R v Alexanderson, McQueen, Barlow and Farr

[1996] QCA 41

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A No. 369 of 1994 C A No. 367 of 1994 C A No. 370 of 1994 C A No. 356 of 1994

Brisbane

[R v. Alexanderson & Ors]

T H E Q U E E N

v.

STEPHEN RAYMOND ALEXANDERSON

ALLAN DAVID McQUEEN SHANE ALLAN BARLOW GLENN PATRICK FARR

Appellants

Macrossan CJ
Pincus JA

Dowsett J

Judgment delivered 08/03/1996
Separate reasons for judgment by each member of the Court, Macrossan CJ and
Pincus JA agreeing, Dowsett J dissenting.

Appeals against conviction of Alexanderson, McQueen and Farr dismissed. Appeal against conviction by Barlow allowed, his conviction set aside and a verdict of acquittal entered.

CATCHWORDS:	CRIMINAL LAW - MURDER, MANSLAUGHTER - prisoner beaten to death in jail. Jury's verdicts not unsafe and unsatisfactory. Reliability of witness' accounts. Criminal Code ss. 8, 302.
Counsel:	Mr T Rafter for the appellant, Alexanderson Mr M Johnson for the appellant, McQueen Mr J Jerrard QC for the appellant, Barlow Mr S Herbert QC with Mr P Davis for the appellant, Farr Mr M Byrne QC with him Mr D Lynch for the respondent
Solicitors:	Legal Aid Office for the appellants Director of Public Prosecutions for respondent
Hearing Date:	21 November, 1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 369 of 1994 C.A. No. 367 of 1994 C.A. No. 370 of 1994 C.A. No. 356 of 1994

Brisbane

BeforeMacrossan CJ

Pincus J.A. Dowsett J.

[R v. Alexanderson]

THE QUEEN

v.

STEPHEN RAYMOND ALEXANDERSON,
ALLAN DAVID McQUEEN
SHANE ALLAN BARLOW and

GLENN PATRICK FARR

Appellants

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 08/03/1996

The Court in this matter is concerned with appeals by three of the appellants

against murder convictions and by the remaining appellant, Barlow, against his

conviction for manslaughter.

One particular ground is taken in Barlow's appeal against conviction and it

relates to the correctness of the decision of this Court in R v. Jervis [1993] 1 Qd.R 643

on the basis of which the learned trial judge had directed the jury. A later decision, R v. Hind and Harwood, Nos. 424 and 419 of 1994, 30/05/1995 delivered after the trial

of this matter is in conflict with the Jervis decision. Under R v. Hind & Harwood a

conviction of Barlow for manslaughter would not have been open because his co-

accused were all found guilty of murder, not manslaughter. The effect of this more

recent decision is that in the circumstances of this case and on the correct

construction of s. 8 of the Criminal Code, the only matter which should have been left

for the consideration of the jury in Barlow's case was the verdict found against his co-

accused with no alternative verdict. However, acting in accordance with the direction

they were given, based on R v. Jervis, the jury found Barlow not guilty of murder and

guilty of manslaughter. In addition to his appeal against conviction, Barlow seeks

leave to appeal against his sentence.

Apart from the particular ground taken on behalf of Barlow in his appeal against

conviction, he and the other appellants all appeal on the ground that the verdicts were,

in effect, unsafe and unsatisfactory. This challenge requires the Court to make its own

independent assessment to determine whether, notwithstanding the existence of

evidence supporting the verdict, it is nevertheless dangerous in each case to allow it to

stand: that is, the question is whether it was open to the jury, itself acting reasonably,

to be satisfied beyond reasonable doubt. The Court, in undertaking this examination,

pays due regard to the jury's advantages in coming to its conclusions in the matter

before it. These matters are established by M v. The Queen (1994) 69 A.L.J.R. 83.

In addition to the unsafe and unsatisfactory ground that the appellants rely

upon in respect of the general body of evidence available against each of them, they

also challenge the fairness of the trial. They base their submissions on the security

measures which were in place in the courtroom during the trial and during the course

of a prison visit to view the gymnasium where the deceased prisoner, Vosmaer, was assaulted receiving grievous injuries which caused his death. In respect of these

matters raising objection to the security measures, I agree with what has been said by

Dowsett J. in his reasons and find it unnecessary to add anything. However, upon the

ground alleging that the verdicts were unsafe and unsatisfactory, I have, with respect,

reached a different conclusion from that expressed by Dowsett J. in his reasons and it

will be necessary to explain the basis of this conclusion. In doing this I am assisted

by the general outline provided by Dowsett J. concerning the circumstances in which

the offences were committed. His treatment of a number of matters of detail will

enable repetition to be avoided or at least will permit convenient abridgment.

The death of Vosmaer occurred as a result of a savage beating administered to

him in the gymnasium at the Sir David Longland Correctional Centre on 22 March

1993. At the relevant session, in the course of which Vosmaer was assaulted, there

were sixteen prisoners including Vosmaer confined within the gymnasium. However,

there were no supervising prison officers present within it and this was a departure

from usual practice. The inmates present, apart from Vosmaer, were Nixon and

Garrett (who at the commencement of the trial each pleaded guilty to murder),

Alexanderson, McQueen, Barlow and Farr (who were the remaining four of the six

charged), Thompson, Dowling, Bell, Bradvica, Meninga (who provided direct evidence

upon which the Crown relied), and the final four, Anderson, Kau, Kajewski, and Cowan

(from whom no evidence, or no evidence of significance, was forthcoming in support

of the disputed matters which the Crown attempted to prove).

The configuration of the gymnasium was shown on sketches which were in

evidence. The entrance to the gymnasium appeared at the top of the sketches in the

form in which they were prepared. It was in a position near enough to the middle of

the top wall with a water fountain and entrance to the toilet and guards' area on the right hand side. In the main area of the gymnasium looking from the direction from

which entry was gained, the wall at the far right hand side was referred to in evidence

as the B block end and the far wall to the left was referred to as the C block end.

These descriptions assisted in explaining some of the evidence given by the

witnesses. The side wall which connected those two ends was then directly across

from the entrance to the gymnasium and was shown on the bottom of the sketches in

the way they were drawn.

Before turning to consider details of the evidence given by the eye witnesses,

some observations of a more general kind may be made.

The evidence indicated that Vosmaer was beaten and received injuries which

caused his death in the bottom half of the gymnasium area as shown in the sketches,

somewhat towards the B block end. He was found lying on the floor by prison guards

at the conclusion of the session when the other inmates were being released.

Extensive blood staining of the gymnasium floor appears in some of the photographs.

The injuries Vosmaer received were distributed over his body and they included a

number of fractures. The evidence showed that exercise bars and weights ordinarily

used in the gymnasium were utilised in the assault. Expert testimony supports the

view that at least ten blows had been administered to the head and at least ten to

other parts of the body causing the injuries that were found. The size of the

gymnasium and the number of persons inside at relevant times might be thought to

make it likely that the episode in question was observed to some extent by many or all

of the inmates but not all have indicated that they saw anything of significance. Some

of those who did give evidence of what they observed delayed before admitting that

they saw anything significant.

Considering the conditions in which inmates in prisons share their lives, and the
concern which it is expected they would feel for their own safety if they should be

regarded by their companions as informers, especially in the context of a strong

prisoners' code inhibiting the telling of tales, it is not surprising that some of the

inmates delayed before saying anything worthwhile or else provided fuller accounts

only after initially saying much less or something very different. Nonetheless, at the

trial the Crown had evidence from five of the prisoners going, on its face, at least some

way to support what the Crown had to prove. However, others said nothing on the

critical matters. In the latter category, for example, there was Kajewski, who gave

evidence in the course of the Crown case giving what the jury might think was an

unlikely version of his observations and implicating no one. At the beginning of the

trial, two of those charged, Nixon and Garrett, pleaded guilty, and in entering their

pleas they added some detail indicative of a desire to implicate no one else. It is also

open to think that there must have been some collaboration between those two to

explain the similarity in the form of their guilty pleas which were taken in the absence

of the jury panel.

The Crown was in the position where although it had direct eyewitness

accounts from five of the inmates, some of those witnesses had been convicted of

serious crimes in respect of which they were serving long terms of imprisonment. Two

of the five, however, were in a different category. Thompson and Dowling were serving

terms with relatively short periods left to run and both of them were released not long

afterwards so that they were not in custody at the time they gave their evidence at the

trial. The honesty of the account given by these two was not challenged, although it

was suggested that Dowling was mistaken in his version which implicated McQueen.

It was claimed that he had a restricted opportunity to make his observations and that

there was another reason for thinking he may have mistakenly identified Kajewski as McQueen. He said that the three whom he saw assaulting Vosmaer were a

threesome he had observed together on other occasions in the gymnasium but there

was other evidence, for example from the prison officer Bullock, that three persons

frequently together in the gymnasium were Nixon, Garrett and Kajewski. It was, of

course, possible that both pieces of evidence were accurate, that is that there were

occasions when the two differently constituted threesomes exercised together,

although of course in that case, they would be speaking of different occasions. In this

connection, it is necessary to take into account the fact that Kajewski, one of an

alleged common threesome and therefore liable, it was said, to be mistaken by

Dowling for McQueen, gave evidence at the trial so that the jury would have been in

some position to form a view whether he may have been actively involved in the

assault. It was of relevance, too, that the other Crown witnesses did not suggest that

in what they saw, Kajewski was involved in the assault.

Although Thompson's and Dowling's general honesty was not challenged in the

trial, they did not observe participation by all of those whom the Crown alleged took

part. When the substance of their claimed observations is taken into account together

with the fact that both Nixon and Garrett pleaded guilty at the beginning of the trial, it is

not surprising that the defence attack on their accounts was somewhat muted. The

principal effect of their testimony was to implicate the two who pleaded guilty apart

from that aspect of Dowling's evidence in which he referred to McQueen and in

respect of this it was suggested he was mistaken. Defence counsel quite legitimately

used the testimony of Thompson and Dowling to challenge the reliability of the

evidence given by Bell, Bradvica and Meninga, these three claiming to have seen

critical things which Thompson and Dowling did not observe. This difference may

raise questions of the extent to which it might be thought that Thompson and Dowling did or did not have the totality of the episode under observation. The same query of

course applies to each of the other three Crown witnesses and it is noticeable that

none of them claims to have seen all of it.

It should not be overlooked that Dowling's evidence supports the view that not

just two persons were involved in making the assault on Vosmaer since he speaks of

a third whom he identifies as McQueen. The Crown evidence pointing to the use of

three of the metal exercise bars and one of the weights and perhaps also the fact that

none of the other prisoners apparently intervened to stop the assault might be thought

to provide some support for the view that a number of assailants were likely to have

been involved.

It is to be expected that the episode would have been disturbing and frightening

for any onlookers and this would cause them to have concerns for their own safety

both immediately and for the future if they saw "too much" or admitted having done so.

There are elements of this pervading the testimony of Bradvica and Meninga in

particular. Evidence of the behaviour of other prisoners in the gymnasium especially

the disturbed way in which, after the assault began, they moved away from it towards

the general entrance area remaining congregated there awaiting their release at the

end of the session, also appears to reflect concern on their part.

There were then a number of matters having a potential tendency to fragment

witnesses' observations of the episode, impede their ability later to recollect it exactly,

and restrict their sense of freedom to speak out and these matters could be expected

to affect the quality of the evidence which could be forthcoming. Some of these have

already been indicated. There would have been included the sense of shock which

could be attributed to observing an event of this kind, the demands of prudence in

avoiding observing too much of it or admitting later to have done so, and the ties of friendship or at least solidarity with the culprits mixed with feelings of fear for the

onlookers' own safety. The jury would need to have been alive to the possibility that

witnesses who might finally be giving a substantially accurate account at the trial, may

have initially said nothing or given accounts from which to a greater or lesser degree

they resiled as being untruthful. On the other hand, the various witnesses' criminal,

and, in some cases, demonstrated violent characters, could diminish the reliability of

their accounts in the eyes of the jury but while they would have been aware of the

possibility that the critical Crown witnesses' final accounts were unreliable they may

not, having seen and heard the witnesses, have been compelled to this view. The

very strength of the attack made on the testimony of Bell, Bradvica and Meninga, in

the course of lengthy cross-examinations, would have given the jury a good

opportunity of judging the reliability of their final versions and that testimony, as it

appears in the record, does not lack all capacity to leave a jury satisfied. These three

witnesses had to concede that they had earlier given different accounts and they were

forced to defend their claims that it was the early accounts which were false, indeed

deliberately so, whereas their present testimony in the witness box was true and

accurate. The acceptability of these claims was something which the jury had an

advantage in considering at the trial and the Court must keep this in mind as it makes

its own review of the evidence.

Putting aside for the moment the particular considerations which apply because

of the directions given in the summing-up in the case of Barlow, no challenge is made

to the proposition that there exists evidence which, on its face, goes to support the

conviction of each of the appellants. It is the safety of any reliance upon those

accounts which has to be considered. No challenge is made to the Judge's summing-

up in respect of the general approach which the jury should take in its consideration of the evidence of witnesses concerning a crime committed in the prison environment

when those witnesses are convicted criminals. It has to be accepted that the

available testimony in those circumstances will have a particular character that may

render it unreliable and that will certainly call for caution in its appraisal but it does not

follow that it can never be safely acted upon. All will depend upon the particular

testimony in question. This observation does not mean that any lowering of the

standard of proof in the consideration of testimony of this kind is acceptable. If it is to

be acted upon by a jury to convict, the testimony must be in all of the circumstances

convincing. Part of the circumstances here is the fact that when the quality of the

inmates' testimony, upon which the Crown case depended, is considered, it is seen

not to be contradicted by evidence given by the defence. The accused here all chose

not to give evidence so this is not a case where contradictory evidence, with a

potential to raise doubts, jostled for consideration in the minds of the jury with relevant

testimony of the Crown witnesses. Bell, Bradvica and Meninga were much pressed in

cross-examination with their previous conflicting versions and with the proposition that

their present testimony was false and also with the suggestion that they might, as

prisoners, have seen themselves as having something to gain by supporting a Crown

case. However, it was not suggested that they bore particular grudges against the

individual appellants or would have had particular reason to select them from amongst

the general body of prisoners present in the gymnasium as being ones against whom

they would make deliberately false allegations. These witnesses were not engaged in

trying to defend themselves against allegations that they were the real culprits or had

been involved in any fashion in the assault and it could not have been convincingly

suggested that Bell, Bradvica and Meninga as well as each of the accused would not

have had a good opportunity to observe the incident in the gymnasium. In the end, apart from the question of their general apparent credibility, the particular critical

matters which had to be allowed for before the testimony of Bell, Bradvica or Meninga

could be acted upon, were the conflicts which their previous versions threw up, any

uncertainties in the versions which they gave at the trial and the extent and

significance of any differences amongst themselves in the testimony they gave.

No suggestion being made that the trial judge's summing-up was inadequate in

directing the jury's attention to matters relevant to a careful weighing of the evidence,

and the jury being prepared to act upon it, the question now for this Court is whether it

is dangerous or unsafe that they should have done so. The impression which the

testimony of the five Crown eyewitnesses named might reasonably have made upon

the jury is an important matter but subject to this, it is convenient to provide the

following summary.

In the session in question Thompson was playing basketball in about the centre

of the open area when he heard what he described as a loud bang. He looked to see

Garrett and Nixon hitting Vosmaer around the head with bars and weights. Thompson

said he continued to play basketball and Bell was near him, staying nearby for most of

the time. Thompson said the assault went on for a couple of minutes but he, rather

than keeping it continuously under observation, restricted himself to glancing around a

couple of times. He may have turned quickly, as he put it, on a few further occasions

to watch his own back. He said that at one stage he saw Vosmaer crouched down

and trying to get up. Later he looked and saw Garrett and Nixon clubbing Vosmaer

with bars when Vosmaer was down on the floor. Sometime later again one of the

prison officers came in and took a prisoner out. This was likely to be a reference to

Bullock's entry to remove Cowan. Thompson said that because he was scared, he

gave a false statement on 29 March stating that he had not seen anything. On the
next day he corrected this and described what he said he had seen.

Thompson, whose truthfulness at trial was not challenged, thus claimed to have

seen only Nixon and Garrett engaged in the assault. However, on his own account,

he may not have seen what was the commencement of the assault and did not keep it

under continuous observation. He spent periods averting his gaze and, in terms of the

extent of his observation, this may have been very significant. It reduces the strength

of any assertion that might be made that his evidence exculpates other persons who

were implicated by other witnesses. If there was indeed a further episode, as other

witnesses appeared to describe it, after the prisoner, Cowan, was removed,

Thompson saw none of it. In particular, his evidence might be thought not seriously to

undermine Bell's claim to have seen things which Thompson did not.

Dowling said that at one point during the session in the gymnasium, he spoke

to Vosmaer and Barlow near the entrance. Later, when he was himself at the top of

the gymnasium towards the B block end, he heard a loud noise and looked around to

see McQueen punching Vosmaer in the face. Garrett and Nixon were in the area

where he looked. Dowling said that Vosmaer fell to the floor and Garrett then hit him

with a bar. Dowling moved away toward a different area near the water fountain

where he remained. He said that he saw Nixon throw a weight which hit Vosmaer's

face. At another stage he looked over and saw Vosmaer slouched, but with no one

near him. Later again he heard thumping noises but did not look to see what was

causing them. Then, he said, an officer came in and called out one of the prisoners.

Anderson and Barlow were in the fountain area when Dowling first went there, he said,

and at one stage he spoke to Bradvica and Meninga there also. There were others

gathered there as well.

Dowling said that the three he had spoken of as taking part in the assault, used
to work out together on other occasions although sometimes they were joined by

others. He said that the one whom he saw punching Vosmaer, that is the one he

described as McQueen, had his back to him and was slouched over. Accordingly

there were features which, in Dowling's evidence implicating McQueen so far as it was

based on his identification of McQueen, called for careful consideration. He did not

keep the whole episode under observation after he became aware of its

commencement. On the whole of the evidence it was open to conclude that he saw

an earlier stage of the assault than Thompson did. He certainly suggests that a third

person, one beyond Nixon and Garrett, was involved and indeed he identifies this third

person as McQueen. Dowling was not challenged in respect of his honesty when he

gave his version at trial and notwithstanding the determination behind the suggestion

that he had been mistaken in his identification of McQueen, it is possible to view his

answers overall as maintaining a denial that he was mistaken.

Bell's evidence referred to a number of observations he claimed to have made.

In the gymnasium for the session in question, he says he saw Anderson and Barlow

in a corner with Alexanderson and McQueen and then later Vosmaer with Nixon, Farr

and Garrett. He said Kajewski joined that group of three with Vosmaer and Kajewski

handed a bar to Garrett. Later he said he saw Nixon, Farr and Garrett hitting

Vosmaer with bars. Vosmaer fell to the floor and the three assailants continued to

strike him. Bell said he did not keep the episode under continuous observation, but a

little later he looked again and noticed that Nixon had left the group but Alexanderson

and Farr were hitting Vosmaer around the head, body and legs, with bars. He said

McQueen ran in with a dumbbell and struck Vosmaer on the head with it. McQueen

then left and Alexanderson, Farr and Garrett continued their assault.

Bell said that he went into the toilet and while there saw Barlow and Anderson
standing up on a bench looking out through a window into the gymnasium area and,

as he put it, giggling and poking one another in the ribs.

Bell said that at one point during the assault, those then engaged,

Alexanderson, Garrett and Farr, stood back allowing Barlow and Anderson to

approach Vosmaer and while Barlow stood in the vicinity Anderson crouched down

apparently going through Vosmaer's pockets. At one point Bell said he saw the

assault had stopped and the attackers were wiping the bars and weights with towels.

At another point which cannot perhaps be precisely related to other events, he saw

McQueen, Alexanderson, Barlow and Anderson over near the toilet. Then after an

officer had come in to take Cowan out of the gymnasium, he saw Farr and Garrett

again hitting Vosmaer and Garrett and Alexanderson commenced to throw weights at

Vosmaer's head.

In view of the evidence given at the trial by Bradvica and Meninga, it is of

relevance to say that Bell said he noticed those two working out in the middle of the

gymnasium towards the bottom wall, but they then moved towards the top left hand

corner over near the B block end. Bell said that Dowling was always near the B block

end. He said he himself played basketball with Thompson for about five minutes.

At the end of the session when the prisoners were let out of the gymnasium,

Bell said he noticed McQueen, Nixon, Anderson, Barlow and Farr shaking hands and

patting one another on the back.

Any evaluation of Bell's testimony has to allow for the fact that to explain his

earlier different account, he chose to say that the police to whom he was giving a

statement mistakenly typed up certain things and included McQueen's name instead

of Farr's in part of it. However, in my view it would be over-rigid and unjustified to

conclude that this particular awkwardness standing in the way of acceptance of Bell's evidence automatically compelled rejection of it. Apart from the inconsistencies which

he had to explain as best he could, it emerged that Bell was, in a number of respects,

seeking some concessional treatment from the authorities while co-operating in the

giving of a statement. It was not suggested to Bell that he had himself played any part

in the assault or that he was not in a position where he could have seen the events he

claimed to have observed. In summary, substantial testimony was given by Bell

calling to be carefully weighed with the other evidence. Bradvica was a serving

long term prisoner with ten years and nine months of his sentence to run from October

1992. On 22 March 1993 he went with Meninga to the gymnasium and then to a

particular exercise area near the wall shown at the bottom of the sketches. Some time

later he saw Vosmaer on a chair behind the benchpress where he, Bradvica, was

exercising. McQueen was in front of Vosmaer and hit him four or five times to the jaw

making him fall to the floor. McQueen then administered a couple of kicks to the head

and maybe also to the genitals. Bradvica said he saw Vosmaer in a sitting position on

the floor being hit by bars both from behind and in front. The blows were to his head,

body and genitals. Then weights were dropped on him. He said McQueen was in

front hitting him in the genitals with a bar, Farr was behind hitting at his head with a

bar, and Nixon and Garrett ran in dropping weights on him. After this, the first part of

the assault, as Bradvica observed it, ceased. This portion of the episode had taken a

couple of minutes and during it Bradvica did not move from the position he had been

in at its commencement. He said he had watched for most of it.

Bradvica said that an officer came in and took Cowan out when Vosmaer was

on the floor although he was then trying to get up onto his forearm. After this, the

second part of the episode as observed by Bradvica commenced. He said Farr hit

Vosmaer on the head a couple more times, McQueen dropped a couple of weights on him and Alexanderson hit him in the legs a few times with a bar. Bradvica said that

he watched for most of the second part and at one stage said to McQueen that he

would end up killing Vosmaer if he kept going. He said this drew the response from

McQueen - if he dies, he dies. According to Bradvica, Garrett and Nixon were not

involved in the second part of the assault so far as he recalled, and he was not able to

say what position they were in when it was taking place. He said that Meninga and he

then walked down to the area of the lookout station near the entrance where

McQueen said to him - "That's what you get for bagging people". McQueen also asked

would he say that he, McQueen, was training with Bradvica and Meninga - in other

words asking him to provide an alibi. Bradvica said he agreed.

A time was reached when, according to Bradvica, most of the inmates in the

gymnasium were gathered in or around the alcove area near the entrance and he saw

Barlow shaking hands with McQueen. Bradvica agreed that he had lied when, in the

Magistrates Court, he gave his evidence. He, on that occasion, had claimed that he

did not see the episode and also that McQueen had been with Meninga and himself

during the session.

Meninga, in March of 1993, was a prisoner serving a life term which had

commenced in August 1992. In the gymnasium during the session in question, he

said that he had been with Bradvica in a position corresponding to the bottom of the

plan over towards the B block. He said he looked around to see McQueen punching

Vosmaer around the head while Vosmaer was in a sitting position and McQueen was

standing in front of him. Then Vosmaer went down and others attacked him with bars.

He said that Farr, Nixon, Garrett and McQueen were involved in this attack while

Vosmaer tried to cover himself against it. Farr was hitting around the head, Nixon

was hitting around the legs and stomach and Garrett around the body and legs while McQueen struck around his upper torso. The activity then ceased and the group

dispersed. He said he believed that an officer came in to collect Cowan and that at

that time Vosmaer was struggling to get up. After that the attack recommenced, and

bars and weights were used this time. Meninga said that Farr, Nixon, McQueen,

Garrett and Alexanderson were using bars, and someone threw a weight at Vosmaer

and then a dumbbell was used but he could not remember by whom. The assailants

then dispersed, moving over to the area in the vicinity of the entrance. McQueen was

doing an exercise lap in the gymnasium and said in the course of it, "That's what you

get for mouthing off" and also, "If he dies, he dies." In the foyer area, Meninga said

that McQueen asked him to say that he was working out with Bradvica and Meninga,

and they agreed. Meninga claimed that he saw most of the first part of the assault. In

his evidence, some uncertainties appeared to emerge concerning the time when he

first mentioned Alexanderson's participation in the assault but the jury could

reasonably conclude nevertheless that he was saying sufficiently clearly that

Alexanderson was included amongst the assailants, and he saw him striking Vosmaer.

Meninga, like Bradvica, was extensively cross-examined and the reliability of

his version was subjected to scrutiny. He was pressed in respect of previous contrary

versions he had given and he admitted to having told lies on those occasions.

Summarising the effect of the evidence against each of the appellants, the

following can be said.

Barlow was the one who made the request which resulted in Vosmaer's being

brought to the gymnasium (Bullock's evidence). Barlow and Anderson were observed

in the toilet looking out through the window giggling and poking each other in the ribs,

apparently at a time when Vosmaer was being assaulted (Bell's evidence). Barlow and

Anderson were near Vosmaer as he lay on the floor during some interval in the assault with Anderson going through his pockets and the assailants apparently standing not

far away (Bell's evidence). Barlow was subsequently involved with McQueen, Nixon,

Anderson and Farr in an episode of apparent congratulations in the B block (Bell's

evidence). Barlow and McQueen were seen to shake hands in the foyer after the

assault had taken place (Bradvica's evidence).

Barlow's gazing out through the toilet window might be thought to imply that he

had some appreciation of what was to occur or was occurring by way of an assault, in

other words that he appreciated that a plan was in place for an attack to be made

upon Vosmaer. The apparent confidence with which Barlow as well as Anderson

were able to approach Vosmaer as he lay upon the floor with the assailants in the near

vicinity again seems to speak of some complicity in the matter. Barlow's arranging for

Vosmaer to be brought to the gymnasium is a matter which, if it stood alone, could be

quite innocent and his participation in the subsequent congratulations, again if it stood

alone, could be explicable without assuming any participation in or fore-knowledge of

a plan to attack Vosmaer. However, the potential effect of the accumulation of the

evidence referred to must be considered and inferences from this evidence were not

opposed by testimony from Barlow. The jury and this Court would be left with a

significant case for consideration against Barlow of fore-knowledge of a plan to attack

Vosmaer and participation in it, or of acts of encouragement of the major activity

carried out by the assailants who were directly involved. This all puts to one side the

effect of the particular ground of appeal argued on Barlow's behalf in reliance on the

authority of R v. Hind & Harwood.

There was evidence from a number of sources that Farr was directly involved in

the perpetration of the first phase of the assault on Vosmaer. According to Bell,

Bradvica and Meninga, he took part in this phase using a bar and also, according to
Bell, using a dumbbell and weights as well as wiping down these items with a cloth.

On the other hand on the evidence of Thompson and Dowling, Farr was not seen to

be involved in either the first or second stage of assault.

In the second stage, Farr was, according to Bell, Bradvica and Meninga,

directly involved. According to Bell he was a party to the subsequent congratulations

amongst the assailants as well.

In the case against Alexanderson, there was some significance in the finding of

traces of blood on the left shoe, but looking at the eyewitness accounts, it is only Bell

who said he saw him involved in the first stage while Bradvica, Meninga, Thompson

and Dowling all did not. In the second stage, Bell, Bradvica and Meninga all said that

Alexanderson was an assailant using a weight or bar. Thompson and Dowling again

did not observe any participation on his part.

There was a degree of consistency in the claim of McQueen's involvement in

the first stage of the assault. Bell said that he was using a dumbbell, while Bradvica,

Meninga and Dowling all said they saw him punching Vosmaer with Bradvica and

Meninga saying he also used a bar and Bradvica saying that he kicked Vosmaer.

Dowling's claim that McQueen punched Vosmaer has to be considered against the

background of the defence submission that he may have been mistakenly identified

instead of Kajewski. However, the effect of Dowling's evidence is that one of the

assailants did punch Vosmaer with his fists and no other eye witness stated that any

of the assailants other than McQueen did that, while Bradvica and Meninga positively

said they saw McQueen punching Vosmaer. Both Bradvica and Meninga said they

saw McQueen involved in the second stage of the assault and also that he made the

remarks to them and the request for an alibi from them that have been referred to

above. Bell said he saw McQueen involved in shaking hands and the apparently congratulatory patting afterwards. All of the above evidence amounts, on its

face, to a significant volume of testimony going to implicate each of the accused and

apart from considerations of its reliability, would be sufficient to support the

convictions. Having considered this evidence in conjunction with the other evidence

in the case the impression is left that there was persuasive force inherent in it which

the jury were entitled to act upon assuming them to be acting reasonably. It should

not be concluded that the evidence constituted an unsafe or dangerous basis for

conviction.

This means that all of the appeals would fail, apart from the R v. Hind &

Harwood matter so far reserved for separate consideration. To this point it is now

necessary to return. What is the effect of the verdict of manslaughter against Barlow

who was, on the Crown case, the only one of those charged who was not an active

participant in the assault on Vosmaer? The active participants were, the Crown

alleged, the two who pleaded guilty at the commencement of the trial and the other

three appellants, Alexanderson, McQueen and Farr. The three against whom the

Crown proceeded were all found guilty by the jury of murder. The question is whether

there was a basis in law upon which a different verdict could be returned against

Barlow, the alleged accessory.

The result of the view of the majority in R v. Hind and Harwood is that in

Barlow's case any guilty verdict against him had, as a matter of law, to be the same as

that found against the active participants, which in this case was murder. This

conclusion depends on the proper construction of certain provisions of the Code and

those provisions have been the subject of lengthy consideration in the two cases

which have already been referred to, R v. Jervis and R v. Hind and Harwood. Both of

these cases produced majority decisions and in their outcomes they are in conflict. It is necessary now to decide which of them should be followed. In deciding this

question there are two cases in the High Court which are of special significance,

Brennan v. The King (1936) 55 CLR 253 and Stuart v. The Queen (1974) 134 CLR

426. There are as well a number of other cases from jurisdictions which have

statutory provisions which may be compared with those of the Code relevant in this

case. Of these cases, Murray v. The Queen (1962) Tas. SR 170 fairly raises the

issues with which we are concerned and it too resulted in a majority decision that is

consistent with Jervis rather than Hind and Harwood. Cases in Western Australia

have also confronted the question. Then there are the common law cases but they

may, in the end, not be of great assistance. It does not seem that it will be helpful to

give further detailed attention to this large body of cases since that is ground that has

already been sufficiently covered in the judgments delivered in the two Queensland

cases referred to especially in that of McPherson J. in Jervis and the President in R v.

Hind and Harwood. The analyses contributed by all of the Judges involved in those

two cases concentrate attention upon the relevant issues and reduce the need for

further lengthy discussion. The situation is best met by endeavouring to explain

reasonably concisely why I arrive at the same conclusion in principle as is adopted by

the two Judges in the majority in R v. Hind and Harwood.

The demands of precedent call for consistency as a necessary objective and

any further change in viewpoint within the Court after its most recent decision should

be avoided if that is a course fairly open.

The task which arises calls for construction of the provisions of the Code and

this should be undertaken without being deflected by the consideration that the

common law solution to similar problems may be different. The proper approach to be

adopted in the task of construction is described in Brennan v. The King (supra) at 263
per Dixon and Evatt JJ:

"Its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered."

The passage just set out was quoted by Gibbs J. in Stuart v. The Queen

(supra) at 437. He qualifies the stated principle only slightly in its application in a

limited number of circumstances such as where the words are of doubtful meaning or

some special ground exists. His statement reinforces the principle appearing in

Brennan since he declared at 437 that:

"If, (the Code) is clear, the (common law) is of no relevance."

Then at 441, in reference to s.8 of the Code, a section which is of particular

importance in the present case, he said its words "are perfectly clear as they stand".

The judgment of Gibbs J. was substantially agreed in by Menzies J. and was accepted

without qualification by Mason J.

Certain sections of the Code undoubtedly have to be considered together

before a final conclusion is expressed upon the meaning of the key provision here, s.8.

The selection of particular provisions for consideration does not, of course, mean that

other underlying features of the Code may not intrude into consideration. However,

the sections to which particular attention needs to be given are s.7, 8, 300, 302 and

303 and for convenience they may be set out again:

"7.

Principal offenders. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a)	Every person who actually does the act or makes the omission which constitutes the offence;
(b)	Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)	Every person who aids another person in committing the offence;
(d)	Any person who counsels or procures any other person to commit the offence...

8.

Offences committed in prosecution of common purpose. When two 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.

300.

Unlawful homicide. Any person who unlawfully kills another is guilty of a crime, which is called murder, or manslaughter, according to the circumstances of the case.

302.

Definition of murder. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say, -

(1)	If the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
(2)	If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(3)	If the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;
(4)	If death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid;
(5)	If death is caused by wilfully stopping the breath of any person for either of such purposes;

is guilty of murder...

303. Definition of manslaughter. A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter."

Section 7(1)(a) contains a basic and, it might be thought, rather obvious
statement of criminal liability, that is, that the one who does the criminal act commits

the offence. Other parts of the scheme of the Code dealing with criminal liability

concern themselves with entities, which in other connections are conveniently referred

to as "principals" and "accessories". These terms are commonly used in unlawful

killing cases as well as in cases involving other kinds of offences.

When the quoted sections are considered together the conclusion should be

reached that when s.302 refers to "a person who unlawfully kills another" as being the

offender, it is concerned to deal with the actual perpetrator, that is the one who in the

simple case strikes the blow, and is not concerned, by itself, to declare the criminal

responsibility of those who do no more than aid in its commission. This is the

impression that the words themselves used in the section seem to convey. That

impression is strengthened when other provisions which are seen to supplement its

effect are considered. By sections 7 and 8 the criminal responsibility of persons in a

class wider than the actual perpetrators is dealt with. This assists the conclusion that

s.302 leaves to be dealt with elsewhere the responsibility of that wider class of

participants less directly involved. It is unnecessary for the purposes of this

discussion to consider the further detailed situations dealt with in sections 9 and 10,

concerned with mode of execution in cases of counselling and accessories after the

fact.

In expressing the conclusion just stated upon the intended scope of s.302, I

understand my view to be consistent with that stated by Pincus JA in his reasons in

this case. I add that the description, "actual perpetrator", which is a convenient one to

use, can in certain circumstances be a plural concept and cover a class of persons

and not just one. When a number of persons are physically present and acting

together in concert the correct analysis of their situation and their potential joint liability is indicated by the reasons of the Court of Criminal Appeal in R v. Wyles ex parte

Attorney-General [1977] Qd.R 169.

It may be noticed that s.302(1)(b),(c),(d) and (e) attribute responsibility for

murder to persons who may not be acting out of any particular ill-will directed at the

victim of their actions. The description of activity as murder attributes a high level of

criminal responsibility to those involved but it can apply to persons who, in the

specified circumstance, cause death when engaged in criminal activity even though an

underlying animus towards the particular victim is absent. Offenders in this category

take the risk of being caught by this result because of their participation in the activity.

The philosophy adopted in these subsections of 302(1) is reflected in the scheme

embraced by s.8 and it provides some encouragement for thinking that the words

there found, which can attribute to an accessory a criminal responsibility identical with

that of the principal actors, were deliberately chosen. The basis of liability adopted in

s.8 appears to by-pass the need for a willed involvement by the accessory in the

offence actually committed by the principal provided that the scheme in which there

was in fact a willed involvement brings the offence in its wake as an objectively

probable consequence. The common law and other jurisdictions with statutory

provisions have their corresponding situations of liability for accessories and may

judge it by more exactly relating the accessory's mental state to the nature of the

precise offence directly committed by the principal, and thus may be ordaining a

different approach. In terms of justice of the result achieved, that other approach may

have its adherents. However, the question for us is, what is the system which s.8 of

the Code adopts. Whether or not the feature detected in s.302(1)(b)-(e) and remarked

upon above is thought to assist with the construction of the words of s.8, the words of

that section seem, with respect to those who have concluded otherwise, to point to the following inevitable result. Section 8 is concerned to attribute criminal responsibility

for the same offence as that which, in the event, is found to have been committed by

the principal. It is the "offence" which "is committed" that is selected as the offence

which the accessory is deemed to have committed.

The same approach is in fact adopted in the scheme of criminal responsibility

which appears in s.7(1)(b)-(d) since there also it is the offence which is actually

committed that is the one for which the aider, if other conditions are satisfied, is

criminally responsible. It is true that in these instances arising under s.7 the cases

have decided that for liability there must be a level of involvement and of "knowing"

assent to activity of the kind which will constitute the offence. This is because of the

ingredient that is involved in the concept of "aiding" itself: cf R v. Ancuta [1991] 2 Qd.R

413 and R v. Beck [1990] 1 Qd.R 30 at 38.

Because the jury in the present case has found Barlow guilty of manslaughter

and the principal participants guilty of murder, it is necessary to consider the

proposition whether the offence of manslaughter, or unlawful killing, is so involved in

the offence of murder that it can (and should) be said that the offence of manslaughter

has been committed whenever the offence of murder is committed. Again, with

respect to those who have thought otherwise, I would conclude that under the Code's

classification of offences, the two are separate and distinct. It is true that there is one

provision, s.300, which says that "any person who unlawfully kills another is guilty of a

crime, which is called murder or manslaughter, according to the circumstances of the

case" but I do not see this as advancing the debate. Anyone who unlawfully kills

another is guilty of a crime: but the question is - which crime? Murder is as

specifically defined as any other crime in the Code and there is no reason therefore to

reject the conclusion that there is a specific crime of murder. The same may be said of the way that manslaughter is treated. Even though it is defined to embrace a

residual category, it is a precisely defined category - any unlawful killing other than a

murder. It seems that the natural way to treat the classification is to regard murder

and manslaughter as distinct crimes even though they share common elements and

there is no reason therefore to attempt to exclude this distinction when s.8 has to be

applied. From this it would follow that it was not open to the jury to convict Barlow of

manslaughter when the active participants charged by the Crown were all convicted of

murder.

The views so far expressed are fundamentally arrived at by giving full effect to

what is seen to be the meaning of the words in s.8 and are consistent with, and it is

thought, favoured by the approach adopted in the two important High Court cases of

Brennan and Stuart.

The trial judge had left to the jury the possibility of convicting Barlow of

manslaughter in the alternative even though the others involved were all convicted of

murder. He did this at the request of the prosecutor, a request which was, for a time,

joined in by counsel for Barlow, although in the end Barlow's counsel asked that it not

be left.

No objection is taken to the summing up other than what is involved in the point

now taken as a result of the decision in R v. Hind and Harwood. The trial judge, in

summing up, may have felt some difficulty in putting to the jury the basis on which they

might consider it open to convict Barlow of manslaughter even though the others were

all guilty of murder. There were complexities in the matter and the judge may have felt

additional difficulty because of the view he had previously formed as the dissenting

judge in Jervis. I regard my own views here expressed as consistent with those he

expressed in that case. In putting the alternative that he did he would have felt bound
to follow the majority view in Jervis.

The result is that the jury have found Barlow not guilty of murder and a murder

verdict was in my view the only one, apart from not guilty, which was open as a result

of the other verdicts found against the principal offenders.

It is not necessary in this case to engage in any discussion of the mechanics

which might be involved if, for example, in other circumstances, a separate trial were

to proceed under s.8 against an accessory alone and a verdict was found inconsistent

with that subsequently found against a principal offender. This may be no more than

an illustration of the unsatisfactory result which can occur whenever, in the ordinary

case, co-offenders are tried separately. There is no need to say more about it here.

In view of the order which must be made in his case, the application by Barlow

for leave to appeal against sentence should be refused.

The appeal by Alexanderson, McQueen and Farr should be dismissed. The

appeal against conviction by Barlow should be allowed, the conviction set aside and a

verdict of acquittal entered.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 369 of 1994. C.A. No. 367 of 1994. C.A. No. 370 of 1994. C.A. No. 356 of 1994.

Brisbane

Before Macrossan C.J.

Pincus J.A. Dowsett J.

[R v. Alexanderson, McQueen, Barlow & Farr]

T H E Q U E E N

v.

STEPHEN RAYMOND ALEXANDERSON

ALLAN DAVID McQUEEN SHANE ALLAN BARLOW GLENN PATRICK FARR

Applicants

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 08/03/1996

These four appellants were all convicted after a four week trial of this complicated case.

Many witnesses were called; the evidence of three of the witnesses in particular, Bell, Bradvica

and Meninga, was long and involved. Bradvica’s evidence, for example, occupies 184 pages of

the transcript and contains a great deal of detail about Bradvica’s claimed recollection of the

events in question and comparisons of that account with what he had said on four previous

occasions. The task of analysing all that evidence, weighing the credibility of, especially, the

three witnesses I have mentioned and applying conclusions reached on those subjects to a determination of the guilt of each of the four accused was in my view a daunting one for the jury;

it took two days to reach a verdict. Apart from the sheer volume of information, or

misinformation, which had to be considered, there was the fact that the people whose credit was

principally in issue were of a kind with which one would not expect the jury to be familiar, living

in circumstances with which, also, the jury would not be familiar; a jury would not be expected

confidently to assess the likely reactions and motivations of a group of criminals in a gaol who

had watched one of their fellows being beaten to death.

Nevertheless, the law imposes on juries the responsibility for determining guilt or

innocence, even in circumstances where their previous experience of peoples’ behaviour might

not seem to be of much help, and it attributes to members of the jury a particular advantage, that

of having seen and heard the witnesses, which has to be kept in mind by this Court in performing

its function of deciding whether the verdicts are safe.

There were serious problems with the Crown case against each of the appellants. For

example, Bradvica, who was one of the three most important witnesses and who gave evidence

implicating all four appellants, agreed that he gave evidence in October 1993 to the effect that

about the end of the gymnasium session he went into the toilets, spent some five minutes there

and did not see the assault on Vosmaer; that he went, apparently shortly after that, to a

passageway near the officers’ station and saw Vosmaer lying on the ground with blood on him;

that he then did not know that the person lying on the ground was Vosmaer and walked straight

out of the gym. He had previously sworn, in effect, that he knew nothing which could assist the

Crown case against any of the appellants; the jury were asked to believe that he was lying on that

occasion, but telling the truth in his evidence before them. No rational person confronted with this situation could fail to have reservations about such a witness’ veracity. A majority of the

High Court said in M (1994) 181 C.L.R. 487 at 494:

" If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence ". (494)

The expression "significant possibility" is striking; its origin appears to be the judgment of

Deane J in Chamberlain (No. 2) (1984) 153 C.L.R. 521 at 619). (In Davies and Cody (1937) 57

C.L.R. 170, the expression used is "substantial possibility" (180).) Deane J relied for support

principally upon the reasons of the court in Rattan (1974) 131 C.L.R. 510 at 516, in a passage

the force of which is somewhat weakened by remarks the majority made in M (at 414). There

undoubtedly are in this case and will often be, where evidence of prisoners of limited credibility

is relied on to prove the facts of an assault by fellow inmates on one of their number,

discrepancies, inadequacies and taints. In Bryer (1994) 75 A.Crim.R. 456, Fitzgerald P said at

459 that ". . . it is plain that no change in the law was intended in M ". Although I concurred in

his Honour’s view (at 462), it has to be conceded that there appears to be a difference between

an assertion that it was open to the jury to be satisfied that the accused was guilty (M at 493) and

an assertion that there is not a "significant possibility that an innocent person has been convicted"

(M at 494). To depart from the facts of the present case, if a child gives uncorroborated evidence

of sexual interference by an adult which the adult denies, it must be a rare case in which one

could realistically assert, having read the evidence, that there is no possibility that the adult is in

truth innocent. Particularly if the complainant is very young, it seems quite usual that the account

given by the child will have its deficiencies; but juries’ verdicts in such cases often stand -

presumably on the basis that the possibility of innocence is not "significant".

To come back to the present facts, as the reasons of Dowsett J demonstrate, there are

many reasons for treating the evidence of the three principal witnesses as suspect. Despite that,

the jury was either satisfied that what those three witnesses said about the appellants was

substantially true or satisfied that enough of it was true to justify convicting them. This Court’s

task is not to re-try the case on the record, but is, as I understand the matter, to judge, as a matter

of degree: were the deficiencies in the evidence of such magnitude that the convictions must be

characterised as unsafe?

The principal factor which should have troubled the jury with respect to the evidence of

the three principal witnesses must have been the inconsistencies between their versions as given

in the trial and what they had previously stated or sworn to. There is a difficulty, to which

evidence of Thompson who said, "An officer came in for someone for a medical",

obviously a reference to Bullock and Vidler coming for Cowan. Thompson said that this occurred about two minutes after ... the assault had finally finished ....". Dowling

also puts the arrival of the officers at shortly after the termination of the assault. This

does not exclude the possibility that Dowling was correct in identifying McQueen, but it

is sufficient to lead me to the conclusion that the jury ought to have entertained a

reasonable doubt about the reliability of Dowling's identification of McQueen as the

third person in the attack.

BARLOW

In my view, Barlow's conviction must be quashed and a verdict of "not guilty"

entered. I consider that there was never sufficient evidence to justify the verdict

against him. It is true that he arranged for Vosmaer to come to the gymnasium, but

this must be seen in the context of their friendship and of Vosmaer's responsibilities

for cleaning the gymnasium. There was simply nothing suspicious about Barlow

asking Vosmaer to go to the gymnasium. The balance of the case against him is

entirely dependent upon Bell and Bradvica.

Even accepting that evidence, the case is inadequate. Watching and giggling

may be bad taste and may bespeak a willingness to abandon friends, but it goes no

further than that. Barlow's being in proximity to Vosmaer's body during a lull in the

assault cannot be seen as encouraging the assault in any way, nor can I see that it in

any way proves that he was involved in an overall plan. The alleged mutual

congratulations were also consistent with an attempt by Barlow to curry favour with

those who had been responsible for such an awful incident. Of course, these factors

must all be taken together to test whether or not they are sufficient to justify an

inference of guilt of manslaughter. The law is clear that in a case such as this, the

accused can only be found guilty if guilt is the only inference reasonably consistent with all the facts. I consider that it was not open to the jury to be so satisfied in this

case. It cannot be said that the only theory consistent with all of the facts was that the

accused had been a party to some plan to offer violence to Vosmaer. This conclusion

is, of course, not based upon the "unsafe and unsatisfactory" ground, but upon legal

considerations.

In any event, even if these incidents were thought to be sufficient to ground the

verdict, the conclusions I have drawn as to the unacceptable nature of Bell and

Bradvica's evidence mean that the verdict cannot stand. Bell had previously sought to

incriminate Barlow and then abandoned the allegation. None of Bell or Bradvica's

evidence against Barlow was supported by any other witness. I do not consider that

the interests of justice would be served by seeking to shore up Bell's evidence with

Bradvica's. I have expressed my reasons for this view. Such a conviction would be

unsafe. In view of this conclusion, it is not necessary to consider the matters arising

out of Jervis (supra) and Hind & Anor (supra).

ALEXANDERSON

There was independent evidence incriminating Alexanderson in the blood

specks found on his left shoe and the traces of blood found on his right shoe. There

was also the issue of his washing clothes. There was no other reliable evidence

involving him in the assault. While Bell implicated him in both parts of the assault, on

the second occasion throwing 20 kilogram weights at Vosmaer's head, Bradvica and

Meninga implicated him only in the second assault, saying that he was striking

Vosmaer with bars. There was a discrepancy between Bradvica's evidence at trial

and his previous evidence in that at trial, he said that Alexanderson struck Vosmaer

only in the legs, but previously he had said that he had been striking him, "pretty much all over his body." Meninga was also equivocal in his implication of Alexanderson

saying, "I think it was Steve Alexanderson".

It was said that the absence of any evidence from Thompson or Dowling

concerning Alexanderson, Farr and Barlow meant that their evidence had necessarily

to be rejected in order to accept the evidence of Bell, Bradvica and Meninga

implicating those persons. I do not accept this argument. It was fairly clear that both

Thompson and Dowling had tried to minimise their involvement in the affair and had

no desire to see what they could avoid. I would not infer from their evidence that

either of them was claiming to have seen the whole incident or to give an accurate

account of all the persons involved.

If the notion of a two phase attack is accepted, it is impossible to reconcile

Bell's evidence with that of Bradvica and Meninga. Their accounts of what happened

in the second phase were quite inconsistent with Bell's account, and it is not possible

to explain this away by suggesting that perhaps they saw the first phase rather than

the second or vice versa. Bradvica and Meninga were less than convincing in their

versions about Alexanderson, Bradvica having changed his description of the assault

and Meninga's account lacking detail. I have already said enough about the

unreliability of the evidence of these three witnesses.

The blood on the shoes was not, of itself, unequivocal evidence of involvement

in the attack, although it suggested that he was very close to Vosmaer when a blow

was struck. However, that was not the only possible explanation. Another would be

that it came from a different person in a different incident. There was also the

possibility that blood on the floor had been splashed by something dropping into it in

an incident unconnected with the assault on Vosmaer, although occurring shortly thereafter. Had Alexanderson gone to assist Vosmaer or to restrain one of the

assailants, the splashes could have occurred in that transaction. I am not suggesting

that any of these things happened. I am rather pointing out other possible

explanations. One feels compelled to say that had he been involved in the attack in

the way suggested in the evidence, one would have expected very much more blood

on the shoes than was found. This is particularly so when one keeps in mind that Miss

Bentley was of the view that her capacity to group the blood suggested that the left

shoe had not been washed. The positive screening test on the right shoe is also of

some probative value but is less persuasive, given the absence of evidence as to

quantity of blood, distribution of it on the sole of the shoe and as to the length of time

that traces of blood might remain on such a surface and be detectable by a screening

test. Of course, one must acknowledge that whoever killed Vosmaer was apparently

able to leave the gymnasium and return to the cell blocks without his appearance

raising suspicion, although we do not know what blood staining, if any, was found on

Garrett and Nixon's clothing and shoes.

Once it is accepted that Bell, Bradvica and Meninga were witnesses of little

value, it is difficult to see the blood stains as sufficient to justify a conviction, simply

because of the very small amount involved. Similarly, it is impossible to draw adverse

inferences from Alexanderson's going to the laundry, partly because it was not an

unusual occurrence in any event, but also because the fact that he went to the laundry

said nothing about what he did there. There was nothing unusual about washing

one's clothes after physical exercise. In the absence of reliable evidence from an eye

witness, the other evidence was insufficient to justify an inference of guilt. As the jury

ought to have rejected the evidence of Bell, Bradvica and Meninga, Alexanderson's
conviction must also be quashed.

FARR

Farr's conviction also stands or falls upon the evidence of Bell, Bradvica and

Meninga, although in his case, there was some degree of correlation amongst the

three accounts. However, Bell had initially attributed to "Gilly" many of the things which

he subsequently attributed to Farr. His explanation that the police transposed the

names is not, in my view, acceptable. Given Bell's willingness to inculpate other

people as demonstrated in the cases of Anderson and Barlow, such a discrepancy is

quite significant.

As to Bradvica, I have previously pointed out that on 19 November, he said that

all the persons involved in the first stage of the assault were also involved in the

second. At the trial, he said that Nixon and Garrett were in the first assault but not the

second and that Alexanderson was only in the second. Again, such an inconsistency

is quite significant. In view of Dowling's evidence that Bradvica and Meninga were with

him in the vicinity of the water fountain for at least the latter stages of the assault, it is

difficult to have any confidence in the reliability of their evidence. In the

circumstances, and although the question is much more complex in the case of Farr, I

consider that the interests of justice would not be served by upholding his conviction

based solely upon the evidence of Bell, Bradvica and Meninga.

McQUEEN

This case was substantially strengthened by the evidence of Dowling. However, as I

have observed, his evidence also had its own problems. He said that McQueen

punched Vosmaer, whilst Bell said that he attacked him with a dumb bell, although this

was inconsistent with his earlier evidence. Bradvica and Meninga also said that he punched Vosmaer. Bradvica said that he also dropped weights on him, and Meninga

said that he attacked Vosmaer with a bar. There is a certain core of common

evidence to be found in the evidence of Dowling, Bradvica and Meninga to the effect

McQueen punched Vosmaer at the beginning of the assault. It is tempting to see the

conglomeration of the evidence of those three witnesses as sufficient to overcome any

doubts one has about their reliability when taken in isolation, however one must keep

in mind the reasons for doubting the evidence of each of these witnesses.

Bradvica and Meninga had initially denied any knowledge of the incident and

put themselves in a position in which they probably would not have been able to see

very much of the assault. Although they subsequently resiled from that evidence,

Dowling's own evidence to some extent corroborated that version. If that cause for

doubt is valid, then Bradvica and Meninga deliberately lied about the involvement of a

number of people in this attack. As I have previously observed in another context, it is

difficult to see how anybody who has once lied about this matter could ever be

believed about any significant aspect of it. Thus, to look to Meninga and Bradvica to

support Dowling would be to rely upon the evidence of admitted perjurers to

corroborate identification evidence about which there was reason to have substantial

doubt. If the suspicion surrounding Meninga and Bradvica's evidence was justified,

then their evidence could do nothing to support Dowling's version. As I have said,

Dowling's identification was also suspect, and I do not consider that a jury could

properly act upon it in the absence of other reliable evidence.

Another aspect causes me concern in the case of McQueen. The jury's

consideration of the case against him was probably influenced by the complexity of the

various versions given in evidence-in-chief and cross-examination by Bell, Bradvica and Meninga. Even if I were minded to act upon the uncorroborated evidence from

Dowling, I would have very serious doubts about the fairness of McQueen's trial in the

peculiar circumstances of this case. However, that is not a matter which I need take

further in light of my conclusion as to Dowling's evidence. I would also quash

McQueen's conviction.

ORDERS

In my view, each appeal should be allowed, the respective convictions quashed

and sentences set aside. Verdicts of "not guilty" ought be entered in all cases.

Barlow's application for leave to appeal against sentence should be refused.