R v Gibbins

[2008] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v GIBBINS

Criminal Trial by Judge Alone

[2008] SASC 168

Reasons for the Verdict of The Honourable Justice Sulan

27 June 2008

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - TRIAL HAD BEFORE JUDGE WITHOUT JURY

Trial by Judge alone - accused charged with murder (count 1), unlawfully and maliciously causing grievous bodily harm with intent to cause grievous bodily harm (count 2) and, in the alternative to count 2, assault occasioning actual bodily harm (count 3) - prosecution case was that accused was a party to a joint criminal enterprise and was liable for the act of another party which caused the death of the victim - defence case was that act causing death was outside the scope of the joint criminal enterprise and the accused acted in self-defence during course of enterprise.

Held:  Accused not guilty of murder but guilty of manslaughter (count 1).

Held:  Accused guilty of unlawfully and maliciously causing grievous bodily harm with intent to cause grievous bodily harm (count 2).

Criminal Law Consolidation Act 1935 s 11, s 21, s 40; Juries Act 1927 s 7, referred to.
Gillard v The Queen (2003) 219 CLR 1; McAuliffe v The Queen (1995) 183 CLR 108; Markby v The Queen (1987) 140 CLR 108; R v Bosworth & Ors (2007) 97 SASR 502; Varley v The Queen (1976) 51 ALJR 243, applied.
R v Anderson and Morris [1966] 2 QB 110; R v Cozzi (1999) 73 SASR 374; R v Zappia (2002) 84 SASR 206, distinguished.
R v Duong (1992) 61 A Crim R 140; R v Woolley (1989) 42 A Crim R 418, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Joint criminal enterprise;  common purpose."

R v GIBBINS
[2008] SASC 168

Criminal

1. SULAN J: Adrian Steven Bosworth, Wayne Robert Anton Gibbins and Ashley Matthew Nance are charged on information with murder, causing grievous bodily harm with intent to do grievous bodily harm and assault occasioning actual bodily harm. 

2. The first count alleges that Bosworth, Gibbins and Nance, together with Clinton John Richards, murdered Jeffrey Newman on 4 June 2004 at Elizabeth Grove, contrary to s 11 of the Criminal Law Consolidation Act 1935. The second count alleges that on 4 June 2004, at Elizabeth Grove, they, together with Richards, unlawfully and maliciously caused grievous bodily harm to Shayne Caddies with intent to do him grievous bodily harm, contrary to s 21 of the Criminal Law Consolidation Act 1935. The third count is an alternative count to count 2. It alleged that they, together with Richards, assaulted Shayne Caddies, thereby occasioning him actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act 1935. 

3. Bosworth, Gibbins, Nance and Richards had previously been convicted by verdict of a jury of counts 1 and 2.  They appealed against their convictions.  Richards’ appeal against his conviction for murder was dismissed by the Court of Criminal Appeal.  The Court allowed his appeal against the conviction of causing grievous bodily harm with intent to cause grievous bodily harm, and ordered a retrial of that count. The Court of Criminal Appeal allowed the appeals of Bosworth, Gibbins and Nance with respect to both counts.  The Court set aside the convictions and ordered a re-trial. 

4. Prior to the retrial, Bosworth, Gibbins and Nance each applied to be tried separately from Richards. The Crown did not oppose the application for separate trials.  One of the grounds of the application was that Richards now stood convicted of murder and Bosworth, Gibbins and Nance would be prejudiced if Richards were to stand trial with them in respect of only the second count.   I ordered that Richards be tried separately.

5. After that order had been made, and prior to the commencement of the re‑trial, Bosworth, Gibbins and Nance applied to have the retrial heard by a Judge alone. [1]  At the previous trial, some concern had been expressed by the jury about their safety and about the behaviour of certain persons associated with the trial outside the court but in view of jurors.  It was submitted that this was an appropriate case for a trial by Judge alone. 

   [1]    Juries Act 1927, s 7.

6. The application was made out of time.  Mr Bleechmore, counsel for Gibbins, indicated that he had been absent the jurisdiction and had only given advice to Gibbins shortly before making the application.  Counsel for Nance had changed. Mr Braithwaite, who appeared for Nance on the retrial, submitted that he had only recently considered and advised his client of his right to apply for trial by Judge alone.  Mr Stokes, counsel for Bosworth, submitted that he only considered advising his client upon becoming aware that Gibbins was making the application. The Crown did not oppose the applications. I considered that, in the exceptional circumstances, the principal offender standing convicted of murder and, this being a retrial of those who were alleged to be joint offenders, I should extend the time and grant the application. 

   The trial

7. The trial commenced on 8 April 2008.  On 17 April 2008, Bosworth and Nance sought to be re‑arraigned.  Each pleaded guilty to manslaughter in answer to the first count, and to assault occasioning actual bodily harm, the third count. The Crown accepted their pleas in satisfaction of all counts on the information.  Gibbins did not seek to be re-arraigned.   Bosworth and Nance were remanded on bail for submissions on sentence to be heard after the completion of Gibbins’ trial. 

   The prosecution case against Gibbins

8. The Crown must prove the guilt of Gibbins beyond reasonable doubt.  He is presumed innocent.  The Crown also bears the onus of disproving self-defence beyond reasonable doubt.

9. The incident from which the charges arose occurred against the background of animosity which had built up over some time between Shayne Caddies senior (“Caddies senior”), his son, Shayne Caddies junior (“Caddies junior”) and a number of young men, including Gibbins. All lived in the Elizabeth area. 

10. Caddies junior had been a long-term friend of a number of men including Gibbins.   Over a period of many months prior to 4 June 2004, Caddies junior’s behaviour had been erratic.   He was very aggressive towards his friends, a number of whom had turned away from him.  Gibbins was one of Caddies junior’s school friends with whom he had fallen out. 

11. Gibbins was friendly with Ryan Gabell.  Gabell owned a white VL Commodore.  The white VL Commodore is referred to by a number of witnesses and continually featured in the events prior to, at the time of, and after the incident in which Newman died.  I shall refer to that incident as “the Main North Road incident”.

12. On Tuesday, 1 June 2004, a group of young men, including Gibbins, were kicking a football outside the home of Wendy Taube at 6 Hewitt Road, Elizabeth South. The two Caddies arrived, and a confrontation occurred in the street.  Caddies senior was angry about damage which had been done to the back windscreen of his Nissan utility.  He blamed Gibbins.  Caddies junior threatened Gibbins with a wooden baton which he swung at him.  I shall refer to that incident as “the football incident”.  The Nissan utility has variously been described by witnesses as the white utility, the Toyota utility, and the utility.  I shall refer to it throughout these reasons as “the Nissan utility”.

13. On 4 June 2004, Caddies junior was living at 18 Jeffries Road, Elizabeth South, with his girlfriend, Rocky, his brother, William, and his brother’s de facto wife, Stephanie Johnston.  William Caddies was suffering from cancer from which he has since died.  During the evening, Tracy French, a neighbour, noticed a white VL Commodore driving slowly along Jeffries Road past William Caddies’ house on a number of occasions.  She told Stephanie Johnston what she had seen. The Crown case is that Gabell, accompanied by others, acted provocatively towards Caddies junior in slowly driving past his residence on several occasions. Not long after Ms French had spoken to Ms Johnston, a number of young men and Caddies senior arrived at William Caddies’ home in Caddies senior’s Nissan utility.  The group, together with others who had been at William Caddies’ home, left in two cars: the Nissan utility driven by Caddies senior, and a white Mazda driven by Caddies junior.  I shall refer to the people in these vehicles as “the Caddies’ group”.  Newman was one of the people in the Nissan utility.  The Caddies’ group were armed with weapons, including sticks and poles, one of which had a knife attached to it.  Newman was in possession of a pole, which was later located by police at a house at 42 Charmouth Road, Davoren Park, the premises to which Gibbins, and others, went after the Main North Road incident.

14. The Caddies’ group drove to 43 Bagot Road, Elizabeth, where Gibbins lived.  They then drove to Hewitt Road, and, finally, to flat 2/16 Swan Crescent, Elizabeth.  They did not find Gibbins at any of the premises.  The Caddies’ group returned to William Caddies’ home. 

15. Gibbins, Richards and Gabell were at the home of Christopher Short at Charmouth Road.  Gibbins had received telephone calls from at least two people telling him that the Caddies’ group were looking for him.  Shortly thereafter he, Richards and Gabell left in the VL Commodore. 

16. At some stage, not long after, Bosworth and Nance joined the group.  Gabell then drove to Bagot Road.  The group left Bagot Road in the VL Commodore.  Shortly after, a confrontation occurred.  As Gabell drove away from 43 Bagot Road, the Nissan utility drove into the rear of the VL Commodore. A car chase ensued through the streets of Elizabeth.  The Caddies’ group in the Nissan utility and the white Mazda pursued the VL Commodore.  The chase ended when the VL Commodore stopped adjacent to 203 Main North Road, Elizabeth.  Gibbins had spoken on his mobile phone to a person named Warren Wittmann, who was staying at that address.

17. The Crown case is that the four passengers in the VL Commodore got out, ran back and attacked the Caddies’ group’s vehicles.  The Caddies’ group and Gibbins, together with Richards, Bosworth and Nance engaged in a fight.  During the fracas which followed, Newman was stabbed. It is not in dispute that Richards stabbed Newman, and did so with intent to cause grievous bodily harm. Caddies senior received severe injuries, including a fractured jaw. 

18. The VL Commodore left the scene, pursued by the white Mazda.  The Mazda eventually returned to the location of the incident. The VL Commodore was driven back to Charmouth Road.  At Charmouth Road there was a discussion between the occupants of the VL Commodore.  The police were telephoned.  Gibbins was advised to attend at the police station.  He did so on the following morning.  He told the police that he was unable to attend the night before because he was afraid of being attacked. 

19. On 5 June 2004, the police attended Charmouth Road and seized a white metal pole[2] which was located in the laundry sink, and a metal bar[3] located in the south-western corner of the laundry.  Two days later, they returned and seized 19 knives.[4]

    [2]    Exhibit P14.

    [3]    Exhibit P15.

    [4]    Exhibit P23.

20. On 7 June 2004, police attended a location near the Elizabeth West Shopping Centre and located a knife[5] in the fork of a tree at Peachey Road.  DNA obtained from blood smears on the knife matched the DNA profile of Newman.  The prosecution case is that the knife formed a set with the 19 knives which had been seized.

    [5]    Exhibit P9.

21. Gibbins told the police that whilst the group were at Charmouth Road after the Main North Road incident, Richards had said that he might have stabbed someone.  Gibbins told the police that, prior to the fight, he was unaware of anyone having a knife in the car and that he first became aware of a knife when the group had returned to Charmouth Road.  By that stage, Richards had left.  Gibbins said that he had been told about a knife by a young woman who found a knife in the car when she had been looking for marijuana.  Gibbins said that he removed the knife from the car and hid it in a bush in the backyard.  Gibbins said the knife had been later removed from the bush by a third person and taken to the location at Peachey Road where it was later discovered by police.

22. The Crown case is that Gibbins was engaged in a joint enterprise with Richards.  The Crown case is that Gibbins was aware that others were armed with weapons, that he foresaw the likelihood that grievous bodily harm would be caused to someone during the fight and he participated in the fight.  The Crown contends that if it is not established that Gibbins knew that Richards was armed with a knife Gibbins is, nevertheless, guilty of murder because he entered into the fight knowing that some participants were armed, and with foresight that during the fight someone might kill another with intent to kill or do them grievous bodily harm. 

23. As to the charge of causing grievous bodily harm with intent to do grievous bodily harm, the Crown case is that Gibbins struck Caddies senior causing his facial injuries. Alternatively, he was a party to an assault upon Caddies senior, including kicking and stomping on Caddies senior’s head.

    The defence case

24. The defence case is that it has not been proved that Gibbins was a party to the joint enterprise alleged, and that he was not engaged in any unlawful act.  As to the charge relating to Caddies senior, Gibbins acted in the lawful defence of another and that he was not part of a joint enterprise which involved kicking and stomping on Caddies senior.

    The scene of the incident

25. I attended at the scene of the Main North Road incident.  Having observed the area, and having driven along the streets referred to by the witnesses, I am better able to understand the evidence.  I have not relied on my observations on the view as evidence. I have relied solely upon the evidence in the case.

26. There are three north-bound lanes at the area of the Main North Road incident.    On the western side of Main North Road, there is a continuous median strip separating the main road from a smaller, parallel road, which I shall refer to as “the access road”.  There are trees and bushes along the median strip.  Houses are situated along the western side of the access road. These houses face onto the access road, and beyond that the median strip and Main North Road.  Although these houses have addresses which indicate they are situated on Main North Road, they may only be accessed from the access road. The Main North Road incident occurred adjacent to 203 Main North Road.  The fight in which Newman was stabbed occurred on Main North Road.  Gibbins senior was struck whilst he was on the access road.

    Review of the evidence

27. Colin Munn is 22 years of age.  He has lived in the Elizabeth area all his life and is a friend of Gibbins. He has known Caddies junior and his relatives for some years.  Munn gave his evidence in a forthright manner.  I was impressed by his frankness.  His memory of the events leading up to the night of Newman’s death was both comprehensive and accurate.  He impressed me as an honest and reliable witness.  I accept his evidence.

28. During the period of approximately six months before the Main North Road incident, Munn described Caddies junior as being “weird”.  Caddies junior was argumentative when they were together.  On occasions, he threatened Munn and argued with him over the most trivial matters.  Munn said that he received abusive telephone calls from Caddies junior.  As a consequence, Munn avoided contact with Caddies junior as much as he was able.  He said that Caddies junior behaved in a similar way towards others with whom he had previously been on good terms.  The relationship between Caddies junior and many of his former friends had deteriorated.  He had acted aggressively towards a number of members of the group.  Munn observed that Caddies junior had fallen out with Gibbins and Gabell. 

    The football incident

29. Munn gave evidence about the football incident which occurred on 1 June 2004 at Hewitt Road, three days before the Main North Road incident.  Munn and a number of other young men, including Gibbins, Anthony Thompson and Nathan Mylinski were playing football in the street outside Thompson’s house.  Thompson was inside the house when the Nissan utility, driven by Caddies senior, arrived at the house.  Caddies junior was with his father.  It was clear that the two Caddies were angry and looking to attack the members of the group. 

30. Gibbins stood his ground and was confronted by Caddies junior.  Caddies junior had what appeared to be a wooden bat, which he swung at Gibbins.  Gibbins told Caddies junior to leave.  Munn said the incident was unprovoked and typical of Caddies junior’s conduct over recent months. 

31. Thompson lived with his mother, Ms Taube, at 6 Hewitt Road.  He gave evidence about the football incident.  I consider his evidence was truthful.  He attempted to recall events to the best of his ability.  He recalled that he was playing football with Gibbins, Gabell, Short and others, whom he could not recall.  He described the two Caddies arriving in the street in the Nissan utility.  He described them as being “not very happy”.  He was inside the house when they arrived.  Gabell ran in with another young person and remarked that the Caddies were outside.  Thompson moved outside and saw Caddies junior swinging a bat at Gibbins.  Gibbins stood his ground, avoiding the blows.  He told Caddies junior to “get lost”.  Caddies senior and junior left.

32. Mylinski was present at the time of the football incident.  He impressed me as an honest witness although, at times, he had difficulty remembering details.  He had known Caddies junior for about five years.  They had a falling out some months before.  He was playing football with Gabell, Shane Addison, Adam Shin, Gibbins and Thompson.  He described the Nissan utility driven by Caddies senior as “flying” into the street.  It pulled up at the front of Thompson’s house.  Caddies senior was armed with a metal pole and Caddies junior was holding a wooden pole.  Mylinski described Caddies senior chasing Gabell and Shin along the road whilst Caddies junior confronted Gibbins.  Caddies junior abused Gibbins and swung the wooden bat at him.  Gibbins told Caddies junior to get out.  Caddies senior returned and the two drove off. 

33. Ms Taube described Gabell and Short running into the house.  Gibbins was standing at the front near the house.  She saw Caddies junior coming towards the house with a stick or a bat.  He attempted to hit Gibbins.  In  so doing, he dropped the stick.  Gibbins stood his ground, and eventually Caddies junior left.   Ms Taube was a reliable witness.  I consider that she had a good memory of the events.  Her evidence was unchallenged. 

34. The evidence about the football incident was largely unchallenged.  I am satisfied that on 1 June 2004, there was an altercation at Hewitt Road involving Caddies senior, Caddies junior and a number of young men, including Gibbins.  Both Caddies senior and Caddies junior were aggressive and violent toward the group.  Caddies junior attempted to strike Gibbins with a stick.  The aggression towards Gibbins was unprovoked. Gibbins showed restraint in the face of the attack by Caddies junior.

    The 3 June incident

1. Stephanie Johnston was the de facto partner of William Caddies, the brother of Caddies junior.  She lived at Jeffries Road with William Caddies, Caddies junior and his girlfriend, Rocky.  In June 2004 she was aware of “bad blood” between Gibbins and Caddies junior.  Ms Johnston described an incident that occurred on 3 June 2004.  She, Caddies junior and her daughter were travelling to court in Caddies junior’s white Mazda.  Adam Puckeridge, a friend of Caddies junior, was in the vehicle.  A white VL Commodore, with a number of young men in it, pursued their vehicle.  Both vehicles stopped.  Caddies junior spoke to the people in the VL Commodore.  Ms Johnston said that she had seen weapons, including a curtain rod which had a knife attached to the end of it, in Caddies junior’s car.  She said that Caddies junior always had weapons. 

2. Ms Johnston was an honest witness.  After William Caddies’ death, she had only minor contact with Caddies senior and Caddies junior.  She was not part of either rival group.  I consider her to be a reliable witness although, at times, she had difficulty recalling details.  This is unsurprising given that her de facto partner was terminally ill at the time and has since died.  I accept her evidence.

3. Puckeridge said that he was in Caddies junior’s white Mazda with Ms Johnston and her daughter when he observed that they were being followed by a VK Commodore. I conclude he was in error in his description of the vehicle as a VK Commodore. He said that Caddies junior tried to get away.  He said that Caddies senior was also involved and attempted to cut off the VK Commodore in his Nissan utility.  Eventually, the Mazda and the VK Commodore stopped.  Puckeridge said that he walked towards the VK Commodore and saw one of the occupants in the rear seat with a meat cleaver.  Caddies junior remained in the Mazda.  Puckeridge walked back to the Mazda and they drove off. 

4. Puckeridge was a reluctant witness.  I will return to his evidence later in these reasons.  He was one of those involved in the Main North Road incident.  His memory of the events was poor.  He gave his evidence in generalities.  However, his evidence of the 3 June incident is largely consistent with that of Stephanie Johnston.

5. I am satisfied that, on the 3 June 2004, there was an incident in which a white VL Commodore followed Caddies junior’s Mazda.  I accept the evidence of Stephanie Johnston.  I am satisfied that it was Gabell’s vehicle, and that there were a number of young men in the vehicle.  I am satisfied that Gabell and his associates were following Caddies junior.  I am satisfied that the conflict between Caddies junior and a number of his former friends had escalated to the point where members of the rival groups were taunting one another. A confrontation between the groups was a likely consequence. 

   The events immediately prior to the Main North Road incident, including the car chase

6. Tracey Ellen French lived at 22 Jeffries Road, Elizabeth South.  Late in the evening of Friday, 4 June, she was walking along Jeffries Road when she saw a white VL Commodore with a number of passengers in the front and rear seats.  The vehicle slowed down as it drove past William Caddies’ home.  She saw the vehicle repeat the manoeuvre on three separate occasions.  She spoke to Ms Johnston.  Whilst she was at Ms Johnston’s house, Caddies senior arrived.   Caddies junior and Caddies senior left the house in two vehicles, accompanied by a number of young men. 

7. In cross-examination, Ms French agreed that some of the young men were carrying weapons.  She said that she herself had a falling out with Caddies junior some days before when he had demanded that she give him marijuana which she had for her own use.  He had stabbed her in the thigh with a pair of scissors.

8. I consider Ms French to be a reliable witness.  Her evidence was not challenged.  Ms French was not a member or supporter of either group.  She appeared to recall relevant events accurately.  I accept her evidence.

9. Ms Johnston said that after Ms French had spoken to her she telephoned Caddies senior’s wife.  Not long after, Caddies senior arrived in his Nissan utility.  She said that whilst he was there the VL Commodore drove past again.  Shortly thereafter, the two Caddies and a number of young men left in Caddies senior’s Nissan utility and Caddies junior’s white Mazda.  She remembered Caddies junior’s girlfriend, Rocky, Adam (Puckeridge), Jeff (Newman), Nathan Cronin, and an Indian boy called Chiko, all leaving together.  She remained at home with William Caddies.

10. In cross-examination, she said that she did not see any of the men armed with weapons.  Previously, she had seen Caddies junior with weapons in his vehicle. On occasions he carried a knife.  She described him as a very angry person, “an agro person”.  She said that he was unpredictable in his dealings with other people.  Ms Johnston agreed that Caddies senior’s wife, Denise, had telephoned her that evening with a message for Wayne Gibbins.  Ms Johnston said that Denise was attempting to avoid violence.  I accept Ms Johnston’s evidence.  However, I do not regard her evidence that she did not see the men armed as supporting the conclusion that they were not in fact armed.

11. I conclude that there had been discussion between Caddies senior and others about a confrontation with Gibbins and his group that night.  The Caddies’ group armed themselves and were looking for Gibbins and his associates.  Gabell and his friends had driven past William Caddies’ home with the intention of provoking Caddies junior.

12. On 4 June, after they had left William Caddies’ home, the two Caddies arrived at Ms Taube’s home.  Thompson came to the front door.  Caddies junior demanded that Thompson come out and speak to his father.  Thompson observed two car loads of men. Caddies junior asked Thompson about his “little mates”.  Caddies senior then said, “I’m going to bash them good”.  He showed Thompson the broken back window of the Nissan utility and accused Thompson’s friends of being responsible.  Ms Taube observed Caddies senior standing over her son demanding to know the whereabouts of Gibbins.  He threatened Thompson that if they did not get Gibbins, they would come back to get him.  She observed that the Nissan utility had a broken rear window.  Both Caddies senior and Caddies junior were very threatening and appeared to be angry. 

13. After the two vehicles had left, Ms Taube telephoned Gibbins and told him that the two Caddies were after him.  I accept the evidence of Ms Taube and Thompson.

14. Early in the evening of 4 June, Munn spoke to Gibbins.  Gibbins told Munn that he and his friends were intending to go out for a drive.  He invited Munn to join them, but Munn declined because he had a prior engagement.

15. At about 9.30 pm, whilst Munn was at a friend’s flat, a group of eight or nine people, including the two Caddies, arrived.  Munn saw a white Mazda and the Nissan utility, followed by a red Commodore.  Caddies junior was looking for Gibbins.  Munn observed that the group were armed. Caddies junior was carrying a pole.  In cross-examination, Munn said that he had seen Caddies junior armed with a knife on prior occasions.

16. Munn locked himself and his friends inside the flat.  Caddies junior and the group eventually left.  Munn telephoned Gibbins immediately.  He gave evidence of the conversation:[6]

    So I was like, ‘He’s looking for us again’.  I then rang Mr Gibbins and said ‘Look, whereabouts are you?’, ‘I’m out at the moment’.  ‘What’s happened?’  ‘Caddies just come with a few of his mates, few poles.  Watch yourself, he is out – he is out for trouble’.   Gibbo ‘Yes, all right’.  ‘I’ll give you a call, ring you back later on, see how you get on.’  After I got off the phone to Mr Gibbins I then rang the police said ‘I’ve got Junior and Senior here with car loads trying to kick the door down.  What do I do?’.  ‘Is he there now?’.  I said ‘No, he’s gone’.  He said ‘There is nothing we can do at this time because he is not there causing a threat, but, if he comes back, ring us’.

    [6]    T 189.

    The incident immediately prior to and at Main North Road

17. Mark Gower lived on Jeffries Road, not far from William Caddies.  He was a friend of William Caddies.  Gower knew Caddies junior, but did not know Gibbins.  Gower said that, on the night of the Main North Road incident, he saw a white VL Commodore driving along Jeffries Road on about three occasions.

18. Ms Johnston came to Gower’s home and asked him to help with a problem that the two Caddies were experiencing with some people.  He agreed to assist.  He did so out of his feeling of allegiance towards William Caddies.  When he arrived at the Caddies’ house, he observed a number of young men. Caddies junior drove the group in his Mazda to Caddies senior’s home.  There was talk about solving the problem by “sorting the others out”.  Gower had a knife, and others had weapons, including poles, knives, and a claw hammer.  He described going to Munn’s flat at Swan Crescent.  They left the flat when one of the occupants contacted the police.They drove to another house.  They returned to Williams Caddies’ home.  He said that the group were very aggressive.  He returned to his home.  Earlier that evening, he made a number of Molotov cocktails.  He took them to William Caddies’ house because he was worried about people coming to the house to do damage. At the time, he was suffering from undiagnosed paranoid schizophrenia. This condition has since been diagnosed and is now controlled with medication.   Later, Ms Johnston came to his home again and asked him to return because she had seen the white VL Commodore in the street.  He returned.  He, together with a number of young men, and Caddies junior’s girlfriend, Rocky, accompanied the two Caddies in their vehicles and commenced to search for the VL Commodore. They found it reversing out of a semi-detached house in Bagot Road.  Gower described “a mad chase through the suburbs”.   At one stage the Mazda came into contact with the Commodore.  He described it in the following way:[7]

    [7]    T 280.

    A.We were on the left, coming up on the left-hand rear quarter of the Commodore, and that door opened and Shayne tried to pin the door open with his car (DEMONSTRATES), I don’t know why.

    Q.When you say the ‘door opened’, you are on the left-hand side of the Commodore;  is that right.

    A.Yes.

    Q.Are you talking about the front or the rear door.

    A.The rear door.

    Q.When you say it opened, did it just open or open right up.

    A.It opened right up.

    Q.Was there anybody at the door at that stage.

    A.Yes, someone was hanging out of the car.

19. Gower said that he thought the person in the Commodore had a white handle of a supermarket trolley, or something similar, and was trying to hit the vehicle.  The cars eventually came to a halt on Main North Road.  Gower heard a horn making a continuous sound.  The VL Commodore pulled up very quickly.  That caused Caddies junior’s car to collide with the rear of the Nissan utility.  He saw people get out of the Commodore.  He described what occurred:[8]

    Q.What is it that happened then.

    A.At that time the lads in the VL all piled out pretty quickly and started laying into Shayne Senior’s car.

    [8]    T 282.

20. Whilst the occupants of the VL Commodore were attacking the Nissan utility, the occupants of both the Nissan utility and the Mazda got out of their vehicles.

21. Gower observed Caddies senior being hit.  He was asked:[9]

    [9]    T 284-5.

    Q.Can you just take his Honour through what you saw happen from that point onwards.

    A.From that point Shayne Senior was pretty quick, he come around the front of the car to have a go at someone and he got hit pretty quick.

    Q.Did you see what he got hit with.

    A.I couldn’t remember.  I remember hearing him getting hit and seeing him fly because he was running, he was on the median strip when he got hit, between the service road and Main North Road, and he actually ended up – he was travelling that quick when he got hit and hit the deck he hit the road in the middle of the service road.

    Q.Did you see anything happen to him once he was on the service road.

    A.Yes, I did.

    Q.Could you tell his Honour what that was.

    A.He had his head jumped on.

    Q.By one person or –

    A.No.

    Q.Sorry.

    A.No, by two or three people I think.

    Q.Was he jumped on only once or more than once.

    A.No, two or three times.

    Q.When you say ‘jumped on’ could you just tell his Honour what it was that you saw people do.

    A.They were just standing on his head, I seen someone kicking him in the head like a soccer ball.

    Q.When you say ‘stomping’, you don’t mean kicking it like a soccer ball.

    A.No, like you would kill a cockroach.

    Q.So it was a downward motion.

    A.Yes.

    Q.Did you see Caddies Senior move once he went to the ground after getting hit.

    A.Yes.

    Q.Did he seem to be moving or trying to protect himself as he was getting stomped on.

    A.By the time pretty much that he hit the ground he was unconscious.

22. He also observed Newman fighting with someone.  They appeared to be wrestling.  Gower said his attention was drawn away from Newman and, when he looked back, Newman was “out of it”.  He observed a person outside number 203 Main North Road.  Gower left the scene to try to raise the alarm because he was aware that Newman and Caddies senior were “in a bad way”.  He knocked on the doors of houses on Haydown Road so that he could attract the occupants to call an ambulance.  Eventually, an occupant of one of the houses told him he would call an ambulance.  He returned to the scene.  The VL Commodore was no longer there.  He saw Caddies senior on the kerb of the service road.  He was in a “bad way”.  Newman was lying on Main North Road.  He looked pale and was not moving.

23. I was impressed with Gower.  He was very frank about his illness.  He recalled the events of that night in some detail.  Although he was a member of the Caddies’ group, his evidence was balanced.  His description of seeing someone kicking Caddies senior and stomping on his head is consistent with the medical evidence about the injuries suffered by Caddies senior.

24. Puckeridge was a passenger in the Nissan utility that night.  He said that Caddies senior was very angry about the smashed window.  He described the chase through the streets of Elizabeth.  In cross-examination he said that, at one stage during the chase, a person was hanging out of the back door of the Commodore.  Caddies junior attempted to drive the Mazda into the side doors of the Commodore.  He did not recall the vehicles coming into contact during the chase.  He recalled that the chase came to an end on Main North Road.  The horn of the Commodore was blaring.  The Nissan utility was behind the Commodore.  He said that when the VL Commodore came to a stop, the occupants jumped out.  They ran towards the Nissan utility and the Mazda, and kicked the windows of the vehicles.   Someone was throwing punches at him. He took a wheel brace which had been in the Nissan utility.  Whilst he was near the front of the vehicle, he saw a person confronting Caddies senior with what he described as a machete.  He said the person swung it at Caddies senior, who put his arms up to protect himself.  The weapon hit Caddies senior on the side of the head.  Puckeridge turned around because someone was throwing a Woodstock can at him.  He next saw Caddies senior laying face down on the access road.  Someone stomped on Caddies senior’s head as they ran past.  He recalled seeing a person standing on the boot of the Mazda. Puckeridge swung a pole at that person.  He recalled people running back to the VL Commodore which took off.  Caddies junior pursued the Commodore in the Mazda.  Puckeridge said that he was standing in the middle of the road and he saw Newman lying on his back.  The police arrived.  Caddies senior was “out cold”.

25. Puckeridge appeared to be reluctant to give evidence.  At the time he gave his evidence, he was in custody.  He appeared disinterested.  However, his evidence about the events on Main North Road is consistent with other evidence in the case.  I accept his evidence that the VL Commodore came to a sudden halt on Main North Road, and that the occupants of that car jumped out and ran towards the Caddies’ vehicles and attacked both the vehicles.  I accept his evidence that he observed Caddies senior being struck about the head and being kicked whilst lying on the ground.

26. Cronin was a close friend of William Caddies.  He knew most of the people who were engaged in the Main North Road incident.  He knew Gibbins, but did not know Bosworth or Nance.  On 4 June, Cronin had been at work when he was telephoned by William Caddies.  He arrived at William Caddies’ home shortly after 6 pm.   Puckeridge, Gower and Rocky were at the house when Cronin arrived.  Caddies senior arrived in his Nissan utility, accompanied by persons called Chico and Jeff.  William Caddies told Cronin that some guys were driving past the house and were starting trouble.  When they were all congregated at William Caddies’ house, Cronin saw the VL Commodore, which he recognised as Gabell’s vehicle, drive past.  There were four or five people in the car.  They were yelling and screaming and waving a stick or a bottle in the air from the back seat.  After that occurred, Caddies senior pursued the VL Commodore in the Nissan utility. Caddies junior drove the Mazda also in pursuit of the VL Commodore.  Caddies junior lost sight of both the Nissan utility and the VL Commodore.  Cronin, who was travelling in the Mazda, described various streets on which they drove.  Eventually, whilst travelling along Ridley Road, they observed the VL Commodore travelling quickly, pursued by the Nissan utility.  Caddies junior followed.  The Mazda overtook the Nissan utility and drove on the left-hand side of the VL Commodore, blocking it from turning from Haydown Road into the access road parallel to Main North Road.  The Mazda and VL Commodore made contact.  Cronin observed Gibbins hanging out of the rear door of the VL Commodore.  He said Gibbins was gesturing to the occupants of the Mazda to “fuck off”.  Caddies junior had to brake suddenly to stop the car from hitting a tree.  The Nissan utility overtook them, pursuing the VL Commodore left onto Main North Road. He said that the VL Commodore had attempted to turn into the access road, but had been blocked by Caddies’ junior’s vehicle.  The VL Commodore turned into Main North Road, stopped suddenly with its horn blaring repeatedly.  The Mazda drove into the back of the Nissan utility.  The three vehicles came to a halt. The occupants of the VL Commodore jumped out of the car and ran to the utility and started kicking at the windows.  Cronin gave the following evidence: [10]

    [10]   T 370.

    Q.How many people did you see jump out of the car.

    A.Five.

    Q.Describe the direction they took.  Did they move directly to the Nissan or run somewhere else.

    A.No, moved straight to the Nissan.

    Q.What did they do when they got to the Nissan.

    A.Started kicking the windows.

    Q.How many people were doing that.

    A.All of them.

    Q.Did any of the people from the Holden have anything in their hands when you saw them get out of the car.

    A.Not that I could see.

27. Cronin recognised a number of people, including Gibbins and Richards. He said he saw Munn.  He saw Caddies senior move over towards a group of people.  He recognised a man named Addison, who was carrying what appeared to be a large knife.  He saw Gibbins and Richards.  At one stage he saw Richards hitting Newman over the head with what appeared to be a bottle.  He said Munn was running towards him.   He said that he reached into the Mazda to grab a pole and he was hit with an iron bar.  He saw Caddies senior hit over the top of the head with a stick with which Caddies senior had previously been armed.  Caddies senior fell to the ground on the service road.  He was hit whilst he was on the ground by men from the VL Commodore. The group of men were throwing bottles at Caddies senior and kicking him. It was then when Cronin was hit.  He was fighting with two people who were armed with sticks or poles.  He was hit several times and he ran away onto Main North Road in an easterly direction.  He ran towards Halsey Road, together with one or two others.  He saw Chico appear to be hit by a car and saw him moving back towards the three vehicles.  He could hear sirens.  He saw the VL Commodore take off. He saw Caddies junior jump into the Mazda and follow the VL Commodore.    In cross-examination, he said that people in the Mazda and the utility were armed.  He said he thought Caddies junior may have had a knife. 

1. Cronin gave a detailed account of the events at Main North Road.  He was mistaken about seeing Munn.  It is not surprising that in a chaotic situation no witness will observe all that is happening.  The recollection of witnesses will vary.  Cronin did not exaggerate, nor did he appear to minimise his own conduct or that of others who were part of the Caddies’ group.  Much of his evidence was consistent with that of the independent witnesses.  I accept his evidence that Caddies senior was hit over the head with a pole or other type of weapon.  I accept his evidence that people on both sides of the fight were armed.  I accept that he observed poles, sticks and bottles.

2. Caddies junior gave evidence.  He claimed that he had no recollection of the events of the night because he was taking medication. His evidence was unsatisfactory. 

3. Caddies senior was not called.  I draw no conclusions  or inferences from the fact that he was not called. 

4. Much of what occurred on 4 June was due to the conduct of Caddies senior and junior.  I conclude that on 4 June 2004 they were both aggressive and were looking to confront Gibbins and his group.   I conclude that Gibbins was aware that he was a target of Caddies senior and junior.  I am satisfied that Gibbins was prepared to engage the Caddies in a fight that evening.

5. A number of witnesses who were driving along Main North Road at the relevant time gave evidence. 

6. At about 10.30 pm, Christine McKenzie was driving north along Main North Road at Elizabeth, approaching the intersection with Haydown Road. She saw a light coloured car about the size of a Holden Commodore veer into Main North Road from Haydown Road, travelling fast. It swung back into the left lane and stopped.  She could hear a horn blaring. She could see at least four people in the vehicle.  Through her rear vision mirror she observed another smaller car pull up behind the larger car.  She continued her journey.

7. Deborah Bond was driving north along Main North Road with her mother, Elizabeth Thompson. As she approached Halsey Road, she saw three vehicles turning from Haydown Road into Main North Road.  She recalled that the front car was a Commodore-shaped vehicle, presumably the VL Commodore.  The second car was a smaller, older model car, presumably the Mazda.   The third was a utility, presumably the Nissan utility, which looked fairly new and was light-coloured.  The vehicles were close to one another and travelling slower than normal.  She could hear the sound of a horn.  As she slowed to turn right into Halsey Road, she looked in her rear-view mirror.  She saw the occupants of all the vehicles jump out and converge on the middle vehicle.  She said, “I didn’t know what they were doing and then they ran back to the cars and they grabbed weapons and ran back towards each other again”.[11]

   [11]   T 415.

8. Ms Bond recalled that every person from each vehicle had a weapon.  She said some had white sticks.  She said that the people who came from the first vehicle appeared to be more aggressive.  She described the position as follows: [12]

   They seemed to be – as though they appeared to be attacking one another they seemed to be focusing on the one between the two and they appeared to be smashing the windows of the car and there seemed to be people running around the cars off – not onto the rest of the Main North Road but they seemed to go back towards the service road, some of the people.  They seemed to run through – it is a house on the service road that is painted white so it seemed to glow, people seemed to be running through that garden.  I don’t know whether they were chasing one another, I couldn’t tell you which car they came from.

   [12]   T 417.

9. Ms Bond dialled 000.  She then turned her vehicle around so that it was facing the vehicles on Main North Road.  She saw three young men run past her car.   I conclude that one of them was likely to have been Cronin, who said that he had run in that direction.  She saw the front vehicle leave.  She did not see any of the other vehicles leave.  She said that she saw a person lying on Main North Road at the back of the utility. 

10. In cross-examination it was put to her that the only people brandishing weapons were people coming from the second and third vehicles, being the Nissan utility and the Mazda.  She did not agree. She said it appeared to her that the people in the Commodore ran back to the vehicle and obtained weapons. 

11. Ms Bond gave her evidence in a considered manner.  She was careful in her responses and she appeared to have a good memory of the events on that night.  Although she may have made an error in describing the order of the three vehicles, in other respects her evidence suggests that she did have a good view of the incident, albeit from the rear vision mirror of her vehicle.  She described the utility accurately.  She was paying attention to the unfolding events for a period when her car was stationary.  She was concentrating on what was occurring.  Her evidence was supported in material ways by other observers. I rely upon her evidence as being substantially accurate. 

12. Elizabeth Thompson, Ms Bond’s mother, was in the front passenger’s seat.  As they were about to turn into Halsey Road, she heard glass smashing.  She looked back and saw people waving sticks.  She observed two young men jump across the back of a vehicle which she described as a utility. There were people coming towards each other with sticks.  She recalled that, in front of the utility, there were two other vehicles.  She described the scene as “confusing”.  After her daughter had turned off Main North Road and their car was facing in a southerly direction, she saw two young men running.  They appeared to have white sticks.  She saw another man, who was almost hit by a car on Main North Road.  I conclude one of the men was Cronin.  The person who was almost hit by a car is the person described as Chico.  He ran towards the three vehicles.  In cross-examination, she said that she could not see whether all the men were armed.  Ms Thompson observed a chaotic event.  Ms Thompson was a careful witness who appeared to have given her evidence a considerable amount of thought.  Insofar as she recalled the events, I accept her evidence.

13. Matthew Donkin was driving in a northerly direction on Main North Road at about 10.30 to 11.00 pm.  He observed two cars in the left lane of Main North Road.  One vehicle was a Commodore.  The other was a smaller car that looked like a Datsun, presumably the Mazda.  He saw two men crossing the median strip dividing the carriageways of Main North Road, walking from east to west.  One of them was carrying what appeared to be a baseball bat.  I conclude one of the men was Cronin.  Donkin saw a number of people near the cars parked on the left-hand side, facing north.  They appeared to be hitting the Datsun. In cross-examination, he said that he saw two cars on the carriageway of Main North Road for north-bound traffic, and the VL Commodore on the southern carriageway, parked in the left-hand lane.  When it was put to him that the VL Commodore was actually on the same side of the road as the other two vehicles, he said that is not the way he saw it.  He said he was under the impression that the person whom he saw crossing the road had come from the Commodore.  His wife, who was in the passenger’s seat, dialled 000.  He then continued to drive home. 

14. As Donkin proceeded through the intersection north of the incident, Mr Donkin observed the white Commodore drive past at a “great rate of knots”, being followed by the small car.  The Commodore ran a red light.  

15. Mr Donkin was confused.  There is no doubt that he observed vehicles on the western side of Main North Road, facing in a northerly direction.  I consider he was in error when he described the VL Commodore as being in the eastern lane facing in a southerly direction on Main North Road.  No other witness made similar observations.  He may have seen people on the carriageway of Main North Road, but he appears to be confused about the location of the vehicles and the direction in which people were walking.

16. Wayne Graham was driving in a northerly direction on Main North Road shortly after 11 pm when he saw three vehicles parked in the left-hand lane. The vehicles were about a couple of hundred metres north of Haydown Road.  He described the vehicles, in order, as a white Commodore, the Nissan utility, and a white Mazda, each immediately behind the other.  He noticed that the vehicles had smashed windows.  He saw someone, who had what appeared to be a steel bar about one metre long, standing on the tray top of the Nissan utility and hitting its roof.  The vehicle in front of him moved from the middle lane into the eastern lane for north-bound traffic, causing him to brake heavily.  He observed a person lying on the road near the back of the Nissan utility. People were moving from the access road area to Main North Road.  The Commodore drove away at a fast speed, followed by the Mazda.

17. Julie Anne Costa was driving in a northerly direction on Main North Road in a red Commodore.  She observed two vehicles parked on the left lane of Main North Road.   One was a white utility, presumably the Nissan utility, the other was a smaller car, presumably the white Mazda.  She was forced to stop in order to change lanes.  She observed a person lying on the road near the Nissan utility, and assumed that he had been hit by a car.  A young person, who appeared to be holding a stick, came from the central median strip between the carriageways on Main North Road.  He approached the vehicles and was hitting them with a stick.  A person was lying further along the side of the access road.  The vehicle at the front eventually drove away.  It appears that Ms Costa arrived at the scene after most of the fighting had ceased.

18. Corey Gutteridge was driving in a northerly direction on Main North Road at about 11.20 pm.  He observed the Nissan utility with a smashed windscreen.  He saw a body on the ground at the back of the Nissan utility.  He stopped and telephoned an ambulance.  He attended at the scene and helped to administer first aid to Newman.   He also observed a person who appeared to have been hit on the head and was staggering around.  That person was Caddies senior.   Police and ambulance officers arrived. 

19. Dianne Leslie Wittmann lived at 203 Main North Road.  She was estranged from her husband, Warren Wittmann.  Wittmann has the nickname “Boysie”.  Ms Wittmann gave evidence that Warren Wittmann often stayed at her home on Friday nights when he was due to take one of their sons to play football the following morning.  On 4 June 2004, Warren Wittmann stayed the night.  Ms Wittmann had gone to bed at about 9.30 pm.  At about 11.30 pm, she heard what sounded like a car accident.  She went to the front door.  She saw Shaun Wittmann, who is her son, and Warren Wittmann standing at the front door.  People were yelling and screaming.  She observed four vehicles on Main North Road, a Commodore, a utility, a Mazda, and a red vehicle, all facing north.  There were about eight to ten people holding metal poles and sticks.  Some were hitting the utility.  She returned inside, called the police and returned to the front porch.  She could not see Warren Wittmann.  Her son was crouched over a person who was lying on the road. The Commodore and red car were gone.  The Mazda was facing in the opposite direction.  The ambulance arrived shortly thereafter.  In cross-examination, she said that there were eight to ten people around the Nissan utility hitting each other, and hitting the vehicles.  She described the situation as “mayhem”.

20. Warren Wittmann was staying at 203 Main North Road on the evening of 4 June 2004.  He intended to take his son to football the following morning. He knew Gibbins and Caddies junior.  He was unaware that there was any bad blood between Gibbins and Caddies junior.  During the evening, he had received a telephone call from Gibbins.  He said the telephone call had something to do with a feud between Gibbins and Caddies junior.  Gibbins asked Warren Wittmann to try and diffuse the situation.  Warren Wittmann said that Gibbins said that he was in a car chase of some sort.  Warren Wittmann told Gibbins he could not help.

21. Warren Wittmann’s evidence is not supported by the telephone records.  It is an agreed fact that on 4 June and in the early hours of 5 June there were five calls, or attempted calls, made to Gibbins’ mobile phone from Warren Wittmann’s mobile phone.  At 10.07 pm there was a call of 2 minutes and 29 seconds duration from Warren Wittmann to Gibbins.  At 10.51 pm, there was a short conversation of 55 seconds.  There were two other calls which were not answered, and a further call of 32 seconds at six minutes past midnight.  Warren Wittmann’s evidence about the calls was unsatisfactory.  I do not speculate about the conversations but, for reasons which are unexplained, Warren Wittmann telephoned Gibbins that evening prior to and after the Main North Road incident. 

22. Warren Wittmann said that he was in the lounge when he heard the screech of brakes, and what appeared to be the sound of a car accident. He said his son, Shaun, went to the front door and opened it.  Warren Wittmann saw four cars parked on Main North Road in the western lane for north-bound traffic.  There was a white Commodore.  Behind it was a Mazda or a Toyota and, behind that, was a utility.  The fourth car was either a Mazda or a Toyota.  He said people were running around everywhere.  He described a big fight happening.  Some of those who were fighting had weapons, including machetes, steel bars and wooden bars.  He described a person wearing yellow pants and a jacket, who had a machete.  He said the man with the machete came into the access road and moved towards him.  Warren Wittmann said that he had a wooden pole in his car, which he used for martial arts, which he grabbed.  The person with the machete then turned and ran away.

23. Warren Wittmann saw an older man fighting with a younger man.  The young man hit the older man across the head with a weapon.  The older man fell to the ground.  In cross-examination, Warren Wittmann said that it was not possible that the older man was punched.  He said the person who hit the older man had a bar or stick.  He said that when the older man went down he did not get up again.   He could not recall if the older man was kicked whilst he was on the ground. I am satisfied that the man who Warren Wittmann observed being hit on the head was Caddies senior. 

24. Warren Wittmann saw the Commodore and the Mazda leave the scene in a hurry, travelling in a northerly direction.  The Mazda returned not long after.  It was driving on the wrong side of the road, travelling south.  He said that the man who hit the older man was not Gibbins. 

25. Shaun Wittmann also lived at 203 Main North Road.  He was in the bath when he heard horns beeping and a bang.  He immediately dressed and went to the front door.  He saw someone wearing bright yellow jeans and carrying a knife coming up the driveway.  In the vicinity of Main North Road there were more than ten people.  There were three stationary vehicles on Main North Road in the western lane for north-bound traffic:  a Commodore, a Mazda and a white utility.  He said he did not take much notice.  He returned to the house because his sister was screaming.  He looked out the window of her bedroom.  He could see a group of people standing around an older man on the access road, repeatedly kicking, jumping and stomping on him.  The man whom he had earlier seen, with the brightly coloured pants, was not amongst the group. 

26. Later, Shaun Wittmann returned to the front of 203 Main North Road. He said the person who had been kicked looked “bad”.  His face was cut open and there was blood coming from everywhere. When he observed the older man lying in the gutter, he recalled that a girl was at the front and was screaming that someone had been stabbed.  At one stage he saw a person with a wheel brace and another person with a pole.  He saw everyone fighting.  A group of men returned to the Commodore.  As the Commodore was leaving, it was rammed from behind by the Mazda.  Both cars left the scene.  The Mazda pursued the Commodore.  After the Commodore had left, the fighting had stopped.  The Mazda returned shortly thereafter.  During the fight, he had observed a young man collapse near the utility.  Later, when the police arrived, that person was lying on the ground.   

27. Victoria Thompson is the partner of Shaun Wittmann.  She heard yelling outside and someone calling “Boysie” on a number of occasions.  She looked out through a window on to Main North Road.  She saw a white utility and another car, but could not recall exactly what it looked like.  About ten to 15 people were running around. She described one massive fight.  She returned to her bedroom and telephoned the police.

28. The situation described by all witnesses was chaotic.  It is not surprising that their observations are not consistent.  The events took place over a relatively short time at night.  Nevertheless, there was a consistent thread from witnesses’ accounts of observing men attacking each other with sticks and poles. 

    Events later that evening

29. Skye Short lived at Charmouth Road.  She was at home early that evening. Gabell, Richards, Gibbins and her brother, Christopher, were present.  She saw Gibbins speaking on the telephone.  Gibbins, Gabell and Richards then left in Gabell’s VL Commodore.  Some hours later when she returned from visiting a friend, she saw the VL Commodore.  The back end was damaged.  Gibbins, Richards and Gabell were at the house. She moved the VL Commodore into the backyard, at the request of one of the group.  She shut the gates. Once the gates were shut, it was not possible to see into the backyard of the house.  She heard that there had been a fight and someone had been hurt.  She spoke to the police on the mobile phone, but was unable to recall the details of the phone call.  I was not impressed by Ms Short.  Her answers were vague and she was generally uncooperative.  Her memory was poor and she seemed to be reluctant to give evidence.

30. Christopher Short gave evidence.  He was present at Charmouth Road.  He said that Gabell owned a VL Commodore.  He recalled Gabell, Richards and Gibbins leaving the house.  Gibbins came back to the house later that evening. Gibbins was a little upset and a bit frightened.   Short gave evidence about the police coming to the house and searching it the following day.

31. Short had a poor memory of events.  He appeared reluctant to give evidence and he appeared uncooperative.  I found his evidence to be of little assistance.  Both Skye Short and Christopher Short were reluctant to speak about conversations that had taken place when the group returned to Charmouth Road after the Main North Road incident.  I am satisfied that all five occupants of the VL Commodore returned to Charmouth Road.  At a later time, Richards, Nance and Bosworth departed.

    Evidence of injuries to Caddies senior

32. The evidence of Robert Hillary Bocaut Jones at the previous trial was admitted by consent.  Dr Jones is an oral surgeon.  He is an Associate Professor in Oral Maxillofacial Surgery at the University of Adelaide and a consultant at the Royal Adelaide Hospital. 

33. On 5 June 2004, he treated Caddies senior.  Caddies senior had suffered multiple facial lacerations, particularly concentrated over the right upper eyelid, with a laceration through part of his upper eyelid.  There were lacerations to the right cheek, forehead and skull and abrasions and a laceration to the back of the  head.  There was swelling over the right mandible.  Caddies senior was unable to open his jaw, and had problems aligning his teeth.  X-rays revealed a fracture of the right angle of the jaw.  The lacerations were stitched. The fracture of the jaw required an operation of inserting a plate and wiring his jaw.   

1. Dr Jones was of the opinion that the blow or blows causing the injury to Caddies senior’s right eye required significant force. Dr Jones observed bruising and swelling consistent with a significant blow to the side of his face.  He was asked:[13]

   Q.Are you able to say whether the injuries which we see in these photographs in the face and jaw and so on are likely to have been the result of more than one blow or trauma.

   A.Yes, there would have to be more than one I would think anyway.  Certainly the one to the right side of his eye and eyebrow, to the angle of the jaw.  He also had some lacerations to the back of his head so there would have to be more than one blow to have caused those sorts of injuries.

   [13]   T 1301.

2. Dr Jones observed that there was some comminution of the fracture at the angle of the mandible. This meant that there were more than one or two fragments associated with the fracture of the jaw.  This indicated that considerable force had been used.  He said that, commonly, a fractured jaw occurred as a result of a fist, but with the comminution that was involved in this case he was of the opinion that it had to have been a more solid object than a fist.  In his opinion, a kick to the side of the face, or kicks to the side of the face, or a blow with a solid object of some sort, was the more likely cause of the injuries. 

3. In cross-examination, Dr Jones said that he was of the opinion that the injuries to the face would have been caused by more than one blow.  The jaw fracture consisted of multiple fractures and required a considerable amount of force.

4. Dr Jones’ opinion confirms the evidence of the observations of Warren Wittmann, who saw Caddies senior being struck over the head with an object, such as a wooden stick. It is unlikely that the broken jaw was caused by a single blow with a fist. The lacerations to the top of the head and the injury to the jaw were consistent with Caddies senior being struck in the way in which both Warren Wittmann and Shaun Wittmann described.  The facial injuries are consistent with Caddies senior being kicked and struck whilst on the ground. 

5. I am satisfied that Caddies senior sustained significant facial and head injuries which were caused by multiple blows to his head and face by an object, such as a stick or a pole.  Some of the facial injuries were consistent with having been caused by kicks from a shoe or boot.  The laceration to the top of his head was consistent with having been caused by a blow to the head with an object, such as a stick or a bottle.

   Interviews of Gibbins

6. Gibbins did not give evidence at his trial.  He has a right to remain silent.  I draw no inferences against him for having chosen not to give evidence.

7. Gibbins attended at the Elizabeth Police Station on 5 June 2004.  He was interviewed by Detectives McDonald and Trimboli.  He was unrepresented and voluntarily answered questions.  Gibbins explained to the police officers that he had been unable to come to the police station the night before because he feared that he might be attacked.  He had heard that there were carloads of young men looking for him. 

8. Gibbins said that he was staying at Munn’s sister’s house at Bagot Road.  On the evening of 4 June, he and four of his friends were at Bagot Road.  When he was asked who was there he said, “Ryan and a couple a few other people that were with Ryan as well”.  He said he was unsure of their names.  When McDonald pursued the issue of names, Gibbins said one of them was Ashley.  He did not know the names of the others. He said that his friend, Ashley (Nance), went to the shops to purchase cigarettes. When Ashley came back he told Gibbins that he had seen two or three carloads of men.  Ashley had said that Shayne Caddies was coming around in two or three cars.  When McDonald asked how Ashley knew about Caddies, Gibbins said that he had spoken to Ms Taube who had told him that she had seen the Caddies’ group around everywhere.  McDonald asked:[14]

   Q.So what happened then?

   A.That was about fifteen minutes before they came when we were getting our smokes and because they were coming to our house we got in the car and quickly tried to get out and as we come out they were coming down my road and we come up to my road and the cars come up and buff and they wouldn’t let us stop on the street and they buffed us like back end rammed us really hard and I couldn’t even have time to put my seat belt on.

   [14]   Exhibit P16A, 5.

9. Gibbins said that, because he believed that the group were coming to the house at Bagot Road, he, Gabell and the others tried to get away.  As they were leaving in the VL Commodore, the car was rammed from behind.  A chase followed. 

10. Gibbins was not honest with Detective McDonald.  First, Gibbins knew Richards.  Although he was asked several times about the identity of the people with him that night, he did not identify Richards.  Secondly, when the call was made by Ms Taube, Gibbins was at Charmouth Road.  He made no mention of Charmouth Road.  He left the police with the impression that he was at Bagot Road when he first received information about the Caddies’ group. 

11. Gibbins described the car chase.  He said that when they left Bagot Road they travelled south.  At one stage, the utility and the Mazda rammed the VL Commodore simultaneously from behind and from the side.  Later, they drove on the wrong side of the road towards the police station.  He said that he was frightened.  McDonald asked who was in the VL Commodore and where each person was sitting.  Gibbins named Gabell and Ashley but, again, he did not name the other two passengers.

12. Gibbins said that the two cars following were ramming and attempting to side-swipe Gabell’s car.  Gibbins described how the VL Commodore eventually turned into Main North Road near Haydown Road.  He said there was too much merging traffic and the driver had to stop the car. Gibbins could not get the back door open, so he climbed out of the window of the back passenger’s side.  I observe that Cronin had seen Gibbins “hanging out” of the rear door of the VL Commodore.  Gibbins confirmed to the police that he was seated in the rear seat behind the front passenger’s seat of the VL Commodore. Gibbins’ suggestion that the driver was forced to stop because of traffic on Main North Road is not consistent with the evidence of witnesses who observed the vehicles coming to a sudden halt in the western lane of the three-lane carriageway, nor with the layout of the road.  Once a vehicle has turned from Haydown Road north into Main North Road, there is no lane for merging traffic.  Vehicles can continue in the western lane.  The section of road was depicted in the photographs.  I reject Gibbins’ suggestion to the police that he was frightened and that he climbed out of the VL Commodore to get away from the pursuers.  I am satisfied that, during the chase, Gibbins was “hanging out” of the rear back door and acting in an aggressive way.

13. Gibbins said that the occupants of the following vehicles were armed with poles.Gibbins told McDonald that none of the occupants of the VL Commodore had weapons.  The occupants of the other vehicles came towards them and there was a fight.  McDonald asked: [15]

    [15]   Exhibit P16A, 12-13.

    Q.What’s happened then?

    A.I had to jump out the window to run, none of us had any weapons on us and he come straight at us, I’m not sure what happened from there really it was just a big fight.

    Q.What happened then.  I understand your [sic] obviously worried about what’s happened and you understand now that someone has died as a result of that fight, a male juvenile has been killed and obviously that person was in one of the other vehicles that stopped behind the white commodore that you were in, correct?

    A.Correct obviously.

    Q.I understand that your [sic] obviously concerned about that however, you have been able up to this point give us a really good description of what you’ve done and who was where and who was sitting where?

    A.Yep.

    Q.Now we get to probably the most important part of what you’ve got to say and all of a sudden you say you can’t remember?

    A.No I can remember.

    Q.Or your unsure of what happened and

    A.I can vaguely remember what happened.

    Q.Alright what did you do when you got out the window of the car?

    A.I jumped out the window of the car, there’s bushes there and I was in the bushes and I was like hiding there and someone else who was in the front got out and they were fighting and my mate Ashley he was on the ground and this big dude was standing over him and was going to hit him with the pole and that was Shayne’s dad because I now [sic] Shayne’s dad and I like punched him in the head Shayne’s dad and Shayne’s dad just dropped on the ground.

14. Gibbins said that he punched Caddies senior once in the right jaw with his fist. Caddies senior fell straight to the ground.  Gibbins was chased by a “blonde dude” who was attempting to hit him with a pole.  The following question was put to him:[16]

    Q.Alright, what I want you to do is now put it back into sequence.  You’ve talked about getting into the bushes, hiding seeing these people get out of the car you then talk about punching Shayne Caddies father in the face, and now you talk about being chased by a person with blonde hair wearing a white top and jumping onto the boot of the Mazda. 

    A.He was just one I don’t really remember. 

    [16]   Ibid 15.

15. McDonald asked in which order this happened. Gibbins said the order that McDonald had just put to him. McDonald put to Gibbins that he was carrying one or two bottles.  He denied hitting Caddies senior over the head with a bottle.  He said that he had Woodstock cans.  He said he was chased by a person swinging poles at him. 

16. He was asked what made him punch Caddies senior.  He said, “He had a pole and he was going to hit one of my mates”.  He was asked to describe the incident with Caddies senior again.  He said:[17]

    … He had a pole in his hand and my mate was down on the ground and he had I’m not sure I seen it afterwards he had a big black eye and I come around from a bush after I was running back to the car and I seen my mate on the ground so I had to run back and I snuck up from a bush and had to jump on his shoulder and hook him on the jaw.

    [17]   Ibid 28-9.

17. He described Caddies senior as falling forward and his head hitting the road or the gutter.  Gibbins then ran away.  Shortly thereafter, he returned and jumped into the car. 

18. Gibbins’ account is inconsistent with the witnesses who saw Caddies senior being hit and kicked.  No witness saw Caddies senior about to strike another person with a stick or pole.  Gibbins made no mention of seeing anyone kick or stomp on Caddies senior.

19. Gibbins denied having kicked any of the vehicles.  He did not see anybody smashing the windows of any of the vehicles.  He denied that any person in his group was armed.  McDonald asked Gibbins:[18]

    Q.So what I’m saying to you is, explain to me how this person has ended up, this boy has ended up dead on Main North Road last night?

    A.I’m not sure, maybe he got cut or hit with his own weapon because they had knives and everything.

    Q.So if he got cut or hit with his own weapon, did someone take it off him?

    A.I’m not sure, it was

    Q.When you got back into the commodore and took off with your four friends and Shayne Caddies has then rammed the back of the car six times as you described, where did you then go?

    A.We were coming straight to the police station because we were driving down Main North Road but Shayne was still ramming us at the lights and we did a red light because we couldn’t stop and there was a red Toyota Corolla just pulling up, I can still remember this red Corolla we were so close to it, and I thought Shayne was going to keep coming and that red car just kept coming and we just went straight past it and it just missed us and I thought Shayne was going to keep coming and if he kept coming and that red car I would of [sic] felt sorry for whoever was in it.

    [18]   Ibid 19.

20. Gibbins lied to McDonald.  Richards had told Gibbins when the group returned to Charmouth Road that he thought that he had stabbed someone.  Further, Gibbins had seen the knife with blood on the blade.  He had taken it from the VL Commodore and hidden it in the backyard at Charmouth Road.  Gibbins told McDonald that they drove to Short’s home and rang the police at about 11.36 pm.  He thought that Gabell made the first call, or that Short spoke on the telephone.  McDonald told Gibbins the telephone calls had been recorded.  A female (Skye Short) also spoke to the police.  None of the callers made reference to someone having been stabbed.  Nor did the callers refer to the fight on Main North Road.  The conversations with the police related solely to Gabell’s car being rammed.  McDonald continued:[19]

    [19]   Ibid 24-5.

    Q.Okay so why didn’t you stop at the police station back to that?

    A.We were getting chased through that red light up there.

    Q.Alright in the car after this when you first got back in the commodore after Chris, sorry after this person finished chasing you through the streets, there was obviously a fair bit of discussion about what had occurred at the fight, yes?

    A.Discussion.

    Q,People obviously talked about what happened at the fight?

    A.Yeah.

    Q.And I suppose part of that would have been that you might of [sic] said to some of the others that you punched Shayne Caddies father in the face, did you tell some of the other boys there that you punched his father in the face?

    A.Yeah they know I punched him in the head yeah.

    Q.How do they know that?

    A.Because Ashley seen it.

    Q.Right Ashley has told them?

    A.Yeah.

    Q.Now I suppose we’ve got one person stabbed and killed at the scene and I would imagine that’s been discussed in the vehicle or at Christopher Shorts house.

    A.No we haven’t heard nothing like that.

    Q.So your [sic] saying you have no knowledge whatsoever about how a person came to be deceased on Main North Road tonight?

    A.No.   

    Q.After a fight?

    A.No.  That the honest truth.

    Q.I find that difficult to believe.

    A.I do not know how.

    Q.Well listen to my question Wayne.  I find it difficult to believe that people would be involved in a situation like this and just as you told or Ashley seen you punch Mr Caddies in the face, that’s been talked about and I’m sure that what else has happened to you at the scene of the fight has been talked about and whatever happened to Ryan’s car has been talked about but the person who was responsible for fatally stabbing the person at the scene would of [sic] talked about that, would of [sic] said I did this, I punched such and such I hit this person, I had this or

    A.Someone was there that said I don’t know if I have or I haven’t but I think someone he said, he said he thinks someone has been stabbed.

    Q.Okay now who said that?

    A.That’s the dude who I don’t know who was sitting in the front passenger.

    Q.So your [sic] saying whoever was sitting in the front passenger seat said what?

    A.Just that someone might have stabbed or something that’s all I think.

    Q.And who did he say that to?

    A.I don’t know he said that to someone I just heard it.

21. McDonald continued to ask Gibbins about what had been said about the stabbing.  Gibbins’ responses were evasive and vague. He repeated that the discussion about the stabbing was between two people he really did not know. Gibbins said that he and Gabell had stayed at Short’s house during the evening.  The other three had left at about midnight. 

22. McDonald asked Gibbins whether he knew Richards.  Gibbins responded that he had heard of him.  Gibbins agreed that Richards was one of the persons who had been in the VL Commodore that night.  McDonald then identified another name “Adrian”.  Gibbins said he knew Adrian by the name of “Bozzie”.  Then McDonald said:[20]

    Q.Okay was it Clinton Richards who spoke about someone perhaps being stabbed?

    A.I’m not sure it could have been him or it could have been that Bozzie or something that was with him.

    Q.So now you can’t remember whether it was Clinton or this other person that you don’t know?

    A.Yep I don’t know I just heard when I was sitting down the back.

    [20]   Ibid 30-1.

23. Gibbins said that he did not know why the VL Commodore stopped on Main North Road.  Gabell had stayed at the car.  When the car left the scene, Richards was driving.  The only fight Gibbins said that he saw was the fight between his friend, Ashley, and Caddies senior.  McDonald put to Gibbins that he had not been honest in his earlier responses.  Gibbins was vague in his answers, but denied misleading the police. 

24. Gibbins was asked again about the conversation at Short’s house after the Main North Road incident.  He said that Richards and Bozzie were talking.  He thought Richards was the person responsible for stabbing Newman.  He was asked about the weapon. He said that he did not know whether Richards had a weapon.  Again, Gibbins was not honest with McDonald.

25. McDonald then put to Gibbins that, earlier in the evening, he had been at Short’s house when he received a telephone call.  He was told that someone was damaging the property at Bagot Road, and that is why they went to Bagot Road.  He agreed that was what had happened.

26. Towards the end of the interview, Trimboli said: [21]

    Q.You have now come forward and said that the other two people in the car were this Bozzie who you think is Adrian and this Clinton.

    A.Yeah.

    Q.My partner asked you did anyone in the car have weapons were [sic] talking about knives, machete’s, poles, bats anything.  Now is your time to tell us alright, obviously someone has been stabbed, he didn’t stab himself.  Who had what in the car?

    A.I’m not sure who had anything in the car or if Clinton had the knife on him.

    [21]   Ibid 38.

27. Throughout the interview on 5 June 2004, Gibbins was evasive.  He did not name Richards until the police officer mentioned Richards’ name.  He was vague about details of what had occurred prior to the car chase.  He did not mention the telephone calls to Warren Wittmann.  He did not tell the police that he and others had been at Short’s house prior to going to Bagot Street. I am satisfied, for reasons that will follow, that the knife which killed Newman came from a set of knives at Short’s home at Charmouth Road.   Gibbins made no mention that the group had been at Charmouth Road prior to the incident.

28. On 6 June 2004, McDonald and Trimboli conducted a further interview with Gibbins.  He was asked questions about what had happened.  His answers were vague.  He was asked about the weapons that were found at Charmouth Road.  He said that when the group returned to Charmouth Road, there were a couple of different weapons in the boot of the VL Commodore, but he did not know from where they had come.  McDonald said: [22]

    [22]   Exhibit P17A, 5-6.

    Q.Are you still saying that nobody from the white commodore be it you Ryan, Ashley, Adrian or Clinton got out of that car carrying a weapon on Friday night?

    A.I was totally not aware of anyone jumping out of the car with a weapon, I was the first one out of the car.

    Q.Alright people, I will give you the opportunity to respond to this, independent witness’s people members of the public who were driving past on the night have given statements to the effect that they saw people getting out of the white commodore carrying weapons?

    A.Oh.

    Q.Now that your [sic] aware of that did you see anyone get out of the white commodore?

    A.I was honestly to [sic] busy fearing for my own life to get out of the car to see anyone jump out with a weapon.

    SENIOR CONSTABLE TRIMBOLI

    Q.Can I just ask something, when my partner was asking you, did you see any weapons brought back and you were saying at the house yeah there were two weapons that weren’t ours?

    A.I don’t know I haven’t seen them before.

    Q.Right you hadn’t seen them before, were there other weapons at the house that you recognised as being ours or theirs apart from these two.  Was there other weapons there as well?

    A.Yes.

    Q.Can you describe them?

    A.There was a knife

    Q.And what did it look like, tell me?

    A.It had a black handle and that’s all I can remember really.

    Q.A black handle and can you show me how long with your hands?

    A.About that long.

    Q.And what sort of a blade?

    A.A serrated blade I think I’m not sure, it was a kitchen knife. 

1. I am satisfied that the driver of the VL Commodore stopped suddenly outside 203 Main North Road, with the intention of gaining the attention of the occupants of 203 Main North Road.  I am satisfied that the occupants of the VL Commodore intended to confront the Caddies’ group at 203 Main North Road where it was hoped that reinforcements would be available.  I conclude that Gibbins’ telephone calls to Warren Wittmann were in furtherance of that intention.  As it turned out, the fight was over in a short time and Warren Wittmann did not join in.

2. I am satisfied that all the occupants of the VL Commodore, other than Gabell, alighted and moved swiftly towards the Nissan utility and the Mazda.  As I have observed earlier, a number of witnesses described all the men involved in the fighting being armed.  One witness observed that the occupants of the VL Commodore were the more aggressive of the two groups.  I am satisfied that the group from the VL Commodore aggressively attacked the vehicles of the Caddies’ group.  I am satisfied that members of the Caddies’ group engaged in a fight with passengers from the VL Commodore.  I am satisfied that weapons were used by members of both sides.

3. If, as Gibbins suggested, they were avoiding the Caddies’ group and he was in fear of what might occur, the conduct of those with him does not suggest that they were attempting to avoid a fight.  I do not believe Gibbins’ statement to the police that he climbed out of the window of the VL Commodore and hid in the bushes.  That does not accord with the observations of witnesses, nor does his description of hitting Caddies senior with one punch accord with the eye witness account of Warren Wittmann.  I am satisfied beyond reasonable doubt that, together with others known to him, Gibbins engaged in a fight with the Caddies’ group, and that when he did so, he was aware that weapons were being used by both groups.   

   Did Gibbins know that Richards had a knife? 

4. As I have indicated, I am satisfied that the occupants of the VL Commodore entered into the fight armed, and I am satisfied that Gibbins participated in the fight in the knowledge that both his group and the Caddies’ group were armed.

5. As I stated above, I am satisfied that Richards took the knife from Charmouth Road.  There is evidence from which it could be inferred that Gibbins knew, prior to the Main North Road incident, that Richards had the knife.  The evidence is circumstantial and relates to the pre- and post-offence conduct of Gibbins. 

   Pre-offence conduct

6. The only people present at Charmouth Road before the incident were Gibbins, Gabell, Richards, and Short (who did not participate in the Main North Road incident).  Whilst at Charmouth Road, Gibbins became aware that the Caddies’ group were armed and looking for him.  I have concluded that when the VL Commodore left Charmouth Road, at least some of its occupants were armed and Richards in particular was armed with a knife.  I have concluded that Gibbins’ purpose when leaving Charmouth Road was to bring about a confrontation with the Caddies’ group.

   Post-offence conduct

7. After the Main North Road incident, the occupants of the VL Commodore drove to Charmouth Road.  I am satisfied that they were well aware that they had left injured people at the scene.  I am satisfied that Richards knew that he had stabbed someone.  It is bordering on incredible to suggest, as Gibbins did at first to police, that he had heard nothing about a person being stabbed.  In my view, that would have been a significant event and a topic of discussion between the Gibbins’ group.  Gibbins eventually agreed that there had been a discussion at Charmouth Road about a stabbing.  In any event, common sense dictates that Richards would have told others that he thought that he had stabbed someone.  I am therefore satisfied that Gibbins lied to the police regarding his knowledge of Richards’ actions. 

8. Secondly, it is not in dispute that Gibbins removed the knife from Gabell’s vehicle.  The question immediately arises:  Why would Gibbins hide the knife which had been used by Richards, if he knew nothing of it prior to the fight?  He was interviewed at length and, initially, he made no mention of the knife or of Richards.  He was vague about his knowledge of Richards.  It was only after being pressed by Detective McDonald and when it became obvious that the police officers did not accept his explanations and that they were making further inquiries, that Gibbins was more forthcoming about Richards.  Eventually, he told police about the knife.  I am satisfied that Gibbins was, during his interviews with the police, deliberately evasive in relation to his knowledge of Richards, and sought to distance himself from Richards.  The identity of Richards and the fact that Richards was armed with a knife were highly significant matters.  The fact that he had discovered the knife with blood on it was a material matter.  His conduct in hiding the knife and not informing the police about it, when pressed by them, is significant. 

9. Thirdly, I observe that Gibbins said nothing during his interviews with the police about his conversations with Warren Wittmann.  In my view, the reason he made no mention of Warren Wittmann was that he wanted to avoid having to explain why the VL Commodore stopped outside 203 Main North Road, where Warren Wittmann was staying and with whom he had spoken just prior to the fight occurring.  It was no coincidence that the VL Commodore stopped at 203 Main North Road, and Gibbins was intent to cover up the true reason for that having occurred. 

10. I am satisfied that he misled the police about these matters because he thought that the truth would implicate him in the death of Newman. 

11. I have considered whether Gibbins’ lack of candour may have been due to his misguided desire to protect Richards so that, as Gibbins put it to the police, Richards could voluntarily provide his own explanation of the events.  The evidence indicates that Gibbins and Richards were not well known to each other, and I regard as implausible a suggestion that Gibbins would have lied out of some sense of loyalty to Richards.  I consider it a reasonably possibility, however, that Gibbins refused to implicate Richards out of a fear of being perceived to be “dobbing on” Richards to the police.  

12. I consider the evidence of Gibbins hiding the knife, and of his obfuscation with respect to his conversations with Warren Wittmann, as capable of being consistent with a consciousness of guilt.  However, it is also consistent with Gibbins seeking to distance himself – albeit in an undesirable manner – from the murder of Newman and to downplay his role prior to and during the Main North Road incident.  It is possible, and indeed quite understandable, that having been a prime mover in the events leading to the affray, and having entered a violent affray with the Caddies’ group in which participants were armed, Gibbins would seek to obscure the truth of what had happened, and to minimise his own role, once he discovered that a person had died in the course of that affray.  That conduct is therefore equally consistent with Gibbins being unaware of the knife prior to the incident. 

13. In summary, therefore, there is evidence to support an inference that Gibbins knew, prior to the incident, that Richards had the knife.  However, that evidence is equivocal, and capable of innocent explanation.  Consequently, I am not satisfied beyond reasonable doubt that Gibbins knew, prior to the incident, that Richards had a knife. 

    Did Gibbins act in self-defence?

14. Two propositions were put by defence counsel to support the assertion that Gibbins acted in defence of himself and others.  The first was that, in a broad sense, the members of the Caddies’ group were the instigators and aggressors and the actions of Gibbins and his group during the night of the Main North Road incident were intended to avoid a conflict and to defend themselves from the Caddies’ group.  The second was that during the course of the affray, Gibbins’ participation was limited to punching Caddies senior once in the jaw, and that he did so to defend Nance from an attack by Caddies senior. 

15. The behaviour of Gibbins and the other occupants of the VL Commodore prior to and following the Main North Road incident renders the first proposition untenable.  If that had been the case, it is difficult to understand why they did not drive to the police station when being pursued, instead of stopping outside 203 Main North Road.  Further, Gibbins was in possession of a mobile telephone, and he simply could have telephoned the police whilst the car chase was taking place if he and the others were genuinely seeking protection.

16. After the attack, if they had truly been victims of an attack upon them, it was illogical for them not to have gone immediately to the police station after leaving the scene.  Instead, they went to Charmouth Road. 

17. I do not accept Gibbins’ explanation that he feared going to the police station that evening because he was frightened of the Caddies’ group and he was unable to obtain transport.  By the time Richards left, Gibbins was aware that someone had been stabbed.  He was also aware that Caddies senior had been knocked down. 

18. I shall address the second proposition in dealing with the second count.

    Count 2

19. As to the incident in which Caddies senior was injured, I accept the evidence of Warren Wittmann.  I am satisfied beyond reasonable doubt that Caddies senior was hit over the head with a weapon, being either a bottle or a stick.  The injuries Caddies senior sustained are consistent with that having occurred.  I am satisfied beyond reasonable doubt that, as a consequence, he fell to the ground. Whilst he was on the ground, he was kicked and bashed and his head was stomped on.  I am satisfied beyond reasonable doubt that Gibbins was party to the attack upon Caddies senior, and that he was either directly involved in kicking and hitting Caddies senior, or he was part of a common enterprise to do so and encouraged others to be involved. 

20. I am unable to conclude who hit Caddies senior over the head causing the injuries to his head and face.  However, I am satisfied that a number of the injuries suffered by Caddies senior resulted from him being kicked and stomped on whilst on the ground.  I am satisfied that it was part of the common purpose to engage in that conduct. I am satisfied that Gibbins intended to do grievous bodily harm to Caddies senior, or that he was party to a common enterprise to cause Caddies senior grievous bodily harm with the intention of causing him grievous bodily harm.

21. In view of my findings, I reject the defence case that Gibbins acted in defence of another.  I am satisfied beyond reasonable doubt that Gibbins joined into a fight and that he was engaged in an unlawful act.  I conclude that he was not acting in his own defence or the defence of another.

22. As to the interview of Gibbins, I reject his denials to the police.  I reject his statement to the police that he acted in defence of another. I reject his assertion that he hit Caddies senior with one blow to the face with a clenched fist before leaving the scene.  I reject his explanation to the police that he was merely hiding in the bushes, not participating in the fight, and that he only became involved to the extent that he acted in defence of his friend, Ashley, when Caddies senior was attacking Ashley with a weapon.  Those assertions are inconsistent with the evidence of Shaun Wittmann and Warren Wittmann, and with the medical evidence of the nature and extent of the injuries sustained by Caddies senior.

    Legal principles

    Joint criminal enterprise

23. A joint criminal enterprise exists where two or more persons act together in pursuit of a common criminal purpose.  The existence of a joint criminal enterprise is a means by which the complicity of a secondary party may be established in respect of an act which the secondary offender did not carry out himself.[27]

    [27]   McAuliffe v The Queen (1995) 183 CLR 108, 113.

24. The agreement between the parties to a joint criminal enterprise may be express or implicit.[28]  Once a joint criminal enterprise has been found to exist, a secondary party will be liable as a principal for two categories of criminal acts:  first, acts which are necessary for the crime the subject of the joint criminal enterprise;  and, secondly, acts which are within the scope of the joint criminal enterprise and are carried out in furtherance of the common purpose.[29]

    [28] Ibid 114.

    [29] Ibid.

25. It is established that the scope of a common criminal purpose includes the possible, and not only the likely, incidents of the enterprise.[30]  In considering the liability of a secondary party for the act of the primary offender, the scope of the common purpose is that which was actually contemplated or understood by that secondary party.[31]  In other words, the scope of the common purpose is subjective.

    [30] Ibid 114-17.

    [31] Ibid 114.

26. I have found that Gibbins, Richards and others embarked upon a joint criminal enterprise, the primary object of which was to enter an affray with the Caddies’ group.  I do not consider, nor was it suggested, that the killing of Newman was an object of the enterprise.  Because I have rejected the suggestion that Gibbins acted in self-defence, I conclude that he acted unlawfully in entering the affray.[32]

    [32]   R v Bosworth & Ors (2007) 97 SASR 502, 523.

27. The High Court in McAuliffe distinguished between the situation in which a secondary offender is liable for a crime which is within the scope of the common purpose, and thus within the agreement or understanding of the secondary offender, albeit as a possible rather than likely incident of the enterprise, and the situation in which a secondary offender foresees, but does not agree to, an incidental crime, but nevertheless proceeds with the enterprise.  The High Court said that, in the second situation:[33]

    … the secondary offender … is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose.  Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind.  But there is no other relevant distinction.

    [33] Ibid 117-18.

28. For reasons that will become apparent, I consider that the circumstances of the incident are more appropriately analysed as a situation potentially within the scope of the enterprise, rather than as a situation foreseen but not agreed to.

29. The difficulty in analysing criminal acts which are committed by a party to a joint criminal enterprise, but do not constitute its primary object, is that the principles are applicable to two categories of crimes.  The first category comprises crimes that are incidental to the central purpose, such as an offence against a person in the course of a crime of a different character, such as a robbery.  The second category comprises crimes in which one party to the enterprise goes beyond the primary object but may, nevertheless, be acting within the scope of the common purpose, such as where a party kills a victim whom was intended to be assaulted, or uses a weapon to kill when the primary object was to frighten.

30. If, in the course of a joint criminal enterprise, a defendant contemplates the possibility that the other or others may commit an act in furtherance of and within the scope of the common purpose, that defendant is liable for those acts which have been contemplated, even if he or she positively hopes that the consequence will not result.  The secondary offender is liable for a crime which is an incident of the agreed venture, if the crime falls within the scope of the common purpose, that scope being determined by considering the defendant’s actual state of mind.

31. If a principal assailant has gone completely beyond the scope of the common design and acted in a way which no party to that common design contemplated, then the participant would not be guilty of that further crime.

32. In McAuliffe, the High Court said:[34]

    The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design.  Such a venture may be described as a joint criminal enterprise.  Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime.  The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party:  in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission.  But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others.  Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime.  The understanding or arrangement need not be express and may be inferred from all the circumstances.  If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute a crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

    Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose.  Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture.  However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.  [References omitted]

    [34] Ibid 113-14.

    Culpability of a secondary offender for murder or manslaughter

33. Where, as in this case, a death results from a joint criminal enterprise involving violence, and the primary offender is guilty of murder, a secondary offender might be guilty of murder, guilty of manslaughter, or may be not guilty of either crime.  The principles underlying the distinction were summarised by Gibbs A-CJ in Markby v The Queen,[35] who said:[36]

    … When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design.  Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed.  If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter.  The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only.  In some cases the inactive participant in the common design may escape liability either for murder or manslaughter.  If the principal assailant has gone completely beyond the scope of the common design, and for example “has used a weapon and acted in a way which no party to that common design could suspect”, the inactive participant is not guilty of either murder or manslaughter.  If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter.  [References omitted]

    [35] (1987) 140 CLR 108.

    [36] Ibid 112-13.

1. That statement was approved subsequently in Gillard v The Queen.[37]  The last part of the quote should not be interpreted as elevating the use of a weapon of itself to being dispositive of the question of the guilt or innocence of the accused.[38]  In my view, the primary question is the extent of the common purpose as Gibbins perceived it.  Gibbins’ knowledge of the knife, or of the other weapons, is, however, highly relevant to that question.[39]

   [37] (2003) 219 CLR 1, 10 (Gleeson CJ and Callinan J), 15 (Gummow J), 35-7 (Hayne J).

   [38]   See R v Woolley (1989) 42 A Crim R 418, 437-8.

   [39]   Cf R v Bosworth & Ors (2007) 97 SASR 502, 522-3.

2. The distinction between the states of mind of a secondary offender required to prove murder or manslaughter were expressed by Gleeson CJ and Callinan J in Gillard.  Gillard was a party to a common enterprise, being an armed robbery, with one Preston.  During the course of the robbery, Preston shot and killed one Knowles.  As a matter of fact, their Honours accepted that Gillard had known prior to the robbery that Preston was armed with a gun.  Their Honours said:[40]

   According to the principles stated in McAuliffe, the culpability of the appellant in the event that Preston shot and killed Knowles would depend upon the scope of their common design, and what he foresaw as a possible incident of the design.  If he foresaw, as a possible incident of carrying out the common design, that Preston might shoot Knowles with intent to kill or cause grievous bodily harm, then he would be guilty of murder.  If he foresaw, as a possible incident, that Knowles might shoot Preston but without foreseeing such intent, then he would be guilty of manslaughter.  [References omitted]

   [40] Ibid 11-12. Although in the judgment, it states in the last sentence of the quote “that Knowles might shoot Preston”, it seems that this might be an error and it should read “that Preston might shoot Knowles”.

3. After referring to a passage from McAuliffe, their Honours went on to say:[41]

   The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder.  The existence of that possibility assumes a difference in the intentions of the two parties.  The secondary party may not know of, or foresee, the principal offender’s murderous intention, but may foresee the possibility of the act causing death as an incident of the common design.  The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime.  In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide.  The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm.

   [41] Ibid 13-14.

4. I observe that in Gillard and R v Zappia,[42] the secondary offender knew that the primary offender had the very weapon which was used to cause the death of the victim.

   Application to the present case

   [42] (2002) 84 SASR 206.

   The scope of the common purpose

5. I have found that Gibbins was a party to a joint criminal enterprise with Richards and others, the primary object of which was to enter an affray with the Caddies’ group, and to assault the members of that group.  I have found that it has not been proven that Gibbins knew that Richards had the knife which inflicted the fatal wound.

6. However, I am satisfied that Gibbins knew that a variety of weapons would be used, which would be capable of causing serious bodily harm.  I have found that Gibbins and his group were armed with weapons, including trolley poles and sticks, but also items such as bottles.  The Caddies’ group was armed with a variety of weapons, including the stick with a knife attached, which was found at Charmouth Road.  I have found that Gibbins was aware that the Caddies’ group was armed.  I am satisfied that Gibbins was aware that persons who were involved in the fight might carry weapons, such as knives or machetes. I am further satisfied that he anticipated that a variety of weapons would be used by the Caddies’ group, and that he and the other occupants of the VL Commodore armed themselves accordingly.  I have no doubt that this was not a fight which the participants, and in particular Gibbins, understood to be limited to fists.  Nor was it a fight in which the weapons used were to be limited to poles, sticks and other implements capable only of causing injury by a blunt force.  On the contrary, I am satisfied that Gibbins expected that a variety of weapons, capable of causing various types of harm to others, would be used, although it has not been proven that he knew of the knife used by Richards.

7. For that reason, this case is analogous to Varley v The Queen.[43]  In Varley, the appellant was party to a joint criminal enterprise to beat or “rough up” a victim to compel the disclosure of certain information.  During the course of the beating, the other two parties to the enterprise used batons or coshes  That case was unusual in that the body of the victim was not found, and so it was held that he died from the assault, it being unknown which of the injuries caused his death.   Barwick CJ, with whom the other members of the Court agreed, stated:[44]

   I am clearly of the opinion, however, that, even on the assumption that the appellant did not know of the availability of the baton or cosh, or of its intended use (an assumption the jury were not bound to accept), it could not reasonably be held that the use of such an instrument or weapon as a baton or cosh was not in all the circumstances within the scope of the common design to beat or “rough up” the deceased.  The judge, in my opinion, placed the use of the weapon in its correct perspective when he treated it, if its use was not foreseen by the appellant, as no more than an unexpected incident in carrying out the common design. 

   [43]   Varley v The Queen (1976) 51 ALJR 243.

   [44] Ibid 246.

8. His Honour went on to cite and distinguish R v Anderson and Morris,[45] stating:[46]

   There a knife was carried and used with intent to kill by stabbing.  It was there possible to regard its use as beyond the scope of the common design to which it was established the accused in that case was a party.  Here the use of the baton or cosh, even if not actually contemplated, was clearly a likely means of carrying out the plan of beating up Burton;  and obviously within the scope of that plan.  There is therefore no need to discuss the question whether or not the judge gave specific attention in his summing up to the scope of the common design.

   [45] [1966] 2 QB 110.

   [46]   Varley v The Queen (1976), 51 ALJR 243, 246.

9. It may be inferred that the use of a baton or cosh in Varley was within the scope of the common purpose because, in circumstances where the common purpose was to administer a beating, the use of a baton or cosh, and the injuries that those weapons would inflict, were not of a different character to the principal object of the enterprise.  Consequently, even though the appellant may not have been aware of the weapons, their use was properly regarded as an “unexpected incident in carrying out the common design”, or an unexpected mode of carrying out the common purpose.

10. Conversely, in Anderson, the use of a knife was regarded as a complete departure from the common purpose in circumstances where the appellant contemplated only a fistfight.[47]  As I have set out above, I am satisfied that Gibbins’ understanding was not that he was entering an affray which would be limited to a fistfight.  This case is therefore clearly distinguishable from Anderson.

    [47]   R v Anderson and Morris [1966] 2 QB 110, 118-20.

11. In R v Cozzi,[48] Martin J, with whom the other members of the Court of Criminal Appeal concurred, allowed an appeal against a conviction for manslaughter in circumstances where His Honour considered that the appellant had been a party to a brutal beating, but did not consider that the evidence led inexorably to the conclusion that the common purpose entailed the use of the knife which had inflicted the fatal wounds.  A retrial was ordered on the charge of manslaughter.  His Honour considered that, in light of the directions that had been given:[49]

    … once the jury turned to consider to the question of manslaughter it would have been relatively easy to overlook or misapply the direction as to causation and the need to find that the enterprise to which the appellant was a party included the use of a knife.  The natural temptation would have been to regard the appellant as bearing some responsibility for the death merely because she was party to the brutal beating.

    [48] (1999) 73 SASR 374.

    [49] Ibid 388.

12. His Honour’s comments in that case illustrate the principle that the scope of the common purpose turns on the facts of the case, and that in order to sustain a charge of manslaughter, it must be proved that the secondary offender knew of the weapon, or was engaged in a common purpose such that the use of the weapon was no more than an unexpected incident.[50]

    [50] Ibid 385-92; see also R v Duong (1992) 61 A Crim R 140, 148-9; R v Woolley (1989) 42 A Crim R 418, 437-8.

13. In any event, whether the use of a particular weapon is within the scope of the common purpose will obviously, however, depend on the circumstances of an individual case, because the scope of the common purpose is determined based upon the subjective state of mind of a particular accused.

14. I am not satisfied that intentional killing or infliction of grievous bodily harm by any means was within the scope of the common purpose.  Nor am I satisfied that Gibbins foresaw the possibility that Richards would act with intention to cause grievous bodily harm.  Consequently, I find that Gibbins is not guilty of murder.

15. However, I am satisfied that the use of a knife by Richards was within the scope of the common purpose to which Gibbins was a party, although he did not necessarily know of its existence.  Whether a particular act was within the scope of the common purpose is to be assessed objectively.[51]  In circumstances where a variety of weapons, capable of inflicting wounds of varying type and severity were to be used, I cannot regard Richards’ use of a weapon as falling within the category of acts “us[ing] a weapon and act[ing] in a way which no party to that common design could suspect”.  I therefore find Gibbins guilty of manslaughter in accordance with the principles expressed in Markby and Gillard.

    [51]   R v Duong (1992) 61 A Crim R 140, 149.

    Counts 2 and 3

16. As to the count of causing grievous bodily harm to Caddies senior with intent to cause grievous bodily harm, I am satisfied beyond reasonable doubt that Gibbins was party to an assault upon Caddies senior.  I am satisfied beyond reasonable doubt that one of the occupants of the VL Commodore struck Caddies senior over the head with a stick or a bottle.  I am satisfied beyond reasonable doubt that Caddies senior was struck during the course of the fight between the two groups.  I reject the explanation given by Gibbins.  I reject the suggestion that Gibbins acted in defence of himself or another.  I am satisfied beyond reasonable doubt that when Caddies senior was hit and subsequently kicked, those who were involved were not acting in self-defence at any point in time. I am satisfied beyond reasonable doubt that a group of at least two persons, but possibly three or more, kicked Caddies senior and stomped on his head.  I am satisfied beyond reasonable doubt that the conduct I have described was within the scope of the common purpose contemplated by Gibbins. I am satisfied beyond reasonable doubt that Gibbins was present and participated in the assault upon Caddies senior.  I am not satisfied beyond reasonable doubt that Gibbins struck Caddies senior over the head causing Caddies senior to fall to the ground.  Nevertheless, I am satisfied beyond reasonable doubt that he was present and in the vicinity, and that he participated in the continued assault on Caddies senior whilst Caddies senior was lying on the ground.  I am satisfied that it was within his understanding to assault Caddies senior with intent to cause grievous bodily harm.  I find Gibbins guilty of causing grievous bodily harm with intent to cause such harm.