R v Knight (No 3)

[2009] QSC 450

SUPREME COURT OF QUEENSLAND

CITATION:

The Queen v Mark Dempsey Knight & Ors (No 3) [2009] QSC 450

PARTIES:

THE QUEEN

V

MARK DEMPSEY KNIGHT, WESLEY ROBERT WILLIAMS AND WAYNE THOMAS ROBERTSON

FILE NO/S:

49/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

20 July 2009

DELIVERED AT:

Rockhampton

HEARING DATE:

16,17, 20 July 2009

JUDGE:

McMeekin J

ORDER:

Applications dismissed

COUNSEL:

Mr D Lynch (for Williams) Mr G McGuire (for Knight) Mr J Fraser (for Robertson)

(Applicants)

Mr R Pointing, Mr D Funch

(Respondent)

SOLICITORS:

Legal Aid Office

Director of Public Prosecutions

1. Mark Dempsey Knight, Wesley Robert Williams and Wayne Thomas Robertson, are charged with the murder of Robert James Buckley.  They have pleaded not guilty.  The Crown case has closed.

1. The defence make two submissions – first that there is no case to answer; second that I should revisit a pre-trial ruling that I gave concerning the receipt into evidence of hearsay statements concerning the deceased’s relationship with, principally, Williams, admitted pursuant to s 93B(2) of the Evidence Act 1977 (Qld).

No Case to Answer

1. The prosecution case is that the accused caused the death of the deceased by compression of his neck in some manner so as to cause asphyxiation.  The prosecution allege that he was either first strangled and then suspended, or simply suspended, by a towel from a louvre bar by the accused men. Thus the prosecution say that those actions of the accused men were a substantial or significant cause of Mr Buckley’s death (see s 293 of the Code and Royall v The Queen (1991) 172 CLR 378 at 411). It can be accepted that if the jury could be satisfied to the requisite standard that the accused did either of those things the prosecution would have discharged its onus of establishing causation of death.

1. There is no direct evidence that the accused did either of these things. The prosecution case depends on the proposition that the surrounding circumstances are such that an inference should be drawn to that effect. Guilt must therefore not only be a rational inference but also it should be the only rational inference that could reasonably be drawn from the circumstances (Martin v Osborne (1936) 55 CLR 367 at p 375; Plomp v The Queen (1963) 110 CLR 234 at p 252).

1. The defence submission assumes that there are only two alternatives open on the Crown case.  The first is that the accused killed the deceased.  The second is that the deceased committed suicide. The defence contend that suicide remains a reasonable hypothesis and is not excluded on the evidence and hence there is an incurable defect in the Crown case.

1. The test to apply on such an application was explained in Doney v R, (1990) 171 CLR 207 at 214–215 where the High Court said:

… if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and…