used to stab Rowlands, was not the same knife that Miller and Brown had provided to Holt. Mr Terry noted that the CCTV footage does not appear to depict a transfer of the knife, held by Holt, to McCartin, before McCartin stabbed Rowlands. Thus it was submitted that there is a reasonable inference, which could not be excluded that the knife provided to Holt was not the knife used by McCartin to stab Rowlands.
Mr Anderson, who appeared with Ms Mildenhall, also advanced three submissions in support of the proposition that there is no case to answer against his client on charge 2.
First, Mr Anderson submitted that the evidence would not entitle the jury to conclude beyond reasonable doubt that Brown intentionally gave or provided the knife to Holt. He submitted that, based on the evidence, the jury could not reasonably exclude the possibility that Holt unilaterally took the knife without Brown doing anything to intentionally enable him to do so.
The second submission made by Mr Anderson was to the same effect as the third submission made by Mr Terry, namely, that the jury could not conclude beyond reasonable doubt that the knife which Holt took with him at that stage was the same knife as that which was used by McCartin to stab Rowlands. Mr Anderson noted that the DNA evidence, called by the prosecution through the witness Mr Jones, did not provide any support to the proposition that the knife which Holt took with him was the same knife that which was used by McCartin to stab Rowlands.
The third submission made by Mr Anderson was to the same effect as his second submission made by Mr Terry. Mr Anderson then submitted that the jury could not reasonably be satisfied that, at the time of which Brown provided the knife to Holt, Brown then intended that the knife be used to stab Rowlands. Mr Anderson submitted that the jury could not reasonably exclude an alternative hypothesis, namely, that the intention of Brown was that the knife be used in order to repel or deter Rowlands. Mr Anderson referred to the evidence of Mr Chamait, the security guard who was working that evening at the Ibis hotel, which was to the effect that before the incident, Mr Rowlands was walking up and down King Street, acting aggressively. When he was refused entry into the Ibis hotel, he told Mr Chamait that he wished to bash McCartin, Harper and Holt, and he referred to McCartin and Holt as dogs. At that time his whole demeanour was that of aggression.
Mr Anderson further noted that at the commencement of the altercation in which Rowlands was stabbed, in the section that was being referred to in the first phase, the jury could not exclude that Holt, who was then holding the knife, was using it solely in order to deter or repel Rowlands. After he had done so he and McCartin then walked back towards the footpath. The second phase of the incident only occurred after Rowlands then flung Harper to the ground, and it was in that phase that McCartin fatally stabbed Rowlands. Mr Anderson noted that, of course, that second phase had not occurred at the time at which Brown provided to knife to Holt. Thus, it was submitted, based on the evidence, the jury could reasonably exclude the proposition that, at the time at which the knife was provided to Holt, Brown’s intention was only that the knife be used in order to intimidate or deter Rowlands.
Prosecution submissions
Mr D. Glynn, who appears with Ms D. Manova on behalf of the prosecution, commenced by addressing the first two submissions made on behalf of Milller. He submitted that the conduct of Miller, which preceded the passing of the knife to Holt, was important evidence in forming his intentions at that time. In particular he noted that Mr Miller had armed himself with a knife at about 9.25pm, and in doing so he placed it in the back of his trousers. He had then sought to meet with, and ultimately did met with, McCartin, Holt and Harper who were in the Ibis hotel. McCartin, Holt and Miller then walked down the stairs to the lobby, and shortly thereafter exited on to King Street. Then, at 9.32pm, McCartin, Holt, Harper, Miller and Brown gathered in King Street, less than two minutes before Holt and McCartin, together, left the group in order to attack Rowlands. Mr Glynn submitted that the conduct of Miller, in effectively teaming up with McCartin and Holt in the Ibis, and being with them when the knife was supplied to them, was important evidence indicating his intentions at the time at which he participated in the supply of the knife to Holt.
Further, Mr Glynn referred to the conduct of Miller after Holt and McCartin had approached and commenced to have a fight with Rowlands. During that time Miller, while keeping his distance, watched what was occurring, and moved closer to it. He then took back the knife with which McCartin had stabbed Rowlands, and accompanied Holt and McCartin into the Ibis hotel, before he then departed. Mr Glynn submitted that that was further evidence that Miller was linked in purpose, not only with Holt, but also McCartin, in the use of the knife in the altercation in which Rowlands was stabbed. Finally, Mr Glynn referred to a section of Miller’s interview with police, in which Miller said that when McCartin and Holt left the group, he thought that they were going to attack Rowlands with a bottle. Mr Glynn submitted that the response, by Miller in his interview, constituted an admission, not only that he knew that McCartin and Holt were acting as a team, but also that they were doing so in order to aggressively attack Rowlands.
In addition, Mr Glynn contended that the initial actions of McCartin and Holt, in the first phase of the incident, went well beyond acting in a manner designed to deter or repel Rowlands. He submitted that the jury could well conclude that, at that point, Holt and McCartin both acted aggressively towards Rowlands, with Holt swinging his knife at Rowlands, and McCartin striking him with a bottle.
In respect of Brown, Mr Glynn submitted that there was sufficient evidence based on which the jury could also conclude beyond reasonable doubt that the intention of Brown, in providing the knife to Holt, was that it be used by both McCartin and Holt, for the purposes of stabbing Rowlands. In that respect Mr Glynn noted that as soon as Brown provided the knife to Holt, McCartin and Holt immediately made their way towards Rowlands, and attacked him, with Holt jabbing the knife at him. Mr Glynn further referred to answers given by Brown in her interview, in which she said that after the first scuffle which occurred (at about 8.00pm), McCartin entered the Ibis hotel looking quite aggrieved. Subsequently, he returned from the hotel, accompanied by both Miller and Holt. In those circumstances, the jury could infer that Brown was aware that McCartin, Miller and Holt had left the safety of the hotel in order to visit revenge upon Rowlands. Thus, it was submitted that the jury could be satisfied upon reasonable doubt that Brown was aware that the knife would be used for offensive purposes, with Miller, McCartin and Holt acting together as a team.
In that respect, Mr Glynn also relied on answers given by Brown in her interview with the police, in which she said that she had not touched a knife while she was in King Street, that McCartin must have removed the knife from her bag without her knowledge, and that the first time she had seen the knife was on the television news, and she had not previously seen the knife. Mr Glynn submitted that those answers, given by Brown in her interview, were untruthful, and that it would be open to the jury to conclude that Brown lied to police about the knife because she was aware that, when she handed it to Holt, the knife would be used in the course of an assault on Rowlands which would expose him to an appreciable risk of serious injury.
Mr Glynn further submitted that it would be open to the jury to conclude beyond reasonable doubt that the knife which McCartin used to stab Rowlands was the same knife that had been provided to him by Miller and Brown. He noted that at no time during the incident is there any evidence that there were two knives seen or captured on CCTV footage. In particular, he submitted the fact that Holt and McCartin were involved in the two phases of the altercation, but only Holt held a knife in the first phase, and only McCartin held the knife in the second phase, provided strong support for the proposition that the knife which Holt received from Miller and Brown was the same knife which McCartin used to stab Rowlands.
Finally, Mr Glynn submitted that a careful view of the CCTV footage of the group of the five accused outside the Ibis hotel, shortly before Holt and McCartin left the group and hastened towards Rowlands, does depict Brown handing the knife to Holt. He submitted that in that segment of the footage, Brown’s right hand can be seen handing the knife into the left hand of Holt.
Analysis and conclusion
The first submission, made by Mr Terry, is that the jury could not reasonably exclude, as a reasonable hypothesis, that when Holt took the knife from Miller and Brown, Miller only intended that Holt would use it. Thus, it was submitted that the jury could not be satisfied by reasonable doubt that any act of Miller, in providing the knife to Brown, was accompanied by an intention that McCartin use it in an altercation with Rowlands.
Based on the summary of the prosecution opening, which was filed in the matter, and also on the opening which Mr Glynn made to the jury, in order to prove charge 2 against each of Miller and Brown, it will be necessary for the prosecution to establish beyond reasonable doubt that each of them intended that McCartin would use the knife to stab Rowlands. Thus, I shall direct the jury that they must be satisfied beyond reasonable doubt that at the time at which the knife was provided to Holt, Miller and Brown intended that Holt and McCartin used the knife together to stab Rowlands. That proposition does not mean that Miller and Brown must have intended that both Holt and McCartin be holding the knife at the time at which it was to stab Rowlands. Rather, it is an essential ingredient of the prosecution case that the intentions of Miller and Brown respectively extended to or encompassed that McCartin would use the knife to stab Rowlands. It would not be sufficient for the jury to be satisfied that Miller and Brown intended that only Holt used the knife to stab Rowlands, and if the jury is not satisfied beyond reasonable doubt that the intentions of Miller and Brown extended to or covered McCartin himself using it for that purpose.
In my view, based on the evidence that has been adduced in the trial, and in particular the CCTV footage, the jury could be satisfied beyond reasonable doubt that the intentions of both Miller and Brown, at the time that the knife was provided to Holt, did extend to and encompass, not only Holt using it, but also McCartin using it, in order to attack Rowlands. By way of context, about ten minutes before the fatal incident, the CCTV footage depicts Brown pulling the knife out of her bag, placing it on the ground, and Miller picking it up and putting it behind him in the back of his trousers. Some three minutes before the fatal altercation, Miller and Brown, who were standing on King Street outside the Ibis, were joined first by Harper and Holt, then by McCartin. As they stood around in a group, Miller produced the knife from the back of his trousers and showed it to Harper, and then to the rest of the group. Harper then walked north up King Street towards Bourke Street, where Rowlands was visible at the intersection. In that period, Holt was standing close to McCartin. Miller patted Holt twice on the back, Holt took possession of the knife, and Holt and McCartin almost immediately moved off together, at a brisk pace, towards Rowlands.
Based on that evidence, in my view, the jury could be satisfied beyond reasonable doubt that at the time at which the knife was provided to Holt, Miller and Brown were each aware that McCartin and Holt were working together as a team intending to approach and have an altercation with Rowlands. When the knife was passed to Holt, it was he, not McCartin, who would appear to be standing adjacent to Miller. In those circumstances, the jury could exclude, as a reasonable possibility, that the intention of Miller and Brown, in providing the knife, was that Holt alone used the knife. In my view the jury could rationally be satisfied, beyond reasonable doubt, that the intention of Miller and Brown was that Holt and McCartin used the knife together as a team, so that the intention of Miller and Brown extended to and encompassed that McCartin himself used the knife.
That conclusion is reinforced, in respect of Miller, by his conduct in the period which preceded the point at which the five accused persons met together in the Ibis hotel, and in which the knife was provided to Holt. As Mr Glynn has pointed out, during that particular period, it would be well open to the jury to infer, from the movements of McCartin, Holt and Miller that are depicted on the footage, that they were seeking to meet with each other in order to form a team. Ultimately after they did meet on the second floor, they then made their way to the lobby together, and subsequently on to King Street, a very short time before Rowlands was attacked with a knife.
The next issue is that raised by the second submission made by Mr Terry, and the third submission made by Mr Anderson, namely, whether the jury could be satisfied beyond reasonable doubt that, when Miller and Brown provided the knife to Holt, they each intended that it be used to stab Rowlands. It was submitted, on behalf of both Miller and Brown, that, based on the evidence, the jury could not exclude, as a reasonable possibility, that the intention of each of Miller and Brown was that the knife used for the purposes of deterring or intimidating Rowlands, but not for stabbing him.
The critical question is not whether the jury could exclude, as a reasonable possibility, that the sole intention of Miller and Brown was that the knife be used to stab Rowlands. Rather, as correctly expressed by counsel, the question is whether the jury could exclude the reasonable possibility that when Miller and Brown provided the knife to Holt, they intended that it be solely used for the purposes of intimidating or deterring Rowlands.
The starting point, for considering that question, is that the knife was passed to Holt in circumstances in which there was clear friction between, on the one hand, McCartin and Holt, and on the other hand, Rowlands. Immediately before the knife was passed to Holt, Miller patted him on the back. McCartin and Holt then moved at a fast pace, either walking quickly or running, towards Rowlands. When they reached Rowlands, they immediately confronted him aggressively.
At the commencement of that part of the altercation — which has been referred to as the first phase of the second incident — Holt then thrust the knife twice at Rowlands. Holt was not close enough to Rowlands to strike him with the knife. However, he was nevertheless at quite a close range to Rowlands. It was at that point that Rowlands backed towards the traffic. McCartin then assumed the role as the principal aggressor, striking Rowlands on the head as the fight moved out across the three lanes of traffic on King Street. Holt was then behind him, also advancing with the knife in his hand, but at a distance.
Counsel for Miller and Brown each placed some reliance on the conduct of Holt at that point, who was at least one lane’s width distant from Rowlands while he was thrusting the knife towards him. However, that conduct of Holt, at that point, must be considered in the context of his actions which preceded it, which I have just described. Each of those actions, up to the time when Rowlands started to back into King Street, bespoke visible aggression by Holt, using a knife, towards Rowlands.
The circumstances in which Miller and Brown passed the knife to Holt, the evident encouragement given by Miller to Holt at that point to move towards Rowlands with it, and the immediate conduct of McCartin and Holt when they first met Rowlands, would, in my view, constitute a sufficient basis for the jury to exclude, as not reasonably open, the explanation relied on by counsel for Miller and Brown, namely, that the sole intention in passing the knife to Holt was so that it could be used to deter or intimidate Rowlands. To adopt the statement of principle by King CJ, in my view, the circumstantial evidence available in the case, based on the CCTV footage and the background circumstances, is capable of producing, in a reasonable mind, a conclusion, beyond reasonable doubt, that the intentions of each of Miller and Brown, when they passed the knife to Holt, included an intention that it be used to stab Rowlands. Thus, the circumstantial evidence is sufficient to be capable of causing a reasonable mind to exclude the competing hypothesis, relied on by counsel for Miller and Brown, as not reasonably open in the circumstances.
That conclusion is reinforced, to some extent, by the evidence relied on by the prosecution as evidence of incriminating conduct by each of Miller and Brown.
In the case of Miller, the prosecution will rely on lies, that it alleges Miller told when interviewed by police, when he denied that he had been in possession of the knife directly before the incident, when he denied that he had passed ithe knife to Brown, and when he said that when he arrived in King Street he did not have a knife with him. I have already ruled that the prosecution may rely on the evidence of those lies as an implied admission by Miller that, when he supplied the knife to Holt, he did so with the intent that it be used in the assault that was to occur on Rowlands.
In respect of Brown, the prosecution will rely on a number of lies told by Brown in her interview with the police, namely, that McCartin must have removed the knife from her bag without her knowledge, that she did not know where the knife that was used by McCartin had come from, that she never touched the knife while she was at the Ibis or on King Street, and that she did not remember taking the knife from Miller and then providing it to Holt immediately before the incident. I have ruled that the prosecution may rely on those lies as evidence of an implied admission by Brown that when she handed the knife to Holt, she was aware that it was probable that the knife would be used in the course of an assault on Rowlands which would expose Rowlands to an appreciable risk of serious injury.
Those implied admissions, which the prosecution seek to prove against both Miller and Brown, might not be sufficient, on their own, to prove beyond reasonable doubt that either of them intended that the knife be used for the purposes of stabbing Rowlands. However, they provide further evidentiary support favouring a conclusion, beyond reasonable doubt, to that effect.
The third issue — which is the subject of the third submission made by Mr Terry and the second submission by Mr Anderson — is whether it would be open to the jury to conclude beyond reasonable doubt that the knife which McCartin used to stab Rowlands was the same knife which Holt had obtained from Miller and Brown.
On the case presented by the prosecution, proof, of that fact, is an essential link in the prosecution case against each of Miller and Brown. If the jury is not satisfied beyond reasonable doubt that, at some point in the fatal altercation, or immediately preceding it, McCartin had obtained from Holt the knife that he used to stab Rowlands, then the jury could not be satisfied beyond reasonable doubt that Miller and Brown assisted or encouraged McCartin to stab Rowlands.
There is no CCTV footage which depicts Holt passing the knife to McCartin at some point after the first phase of the fatal altercation came to an end, when the parties returned to the footpath in King Street. Nevertheless, the following points are quite clear. In the first phase of the fatal incident, when McCartin and Holt engaged Rowlands shortly after Holt had obtained the knife from Miller and Brown, it was Holt who was holding the knife. As I have already described, at that point McCartin took over the role of aggressor in that phase of the altercation. He was swinging his arms at Rowlands, and was not holding a knife. Holt then continued to hold the knife. That is, at that point of the incident, there was only one knife evident in the hands of either Holt or McCartin, and it was being held by Holt.
After the parties returned to the footpath, McCartin and Holt began to walk back towards the Ibis. It was at that point that Harper engaged with Rowlands, and Rowlands grabbed her by the back of the jacket and pulled her along the road. Having seen that occur, McCartin and Holt then turned straight back towards the incident. At that point, McCartin had a knife in his hand. In the incident that followed, it was McCartin who held that knife. Holt was physically and actively engaged in the altercation which culminated in McCartin stabbing Rowlands. The jury could well conclude that at that point Holt did not have a knife in his hand at all. That is, in the second phase of the incident, there was only one knife in evidence, namely the knife held by McCartin, not by Holt.
The prosecution has maintained that in the interval between the two phases, there is one point, depicted in the video, in which there could have been an exchange of the knife between Holt and McCartin. It is a matter for the jury to determine what can be seen in the video at that point. On a close viewing, I was not able to observe a passage of an implement between Holt and McCartin. However, based on the movements of the hands of each of them, the jury could conclude that at that point they were in a position sufficiently proximate to each other for Holt to pass a knife to McCartin.
In those circumstances, in my view, the jury could readily be satisfied that at all time there was only one knife in the possession of McCartin or Holt. The fact that Holt had the knife in the first instance, and that subsequently McCartin could be seen holding and using a knife, whereas Holt did not have one with him, would, in my view, be a sufficient basis for the jury to rationally conclude that the only reasonable inference was that between the two phases of the fatal incident, Holt had passed to McCartin the knife that he, Holt, had received from Miller and Brown.
The final question — which is raised by the first submission made by Mr Anderson — is whether, based on the evidence, the jury could be satisfied beyond reasonable doubt that Brown in fact passed the knife to Holt. It is submitted that, in that respect, the proposition that she positively gave it to Brown as a matter of conjecture, and that the jury could not exclude the reasonable possibility that it was Miller, not Brown, who supplied the knife to Holt, or the reasonable possibility that if Holt did obtain the knife from Brown, he simply did so by taking it from her.
The resolution of that question will depend, substantially, on the jury’s perception of the footage of the circumstances in which Holt obtained the knife and then left, with McCartin, and advanced towards Rowlands.
Certainly the CCTV footage does demonstrate that, at the point of the incident, when the group of five accused persons were together, Miller backed towards Brown, in a position that enabled her to remove the knife from where it was then located, namely, in the back of his trousers. The video also could be reasonably perceived to depict that the knife was then taken by Brown, shortly before it was seen in the possession of Holt. Further, it is possible, if the video is viewed carefully, to see the knife pass from Brown to Holt. However, even if the jury did not agree with the perception of that point in the video, nevertheless it is sufficiently clear from the footage that almost immediately before Holt is depicted with the knife in his possession, Brown had it in her possession. There is no suggestion, either by the conduct of Holt at that point, or by the conduct of Brown immediately after it, that the taking of the knife by Holt was other than with the consent of Brown. In my view, in those circumstances, the jury could be satisfied, beyond reasonable doubt, that Brown intentionally provided the knife to Holt immediately before Holt and McCartin then made their way north along the footpath of King Street to the point at which the first phase of the fatal altercation with Rowlands commenced.
For those reasons, I have concluded that both Miller and Brown each have a case to answer in respect of charge 2 on the indictment.
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