R v OCP - [2022] QSC 138

SUPREME COURT OF QUEENSLAND

CITATION:

R v OCP & Ors [2022] QSC 138

PARTIES:

THE QUEEN

v

OCP , MALJAY TOALA & HLC

FILE NO/S:

Indictment 638/22

DIVISION:

Trial Division

PROCEEDING:

Criminal Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2022 – 25 May 2022; 30 June 2022

JUDGE:

Ryan J

ORDER:

OCP

Count 1 – Not guilty
Count 2 – Not guilty
Count 3 – Not guilty

Maljay Toala

Count 1 – Not guilty
Count 2 – Not guilty
Count 3 – Not guilty

HLC

Count 1 – Not guilty
Count 2 – Not guilty

Count 3 – Not guilty

Each defendant is discharged on indictment 638/22.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MANSLAUGHTER – GRIEVOUS BODILY HARM –VERDICT – where defendants were three of a group of five teenagers, who were charged with manslaughter and doing grievous bodily harm, as parties to offences of murder and of intentionally doing grievous bodily harm committed by the principal offender (one of the group of five) – where the principal offender carried a knife – where the defendants’ group followed another group of teenagers, unknown to them, for the purposes of engaging the other group in a fight – where the groups fought – where the principal offender stabbed and killed one member of the other group and intentionally did grievous bodily harm, by stabbing, to another – where the defendants did not intend or anticipate or foresee those outcomes – where defendants’ criminal responsibility alleged to be on a section 8 basis: that is, where the Crown alleged that manslaughter and the doing of grievous bodily harm were objectively probable consequences of the defendants’ unlawful common purpose, with the principal offender and another, to pursue, assault and do physical harm to the other group of teenagers – where the Crown did not allege that defendants were aware that the principal offender would bring his knife to the fight – where Crown did not allege that defendants’ group intended to do serious physical harm to members of other group – judge alone trial

COUNSEL:

T A Fuller QC for the Crown
G M McGuire for OCP
C L Morgan for Maljay Toala

M J Hynes for HLC

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown
Legal Aid Queensland for OCP
Legal Aid Queensland for Maljay Toala
Gatenby Criminal Law for HLC

Table of Contents

The indictment

Overview

The particulars

Criminal responsibility

The evidence – general matters

Formal admissions

Other evidence

Oral testimony

The Woodridge Group and the Gold Coast Group met on The Esplanade

The Woodridge Group and the Gold Coast Group met again on the corner of Cavill Avenue and Surfers Paradise Boulevard

Jack Beasley’s Group noticed the Woodridge and Gold Coast Groups at the Corner

Jack Beasley’s Group moved to a bench while waiting for Izaiah and Rory to return from the shops/ATM

Jack Beasley’s Group left the Corner

The Woodridge Group decided to follow Jack Beasley’s Group along Surfers Paradise Boulevard

The fight and its lead up

The Gold Coast Group are told about the stabbing

Darci confronted Maljay and HLC as they left Surfers Paradise on a tram

The street check of Maljay and HLC

The view

Toxicological analysis of Jack Beasley’s blood

My observations of the CCTV footage – up until the point at which the Woodridge Group follow Jack Beasley’s Group

The fight, the stabbing and who saw what and when

Statements made by the defendants

OCP [Surname redacted] – interview

Maljay Toala – interview

HLC [Surname redacted] – interview

Counsels’ closing addresses

What I made of the defendants’ interviews

My findings of fact

The directions I gave myself

The offences

Darkan v The Queen

Other authorities

R v Ritchie
R v Johnson; ex parte A-G (Qld); R v Johnson; ex parte A-G (Qld); R v Ward; ex parte A-G (Qld); R v Ward
The Queen v Keenan
R v Huston

Reasoning to verdicts

(a) An unlawful common purpose?

Whether RSG acted in furtherance of the unlawful common purpose in killing Jack and doing grievous bodily harm to Ariki?

Conclusion

The indictment

The defendants were charged on indictment with the following offences –
Count 1: That on the thirteenth day of December 2019 at Surfers Paradise in the State of Queensland, OCP, Maljay Toala and HLC, unlawfully did grievous bodily harm to Ariki Kio Waiariki-Katuke.
Count 2: That on the thirteenth day of December 2019 at Surfers Paradise in the State of Queensland, OCP, Maljay Toala and HLC, unlawfully killed Jack Phillip Beasley.
Count 3: That on the thirteenth day of December 2019 at Surfers Paradise in the State of Queensland, OCP, Maljay Toala and HLC, unlawfully did grievous bodily harm to Ariki Kio Waiariki-Katuke.
They each pleaded not guilty to each offence.
The trial was allocated to me. Another judge of this Court ordered that the defendants be tried by a judge sitting without a jury.
In accordance with the law which applies to judge alone trials (Chapter division 9A, of Chapter 62, of Part 8 of the Criminal Code), I was required to apply, insofar as was practicable, the same principles of law and procedure which would have been applied had the defendants been tried by jury. I was permitted to view a place or thing (and did so). I was required to take into account the same warnings, instructions or information about evidence and procedure which a jury would have been required to take into account if the defendants had been tried by jury.
While a jury simply states its verdict – “guilty” or “not guilty” – I was required by law to prepare this written judgment, stating my verdicts; setting out my reasons for my verdicts; and including the principles of law which I applied, and the findings of fact which I made, to reach those verdicts.
Overview
This trial is about whether any of the three defendants are to be held criminally responsible for the unexpected, fatal, knife violence of their companion.
On Friday night, 13 December 2019, Jack Beasley and his friend, Ariki Waiariki- Katuke, both aged 17, were stabbed, on Surfers Paradise Boulevard, by RSG [Surname redacted], a younger teen, who was a stranger to them. Jack died from a heart wound and Ariki suffered grievous bodily harm.
RSG had travelled with four other teenagers from Woodridge to Surfers Paradise. Three of those teenagers are the defendants before me: OCP [Surname redacted], Maljay Toala and HLC [Surname redacted].
RSG brought with him a knife contained in a sheath and concealed in his tracksuit pants. It appeared to be held in place by the waistband of his pants or underpants.
The group (the “Woodridge Group”) walked around Surfers Paradise, including through the Friday night markets. They had a barbeque at a barbeque area just up from the beach, and then “hung” briefly with another group of four young people, who were “doing “nangs”” on The Esplanade (the “Gold Coast Group”). The Gold Coast Group included Hunter Terangi, Sarah Morgan, Isabella (Bella) Nathan and Josiah (Jizzy) Caltibiano. (Nangs are nitrous oxide bulbs. The evidence allowed me to infer that, when inhaled, nitrous oxide makes a user feel “high” or euphoric for a short time.)
A little later that evening, the Woodridge Group met up with the Gold Coast Group again, on the corner of Cavill Avenue and Surfers Paradise Boulevard (an area which I will call “the Corner”). The shops in that area include Royal Copenhagen Ice-Cream and Boost Juice. They noticed Jack Beasley and his friends as they arrived at the same location. There were some loose connections between the Gold Coast Group and Jack Beasley’s Group. There was no connection at all between the Woodridge Group and Jack Beasley’s Group.
Jack Beasley’s Group included Jack, Ariki Waiariki-Katuke, Joshua Morrison, Noah Sacco, Izaiah Kahika, Leticia Lucero, Shae Graham and Rory Atkin.
The groups congregated within metres of each other on the Corner. There was some eye contact between them. Bella attempted to hide from the people she knew in Jack Beasley’s Group and at one point “gave them the finger”– although no-one in Jack Beasley’s Group appeared to notice.
Jack Beasley’s Group were on their way to a party or gathering in a nearby apartment. They’d paused at the Corner to allow two members of their group to buy cigarettes or withdraw cash. A post-mortem analysis of Jack’s blood revealed the presence of MDMA. It also revealed that he had previously consumed alcohol and used cocaine and was excreting those substances.
Not long after Jack Beasley’s Group left the Corner to walk to the apartment, the Woodridge Group began to follow them. The Woodridge Group had to jog, or walk at pace, and cross a road, to catch up to Jack Beasley’s Group. The Woodridge Group were keen for a physical fight with Jack Beasley’s Group.
The Woodridge Group caught up with Jack Beasley’s Group. Their interaction was captured on security cameras (“CCTVs”). What I made of the CCTV footage is discussed below. For the moment, it is enough to note that a fist fight started between the groups. Within seconds of its starting, RSG pulled out his knife; and within no more than 30 seconds, he had “dipped” or stabbed Ariki – then Jack – then Ariki again.
RSG’s knife pierced Jack’s heart muscle, causing extreme blood loss. Jack’s heart was unable to function, and he died from a heart attack.
RSG’s knife penetrated two centimetres into Ariki’s chest and one centimetre into his back. Those wounds endangered Ariki’s life, but he received medical treatment and did not die. His injuries amounted to those defined by our criminal law as “grievous bodily harm”.
After Jack and Ariki were stabbed, the Woodridge Group ran off. Not long thereafter, some of their faces were all over social media. They were all ultimately identified and charged with relevant criminal offences.
RSG has pleaded guilty to the murder of Jack Beasley and to committing, intentionally, grievous bodily harm upon Ariki Waiariki-Katuke.[1] Another member of the Woodridge Group, PLA [Surname redacted], has pleaded guilty to the manslaughter of Jack Beasley and unlawfully doing grievous bodily harm to Ariki Waiariki-Katuke. RSG and PLA will be sentenced after the conclusion of this trial.
[1]Two counts: one for each of the two stab wounds inflicted.
The question for me was whether any of the three defendants on trial, OCP, Maljay or HLC, were criminally responsible for killing Jack or causing grievous bodily harm to Ariki, even though they did not inflict the stab wounds; expect RSG to use his knife in the fight; or intend or foresee their fight with Jack Beasley’s Group ending in death or grievous bodily harm.
The Crown alleged that the defendants were criminally responsible for Jack’s death and Ariki’s grievous bodily harm under section 8 of the Criminal Code. That is, the Crown alleged that the defendants were liable as parties to an unlawful common purpose with RSG (and PLA [Surname redacted]) to pursue, assault and do physical harm to members of Jack Beasley’s Group; where the acts causing death and grievous bodily harm were done in furtherance of the unlawful common purpose, and death and the doing of grievous bodily harm were probable consequences of the unlawful common purpose.
The Crown framed its case on the basis that the unlawful common purpose did not involve the bringing of a weapon to the fight; or knowledge on the part of the defendants that RSG had the knife on his person.
CCTV footage of the fight was played to me at trial. Like a jury, I was required to keep an open mind until all of the evidence was presented to me, and I had heard counsels’ addresses. Therefore, I did not study the CCTV footage in detail during the trial. I did not focus on the conduct of each separate defendant during the fight until I reached the point of my deliberations. It was then that it became clear to me that Maljay and HLC (but not OCP) saw RSG holding the knife in his hand during the fight and involved themselves in the fight after seeing him so armed. However, the Crown did not allege that – even if the unlawful common purpose in its original form did not anticipate RSG bringing his knife into the fight – Maljay, HLC and RSG were parties to an escalated common purpose which did involve the use of the knife. Nor did the Crown allege that Maljay and HLC were criminally responsible for RSG’s actions on the basis of their encouragement of him (once he pulled out the knife) under section 7 of the Code.[2]
[2]The basis upon which a case is presented to the Court by the Crown is a matter for the Director of Public Prosecutions alone, acting in accordance with his guidelines, and exercising his prosecutorial discretion with complete independence. The Director will know things the Court will never know. And the Court (as a Court and as a finder of fact) must decide the case on the basis upon which it was presented by the Crown.
Thus, the critical question for me, in determining the guilt of each defendant, was whether I was satisfied beyond reasonable doubt that Jack’s death and Ariki’s grievous injuries were, objectively, probable consequences of the fight the defendants had in contemplation: namely, a fight which did not involve weapons, between young men of similar size and age, who were unknown to each other, in which the defendants did not intend or anticipate or expect to do serious harm to Jack or anyone in his group.
Another question for me was whether the Crown had proved, beyond reasonable doubt, that RSG’s use of the knife in the fight was in furtherance of the common purpose: that is, whether the Crown had negated, beyond reasonable doubt, the possibility that RSG was acting completely beyond any purpose in common with the defendants.
For the reasons set out in detail below, I was not satisfied, beyond reasonable doubt that a death or the infliction of grievous bodily harm were, objectively, probable consequences of the sort of fight each of the defendants had in contemplation. Nor was I persuaded, beyond reasonable doubt, that RSG’s actions were in furtherance of the purpose the defendants shared with him.
I was therefore not satisfied, beyond reasonable doubt, that the defendants bore criminal responsibility for RSG’s unexpected knife violence, causing Jack’s death and Ariki’s injuries. It was my duty therefore to find each of the defendants “not guilty” of every count on the indictment.
In reaching verdicts in this matter, I was required to act impartially, unswayed by prejudice or emotion and I did so. But decent members of the community observing this trial could not help but be struck by the senseless tragedy of it all, and the unsettling insight it offered into the casualisation of violence among some of our young people.

The particulars

The Crown particularised the case against each defendant as follows –
Criminal liability in this matter arises pursuant to section 8 of the Criminal Code.
RSG [Surname redacted] unlawfully killed Jack Beasley and caused grievous bodily harm to Ariki Waiariki-Katuke.
The Crown contends that each of the defendants was a party to a common unlawful purpose with RSG [Surname redacted] and PLA [Surname redacted] to pursue and unlawfully assault the group which Jack Beasley and Ariki Waiariki-Katuke were a part of and cause them physical harm.
The unlawful killing of a member of that group and the infliction of grievous bodily harm to a member of that group was a probable consequence of that plan.
Criminal responsibility
When a group of people embark on an unlawful common purpose, each member of the group is criminally responsible for (that is, guilty of) the criminal act or acts expressly contemplated by the unlawful common purpose and for a criminal act done by any one of them, in pursuance of the unlawful common purpose, which was a probable consequence of the unlawful common purpose.
In this trial, the Crown alleged that the defendants shared an intention to pursue and unlawfully assault and cause physical harm to the members of Jack Beasley’s Group; and that death and the infliction of grievous bodily harm were probable consequences of the prosecution of that shared intention. A critical issue in this trial was the nature and scope of the assault each defendant had in contemplation because its nature and scope would determine its probable consequences.
I was required to find a defendant guilty of Jack Beasley’s manslaughter and Ariki Waiariki-Katuke’s grievous bodily harm if I was satisfied, beyond reasonable doubt, that –
(a)the particular defendant and RSG [Surname redacted] and PLA [Surname redacted] formed a common intention to prosecute an unlawful purpose with each other;
(b)RSG killed Jack and caused grievous bodily harm to Ariki in the prosecution of the unlawful common purpose; and
(c)viewed objectively, manslaughter and the doing of grievous bodily harm were probable consequences of the prosecution of the unlawful common purpose – that is, consequences which may well have occurred, given the nature and scope of the common purpose contemplated by the particular defendant.
At the close of the Crown case, the defendants argued that they had no case to answer because of the way in which the Crown had framed or particularised its case. They argued that it was simply not possible (almost as a matter of law) for a finder of fact to conclude that a killing, or the doing of grievous bodily harm, were probable consequences of an unlawful common purpose to pursue, assault and do physical harm without further qualification, such as “serious physical harm”; or “with knowledge that one of the parties to the unlawful common purpose had a knife”.
I gave that argument very careful thought, but was ultimately persuaded that a finder of fact, acting reasonably, could conclude that death and grievous bodily harm were probable consequences of an unlawful common purpose to pursue, assault and do physical harm, even where serious harm or the possession or use of weapons was not contemplated by the parties to the unlawful common purpose. Of course, whether a finder of fact would so conclude, beyond reasonable doubt, would depend on the nature and scope of the assault in contemplation.
The evidence – general matters
Formal admissions
The following admissions were made by the parties, jointly–
(a)RSG [Surname redacted] unlawfully killed Jack Beasley on 13 December 2019.
(b)RSG [Surname redacted] caused a 2 cm penetrating wound to the antero-latero chest wall of Ariki Waiariki-Katuke on 13 December 2019. That injury caused grievous bodly harm to Ariki Waiariki-Katuke.
(c)RSG [Surname redacted] caused a 1 cm penetrating wound to the posterior chest wall of Ariki Waiariki-Katuke. That injury caused grievous bodily harm to Ariki Waiariki-Katuke.
(d)Exhibit 5 is a compilation of CCTV footage seized by police recorded on 13 December 2019.
Those admissions were sufficient proof of the facts stated therein, without the need for further evidence of those facts.
Other evidence
The movements of the Woodridge Group on the Friday night, including the stabbings by RSG, were captured by CCTV cameras which were in several locations from Woodridge to Surfers Paradise. The footage from the cameras was tendered in various forms – including (but not only) chronological compilations of footage from various cameras and slow-motion edits.
I have studied the CCTV footage of the defendants’ movements and the fight and its aftermath in detail.
The story revealed by the CCTV footage was contextualised by oral evidence from the members of the Gold Coast Group and Jack Beasley’s Group. Although the ability of the individual young people in those groups to recall the detail of the evening varied, and although, understandably, their evidence was not perfectly consistent, their evidence, considered as a whole, in the context of the CCTV footage, produced a cohesive narrative.

Also, the Crown tendered maps of the relevant area, still photographs, recorded interviews with each of the defendants (with transcripts and the documents drawn by, or shown to, the defendants during their interviews), and recorded interviews with two witnesses who were under 16 in December 2019 (with transcripts).
Oral testimony
An outline of the oral evidence of the Crown witnesses follows. I have attempted to recite it in chronological order.[3]
[3]I have referred to the witnesses and the defendants by their first names to enhance the clarity of these reasons. I intended no disrespect by doing so.
One of the matters in contest, and about which there was a lot of evidence, was whether the Woodridge Group had been talking about “hitting a lick on” – that is, robbing someone to obtain drugs or money – before their pursuit of Jack Beasley’s Group. However, it was not alleged by the Crown that the Woodridge Group had any plans to rob a member of Jack Beasley’s Group. In effect, the Crown alleged that the Woodridge Group were looking for a fight for the sake of it. Arguably, although not much was made of it despite all the evidence about it, the Woodridge Group’s conversations about hitting a lick on reflected their attitude to violence, which in turn, arguably, gave some context to the nature and scope of the fight they had in contemplation.
The Woodridge Group and the Gold Coast Group met on The Esplanade
Hunter was 15 years old in December 2019 and 18 at the trial. She was a member of the Gold Coast Group.
She was interviewed by police on 14 December 2019. Her interview was recorded, and the electronic record of it was tendered under section 93A of the Evidence Act (Qld) 1977 as part of her evidence-in-chief (“93A evidence”). A transcript of Hunter’s 93A evidence was tendered as an exhibit without objection. She also gave oral evidence in court, covering the same ground.
Hunter explained in her 93A evidence how she met the Woodridge Group and their interest in Jack Beasley’s Group. The CCTV footage shows that the Woodridge Group spent some time at a barbeque on The Esplanade before “hanging” with the Gold Coast Group at a bench a few metres away from the barbeque. The Gold Coast Group were “doing nangs”. The groups separated and went their own way for a short while, before they met up again on the corner of Cavill Avenue and Surfers Paradise Boulevard.
Hunter said –
[M]e, Sarah, Jizzy and Bella were walking along the beach and we’ve seen a group of boys and they approached us, we thought they were going to take our stuff because they came up to us in like a big group and um they were asking us where they could get drugs from, where they could like bash people to get drugs
and me and Bella just walked off like acting drunk acting like we didn’t know what we were talking about, we sat down for a little bit though
and then um we came, we started walking along the beach towards Cavill
She explained how she and her friends knew each other, including that Josiah was Bella’s “ex”.
Hunter said nothing about “doing nangs” in her 93A evidence – but in oral evidence-in-chief, she said she and her friends were doing nangs on The Esplanade. They’d bought them from a shop near the Q1. They bought two boxes of 10. She explained how the contents of the nang were consumed from a balloon. She said that the effect of a nang on her lasted about 30 seconds. She thought they (at least the girls) had one each while they were walking “on the road to come to the park”.
She elaborated on her first meeting the Woodridge Group in her 93A evidence. She said –
… they just came up to us like um shit like that like they stand over us or something
And then they started talking to Jizzy
We thought that Jizzy knew them because they were like talking for a little bit with Jizzy
And they asked us for cigarettes, they asked us who they could do over for drugs like do we know anyone who sells drugs on the coast
Um I’m familiar with a few of their faces um pretty sure I’ve seen them at like parties up in Brisbane but they were saying like they’re from Mount Druitt in Sydney they were like yeah we’re originally from like Sydney but didn’t give names or where they are living now
She described first seeing the Woodridge Group at the area of the barbeque and the toilets. She said –
… they seen us girls first and they came up to us like do you guys have any cigarettes and then they seen Josiah walk behind us and then they like sort of stood back a little bit and they started talking to him and me and Isabella walked off and we sat down first
We were just sitting there and all the group of boys came up to us
And they were just like standing around us while we were sitting down
And that’s when we got up and walked after that
Hunter was asked what she meant when she said the Woodridge Group were standing over her group. She said, “Like they came up to us like in a big group like they just looked really intimidating like”. She continued –
Cause at first they were like to us do you guys have any drugs or do you guys have any cigarettes and all that stuff and we were just like “no”.
She agreed that when the Woodridge Group first approached her group they were asking where they could get drugs from or who they could bash to get drugs from. She was asked by one of the police officers interviewing her (Plain Clothes Constable Sly) to tell him more about this and she said immediately –
So their specific words were “who can we hit a lick on” which means like bashing and then taking their stuff.
She was asked who of the Woodridge Group asked who they could “hit a lick on”. She said, “all of them”. She said that she and Bella looked at each other; the Woodridge Group “kept on asking us”; and that’s when she and Bella walked off and sat down. She said Josiah was talking to them. Sarah was with him but followed the girls “a little bit after” and sat down with them.
She said that, after that, the Woodridge Group came and “surrounded” them and “telling us to “set someone up” for them”. The Woodridge Group said that they did not know their way around and did not know anyone.
Hunter said she, Bella and Sarah walked off first (from the bench) whilst Josiah was still talking with the Woodridge Group. Then they walked through Surfers Paradise and ultimately sat on the seats outside Woolworths (that is, the bench on the Corner).
In court, she was shown CCTV footage of herself, Sarah and Bella, at a bench, on The Esplanade, not far from the barbeque (which was out of shot). She and Sarah were sitting on the bench. Bella was standing up. Hunter was consuming a nang. She thought Josiah was still with the Woodridge Group at that point in time.
She was asked whether anyone from the Woodridge Group joined the girls. Consistently with her 93A evidence, she said one did (CCTV footage showed it was PLA). She thought she offered him a nang. She said, he asked whether “we” knew anyone “that he could hit a lick on”. She said she and the girls said they didn’t.
She thought that the balance of the Woodridge Group then came over (also confirmed by CCTV footage). She said there was conversation “amongst all of us” and that “they” were asking the same thing: whether she (and her friends) could think of anyone on the coast they could hit a lick on. She thought a few of the Woodridge Group were asking who they could hit a lick on, but she was not sure if all of them did. She and the girls then made their way to Cavill Avenue. In court, she could not remember whether Josiah was with them. She said she did not hear the conversation between Josiah and the Woodridge group – although she thought the group said they’d come from “up Brisbane ways”.
Sarah was 14 and a half in December 2019. She was 16 at trial. An electronic record of her interview with police on 14 December 2019 was tendered as part of her evidence-in-chief, under section 93A of the Evidence Act. A transcript of it was tendered without objection.
Sarah was first asked to tell police “everything” about the stabbing at Surfers Paradise, starting at the “very beginning”. She said –
So me and a few other friends came to Surfers
We bumped into a group of boys and they were talking to one of the boys we were hanging out with and they were asking oh can you get someone to like get us drugs blah blah blah and asking if we could like give them drugs and we said no and then me – we all went to go get food so we left them
And this was at – near the beach and they were sitting at a barbeque and then we walked off and went to go get food
And then we came near the tram stop and then they all rocked up and came next to us and Iz and all that and Jack sitting on the opposite side of us and the group of boys were sitting with us and they were asking if we um wanted a drink of anything
And then they kept on staring at the people opposite of us and then we went – we walked straight ahead we went to Macca’s and then they walked the other direction and followed those people to the IGA
And then someone told me that apparently there was a stabbing and we walked past the IGA – we saw the crime scene.
She told police that Josiah was 18 and Lebanese. She explained that one of Josiah’s mates was supposed to get an apartment for the night. They waited for him until 9 pm but he did not come, so they went home.
She explained that she first encountered the Woodridge Group while her group was walking across the beach. She said –
the boys walked up to the barbeque and they were like “are you from Sydney” ‘cause I heard Josiah has an accent
and they started talking to Josiah
and when they came over me Bella and Hunter went and sat on the park bench like further away from them and then we walked over
and the Jizzy was just – Josiah was just talking to them
and then me Bella and Hunter wanted to go so we left and then he just followed
That was the first time we saw that group of boys.
A little later, she said that when “they” first came over, “they were asking us for a ciggy”. She said “Josiah and them were talking and they were like – he was asking where are you from and I remember one of the boys saying I’m from Cook Island and then Jizzy was like oh I’m from … Sydney and two of the other boys were like yeah we’re from [indistinct? either Sydney or Mount Druitt]”. She said “they” were asking her group to give them drugs, but her group did not have any. She continued –
And they were like “do you know anyone” and we were like “no” and they were like “oh ok”. Then they were talking about robbing people most of the night when they were talking … They were talking about like trying to get money to get drugs and like ciggies.
She could not say exactly what the Woodridge Group said because she wasn’t really listening. She was talking to Bella and Hunter, although she heard part of their conversation.
She said she thought Josiah knew them because they were “hugging and stuff” but he said he’d never met them in his life.
She repeated that her group walked past the Woodridge Group at the barbeque. She suggested that Josiah’s accent – which I observed was strong – caught the attention of the Woodridge Group and they shook his hand.
She said when she, Bella and Hunter were sitting down, “they were all” asking them for drugs or whether they knew anyone who could “gee us [the Woodridge Group] on”. Sarah was asked what she thought they meant by that, and she said “Like … they wanted to like rob someone basically … so not like pay the person for the drugs like just take drugs off them and go”.
In her oral evidence-in-chief, Sarah said that her group had consumed nangs that evening. She said, in effect, that she did not stay with Josiah while he was talking to the Woodridge Group. She went and sat down on the bench next to the barbeque with Hunter and Bella. She was not too sure whether she or one of the other girls spoke to the Woodridge Group before getting to the bench.
She said she was “pretty sure” that next, one of the Woodridge Group came up to the girls and asked them for a nang. She could not describe the boy (obviously, PLA). She was pretty sure they gave him their last nang and he sat down next to them and “started doing it”. She was “pretty sure” “a couple” of the Woodridge group came up (to the girls) “and that’s when Josiah was talking to them as well”. She could not remember what they were talking about. She could only remember them asking Josiah where he was from.
Under cross-examination by counsel for Maljay she maintained that she was “pretty sure” that there was conversation about drugs after Josiah and the balance of the Woodridge Group joined PLA and the girls at the bench – although she gave evidence to the contrary at committal.
She said she could not remember a conversation with Maljay about drugs. She could not remember whether Maljay was present when there was a conversation about drugs at the beach – but he could have been. She said she “mainly did not have a conversation with a lot of them”. She was just sitting down, listening to their conversation, which included their conversation with Josiah. She did not recall any interaction with Maljay. Under cross-examination by counsel for HLC, she agreed that he did not say anything in particular to her at that time.
Bella was 19 at trial. She said that the plan was for the Gold Coast Group to “do shishas” and then get an apartment with a friend, after he’d finished work. However, they were underage and unable to purchase shishas so they walked around instead. They bought and consumed nangs.
She saw the Woodridge Group, whom she did not know, just hanging around a table by the beach. She said she, Hunter and Sarah sat down on a bench and one of the Woodridge Group came over and sat next to them. Josiah had previously spoken to the Woodridge Group – but she did not hear what was said.
She could not remember what happened, or any conversation she had, with the first boy from the Woodridge Group who came over to the girls. She remembered Josiah asking the Woodridge Group where they were from. She thought one of them said “from Brisbane”. She remembered Josiah giving one of them his number.
She said that one of the boys asked if they knew where he could get drugs – but she could not recall who asked. The question was asked when “everyone was there”.
Josiah gave very little evidence of substance. He was an unimpressive witness.
He said he was with “that Bella girl and her friends”, Hunter and Sarah, at Surfers Paradise on 13 December 2019. He remembered meeting a group of boys at The Esplanade but could not remember what he was doing before he met them. He thought he was doing nangs that night. He said he was hanging out with the boys and they had a chat. He found out one of them was from Sydney or something. He said there “probably” was talk about drugs that night, but he did not know “specifically” that there was. He did not remember using drugs other than the nangs. He was probably going to a party that night.
Under cross-examination by counsel for OCP, he was reminded of his evidence at a Crime and Corruption Commission hearing into this matter and agreed that there was “definitely not” any talk of drugs or of them robbing anybody at the beach.
The Woodridge Group and the Gold Coast Group met again on the corner of Cavill Avenue and Surfers Paradise Boulevard
The Woodridge Group and the Gold Coast Group met a little later at the Corner.
Sarah described her second encounter with the Woodridge Group (at the Corner) in her 93A evidence as follows –
… we were sitting near the tree and the bin and then the group of boys comes up to us and they were like “do you want a drink or anything” being nice
And then they’re like “oh do you know anyone that will give us drugs” asking again
We’re like “no we don’t” …
One of the boys pointed out a group of boys which was Jack’s group and all that and then we had no idea what was going on and one of then started like walking directly where Jack and all that were walking.
In response to other questions about this second meeting, she said –
And then the boys came up to us. We saw – because some of my friends were in that group – like one of my friend’s cousins is in that group that they were walking with and um. Hunter and Bella were saying “oh look it’s Jack and all of them” and they caught us looking at them and they started laughing at us so we started laughing and then we were trying to set them up with the boys cause they were sitting with us but we weren’t trying to do anything.
She said that Jack Beasley’s Group was about 10 steps away from her “and then the boys were looking at ‘em”.
Of Jack Beasley’s Group, she said she remembered seeing Izaiah – who was her best friend’s cousin. She said she saw Bella’s cousin, because Bella pointed him out. She said she saw Jack, Darci and Ariki. (Darci, Ariki’s brother, was not in fact with Jack Beasley’s Group that evening, although Sarah saw him later that night, after the stabbings.) She said, “we were hiding from them because we did not want them near us”. She said, “we were annoyed and mad because [indistinct] didn’t get that apartment and we were like – we didn’t know what to do”.
She said the Woodridge Group were being nice to them and asking whether they wanted a drink/Gatorade/food. She said she was not really listening to their conversation, but they were talking about their nationalities – which is where she “got Cook Island from and Caucasian”.
She was asked whether there was any tension between the Woodridge Group and Jack Beasley’s group and she said –
A little bit [indistinct] I don’t really think that Jack’s group noticed but they walked off and they – the boys – were eyeing them while they were walking off
And um me and Bella looked at them like what’s going on
And then Josiah was like “Oh do yous wanna go get pizza” and I was like “yeah let’s go get pizza” cause I was hungry and we walked and then they started walking that way
And I got confused
I was like I would tap Bella and I was like “do you know what’s happened” and she’s like “no”.
In her oral evidence-in-chief, she was asked how she became aware of, or took notice of, Jack Beasley’s Group. She said, “The boys were asking if they could hit a lick on someone, I’m pretty sure”. Their words were, “Do you know anyone that we could hit a lick on”. She understood that expression to mean “rob” someone.
She said the boys asked them about someone to hit a lick on about five minutes after Jack Beasley’s Group arrived and also on the beach. She could not say who of the Woodridge Group spoke about hitting a lick on or robbing. She said it was probably two or three of them, but she was not too sure. She said, in effect, that the conversation at the beach about hitting a lick on happened after others from the Woodridge Group joined PLA at the bench.
Coming back to why it was that she noticed Jack Beasley’s Group, she said –
Because one of the boys in the other group pointed out Jack’s group. And when they said, “Like what about them?”, Bella pointed out that her cousin was in that group … So she said, “Don’t go for them because my cousin’s in that group”.
Sarah could not remember who from the Woodridge Group asked this about Jack Beasley’s Group.
She thought she knew one of Jack Beasley’s Group because her friend was a cousin of that person. She said again that after Jack Beasley’s group left the area, one of the Woodridge Group followed; then two of them; “and then they all went”.
She could not recall any conversation when Jack Beasley’s Group walked off. She could not remember any interaction between the groups. There was no calling out. She could not remember any gesturing.
Under cross-examination by counsel for OCP (Mr McGuire), Sarah accepted that her account to the police in her 93A evidence was accurate. She accepted that it included nothing about “hitting a lick on” or robbing.
Mr McGuire put certain parts of Sarah’s evidence at the committal hearing to her, intending to establish that any conversation about drugs (at the beach) occurred when only PLA was with her (and Hunter and Bella). She said that she was pretty sure that the conversation about drugs happened when the other boys were with them. It was put to her that it might have been before the rest of the group walked over to her and she said “I’m not too sure. Maybe. It might. I’m not honestly quite sure”.

She was taken by Mr McGuire to her statement to police that “they all” were asking whether they (the Gold Coast Group) knew anyone who could “Gee” them on and confirmed that “Gee” was short for “getting” them on and had nothing to do with robbing anyone. However she added, “but later that term was used”.
She agreed that it was possible that any talk about drugs (during her second encounter with the Woodridge Group) took place before Jack Beasley’s Group arrived.
She was questioned with a view to establishing that the first time she’d said that Bella told the Woodridge Group not to do anything to Jack Beasley’s Group because it included her cousin was in the witness box, but she maintained that her testimony was correct, as follows –
MR MCGUIRE: Can I suggests today’s the first time you’ve said that, about Bella saying, “You can’t hit them up, because one of them’s my cousin”? --- I’m pretty sure I said that in my statement.
All right. Have you – you’ve, obviously, spoken to the other girls at some point about all of this? --- Yeah.
Okay? --- But Bella said something about Jack Beasley’s group to those boys that came up to us and saying not to go near them, at one point.
She agreed that Josiah became friends with the Woodridge Group and that he was the one who was mostly talking to them. The girls were largely chatting among themselves.
She agreed that Bella was trying to hide from her cousin at one point, because she did not want to get in trouble from her mother for being out.
Sarah explained in her 93A evidence that the Woodridge Group followed Jack Beasley’s Group as they walked down towards the IGA “like straight after”.
She explained that, when she said the Woodridge Group were eyeing Jack Beasley’s Group off, –
They were like death staring at them like – looking at their clothes and looking at their shoes and looking at what they had
…
Then they – one of them – two of them started walking off and then they all followed and then one of the boys who was sitting down and then he didn’t know what was happening, so he got left behind and then he started running and then I saw him running and that’s why [indistinct] I tapped Bella and I was like “why is he running”.
She was asked what two people followed to start with. She said “two of the FOBS”. One of those two was in “trackies and a black hoodie”. She forgot what the other one was wearing. She said, “I’m pretty sure one of them told like the rest to come so they all followed”.
She said she saw one of the boys running, because he had been left behind. She agreed that that was when she tapped Bella and was like “do you know what’s happening”. She said, “It looks like weird if they’re following our mates and then he’s running”. She said Bella said, “he’s probably just running to catch up to the group”. She said she was “like ok” and did not think anything of it.
Asked later about what she thought the Woodridge Group were doing when they were looking at the clothes et cetera of the members of Jack Beasley’s Group, she said, “like they were looking like if they had anything valuable like to take off them or anything” but “we didn’t think much of it”: “like we thought they were gonna do nothing”.
She said, when she asked Bella what was going on, she (Sarah) “thought they were gonna get hurt” so she was worried. She was asked why she thought Jack Beasley’s group were going to get hurt and she said, “because the boys walked after them … that’s a little bit weird”. She said Bella told her they (the Woodridge Group) would not do anything because there was 10 of Jack Beasley’s Group and only six of the Woodridge group.
Under cross-examination, she agreed that she had noticed only a bit of staring between the Woodridge Group and Jack Beasley’s group which she did not think anything of at the time. She was shocked to hear that there had been an incident in which two boys were stabbed. She agreed that, on social media, there were accusations that she and her friends had set it up and Bella received threats. She agreed that she was concerned that it may have looked like they set it up. She agreed that she wanted everyone to know that she did not really know the Woodridge Group.
She denied that her telling police that the Woodridge Group were looking at the clothes or shoes of the members of Jack Beasley’s Group was “something she got in her head” after learning about the stabbing. It was suggested to her that she noticed nothing untoward between the two groups at the time, other than staring, but that she and her friends had “reconstructed later” that the Woodridge Group must have been looking at the clothes on those in Jack Beasley’s Group, or what they had, in order to rob them. She said, “Maybe, correct, I guess”. She agreed that that was not based on anything the Woodridge Group said to her. It was reconstructed later from the fact that they were staring.
Under cross-examination by counsel for HLC, Sarah agreed that she thought HLC was trying to get Hunter’s Instagram (handle); he was a little bit shy; and she was left with the impression that he was “really just hanging around with the rest”. (Bella was cross-examined about HLC’s temperament too. It was suggested that apart from conversation about Hunter’s Instagram, he was “a fairly quiet boy”. Bella said, “I guess”.)
Bella said the group were at the top of Cavill, waiting for their friend to finish work. After the Woodridge Group joined them, one of them asked again if her group knew anyone they could roll for drugs. She said, “They asked if we knew anyone they could hit a lick on”.
She was shown footage of Jack Beasley’s Group arriving. She said she knew Jack, Shae, Josh and Izaiah. She went to school with Jack and Shae. She was also friends with Shae’s brother. Josh was a family friend she went to school with. Izaiah was the cousin of a friend of hers. She said she thought she waved at Shae at one point, but otherwise she did not interact with them. She was then shown CCTV footage of her hiding behind Hunter. She said she hid because she was embarrassed.
She could not recall any interaction or conversation between the groups while Jack Beasley’s Group was standing in front of the ice-cream shop. She was asked whether there was any conversation within her group about Jack Beasley’s Group. She said –
I did hear one of them said – asked – after they asked who they could roll, ask if – like suggest their group – Jack’s group. And I was like, “No. Those are my – I know them”.
She could not say who said that. She thought it was said while she was sitting down.
She said there was no talk between the groups after Jack Beasley’s Group moved to the bench.
Under cross-examination, it was suggested that the first time Bella used the phrase “hit a lick on” was in the court room. She agreed. She had not used that phrase in her statement or in her evidence at committal. Other questions asked of her suggested that she used the term after speaking with Hunter and Sarah about it. She was asked why she used the expression for the first time in the courtroom and she said she had not previously been asked for the specific words.
She said that she did not know who of the Woodridge Group asked about hitting a lick on, but there were two references to robbing while everyone was present. She accepted that, although it was said while everyone was present, she could not say who was within earshot of its having been said or who took part in conversation about it.
She agreed that she made no reference to Jack Beasley’s Group being robbed in her statement to police. She agreed that the first time she mentioned anything about the Woodridge Group being interested in robbing Jack Beasley’s Group aSwas in court.
Also, her reply to a text from Shae asking her about who she was with was put to her. Her reply read –
Bruv on my mum’s life, I don’t know who they are. They were asking us if we could get them on, and we just left.
She said that her statement to Shae was true. It was put to her that she was not trying to hide anything from Shae, and she said, “No. I just didn’t want to explain to her in detail how I was with them … why I was with them”. She agreed she said nothing about them wanting to rob anyone. A portion of her evidence at the committal about not including information about the Woodridge Group wanting to rob someone in her reply to Shae was put to her. At the committal, she said there was talk of a robbery for drugs, but she did not tell Shae because she was shocked about what had happened. She was asked whether she’d forgotten that. She said, “I think maybe”. Mr McGuire asked her again (at trial) why she did not say anything to Shae about it, and she said, “I didn’t feel like I needed to at the time”.
Under cross-examination by counsel for Maljay, she said she did not think that Maljay spoke to her. She did not talk to him. She did not know if he said something to someone else. While it was noisy outside Boost Juice, you could still hear people who were close to you.
Bella thought the question about whether the Woodridge Group could hit a lick on Jack Beasley’s Group took place when that group had moved to sit on the bench.
In her 93A evidence, Hunter referred the Woodridge Group’s interest in Jack Beasley’s Group as a group they could “do”. She said –
… we were sitting outside the Woolworths shopping centre and we seen Jack and his mates sit like directly sort of across from us
and those boys came up to us again and they asked us the same question
um two of them sat down next to me they asked me for cigarettes and stuff and
um yeah they just kept asking us where they could get drugs from
and then we got up, well I got up and started walking off but
and Jack and his group of friends had already walked off
before that they were walking on the main road near the Novotel and um yeah I got up, Bella and Sarah got up
and then those group of boys were like “can we do them” and Bella was like “no, no like my cousin is in that group you can’t do them” and as we went to go get up those boys walked in the same direction of Jack and his group of friends
And yeah and that’s the last we seen or heard of them
She elaborated on this a little later in her 93A evidence. She said that while she, Bella, Sarah and Josiah were “sitting around” on the bench, she saw “Jack and Bella’s cousin and a few of their mates”, including two girls, standing about 10 metres away from them before moving to a seat to the left of Hunter’s group. She said it was then that the group of boys (the Woodridge Group) came up to them again. She said the boys asked “the same stuff” – whether they had any cigarettes and if they had “sussed them a set up for a lick”.
Hunter said that Jack Beasley’s Group did not pay any attention to them. She said that “at first” Bella was trying to hide from her cousin and Jack (probably to avoid getting in trouble from her parents and because she used to have a crush on Jack).
In her evidence-in-chief in court, Hunter said that she saw the Woodridge Group again while she was sitting on the bench at the Corner. She said the Woodridge Group came up to them and, she thought, asked them the same thing: “Are you sure [you] don’t know anyone … we can hit a lick off”. She said that was said by the boy in the Woodridge Group with the grey jumper (PLA [Surname redacted]). She thought he was the “main one” doing the talking.
Broadly consistently with her 93A evidence, she said that she noticed Jack Beasley’s Group – although she did not know if she noticed them ‘straight away”. She said Bella said, “There’s Jack and some of his friends”. She said nothing was said to Jack Beasley’s Group as they walked past the Woodridge/Gold Coast Group. She did not recall whether anyone gestured towards them. She did not think anything was said by the Gold Coast Group about Jack Beasley’s Group when his group was in front of the ice-cream shop. She did not think/could not remember anything being said between the Woodridge Group and Jack Beasley’s group. There was no talk among the Woodridge/Gold Coast Group about Jack Beasley’s Group “until we all got up”.
Josiah could not remember what he was talking to the Woodridge Group about. He said he had no memory of seeing Jack Beasley’s Group and did not recall any interaction between the groups. He said he did not know that someone had been stabbed until the next day. He had no memory of being at the tram stop later that night.
Under cross-examination by counsel for OCP, he agreed that his impression of the Woodridge Group was that they just wanted to have a party: have fun. He said, “There was no talk about robbery, nothing”.
Jack Beasley’s Group noticed the Woodridge and Gold Coast Groups at the Corner
Ariki (19 years old at trial) said that he, Jack and Josh met at Rory’s house before heading into Surfers Paradise on the night of the thirteenth of December. They each had a couple of beers then travelled to Surfers Paradise by tram. Noah (aged 20 at trial) was at Rory’s too, for 15 or 20 minutes, during which time he had one beer. Noah saw Jack drinking one or two beers at Rory’s place. He said he did not see Jack consume MDMA (but in fact, as noted above, Jack had consumed MDMA).
The boys got on the tram at Helensvale. Izaiah (aged 19 at trial) met up with them at the tram stop. The girls in their group, Shae and Leticia, got on the tram at the next stop, Parkwood.
They all got off the tram at the “main stop” in Surfers Paradise, the Cavill Avenue Light Rail Station. They walked to the Corner.
Ariki noticed “a group on the corner”. He thought they had looked over at “us” and that “we” looked back at them – but that was it. He was pretty sure no one from his group said anything to the Woodridge/Gold Coast Group, although he accepted, under cross-examination by counsel for OCP, that he said to Jack something like, “They’re eyeing us up”. He accepted that there was “unease” between the two groups.
Under cross-examination by counsel for Maljay, he said “maybe” someone from one of the groups said “What are you looking at cunt” – but he doubted it. (Noah could not remember anything like that being said. Izaiah said it was not possible that that was said by anyone from either group.)
“At first glance” (upon arrival at the Corner) Josh “noticed” “the boys”. He recognised two of the girls they were with – Isabella and Hunter. He did not remember any interaction between the groups as he walked past. He thought he looked over at them and that was it.
Noah noticed the Woodridge/Gold Coast Group “eventually”. He did not know the girls in that group, but thought one was “from school”. Noah took no notice of that girl. He recalled nothing being said to his group as they walked past the Woodridge/Gold Coast Group. He did not see any of his group look at the Woodridge/Gold Coast Group or take any notice of them.
Izaiah saw the Woodridge/Gold Coast Group when he arrived at Cavill Avenue. He noticed the way “someone” looked at him, or his group, “not in a friendly way”. He did not say or do anything to the Woodridge/Gold Coast Group. Nothing was said by either group. He did not recognise anyone in the Woodridge/Gold Coast Group. Nor did he remember any girls in that group.
Rory (aged 20 at trial) noticed the “large” Woodridge/Gold Coast Group. He did not recognise any of them. Whilst giving evidence, he did not recall whether anything was said between that group and his group. He did not recall any gestures from the Woodridge/Gold Coast Group.
Under cross-examination by counsel for OCP, the following part of his statement to police was put to him –
As we were near the group, I saw Ariki say hello to the gang. Ariki didn’t know them or anything. He just said hello, being polite. He said something like, “Hey, how’s it going?” And some of the people from the gang said “Hey” back.
He said that he was not aware of an exchange of looks between the groups. But his evidence at committal was put to him, in which he’d said, after saying there was no interaction between the groups, “Well, I think they might have been looking at us, but there was no communication at all”.
It was not expressly put to Rory that his prior statements about Ariki saying “hello” or the Woodridge/Gold Coast Group looking at them were true.
Leticia noticed Bella among the Woodridge/Gold Coast Group. She said “we” knew her from school and “we just sort of looked at her”. She did not recognise anyone else in the group. She thought she might have said to Shae “I think that’s Bella” and she thought Shae, who knew Bella, might have waved at her. But that was about it for any interaction between the groups. She said there was no discussion in her group about the Woodridge/Gold Coast Group. She said they barely even noticed them.
Shae (who was 20 at trial) noticed the Woodridge/Gold Coast Group. She observed that they were a pretty big group but did not pay too much attention to them. She recognised Isabella. She had been at Shae’s high school and Shae dated her brother “for a little bit”. Shae said she “kind of waved” at Isabella but that was it. She could not recall any interaction between the groups apart from her wave. She thought Isabella might have given a little wave back, but she could not recall. She thought she waved at Isabella while her group were standing in front of the ice-cream shop.
Under cross-examination by counsel for OCP, Josiah agreed that he gave truthful evidence before the Crime and Corruption Commission when he said that there was talk about drugs at the beach (about MDA and “coke” being better in Sydney) but that there was not really a conversation about drugs at Boost Juice. He agreed that he was telling the truth when he said to the Commission that the Woodridge Boys said, “Oh, there’s nothing to do here. We want to party”, but that nothing specifically was said about drugs. He agreed that he was telling the truth when he said to the Commission that there was no talk about robbing someone for money; and that he was telling the truth when he said the Woodridge Group did not ask him whether he knew anyone they could do over for drugs. He added, at the Commission, that the Woodridge Group might have had a different conversation with the girls in his group, because they did not tell him about Mount Druitt.
Jack Beasley’s Group moved to a bench while waiting for Izaiah and Rory to return from the shops/ATM
Jack Beasley’s Group waited for two of its members (Izaiah and Rory) to go to the 7-Eleven for cash, cigarettes, or to use an ATM. The CCTV footage shows they waited first in front of the ice-cream shop then moved to a bench which ran parallel to Cavill Avenue.
The view of the scene which I attended clarified that the bench occupied by Jack Beasley’s Group was not far from the bench occupied by the Woodridge/Gold Coast Group – much closer than it appeared in the CCTV footage – and generally in the line of sight of the Woodridge/Gold Coast Group as they sat on, or stood around, their own bench on the Corner.
Noah knew of no interaction between the groups when his group were sitting on the bench. He heard nothing said between the groups – although someone from his group said “they” were staring at them – and he told his group not to stare or look at them. Under cross-examination, Noah accepted that he was concerned about some angst building up between the groups.
Ariki said that while the groups were on their respective benches, he could see members of the Woodridge/Gold Coast Group looking at him and he was looking back towards them “every now and then”. He did not say anything to them. Shae did not recall any interaction between the groups while they were on their benches. She did not hear anyone say anything. Izaiah did not notice the Woodridge/Gold Coast Group when he returned to his group (after going to the 7-Eleven).
Jack Beasley’s Group left the Corner

Jack Beasley’s Group left the Corner to go to the gathering or party. Leticia explained that they were off to the Wyndham Apartments. They walked along Surfers Paradise Boulevard.
Noah said that as his group were heading down Surfers Paradise Boulevard, he did not look at the Woodridge/Gold Coast Group. Izaiah said he had nothing to do with them. He did not make eye contact with them. Leticia said there was no interaction between the groups as her group was leaving the area. Shae said the same thing.
The Woodridge Group decided to follow Jack Beasley’s Group along Surfers Paradise Boulevard
In her 93A evidence, Hunter said that when Jack’s group started walking towards the Novotel on the main road, “they were like “do you know those boys” like “who are they”. She said Bella was like “nah you can’t touch them like that’s my cousin”.
Hunter said she got up and started walking “knowing what was going to happen”. She said –
… and then they started moving towards those boys and they were like, they were like yeah let’s go boys like let’s go and then Bella, Sarah and Jizzy started walking towards me and that’s the last we seen of them.
Hunter said that the boy asking whether her group knew the boys in Jack Beasley’s group and saying “let’s go” was the “dark looking Asian one”. She had described him earlier in her 93A interview as follows –
… he was dark um he looked like sort of Asian but he’s probably like Samoan or something. I don’t know where I know him from but I’ve seen him like a few times I think … he was a little bit chubby … he’s maybe a little bit taller than me and he was wearing I think he was wearing all black … he had a shaved head … I’m pretty sure he was wearing a T-shirt and some white track pants or something but in the photos I’m pretty sure he was wearing a jumper … [he looked about] 16 or 17
She distinguished this “dark looking Asian one” from (a) a boy with fair skin, wearing all black with black TNs and a black TN hat, with, she thought, blond hair, who was later on the tram without a shirt (HLC [Surname redacted]); (b) the other boy on the tram (Maljay Toala); (c) the boy who sat next to her with a side bum bag – Louis Vuitton or Gucci – wearing a black top, black TNs and shorts and a hat; white skin but tanned (OCP [Surname redacted]). I infer that the chubby, dark looking Asian one to whom she referred was PLA.
She said that the rest of the Woodridge Group were “just like sort of getting ready” – and gestured to demonstrate them doing up their clothing. (See the recording at 34:04 – 34:10). She was asked, “Getting ready for what” and she said, “to go do them over I guess”. She said the Woodridge Group were “like staunching up, like shirting up and stuff”. But she was “like nah like they’re not going to do anything they’ve gone now” (I presume she meant Jack Beasley’s Group) but they “got the call” – that is, the call later in the evening to say there had been a stabbing near the IGA. (The CCTV footage does not show a member of the Woodridge Group “shirting up” before following Jack Beasley’s Group, but Maljay pulled a singlet over the bottom half of his face while following Jack Beasley’s Group.)
In her evidence-in-chief in court, she said that there was no talk within the Woodridge/Gold Coast Group about Jack Beasley’s Group “until we all got up”. She said –
… when we all got up and they went their way – as in, the boys that we were sitting down with – I think they, kind of, just started walking fast after Jack’s group started walking away.
She was asked whether there was any conversation among the Woodridge Group, or with her, about Jack Beasley’s Group as they walked off. She said she thought “they” were just like, ““Let’s go boys”. Like, “We’ve got this”, or something”. She did not remember who of the Woodridge Group said that. She said that the Woodridge Group followed Jack Beasley’s Group, as they walked towards the Novotel. She described the speed at which they left as “a fast walk”.
Josiah was shown the CCTV footage of the Woodridge Group leaving the area to follow Jack Beasley’s Group, including his shaking OCP’s hand but he could not expand upon what was going on at the time. Josiah said, under cross-examination by counsel for HLC, that he could not remember any whistling; nor did he recall anyone yelling out or saying “oi cunt”.
The fight and its lead up
Izaiah was walking with Rory, at the back of the group. He said his group was “pretty spread out”. He said that one member of the Woodridge Group came up to him “a bit before the IGA”. From photographs, he identified OCP as that person.
OCP asked Izaiah whether “the boys walking in front” of Izaiah were his “boys”. Izaiah said they were. OCP asked Izaiah to call them over. Izaiah called out to them – although he could not remember who he called out to. He was still with Rory. When he called out, the rest of the group turned to see what was going on. Izaiah did not notice anyone but OCP at this point.
Then, “they” walked to the front, to get in front of everyone – that is, the person he spoke to “and a couple more”. He did not realise that they were the same people he’d seen at Cavill Avenue. He thought the same person (OCP) then said, “We’re going to go for a walk”.
He said the Woodridge Group “just got in front of us and started, like, trying to walk us somewhere”. At that stage, the Woodridge Group were facing away from Jack Beasley’s Group. According to Izaiah, that changed when his group said they were not going for a walk. He said one of the boys at the front of his group – he was not sure who – told the Woodridge Group they were not going. Then the Woodridge Group – he thought there were four of them – “turned around” and two of the four “started shaping up”. He said his group tried to keep walking and then “they” pushed Jack. Jack threw his cigarette at the person who pushed him and then the fight “kicked off”. Izaiah remember the people at the front “charging” at Jack and Ariki. He remembered Jack falling over. When the fight broke out, Izaiah was “towards the front, at the side a bit”. When he saw members of the Woodridge Group running at Jack and Ariki, he ran in. He “grabbed a guy off Jack” and wrestled with him a couple of metres away. Then it was pretty much over. He did not see anyone armed with anything. He only saw the injuries on Ariki and Jack when it stopped.
Under cross-examination, Izaiah agreed that while he thought it was OCP who asked him whether the boys in front of his were his boys, he was possibly wrong.
The following part of his statement, which he’d provided to police the day after the fight, was put to him –
We had been walking for about five minutes. At this stage Rory and I were about 10 metres behind Josh, Jack, Ariki and Noah, when Rory and I were approached by a group of five Māori males from behind. I didn’t recognise any of these males and I’d never seen any of them before. They started asking Rory and I to call our boys over so we could go for a walk.
Izaiah’s testimony from the committal hearing was also put to him – where he said that, to start with, it was not just one or two, it was the five members of the Woodridge Group.
Then, his statement to the prosecutor, from 6 May 2022, was put to him in which he identified “the one in the grey jumper” ([Surname redacted]) as the person who had asked whether he was with the boys ahead. He was asked whether he remembered saying that to the prosecutor Mr Fuller and he said, “I think I remember saying it was the other one after that … about five seconds after”.
I assumed his prior statements were put to show the changes in his recollection about OCP approaching him.
Izaiah agreed that it was readily apparent that some members of the Woodridge Group wanted to fight his group. He agreed that he was not “politely declining” – he was being upfront and told them to “fuck off”. He said he understood that the Woodridge Group were inviting his group for a fight, and he agreed that once the fight started, he “got into it”.
The CCTV footage of what was occurring just prior to the fight breaking out was shown to him. He agreed that (on the footage) it sounded like Jack was saying to OCP and PLA “what what” – but he could not remember that. He was asked whether he remembered what PLA said to Jack as he was pointing across the road (as shown on the footage) and he said “He said, “Come down here” and was motioning towards a place to go and fight.
Rory was at the back of Jack Beasley’s Group, with Izaiah, as they walked to the apartment. He said, “We started walking down, and then we noticed one of them come up behind us or beside us”. He said he first noticed the Woodridge Group as they were “calling out as they were running down”. He said the Woodridge Group was trying to get the attention of his group. He could not recall if he turned to look when they were calling out. He said one of the Woodridge Group put his arm around Izaiah and started asking “various questions and stuff”. He identified that person (though he was not 100 per cent sure) as OCP [Surname redacted] from photographs shown to him. He said OCP said, “Come for a walk” and “What are you guys up to tonight” and asked questions about where they were going “and stuff”. OCP was the only one doing the talking. The other members of the Woodridge Group were a metre or two metres behind OCP.
Rory recalled that his group was configured with himself and Izaiah at the back; Josh, Noah and the girls in the middle; and Jack and Ariki at the front. He said Izaiah said to OCP, “Move your arm off me”, or “Get off me” or something along those lines. When the members of his group turned around Jack told the Woodridge Group to go away and leave them alone. He said that the Woodridge Group “started getting frustrated, and … started moving closer towards everyone else at the front”. When they got to the front, that’s when the fight started, where they “started exchanging words and slurring and pushing”.
He accepted, under cross-examination, that he might have been wrong about/he was not 100 per cent sure of his identification of OCP as the person who put his arm around Izaiah. His statement to police, in which he described that person, was put to him. That person’s description did not match OCP’s and he accepted that he may have been mistaken when he said that it was OCP who spoke to Izaiah.
Also under cross-examination, he agreed that he accepted that he told Mr Fuller on 6 May 2022, that “they” put their arms around Izaiah; “Izaiah was just saying “No””. He was not sure if the girls got involved/said no. He agreed that he told Mr Fuller that “they” called out to Jack and he said, “Fuck off”. I assumed the questions were designed to make the point that he had not identified OCP as the person who put their arm around Izaiah or called out to Jack.
Rory said that when the Woodridge Group started walking through Jack Beasley’s Group, Jack and Ariki were at the front, as were all of the members of the Woodridge Group. The first thing that happened was that “they” pushed Jack. Rory thought Jack pushed back and then “they” hit him. He continued –
Then the fight just, kind of, started, and then they started hitting Ariki and Ariki hit back. And then one of the pushed Jack to the ground, and that’s when – yeah.
He said that he did not “really” get involved in the fight. He could not recall punching or grabbing anyone or anyone punching or grabbing him. He saw a hoodie over someone’s head but did not otherwise see anyone with a covered face. He saw Jack injured when he was pushed to the ground. He saw Jack and Ariki hit a few times. He could not recall anyone else from his group being involved in the fight.
Rory did not know what to do when he saw Jack injured. He was overwhelmed and upset. He identified PLA as the person who pushed Jack. He said PLA was “just getting angry” at that stage and saying, “Let’s fight”.
Under cross-examination by counsel for OCP, Rory said he remembered Jack taking off his bag and his hat to get ready to fight. He agreed that it was pretty obvious that there was going to be a fight. He agreed that Jack was shaping up to one person and Ariki to another. He could not recall PLA inviting Jack across the road.
Josh was also at the back. He thought there was a “little conversation” when “they” caught up with his group. He could not remember who “they” were. Josh thought that the people who caught up with him were trying to stop his group. He thought one of them went around to the front of his group to stop them.
Noah thought that someone – it might have been Josh – said that the Woodridge Group were following them. He was not too sure what he did. But it wasn’t long after that that “they just walked through our group and kind of broke us up”. He could not remember whether anything was said. He said one member of the Woodridge Group stopped his group – but he did not know who. He said that as the Woodridge Group walked through his group –
… he, like, stopped in front of us, like, I think they might have said something to someone else. I don’t know
MR FULLER: So when they stopped in front of you was the first time you can recall something being said?--- Yeah. Well, he, like, walked in the middle and then turned around and started squaring up.
By reference to photographs, he identified OCP as the person who turned and squared up. He was asked what happened after “that person” went through and turned around, and he said –
He started – what happened, they told us to walk around the corner and then we just said, “No. Like, we’re not walking around the corner, and we don’t know who you are” you know what I mean. And then they – they just really wouldn’t take no for an answer.
MR FULLER: So who was doing the talking? --- I think it was OCP. I’m not sure though.
Okay. What about in your group? Who was responding to them? --- Well, I was just saying we didn’t want to fight. I don’t know if the others were talking, but I was just saying, you know, we didn’t want to fight.
What happened then? --- Yeah, I guess they just wouldn’t take no for an answer and kept fight – kept trying to fight us.
All right. Now a fight happened. Can you recall how that started? What’s your memory of it? --- Not really. It all kind of – it’s just blurry for me now, hey. It just went really fast.
All right. Did you end up in a fight with anybody? --- Nah. I said we didn’t want to fight, and I remember someone was in front of me with a knife. That’s when I took a step back and said, you know, we don’t want to fight, obviously.
He thought the guy with the knife was in a hoodie. He said he went into shock when he saw the knife. He thought he saw Ariki involved in the fight. He did not see Jack. He did not see RSG use the knife.
Under cross-examination, this part of the statement Noah had given to police (shortly after the incident) was put to him –
The next thing, the group walked up through the middle of us, and one of them wanted to fight Izaiah, and they were saying for us to go around the corner. One of them wanted to fight Jack. One wanted to fight me. They wanted to fight all of us.
Noah agreed that that was in his statement. He was not asked whether it was true. I assumed that it was put to show a different recollection of things, or perhaps in support of the argument that the fight in contemplation by the defendants was a consensual one.
Noah agreed that it got to the stage that it was apparent that there was going to be a fight. He agreed that people were getting angry “on both sides”.
Ariki thought he was trailing at the back when the fight started – with the rest of his group in front of him. He was pretty sure Jack Beasley might have been at the front. He said –
One of the boys was at the back and he walked past me and I’m pretty sure I said, ‘How’s it going?” to him and he said – asked if I was rolling with them and I said, “Yeah” and then he went all quiet and that’s when I thought something was up.
Ariki could not describe the person he spoke to. When shown a photograph of the Woodridge Group he said he recognised PLA [Surname redacted] and RSG [Surname redacted] but could not remember whether he spoke to one of them.
He heard someone say to Jack “Come for a walk down the alleyway”. Ariki was still at the back of the group when that was said. He could not remember Jack’s response.
Josh too heard someone say “Come down this alley” but he could not identify who spoke. He said, “It was just back and forth conversation, and next thing [indistinct] started – or there was this big fight that broke out”. He thought it was Jack who engaged in the back-and-forth conversation, but he did not remember.
Josh remembered seeing a glimpse of the knife but after that, he could not remember anything. He said he did not get involved in the fight himself. He did not remember hitting anyone. He did not remember whether anyone hit him. He could not remember whether he saw Ariki being injured – although he saw Ariki’s injuries when the fight came to an end. He saw Jack injured but could not say whether he saw him injured during the fight. He could not remember Jack or Ariki fighting with anyone.
Under cross-examination, it was established that Josh incorrectly told police, in a statement which he gave very soon after the incident, that all of the Woodridge Group had masks on and three of them had knives. (I noted that at least two of the Woodridge Group held Gatorade bottles, which Josh may have mistaken for weapons.)
For Ariki, everything from the fight starting until he ended up in hospital was “a blur”. He did not realise that he was injured during the fight. He did not realise that he was injured until he saw Jack injured.
He could not remember being in a fight with anyone in particular. He could not remember throwing punches himself, although in cross-examination, he remembered shaping up to someone from the Woodridge Group and he accepted that his “expectation” was that he was “going to have a fight with this other fellow”. He did not see anyone else in his group involved in the fight – although in cross-examination, he agreed that Jack was shaping up to another member of the group. He did not hear anything said while the fight was going on.
To support an argument that the fight between the groups was consensual, counsel for OCP suggested to Ariki that, from his point of view, he thought the groups were going to fight. Ariki actually thought the Woodridge Group intended to “rob” Jack, as follows –
MR McGUIRE: … from your point of view you thought you were going to be having a fight with the other group; correct? --- Correct. With the group that was trying to rob Jack.
With the group that was trying to? --- Rob Jack.
Rob Jack. Where did you get that idea from? --- From when he said, “Come for a walk down the alleyway”.
All right. Did you not take that as an invitation to a fight? --- Yes.
Ariki had seen Jack drink beers earlier. He did not see Jack “take any eccies” [MDMA]. Ariki knew that Jack’s brother was a good fighter or boxer and that Jack used to train with him. He agreed, “hundred per cent”, that Jack was not the type of person to get pushed around.
Josh agreed, in cross-examination by Mr McGuire, that his perception of things was that the Woodridge Group wanted to fight his group. He agreed that he recalled someone saying “Come down this alley. Let’s have a crack; let’s have a fight”. He agreed that he perceived that the Woodridge Group wanted to have a fight, “and then it got to the stage where there was going to be a fight”. He did not remember Jack or Ariki shaping up.
Leticia said “it all sort of happened” when her group was in front of the IGA. She said it happened really fast.
She thought she and Shae were on either side of Jack at the front of their group, just having a conversation. She thought she remembered “some of the boys coming around the side of us and they were trying to say, “Come on. Let’s go for a walk.” You know, trying to act all tough”. In cross-examination, she described it as “trying to act hard” and added “but they’re not”. She understood that the Woodridge Group were inviting a fight.

Keenan’s conviction for doing grievous bodily harm with consent was, in effect, restored.
After noting that the purpose alleged by the Crown was the purpose of inflicting some serious harm on Coffey, Hayne J (with whom Heydon and Crennan JJ agreed) said –
[86]It is important to recognise that the second question presented by s 8 – was the offence that was committed an offence of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose? – can be answered in the affirmative even if the possibility that the conduct actually committed would occur was not shown to have been adverted to by any participant in the common intention. So much followed from the fact that what is a “probable consequence” is to be determined objectively.
[87]In considering that objective question it will always be necessary to pay very close attention to what is identified as having been the common intention to prosecute an unlawful purpose. But is it necessary to bear steadily in mind that formation of the common intention to prosecute an unlawful purpose may not have been accompanied by any consideration, let alone detailed consideration, of what was to be done, how it was to be done, and who was to do what to bring about the intended purpose. In such cases there will be no direct evidence that the parties to the common intention adverted to the possibility that an offence of the nature of the offence that was committed would be committed; there will be no evidence that the parties to the common intention were aware that commission of the crime that was committed was a probable consequence. Yet as Gibbs J said in Stuart v The Queen, “in fact the nature of the offence [may be] such that its commission was a probable consequence of the prosecution of the common unlawful purpose”.
[88]Whether it was, is a question for the jury. It is a question that in this case required an examination of what inferences were to be drawn from the whole of the evidence. While it may be accepted that the evidence did not require the inference that the common intention was to inflict serious physical harm on the victim by whatever means seems appropriate and were available, that inference was open and could be drawn beyond reasonable doubt.
…
After setting out the ways in which the Court of Appeal erred, his Honour said –
[91]As Kiefel J demonstrates, the real issues at the respondent’s trial were whether there was a common intention and what was that intention. Whether the shooting of the victim was an offence of such a nature that its commission was a probable consequence of the unlawful purpose depended upon what that intention was. And the trial judge rightly told the jury to consider whether the shooter had acted “independently of and outside the common intent, or was [his carrying a gun his] reflection of a reasonable means of implementing” the common intention. It was neither necessary nor appropriate for the trial judge in this case to do more.
R v Huston
Huston intended to rob a drug dealer. He was concerned that the dealer might have others with him, so he recruited Krezic to help. Krezic had a knife with him. Huston told him explicitly not to use it and “just to use his hands”. Huston told him he didn’t want to go for killing someone. Krezic stabbed the drug dealer nine times – two of which, to the aorta and the kidney, were the likely fatal wounds. After the stabbing, Huston said to Krezic numerous times, “What the fuck did you do that for?” Huston was convicted of murder, but his conviction was quashed and a re-trial ordered, because the trial judge had not identified for the jury the evidence which was relevant to the question of the nature of the common unlawful purpose.
Another ground of appeal, which did not succeed, concerned the directions on “probable consequence” during which the judge occasionally used the word “likely” instead of “probable”. The Court held that there was no reasonable prospect that the occasional use of the word “likely” caused the jury to apply a “less demanding test”, rather than follow the specific direction of the need to be satisfied that a “probable consequence” of the unlawful purpose was that the person attacking the deceased would have the intention of doing the deceased a least grievous bodily harm. In dealing with that ground of appeal, the Court observed at [28] that requiring the prosecution to prove, beyond reasonable doubt, a “probability of outcome” was a “necessary protection to prevent an excessively wide liability for an alleged party to an offence”. (my emphasis)
With respect to the successful ground of appeal, the Court said at [44] that the common purpose question “requires a jury to consider the states of mind of each of the participants” (my emphasis):
… It requires a determination of what the common intention was, as distinct from what was intended by only one of them. As Brennan CJ, Dawson and Toohey JJ said of this question in R v Barlow, the intention of a party may be determinative of the extent of that party’s criminal liability because that intention defines what their Honour’s called “the content” of the common purpose”. As they observed, “[t]hat common intention prescribes any restriction on the nature of the act done or omission made which the secondary offender is deemed to have done or made”.
At [45], the Court dealt with the notion of an expanded or escalating common purpose –
Where the purpose is one which will or may involve the use of actual violence, there will often be an issue, as there was in the present case, as to what was the level of violence which was commonly intended. In another such case, R v Ritchie, McPherson JA (with the agreement of Helman and Chesterman JJ) said (my emphasis):
“Before some other individual can … be held criminally responsible under s 8 for an event (such as the death of the deceased) that ensues from such acts of excessive violence that are not his or her own, it is essential that the jury be satisfied either that the event was a probable consequence of the violent originally intended by all; or that that other individual shared in the expanded intention to inflict more serious violence than had first been planned. Otherwise, the intention will not be ‘common’ to him or her. The expression ‘escalating’ violence is sometimes used to describe actions which take place after a relatively modest beginning; but it is necessary, if s 8 is not to produce serious injustice, to establish that an accused person alleged to be responsible under its terms be proved to have formed and to have shared the intention to inflict more serious violence than was originally in the common contemplation of all concerned”.
The Court accepted that there was evidence which supported the defence case that the stabbing of the deceased was not a probable consequence of that which Huston and Krezic had intended, because Huston had expressly rejected the use of the knife in the plan to rob the deceased. The Court said that if the jury accepted that evidence, then they could have concluded that it was outside the common intention that a level of violence where a weapon – in particular a knife – would be used. The jury could have found that the common intention included a restriction on the nature of the offence for which the secondary offender would be criminally responsible.
Reasoning to verdicts
As above, I was required to find a defendant guilty of Jack Beasley’s manslaughter and Ariki Waiariki-Katuke’s grievous bodily harm if I was satisfied, beyond reasonable doubt, that –
(a)the particular defendant and RSG [Surname redacted] and PLA [Surname redacted] formed a common intention to prosecute an unlawful purpose with each other;
(b)RSG killed Jack and caused grievous bodily harm to Ariki in the prosecution of the unlawful common purpose; and
(c)viewed objectively, manslaughter and the doing of grievous bodily harm were probable consequences of the prosecution of the unlawful common purpose – that is, consequences which may well have occurred, given the nature and scope of the common purpose contemplated by the particular defendant.
I was satisfied of (a) beyond reasonable doubt in relation to each defendant. I was not satisfied of (b) or (c) beyond reasonable doubt in relation to any defendant. It was my duty therefore to acquit each defendant of every count.
(a) An unlawful common purpose?
Each of the defendants submitted that the prosecution had failed to establish, beyond reasonable doubt, that their common purpose was unlawful. Each defendant argued that all they had in contemplation was a “consensual fight” with Jack Beasley’s Group. They argued that a consensual fight was to be distinguished from “an assault” – with involved a lack of consent on the part of Jack Beasley’s Group. Each argued that, if I was left thinking it was reasonably possible that all a defendant had in contemplation was a consensual fight, then that defendant had to be acquitted of every offence.
There was very little elaboration on the nature of the “consensual fight” said to be in contemplation by the defendants – except in the case of Maljay who told police he thought there was to be a “one-on-one”.
I found it fanciful to think that these youthful defendants, intent on a fight for something to do, gave any thought at all to the “rules” of their intended engagement with Jack Beasley’s Group. I rejected the suggestion that the Woodridge Group had in contemplation only some sort of evenly balanced affair – where each blow was met with a blow of equal force; which only happened if Jack Beasley’s Group wanted it to happen; and which ceased whenever Jack Beasley’s Group wanted it to cease. The Woodridge Group wanted to fight with Jack Beasley’s Group. As far as they were concerned, there was nothing else to do at Surfers Paradise. And they wanted to “win”.
Members of Jack Beasley’s Group made it plain, more than once, that they had no interest in a fight with the Woodridge Group. They did not know the Woodridge Group. They had not spoken to them or otherwise engaged with them beyond perhaps glancing at them. They could not fathom why the Woodridge Group were interested in them. And they had a party or a gathering to go to just a short distance away.
Members of Jack Beasley’s Group told the Woodridge Group more than once to “fuck off” or to go away or to leave them alone. But the Woodridge Group did not leave them alone. I found that they were not going to drop their plan lightly. They’d covered some distance to confront Jack Beasley’s Group.
Also, I struggled to understand how Jack Beasley’s Group could have consented to a fight with the Woodridge Group – which included RSG [Surname redacted] – without knowing that RSG [Surname redacted] was armed (even though I was required to consider this matter on the basis that the nature of the fight in contemplation by the Woodridge Group was not one which anticipated RSG’s possession or use of the knife). How could Jack Beasley’s group meaningfully consent to a fight with the Woodridge Group without being informed that RSG was concealing a knife? Although I raised this issue, no-one touched on it in their closing submissions.
Although Jack and Ariki ultimately prepared themselves to fight – I found that that was at a time when they had no real choice about the matter. PLA became violent – despite Jack Beasley’s Group asking to be left alone. I found that Jack Beasley’s incredulous “what what what” was not an invitation to fight. It was his attempt to demonstrate that he was affronted by the conduct of the Woodridge Group. It was perhaps his attempt to show that he was not going to let his friends be pushed around. But it was not in any real sense his acceptance of the “invitation” to engage in a fight with the Woodridge Group. Nor could it be said that he was in any position to consent to a fight with the Woodridge Group, not knowing that one of their number was wearing a knife.
I rejected Maljay’s statements that he thought the fight would be a “one on one”. While I am not suggesting that he bore an onus, he pointed to no evidence which would provide a basis for that belief. And there was nothing about the approach to Jack Beasley’s Group to support it. Nothing suggested that it was intended that each group would, for example, nominate one of their number to fight, or that there would be any attempt to set ground rules, pairing one young man off with another.
I was satisfied, beyond a reasonable doubt, that each of the defendants were parties, with RSG and PLA, to an unlawful common purpose to pursue, assault and cause physical harm to the members of Jack Beasley’s Group. I was satisfied, beyond reasonable doubt, that the defendants did not only have in contemplation a “consensual fight”.
As to the nature and scope of that purpose, the Crown did not allege that the Woodridge Group intended to do anything more than “physical harm” with fists and perhaps feet, after pursuing and assaulting Jack Beasley’s Group.
The Crown did not allege that the Woodridge Group initially (at the Corner, when the common purpose was formed) intended Jack Beasley’s Group serious physical harm.
Plainly RSG’s purpose escalated to the point at which he intended very serious harm, somewhere between the Corner and when he pulled out his knife to fight. But the Crown did not allege that the intention of any of the defendants escalated in common with RSG. The case was conducted on the basis that the defendants never intended serious harm.
I found that the Woodridge Group wanted to win. I found that their unlawful common purpose contemplated resistance from Jack Beasley’s Group and that they would use their fists and perhaps their feet, as a group, to win over Jack Beasley’s Group. I found that the extent of the harm subjectively contemplated by each of the defendants was limited to the sort of bruises, knocks and cuts young men sustain when they get into an unarmed fight.
The question for me then was whether an unintended death or the doing of grievous bodily harm were probable consequences of the level of violence contemplated by the defendants’ unlawful common purpose.
(c) Was death or the doing of grievous bodily harm, objectively, a probable consequence of the unlawful common purpose?
I will deal with this question before dealing with the question whether RSG’s actions were in furtherance of the unlawful common purpose.
In accordance with my extensive review of the authorities, the “probable consequence” question for me was to be approached and understood as follows –
(a)The practical effect of section 8 is, in substance, to impose criminal responsibility for an unintended, but objectively not unexpected, result of the carrying out of an unlawful plan or purpose.
(b)The law aims to place limits upon accessorial liability/responsibility, ensuring that it is not excessively wide, whilst also giving it substantial room for operation. The law is concerned to ensure that the application of section 8 does not produce serious injustice.
(c)The protection against excessively wide criminal responsibility under section 8 is found in the need for proof, beyond reasonable doubt, of probability of outcome – that is, a party bears criminal responsibility for the crimes of another, if crimes of that nature were probable consequences of their common purpose – independently of the party’s state of mind.
(d)Probable consequences of an unlawful common purpose are determined objectively. In this case, it does not matter that a particular defendant did not intend or anticipate or foresee the fight with Jack Beasley’s Group ending with manslaughter or the doing of grievous bodily harm.
(e)A finding that an offence is a probable consequence of an unlawful common purpose requires more than it being a substantial or real possibility of occurring. Many more consequences are possible, even really possible, than are probable. Reaching a conclusion on possibilities is easier for the mind than having to decide that something is “a probable consequence” of the actions and purposes of others.
(f)The expression “a probable consequence” means that the occurrence of the consequence must be probable as distinct from possible, but it need not be more probable than not. It must be probable in the sense that it could well have happened.
(g)The focus of the question is on whether the nature of the offence committed is such as to be a probable consequence of the common purpose, bearing in mind the scope and content of the common purpose.
(h)When considering whether an outcome is a probable consequence of a common purpose, the means by which the outcome was achieved is not always relevant but it may be. It may be relevant where the common purpose involved the carrying out of a specific act.
(i)Here, the question is not whether a fatal or near fatal stabbing was a probable consequence of the Woodridge Group’s plan to pursue, assault and do physical harm. The question is whether an unintentional death (however so caused) or the doing of grievous bodily harm (by whatever means) were probable consequences of the common plan as alleged. In other words, the question is whether the kind and degree of violence contemplated by the common purpose or plan to pursue, assault and do physical harm was such as to make death or the doing of grievous bodily harm a probable consequence of it.
(j)A matter critical to criminal responsibility under section 8 is proof of common intention. It is possible for two or more persons to start off with a limited common intention of using physical force of a relatively moderate degree against their victim. Matters may then get “out of hand” to such an extent that one or more of the original participants engages in acts of violence beyond the level of force initially contemplated. Before a person may be held criminally responsible for an act of excessive violence committed by another, the finder of fact must be satisfied, beyond reasonable doubt, that the event (here, death or grievous bodily harm) was a probable consequence of the level of violence originally intended by all or that the other person shared in the principal actor’s expanded intention to inflict more serious violence than had first been planned. In the present case, RSG plainly exceeded the original plan alleged by the Crown. But the Crown did not suggest – and I was therefore not required or permitted to consider – whether any of the present defendants shared in his expanded intention.
In this case, treating the case against each defendant separately, I could find nothing in the words or conduct of any defendant or in any of the evidence to suggest that the group attack they had in contemplation was the sort of attack which carried, objectively, as more than a substantial possibility, death or grievous bodily harm as outcomes.
It was not alleged by the Crown that the defendants intended serious harm. Nor was it alleged by the Crown that they intended to rob anyone in Jack Beasley’s Group. And the Crown disavowed any suggestion that the unlawful common purpose contemplated the presence of the knife on RSG’s person during the fight.
I found that the Woodridge Group were motivated to fight for the sake of it. They were prepared to fight as a group without any thought to one-on-one “fairness”. And, as Mr Fuller said, they were arrogant enough to believe that they could easily deal with Jack Beasley’s Group. They approached them confidently. They presented as tough. They were keen either as participants or as spectators. But there was nothing for the Woodridge Group to avenge; nor any history between the groups; nor any grudge; nor any purpose to the fight – things which might have motivated serious violence.

Objectively, notwithstanding their inflated views of themselves, the fight contemplated, and indeed embarked upon by the defendants, was a scrappy sort of fist fight.
It is true that force delivered via fists and feet may possibly cause serious injuries and sometimes death. And it is true that there were no rules applying to the fight in contemplation. But to say that something tragic may possibly happen in a fist fight is not enough to render the defendants criminally responsible for RSG’s unexpectedly violent behaviour using a weapon they had not anticipated would be used in the fight.
On the evidence in this case, I was not persuaded that death or grievous bodily harm were anything more than possible consequences of each defendants’ common purpose.
In other words, I was not persuaded, beyond reasonable doubt, that, objectively viewed, the fight in contemplation by any of the defendants was one which could well result in death or grievous bodily harm – applying the authorities as outlined above. Those outcomes were possible and tragically, they occurred. But it cannot be said that the violence the defendants had in contemplation was such as to warrant a finding, beyond reasonable doubt, that death or the doing of grievous bodily harm were outcomes of it which were more than just possible, every substantially possible, but which could well happen.
As discussed above, Mr Fuller suggested that, in Maljay’s case, I might read into his fist bump with RSG, after the stabbing, his contemplating a level of violence which carried, as a probable consequence, whether he intended it or not, death and grievous bodily harm.[7] I concluded that I could not use that gesture to infer anything about the level of violence contemplated by Maljay when the unlawful common purpose was formed. I could not negate the possibility that the fist bump related to RSG’s behaviour in the fight, which, as explained below, went well beyond the scope of the unlawful common purpose.
[7]I note that in Stuart v The Queen (1974) 134 CLR 426, in finding that Stuart knew that Finch would light the fire at the Whiskey-a-Go-Go nightclub when patrons were likely to be present (thus rendering their intentional killing a probably consequence of the common purpose to commit arson), Gibbs J took into account the fact that Stuart did not reproach Finch about having lit the fire while people were in the nightclub.
The Crown having not persuaded me, beyond reasonable doubt, that death or grievous bodily harm were probable consequences of the nature and scope of the fight the defendants contemplated, I was required to find each of the defendants not guilty.
(b) Whether RSG acted in furtherance of the unlawful common purpose in killing Jack and doing grievous bodily harm to Ariki?
Having found that an unintentional killing and the doing of grievous bodily harm were not, beyond reasonable doubt, probable consequences of the unlawful common purpose, there was no need for me to dwell on this final aspect of section 8. It is enough to say that I was not persuaded, beyond reasonable doubt, that RSG acted in furtherance of the common unlawful purpose by stabbing Jack and Ariki.
The Woodridge’s Group’s purpose was to fight for the sake of it. The defendants did not intend serious harm. They wanted to show off their prowess or strength or toughness. They did not anticipate that RSG would use his knife in the fight. Killing and seriously injuring the other young men within seconds of the fight starting was wholly outside their purpose.
Conclusion
As explained above, I was not satisfied, beyond reasonable doubt, that any of the defendants were guilty of any of the offences charged on the indictment. In other words, I was not satisfied, beyond a reasonable doubt, that they bear criminal responsibility for RSG’s unexpected actions and their tragic consequences.
RSG acted well beyond anything that, objectively, fell within the probable consequences of the defendants’ plan to pursue and fight with Jack Beasley’s Group.
It was my duty therefore to find each defendant “not guilty” of every count and to discharge them all on the indictment.

CITATION:	R v OCP & Ors [2022] QSC 138
PARTIES:	THE QUEEN v OCP , MALJAY TOALA & HLC
FILE NO/S:	Indictment 638/22
DIVISION:	Trial Division
PROCEEDING:	Criminal Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	7 July 2022
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2022 – 25 May 2022; 30 June 2022
JUDGE:	Ryan J
ORDER:	OCP Count 1 – Not guilty Count 2 – Not guilty Count 3 – Not guilty Maljay Toala Count 1 – Not guilty Count 2 – Not guilty Count 3 – Not guilty HLC Count 1 – Not guilty Count 2 – Not guilty Count 3 – Not guilty Each defendant is discharged on indictment 638/22.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MANSLAUGHTER – GRIEVOUS BODILY HARM –VERDICT – where defendants were three of a group of five teenagers, who were charged with manslaughter and doing grievous bodily harm, as parties to offences of murder and of intentionally doing grievous bodily harm committed by the principal offender (one of the group of five) – where the principal offender carried a knife – where the defendants’ group followed another group of teenagers, unknown to them, for the purposes of engaging the other group in a fight – where the groups fought – where the principal offender stabbed and killed one member of the other group and intentionally did grievous bodily harm, by stabbing, to another – where the defendants did not intend or anticipate or foresee those outcomes – where defendants’ criminal responsibility alleged to be on a section 8 basis: that is, where the Crown alleged that manslaughter and the doing of grievous bodily harm were objectively probable consequences of the defendants’ unlawful common purpose, with the principal offender and another, to pursue, assault and do physical harm to the other group of teenagers – where the Crown did not allege that defendants were aware that the principal offender would bring his knife to the fight – where Crown did not allege that defendants’ group intended to do serious physical harm to members of other group – judge alone trial
COUNSEL:	T A Fuller QC for the Crown G M McGuire for OCP C L Morgan for Maljay Toala M J Hynes for HLC
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Legal Aid Queensland for OCP Legal Aid Queensland for Maljay Toala Gatenby Criminal Law for HLC