SUPREME COURT OF QUEENSLAND
CITATION:
R v BZW [2024] QSC 260
PARTIES:
THE KING
v
BZW
FILE NO:
Indictment 91 of 2024
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
31 October 2024
DELIVERED AT:
Brisbane
HEARING DATE:
21, 22 and 23 October 2024
JUDGE:
Copley J
VERDICTS:
Count 1 – Burglary by breaking in the night in company – guilty, not guilty of the circumstance of aggravation of armed with an offensive weapon.
Count 2 – Murder – not guilty, alternatively manslaughter – not guilty.
Count 3 – Malicious act with intent – not guilty, alternatively unlawful wounding – not guilty.
Count 4 – Assault occasioning bodily harm in company – guilty.
CATCHWORDS:
CRIMINAL LAW – GENERAL MATTERS – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – VERDICT – where no jury trial order was made pursuant to s 615 of the Criminal Code (Qld) – where the accused was tried by a judge sitting without a jury – where the accused pleaded not guilty to burglary with circumstances of aggravation (count 1), murder (count 2), malicious act with intent (count 3) and assault occasioning bodily harm in company (count 4)
CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – BURGLARY, HOUSEBREAKING AND LIKE OFFENCES – ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT – where the count 1 circumstances of aggravation were that the entry was by means of a break, at night, while armed, in company – where the Crown alleged that the accused had knowledge of the knife – whether the accused had knowledge of the knife – whether the accused is guilty of burglary with the circumstance of aggravation of being armed
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – where the co-accused had possession of the knife and did the act which caused the death – where the co-accused is alleged to be the principal offender – where the Crown alleged that the accused is a party to murder by virtue of s 8 of the Code – whether the accused had knowledge of the knife – whether the death was caused by means of an act done for the unlawful purpose of stealing property from the house while armed with a knife – whether the accused is guilty of murder, or alternatively, manslaughter
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY – OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY – MALICIOUSLY OR UNLAWFULLY – where the co-accused is alleged to be the principal offender – where the Crown alleges that the accused is a party to counts 3 and 4 by virtue of s 8 of the Code – where co-accused unlawfully wounded with intent to disable, and unlawfully assaulted and did him bodily harm – where the Crown alleged that counts 3 and 4…
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Details
- AGLC
- R v BZW [2024] QSC 260
- Case
- [2024] QSC 260
- Decision Date
CaseChat Overview and Summary
The case of R v BZW involved the accused facing charges including burglary with circumstances of aggravation, murder, malicious act with intent, and assault occasioning bodily harm in company. The accused pleaded not guilty to all charges. The court was required to determine whether the accused had knowledge of the knife carried by his co-accused, H, and whether this knowledge affected his culpability for the various offences. Additionally, the court had to decide if the accused was guilty of murder, manslaughter, malicious act with intent, or assault occasioning bodily harm in company based on his involvement and state of mind during the commission of the crimes.
The court found that while the accused did enter the Lovells’ home with H, intending to commit theft, there was insufficient evidence to prove beyond reasonable doubt that the accused knew H was armed with a knife. The court relied on the absence of direct evidence and the speculative nature of inferring knowledge from circumstantial evidence. Consequently, the court acquitted the accused of the circumstance of aggravation of being armed with an offensive weapon. However, the court was satisfied beyond reasonable doubt that the accused’s entry was by means of a break, at night, and in company, thus finding the accused guilty of burglary with those circumstances but not with the additional circumstance of being armed. Regarding the murder charge, the court found that H was the principal offender who caused the fatal stab wound to Mrs Lovell. The court held that the accused could be found guilty of murder as a party under section 8 of the Code if it was established that the accused shared a common intention to commit an unlawful act that resulted in death. However, given the lack of evidence that the accused knew about the knife, the court found the accused not guilty of murder. The court also considered whether the accused was guilty of malicious act with intent or unlawfully wounding, but ultimately found him not guilty due to insufficient evidence of his direct involvement in causing the injuries to Mr Lovell.
The court ordered the accused be acquitted of the circumstance of aggravation of being armed with an offensive weapon and the charge of murder. The accused was found guilty of burglary with circumstances of aggravation, namely, being at night and in company, but not armed. The court did not find the accused guilty of malicious act with intent or assault occasioning bodily harm in company.
The court found that while the accused did enter the Lovells’ home with H, intending to commit theft, there was insufficient evidence to prove beyond reasonable doubt that the accused knew H was armed with a knife. The court relied on the absence of direct evidence and the speculative nature of inferring knowledge from circumstantial evidence. Consequently, the court acquitted the accused of the circumstance of aggravation of being armed with an offensive weapon. However, the court was satisfied beyond reasonable doubt that the accused’s entry was by means of a break, at night, and in company, thus finding the accused guilty of burglary with those circumstances but not with the additional circumstance of being armed. Regarding the murder charge, the court found that H was the principal offender who caused the fatal stab wound to Mrs Lovell. The court held that the accused could be found guilty of murder as a party under section 8 of the Code if it was established that the accused shared a common intention to commit an unlawful act that resulted in death. However, given the lack of evidence that the accused knew about the knife, the court found the accused not guilty of murder. The court also considered whether the accused was guilty of malicious act with intent or unlawfully wounding, but ultimately found him not guilty due to insufficient evidence of his direct involvement in causing the injuries to Mr Lovell.
The court ordered the accused be acquitted of the circumstance of aggravation of being armed with an offensive weapon and the charge of murder. The accused was found guilty of burglary with circumstances of aggravation, namely, being at night and in company, but not armed. The court did not find the accused guilty of malicious act with intent or assault occasioning bodily harm in company.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The prosecution called the following witnesses, each of whom was cross-examined:(a)Mr Lee Lovell, an occupier of the dwelling (house) at 19 Whitfield Crescent, North Lakes;(b)Ms Balhatchet, a neighbour who resided across the street;(c)Mr Kincaid, Ms Balhatchet’s boyfriend;(d)Mr Balhatchet, Ms Balhatchet’s father;(e)Detective Sergeant Scott, an officer of the Queensland Police Service (QPS);(f)Senior Constable Grace, an officer of the QPS; and(g)Detective Senior Constable Lewis, an officer of the QPS.Summation of some aspects of the evidence The prosecution admitted many facts relevant to the trial where the accused was in agreement with this being done, and the facts admitted are sufficient proof of those facts without other evidence. As the prosecution and the defence agreed that the facts set out in exhibits 1 and 1A are admitted, I treat all those facts as proved. On the way this case was presented and litigated some of the admitted facts ultimately had little significance to either the elements of the offences or the real issues in the trial. The admitted facts of central significance were as follows:(a)On 26 December 2022 Mrs Emma Lovell and her husband, Mr Lee Lovell, and their two daughters resided in a house at 19 Whitfield Crescent, North Lakes.(b)On and prior to that date a house situated at 7 Whitfield Crescent, North Lakes, was utilised as a residential home for young people. A youth, DB, aged 17, lived at that address. (Other evidence established that by road the end of the driveway at 7 Whitfield Crescent was 120 metres from the end of the driveway at 19 Whitfield Crescent).(c)At approximately 11.28 pm on 26 December 2022 the accused and H entered the house at 19 Whitfield Crescent. Entry was gained by opening the unlocked front door. At the time of entry the accused was wearing a red cap. At the time of entry H wore a Calvin Klein branded cross-body bag.(d)At the time of entry the accused was in company with H.(e)At the time of entry H was armed with a knife.(f)The blade of that knife was approximately 115 millimetres in length and 15 millimetres in width.(g)At approximately 11.29 pm on 26 December 2022 H caused the knife to penetrate Mrs Lovell’s chest and at or around the time of penetration H had the knife in his charge or under his control.(h)Mrs Lovell died on 27 December 2022 and the cause of death was a stab wound to her chest.(i)The stab wound was situated to the front and side of the chest. The wound measured 32 millimetres long on the surface of the skin. The wound track was estimated to be 130 millimetres long. The wound tracked from the left to the right and upwards and towards the back. It passed between two ribs, through the sixth intercostal space, into the chest cavity and there was a cut into the back of the left side of the heart. The track ended in the left ventricle of the heart. There were incisions to the posterior of the pericardial sac. There were evenly spaced parallel oblique linear incisions on the front superior aspect of the seventh rib below the incision in the sixth intercostal space. (j)The other injuries observed at post-mortem examination were a red abrasion to the medial mid-forearm on the right arm and a horizontal linear abrasion and an oblique abrasion to the right forearm. The pathologist examined the blade used to stab Mrs Lovell and observed that the stab wound on the skin of the chest was significantly wider than the width of the blade. The dimensions of the wound, considered with the multiple shallow incised wounds on the inner surface of the pericardial sac and the wound to the left ventricle, suggested movement of the blade. (k)The finding of the incisions on the surface of the seventh rib supported the movement or twisting of the blade in relation to the body.(l)The pathologist considered that at least moderate force, on a scale of mild, moderate to severe, was used to cause the stab wound. (m)At approximately 11.29 pm on 26 December 2022, H wounded Mr Lovell by stabbing him with a knife. H caused a wound to Mr Lovell’s posterior arm and right scapular region, both involving the breaking of the true skin.(n)Also, at approximately 11.29 pm, H assaulted Mr Lovell by kicking him and the assault caused Mr Lovell bodily harm, namely, bruising to his left eye, an abrasion to his chin and bruising to his central upper sternum.(o)Early on the morning of 27 December 2022 the police found the blade of the knife used by H on the front lawn of 19 Whitfield Crescent. The police found the accused’s red cap on the ground outside the front door to the house. The police found a Nokia mobile phone in the garden bed next to the front door to the house and they found a Samsung mobile phone inside the Calvin Klein branded cross-body bag. This bag was located on the front lawn at 19 Whitfield Crescent.(p)The Nokia phone rang when the police dialled a number subscribed to the accused’s mother.(q)The other phone did not belong to any member of the Lovell family.(r)On 27 December 2022 the police searched the house at 7 Whitfield Crescent.(s)On 3 January 2023 the police searched this house again. On this occasion the police found the handle of the knife used by H on 26 December 2022. The handle was found in the couch in the living room. (t)The handle measured about 10 centimetres. The police measured the blade used by H as being about 11.5 centimetres.(u)Microscopic examination showed that the blade and handle had once constituted a single object.(v)DNA profiles consistent with both Mrs Lovell’s DNA and Mr Lovell’s DNA were found on the tip of the blade.(w)On 3 January 2023 the police found three knives in the kitchen at 7 Whitfield Crescent.(x)A fingerprint matching the fingerprint of H was found on the hallway wall near the door to Mr and Mrs Lovell’s bedroom.(y)On 26 December 2022 H and the accused had been in each other’s company at the places and times listed below:(i)At 9 pm at the 7-Eleven store on Halpine Drive, Mango Hill;(ii)At 9.26 pm outside the Mango Hill Tavern on the corner of Halpine Drive and Anzac Avenue, Mango Hill;(iii)At 9.30 pm outside the Mango Hill/North Lakes Police Station on Discovery Drive, North Lakes; and(iv)At 9.50 pm on the road outside 12 Dorrigo Court, North Lakes;(Dorrigo Court is a street which runs off Whitfield Crescent and it meets Whitfield Crescent nearer to 7 Whitfield Crescent than 19 Whitfield Crescent).(z)Associated with these admissions were a number of photographs, which depicted, amongst other things, images of the accused and H at the above‑mentioned places.(aa)The cameras installed at the front door and garage of 19 Whitfield Crescent were infrared cameras.(bb)Infrared cameras have clear infrared light emitting diode (LED) surrounding the central lens of the camera. At night the LED lights emit infrared light only, which to the human eye might be seen as a red glow.(cc)These lights switch on when the camera senses a lack of ambient light. (dd)These cameras are referred to as day/night cameras because they switch between the visible spectrum in daylight and then, when there is no daylight, they switch to infrared mode, using infrared illumination to “see”. (ee)Infrared light has no colour as it is just luminance. Objects appear whiter when they reflect infrared light and darker when they absorb it. The image created is a black and white image. An example of this is that a black jumper can appear as white in infrared light if it reflects infrared, and a white jumper can appear black if it absorbs infrared.(ff)The police obtained security camera footage recorded on 26 December 2022 from a camera located at 32 Whitfield Crescent. This footage recorded sounds as well as images.
Decision
Reasons for decision
As already stated, no evidence was put before the Court concerning what the accused did between 9.50 pm and when he next appeared on camera footage at about 11.25 pm to 11.26 pm. It would be to speculate or to guess that he maintained company with H. It would be to speculate or to guess in relation to what they discussed, if they did stay in each other’s company, and it would be to speculate or to guess to consider whether or not H showed the accused the knife prior to 11.27 pm. As already noticed, there is a basis for inferring that the knife H had came from the house at 7 Whitfield Crescent, but even so that does not allow me to be satisfied beyond reasonable doubt on all of the evidence that the accused was aware H had the knife as they approached 19 Whitfield Crescent. I do not regard Senior Constable Grace’s evidence that he found the accused in a double bed with another male person in a bedroom at 7 Whitfield Crescent in the early hours of 27 December 2022 as evidence that assists on the issue of knowledge of the knife.What follows from the conclusion that the accused has not been proven to have seen or been aware of the knife I am satisfied beyond reasonable doubt that on 26 December 2022 the accused entered the house of Mr and Mrs Lovell, with intent to commit an indictable offence in the house. It was an admitted fact that the accused and H entered the house. The footage shows the accused entering. I am satisfied beyond reasonable doubt that the accused’s intention was to steal, that is to take property capable of being stolen with the intention of permanently depriving the homeowners of it. The fact that neither the accused nor H were known to the Lovells, the time at which the accused and H went to their front door, the failure to knock or otherwise announce their attendance and their cautious manner of entry, obviously looking to see if they would be noticed, are all facts from which it can be inferred that the intention was to commit the indictable offence of stealing in the house. I am satisfied beyond reasonable doubt that entry was by means of a break, because the footage shows the accused opening a closed but unlocked front door. There was an admission to this effect too. I am satisfied beyond reasonable doubt this offence was committed in the night because the time on the footage was well after 9 pm. I am satisfied beyond reasonable doubt that the accused was in the company of another, H, because there was an admission to this effect and their manner of approach to the door shows that they were in each other’s company. However, not being satisfied beyond reasonable doubt that the accused knew that H was armed with a knife, I acquit the accused of the circumstance of aggravation of being armed with an offensive weapon. In relation to any count charging an offence committed with circumstances of aggravation, a person may be found guilty of any offence established by the evidence with or without any of the circumstances of aggravation charged in the indictment: s 575.
Ratio Decidendi
Legal Principle Established
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