R v Taz; R v SED

[2023] QSC 292

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAZ; R v SED [2023] QSC 292

PARTIES:

R
v
TAZ

R
v
SED

FILE NO:

Indictment No 1731 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2023; 5 December 2023; 6 December 2023; 7 December 2023; 11 December 2023

JUDGE:

Cooper J

VERDICT:

TAZ guilty of murder.

SED not guilty of murder but guilty of manslaughter.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MURDER – INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY – where the two defendants were each 14 years old at the time of the alleged offence – where a friend of the deceased offered to sell the defendants cannabis – where a disagreement arising from the deal occurred in or near a toilet block – where the defendants followed the boy who sold them the cannabis from the toilet block for some distance – where the boy who sold the cannabis walked passed the deceased and handed him a knife – where the deceased approached the defendants with the knife and knuckledusters – where one of the defendants stabbed the deceased in the chest – where the defendants were charged with murder – where the trial proceeded by a judge sitting without a jury – whether the defendant’s actions in stabbing the deceased were in self-defence – whether the defendant’s actions in stabbing the deceased were as a result of provocation – whether the defendant’s actions in stabbing the deceased were by compulsion – whether the defendant’s actions in stabbing the deceased were unlawful – whether the defendant who inflicted the stab wound intended to at least cause grievous bodily harm – whether the involvement of the defendant who did not inflict the stab wound makes him criminally responsible by aiding, enabling or encouraging him or that the stabbing was a probable consequence of an unlawful common purpose

Criminal Code (Qld), s 7, s 8, s 24, s 31, s 245, s 246, s 268, s 271, s 272, s 273, s 291, s 293, s 300, s 302, s 303, s 304, s 576, s 615, s 644

Evidence Act 1977 (Qld), s 21A, s 93A

R v Dayney (No 1) (2020) 10 QR 638, cited
R v Dayney (No 2) [2023] QCA 62, cited
R v Gray (1998) 98 A Crim R 589, cited
R v Kerr [1976] 1 NZLR 335, cited
R v Saxon [2020] QCA 85, cited
R v Vidler (2000) 110 A Crim R 77, cited
R v Wilmot (2006) 165 A Crim R 14, cited
Stingel v The Queen (1990) 171 CLR 312, cited

COUNSEL:

C M Cook for the prosecution

P J McCafferty KC, with A I O’Brien and L E Gamble, for the defendant, TAZ

J Robson for the defendant, SED

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the prosecution
Jones & Associates for the defendant, TAZ

Legal Aid Queensland for the defendant, SED

Introduction

1. TAZ and SED are charged on indictment with the following offence:

   “That on the thirteenth day of March, 2020 at Redcliffe in the State of Queensland, [SED] and [TAZ] murdered ANGUS RICHARD BEAUMONT.”

2. Both defendants pleaded not guilty.

3. The defendants were both 14 years old on 13 March 2020.  The deceased, Angus Beaumont, was 15 years old.

4. The trial commenced on 4 December 2023 without a jury after orders to that effect were made pursuant to s 615 of the Criminal Code.

5. Section 615B(1) of the Criminal Code provides that, in a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.  If a statute or the common law requires information, a warning or an instruction to be given to the jury in particular circumstances, the judge in a trial by a judge sitting alone must take that requirement into account if those circumstances arise in the course of the trial.[1]  The judge may make any findings or give any verdict that a jury could have made or given if the trial had been before a jury, and any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.[2]  The reasons for the verdict must include the principles of law that the judge has applied and the findings of fact on which he or she has relied.[3]

   [1]Criminal Code s 615B(2)(a).

   [2]Criminal Code s 615C(1).

   [3]Criminal Code s 615C(3).

   Overview

6. Angus died from a stab wound to his chest.  He suffered that wound during an altercation with the defendants at about 8:10 pm on 13 March 2020.  He passed away a little over an hour later.

7. The altercation occurred near the entrance to a carpark adjacent to the Redcliffe Museum on Anzac Avenue in Redcliffe.  During that altercation, both defendants were armed with a knife.  Angus was also armed.  He wore knuckledusters and he held a knife given to him a few moments before the altercation by his friend, SJ.[4] 

   [4]SJ was 16 years old on 13 March 2020.

8. Earlier that evening, Angus had met up with SJ and two other friends, ST and NM.[5]  SJ had a number of knives and the set of knuckledusters in his backpack along with about 10 grams of cannabis.

   [5]ST and NM were both 15 years old on 13 March 2020.

9. There were two interactions between Angus’ group and the defendants on the evening of 13 March 2020, before the fatal altercation occurred.

10. The first interaction took place around 7:43 pm.  Angus and his group left the Redcliffe McDonald’s and walked south along the footpath of Oxley Avenue away from Anzac Avenue.  At the same time TAZ rode a bike with SED positioned on the handlebars north along the same footpath towards Anzac Avenue.  The groups crossed paths opposite the 7-Eleven service station on the corner of Oxley Avenue and Anzac Avenue.  SJ asked the defendants if they wanted to buy some cannabis.  SED indicated that they wanted to buy a stick of cannabis.[6]  He said that they needed to get the money for the transaction from a friend.  The two groups then separated for a time.

    [6]Although the prosecution opened the case on the basis that a “stick” was about 1.5 grams of cannabis, the evidence was that it was an amount of about 1.8 grams.  Nothing turns on this difference.

11. The second interaction occurred shortly after 8:00 pm. SED had called his friend NH,[7] and arranged for him to bring the money for the transaction to the Redcliffe skate park on Oxley Avenue. When NH arrived at the skate park he gave $25 to SED. The defendants and NH then went to meet Angus’ group to buy the cannabis. That transaction occurred outside a toilet block near the skate park. SED paid $25 to SJ. After receiving the cannabis, the defendants and NH went inside the toilet block to weigh it.

    [7]NH was 17 years old on 13 March 2020.

12. When TAZ came out from the toilet block he approached Angus’ group.  The prosecution case is that TAZ pulled out his knife and demanded that SJ give the defendants the remaining cannabis in his backpack.  The defendants contest the prosecution’s case about what took place when TAZ came out from the toilet block.  What is clear is that SJ and the others in his group backed away from the defendants before running from the area. 

13. Angus and SJ initially ran in the same direction.  ST and NM went another way.  The defendants followed SJ and Angus.  SJ and the two defendants quickly outran Angus.  After he had trailed SJ and the defendants for some distance, Angus turned back in the direction he had come from.  He then met up with ST and made his way to Anzac Avenue.

14. The defendants continued to follow SJ along a walking path which passed behind the museum before joining the footpath along Anzac Avenue.  SJ turned left and walked in an easterly direction along Anzac Avenue towards Angus and ST.  The defendants continued to follow SJ.  Angus walked towards SJ and as they passed each other at the entrance to the museum carpark, SJ handed Angus a large knife.  The fatal altercation then occurred between Angus and the defendants.

15. Parts of the events described above were captured on CCTV footage which was in evidence, including footage of the altercation between Angus and the defendants.  That footage appears to show TAZ swing his knife at Angus’ chest before Angus grabbed his chest and fell forwards to the ground. 

16. At the trial, there was no dispute that Angus died because of the stab wound to his chest or that the wound was inflicted by a knife used by TAZ.

    The case against TAZ

17. The particulars of the charge against TAZ are:

    “[TAZ] stabbed Angus Richard Beaumont.  When he stabbed him, he had at least an intention to do grievous bodily harm.”

18. By s 291 of the Criminal Code, the killing of another is unlawful unless it is authorised, justified or excused by law.

19. Section 293 of the Criminal Code provides that a person kills another if the person causes the death of that other “directly or indirectly, by any means whatever”. Section 300 provides that unlawfully killing another is a crime “which is called murder or manslaughter, according to the circumstances of the case”. Section 302 defines “murder” by prescribing the circumstances in which an unlawful killing constitutes murder rather than manslaughter.

20. The particulars provided by the prosecution in the case against TAZ raise the circumstance prescribed by s 302(1)(a) of the Criminal Code, namely:

    “302(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—

    (a)if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;

    …

    is guilty of murder.”

21. This means that in the case against TAZ, the elements of the offence of murder are:

    (a)Angus is dead.

    (b)TAZ caused Angus’ death.

    (c)TAZ killed Angus unlawfully.

    (d)TAZ intended, at the time he killed Angus, to kill him or to do him grievous bodily harm.

22. As already noted, the first two elements were not in dispute at the trial.

23. The critical issues in deciding whether TAZ is guilty of murder are:

    (a)whether TAZ’s actions were unlawful; and

    (b)whether, at the time he struck the fatal blow, TAZ intended to cause grievous bodily harm to Angus.

24. In considering the question whether the prosecution has proved beyond reasonable doubt that the killing of Angus was unlawful, I must determine whether the prosecution has excluded beyond reasonable doubt that the killing of Angus by TAZ was either self-defence against an unprovoked assault (s 271(2) of the Criminal Code), self-defence against a provoked assault (s 272 of the Criminal Code) or aiding in self-defence (s 273 of the Criminal Code).

25. If I am satisfied that the prosecution has proved the third and fourth elements of the offence of murder beyond reasonable doubt, I must also consider whether the partial defence of provocation (s 304 of the Criminal Code) is available to TAZ.

26. Manslaughter will be established where the prosecution proves beyond reasonable doubt an unlawful killing (the first three elements of the offence of murder) but do not prove the circumstances which make the unlawful killing murder (the fourth element): see ss 300 and 303(1) of the Criminal Code.

27. By s 576 of the Criminal Code, manslaughter is an alternative verdict on a count of murder. A person charged with murder may be convicted of manslaughter on the count of murder if manslaughter “is established by the evidence”: see s 576(1) of the Criminal Code.

28. If I am satisfied that the prosecution has proved the elements of manslaughter beyond reasonable doubt, but not the additional mental element of intent required to establish the offence of murder, I must consider whether the prosecution has excluded beyond reasonable doubt the defence of compulsion (s 31 of the Criminal Code).

    The case against SED

29. The particulars of the charge against SED articulate the prosecution case on two bases:

    “1.[SED] aided, enabled or encouraged [TAZ] to murder Angus Richard Beaumont by doing the following:

    -pursuing [SJ] while he and [TAZ] were armed.

    -being deliberately present at the scene on Anzac Avenue, in company with [TAZ], while they were armed.

    -moving towards and attempting to injure Angus Richard Beaumont.

    2.[SED] engaged with [TAZ] in the common unlawful purpose of armed robbery.

    In the course of the common unlawful purpose, [TAZ] stabbed Angus Richard Beaumont, with the intention of causing at least grievous bodily harm.

    [TAZ]’s action, with that intention, was a probable consequence of engaging in the common unlawful purpose.

    The death of Angus Richard Beaumont was caused by [TAZ]’s act.”

30. Those particulars raise the party provisions of the Criminal Code, namely s 7(1)(c) and s 8.

31. The issues as to the application of s 7(1)(c) are:

    (a)if SED aided TAZ, whether he did so intending to help him to commit the offence of murder;

    (b)whether SED had actual knowledge or expectation of the essential facts of the offence of murder, including TAZ’s state of mind.

32. The issues as to the application of s 8 are:

    (a)whether SED and TAZ had a common intention to pursue the unlawful purpose of an armed robbery of SJ;

    (b)whether TAZ stabbed Angus in the prosecution or furtherance of the common purpose of an armed robbery of SJ;

    (c)whether TAZ’s stabbing of Angus was of such a nature that it was a probable consequence of the prosecution of the common purpose of an armed robbery of SJ.

    Principles governing the trial

33. The burden rests on the prosecution to prove the guilt of the defendants.  The defendants are presumed innocent and there is no burden on either of them to establish their innocence.  The defendants may be convicted only if the prosecution establishes that they are guilty of the offence charged or some other offence of which they may be convicted on the indictment.

34. For the prosecution to discharge its burden of proving the guilt of a defendant of an offence, it is required to prove, beyond reasonable doubt, that the defendant is guilty of that offence.  This means that to convict I must be satisfied beyond reasonable doubt of every element of the offence charged and, in the case against SED, the basis of his criminal responsibility for it.  If I am left with a reasonable doubt about the guilt of a defendant, my duty is to acquit; that is, to find that defendant not guilty.  If I am not left with any such doubt, my duty is to convict; that is, to find the defendant guilty.  Proof beyond reasonable doubt is the highest standard of proof known to the law. It may be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities.  That is, the case must be proved to be more likely than not. In a criminal trial the standard of satisfaction required for conviction is much higher; the prosecution must prove the guilt of each defendant beyond reasonable doubt.

35. I have not been influenced by public opinion about these offences in general, or in this particular case, nor what I might expect public opinion to be about any particular verdict I might return.

36. I have dismissed all feelings of sympathy or prejudice: whether it be sympathy for, or prejudice against, either of the defendants or anyone else including the deceased, his parents, his family, or his friends.  I have approached my duty dispassionately, deciding the facts upon the whole of the evidence.

37. I have not drawn any adverse inference because the defendants have been charged with murder and are in custody on remand.  I have not drawn any adverse inference from the fact that the defendants were guarded while in the dock.  That is a daily occurrence in a criminal court.

38. Although I have found that the defendants purchased cannabis from SJ prior to the fatal altercation, I have not reasoned from that fact to finding that the defendants were the sort of persons who would commit the offence charged.

39. From the cross-examination of a number of prosecution witnesses it was apparent that they had given evidence at a previous trial.  The fact that there was an earlier trial is irrelevant.  I have not drawn any inference adverse to the defendants because there was a previous trial.  I have considered the case upon the evidence placed before me during this trial and that evidence alone.

40. I have decided the case on the evidence which has been presented to me in court and only that evidence.  That evidence consists of the testimony of the witnesses that I have heard, the exhibits and the formal admissions that have been made.  I have not taken into account any outside information or other outside influence.  I have not made my own enquiries or investigations about the case or anyone connected with it.

41. I have approached the task of reaching a verdict on the basis that I may accept evidence in whole or in part.  It is for me to decide whether I accept the whole of what a witness says or only part of it or none of it.  I have accepted or rejected such parts of the evidence as I have thought fit.  It is for me to decide whether a witness is telling the truth and correctly recalls the facts upon which he or she has testified.

42. In this case, I have drawn inferences from proven facts.  That is, I have used evidence circumstantially by using facts, which I accepted as having been proved, in an indirect or circumstantial way as pointing to the existence of another fact.

43. I have approached the drawing of inferences on the basis that any inferences must be reasonable ones drawn from the evidence.  I have not engaged in speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and, if I do, what weight or significance it should have.

44. I have drawn inferences bearing in mind that where there are reasonable inferences consistent with guilt and reasonable inferences consistent with innocence, I must not draw an inference consistent with guilt.  Further, I must not convict either defendant based on inferences unless I have excluded beyond reasonable doubt any reasonable inference consistent with innocence.  Guilt must be the only rational inference.  These principles are an incident of the burden of proof which rests upon the prosecution.

45. Neither of the defendants gave evidence or called other people to give evidence on their behalf or otherwise produced evidence.  That was their right.  The defendants were not obliged to add to the evidence of the prosecution.  The fact that a defendant did not get into the witness box and give evidence is not evidence against him.  It does not constitute an admission of guilt by conduct.  Nor may it be used to fill in any gaps in the prosecution case.  It proves nothing at all.  I have not assumed that, because each defendant did not give or call evidence, that adds in some way to the case against him.  I have not considered it at all in deciding whether the prosecution has proved its case beyond reasonable doubt.  The fact that the defendants did not give evidence does not make the prosecution’s task any easier.  It does not change the fact that the prosecution is responsible for proving the guilt of the defendants beyond reasonable doubt.

46. One of the witnesses, Mr Heggie, gave evidence by audio-visual link.  I have not given his evidence any more or less weight or drawn any inferences against either defendant because the evidence was given in that way.

47. Dr Phillips, a forensic pathologist, gave opinion evidence as an expert witness.  The ordinary rule is that witnesses may only give evidence about facts and not express their opinions.  An exception to the general rule is that persons qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise.  Dr Phillips’ expertise was not challenged.  She was clearly qualified to give opinion evidence as to:

    (a)the injuries she observed on Angus;

    (b)the medical effect of those injuries upon Angus;

    (c)the cause of those injuries; and

    (d)the cause of Angus’ death.

1. The fact that witnesses such as Dr Phillips are referred to as experts does not mean that their evidence must automatically be accepted.  I am the sole judge of the facts and I am entitled to assess and accept or reject any such opinion evidence as I see fit.  It is up to me to give such weight to the opinions of expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness and whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved.  It is up to me to decide what weight or importance I give to their opinions or indeed whether I accept their opinions at all.  It is important to remember that an expert’s opinion is based on what the expert witness has been told of the facts.  If those facts have not been established to my satisfaction, the expert’s opinion may be of little value.

2. When SED was located by police on 15 March 2020, he made a statement before he was cautioned.  A recording of that statement was tendered as part of the prosecution case against SED.  The question for me in this trial is whether I am satisfied of the guilt of each defendant on each charge on all the evidence placed before me, which, in the case of SED, includes his statement to police.

3. What SED said in his statement to police may only be used in the case against him.  I have only acted on statements made by SED if I am satisfied that the statements are true and accurate.

4. Two of the prosecution witnesses, ST and NM, were children at the time they were spoken to by police about the relevant events. Their conversations with police were electronically recorded and the electronic record was tendered under s 93A of the Evidence Act1977 (Qld). The electronic record formed part of their evidence-in-chief. The receipt of the evidence of children in this way is routine. I have not given it disproportionate weight and have not considered it without also considering the cross-examination of each of those witnesses.

5. The s 93A evidence, and the recording of SED’s statement to police at the time of his arrest, was accompanied by transcripts of the recordings. Those transcripts are an aid only. They are an unknown person’s opinion about what the witness said. It is what I saw and heard which is evidence. If I heard something which differed from the transcript, then it is my view which has prevailed.

6. In estimating the weight to attach to the evidence of ST and NM, I have had regard to all of the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of their s 93A evidence, including whether the statements made during their s 93A evidence were made contemporaneously with the occurrence of the facts to which they related—in this case, most of the statements were made on the night of the incident and in the following few days—and whether either child witness had any incentive to conceal or misrepresent the facts. In this case, both ST and NM accepted that the version of events they first gave to police was inaccurate in important respects. ST said this was due to her wish to avoid SJ getting into trouble for selling cannabis. NM said it was because of the effect which epilepsy has upon his memory, as well as the distressed emotional state he was in after Angus’ death. I have taken those matters into account in considering the s 93A evidence.

7. ST and NM are important witnesses in this case.  I have approached the task of reaching a verdict bearing in mind the need to scrutinise the evidence of each of them with great care before arriving at a conclusion of guilt.  That is not to say that I cannot act on the evidence of either of ST or NM.  But I have only done so if I was convinced of its truthfulness and accuracy.  In scrutinising ST’s evidence, I have borne in mind her conduct in the immediate aftermath of the fatal altercation in removing knuckledusters from Angus’ hand, hiding SJ’s backpack found to contain knives and in (admittedly) lying to police.  In scrutinising NM’s evidence, I have borne in mind his evidence as to the effect his epilepsy has upon his memory and the defendants’ submissions about the trouble NM has in understanding what effect the condition has upon his memory.

8. Pursuant to an order made under s 21A of the Evidence Act 1977 (Qld), NM gave his evidence at the trial via video link from a room that was separate from the courtroom. When he gave his evidence there was a support person sitting in the room with him, and no other person, in conformance with the court order. I have not drawn any inference as to the defendants’ guilt based on the way NM gave his evidence at the trial. I have not treated NM’s evidence as having any increased or decreased probative value, nor have I given that evidence any greater or lesser weight, because of the way it was given.

9. The cross-examination of ST was interrupted due to a medical issue for which she attended hospital.  It recommenced when ST was able to return to court to finish giving her evidence.  I have not drawn any inference from that interruption of the cross-examination.  I have not treated ST’s evidence as having any increased or decreased probative value, nor have I given that evidence any greater or lesser weight, because of the interruption of her cross-examination.

10. The prosecution submitted that I should have regard to post-offence conduct as evidence of consciousness of guilt.  Before using post-offence conduct as indicative of the defendants’ guilt, I must first find that the defendants acted in the ways relied upon by the prosecution because they knew they were guilty of the offence charged and not for any other reason.  I must remember that people do not always act rationally and that conduct of this sort can often be explained in other ways: for example, as the result of panic, fear or other reasons having nothing to do with the offence charged.  Before evidence of post-offence conduct can assist the prosecution, I would have to find not only that it was motivated by a consciousness of guilt on the defendants’ part but also that what was in their minds was guilt of the offence charged, not some other misconduct.  It is only if I reach the conclusion that there is no other explanation for the post-offence conduct that I may use that finding as a circumstance pointing to the guilt of the defendants, to be considered with all the other evidence in the case.

11. Finally, although the defendants have been tried together, each is entitled to have his case decided solely on the evidence admissible against him.  In this case, apart from things said by each defendant to police when they were located—which are only admissible in the case against the defendant who made the statement—the evidence presented by the prosecution was admissible against each of the defendants. 

12. I have given the cases against each defendant and for each defendant separate consideration.  I have separately considered the evidence admitted in relation to each defendant and have returned separate verdicts in respect of each defendant.

    The evidence

13. The following witnesses were called to give evidence in the prosecution case:

    (a)Detective Sergeant John Fleming;

    (b)Detective Senior Constable Andrew Childs;

    (c)Senior Constable Andreas Winnington;

    (d)Senior Constable Kylie O’Sullivan;

    (e)Senior Constable Anthea Johnston;

    (f)NH;

    (g)ST;

    (h)NM;

    (i)Daniel Craig Heggie;

    (j)Keiron Cundy;

    (k)Blaine Vette;

    (l)Lachlan Robertson;

    (m)SJ; and

    (n)Dr Bianca Phillips.

14. A number of exhibits were also received in evidence.  All were tendered by the prosecution.  These included:

    (a)maps of the area where the events occurred;

    (b)CCTV footage of the events;

    (c)a number of still images taken from the CCTV footage;

    (d)photographs of a bike located by police at a house where TAZ’s father lived approximately 2.3 kilometres from the skate park;

    (e)a photograph of a $20 note found in SJ’s possession when he attended Redcliffe police station after the events;

    (f)photographs taken of each defendant by police in March 2020;

    (g)photographs taken by police of relevant locations around the area of the skate park: a bus stop on Oxley Avenue; the toilet block where the defendants and NH weighed the cannabis; the amphitheatre near the youth centre; and the carpark entrance area where the fatal altercation occurred;

    (h)a photograph of the knuckledusters Angus was wearing during the altercation;

    (i)photographs taken by police of the location where backpacks that SJ and ST had with them that evening were found, as well as the contents of those backpacks;

    (j)a large knife located by police in SJ’s backpack;

    (k)the recording of a statement made by SED to police when he was arrested;

    (l)recordings of things said by TAZ when he was located and taken into custody;

    (m)an extract of text messages sent between SED and an associate shortly after the incident;

    (n)recordings of conversations which ST and NM had with police;

    (o)signed police statements made by NM.

15. Pursuant to s 644 of the Criminal Code admissions of fact were made.  At the commencement of the trial, the following admissions of fact were made:

    “1.Those depicted in the CCTV footage on 13 March 2020 are accurately referred to by name.

    2.On 13 March 2020, Angus Beaumont left home at about 3.30pm.

    3.Police records indicate:

    a.At 8.10.43pm on 13 March 2020, [ST] called 000.

    b.At 8.12.25pm on 13 March 2020, Kieron Cundy called 000.

    4.At 8.22pm on 13 March 2020, Queensland Ambulance Service (QAS) arrived at the scene.  Queensland Police were already on the scene when QAS arrived.  Paramedics cut Angus Beaumont’s jacket and shirt off and attempted to treat him.

    5.At 8.28pm Angus Beaumont was transported by ambulance from the scene.

    6.At 8.30pm the ambulance arrived at the Redcliffe Hospital Emergency Department where Angus Beaumont received further treatment.

    7.At 9.14pm Angus Beaumont was declared deceased.

    8.Angus Beaumont’s body was transported to Queensland Health Forensic and Scientific Services in Brisbane where a postmortem examination was performed by Dr. Bianca Phillips on 15 March 2020.”

16. The following further admissions of fact were made before the prosecution closed its case:

    “1.[SED] was born on [redacted] May 2005.  On 15 March 2020 Youth Justice recorded his height as 158 centimetres and weight as 46.6 kilograms.

    2.[TAZ] was born on [redacted] December 2005.  On 15 March 2020 Youth Justice recorded his height as 171 centimetres and weight as 59.6 kilograms.

    3.Senior Constable Barry Horne arrived at the scene about 8.15 pm on 13 March 2020.  Soon after this he approached and spoke to the witnesses [ST], [SJ] and [NM], who were together.  He was the first police officer to speak to them.  Their conversation was recorded on the officer’s camera.[8]

    [8]He spoke to [NM] alone approximately 8 minutes into his recording.  Part of this conversation became exhibit 41.

    4.According to records from the Queensland Ambulance Service (QAS), at 8.33pm QAS received a call in response to [NM] suffering a seizure.  The ambulance arrived on the scene at 8.41pm and [NM] was triaged at the Caboolture Hospital at 9.40pm.

    5.In May 2022 [NM] attended the Director of Public Prosecutions’ Brisbane office.  During the conference, he was taken through his written statement dated 14 March 2020.  Mr Cook’s clerk at the time made the following summary: ‘[NM] said he remembers this differently.  [NM] said the defendants asked how much [SJ] had, then [SJ] opened up his bag and showed them.  Then the defendants said they were going to get some money from their mate’s place.’  The note of the conference does not record any further detail being sought from or provided by [NM] concerning [SJ]’s bag.

    6.There are no police records which indicated that [NM] had previously provided the information which is summarised at [6] (sic, [5]).

    7.On 3 June 2022, [NM] gave evidence at the first trial of this case.  In his evidence he was not directly asked and did not otherwise say anything about the knives being in a different section of [SJ]’s bag to the cannabis.

    8.On 16 March 202 (sic, 2020) [NH] spoke to police.  He took part in a video recorded interview with them that day before he completed and signed his written statement.  In that interview the following occurred:

    … Question from the police officer: ‘Is [SED] standing next to you when you weighed it?’

    Answer from [NH]: ‘Yeah he was standing next to me for a couple of seconds and ran out’

    Question from the police officer: ‘Is that when you hear the screaming?’

    Answer from [NH]: ‘Yeh’

    Question from the police officer: ‘Okay, but before you hear the screaming, before [SED] runs out, do you and [SED] have any conversation when you are in the toilet together?’

    Answer from [NH]:  ‘No.  He was like ‘it better weigh up properly’ and then ran out.’

    9.On 2 June 2022, [SJ] gave evidence in the first trial of this case.  His cross-examination included:

    Q: All right. Did you show them your cannabis?---A: No.

    Q: Did you show them your bag?---A: No.

    …

    Q: Did you talk to them about how much cannabis you had?---A: No.

    …

    Q: Well, the truth of the matter is, you never saw the little one (with reference to the defendant [SED]) with a knife at any time, did you?---A: No.

    …

    Q: After you came across these other boys on the side of the road, across from 7-Eleven, when you first had that conversation with them – after you came across them, at any stage after that, before police arrived, did you have any knives in your hand?---A: Yes.

    Q: What knife was it?---A: Had the black switchblade in my hand.”

17. Those admissions were sufficient proof of the facts stated therein, without the need for further evidence of those facts.

    CCTV footage

1. The CCTV footage commences with footage from the McDonald’s near the intersection of Anzac Avenue and Oxley Avenue in Redcliffe.  Angus and his group arrived there shortly before 7:00 pm on 13 March 2020.  They purchased food and ate it at a table outside the restaurant.  Both SJ and ST can be seen wearing black backpacks.  ST’s backpack is distinguishable due to the white “Adidas” logo on the front pocket.  The group were at McDonald’s for approximately 45 minutes.

2. After leaving McDonald’s, CCTV footage from cameras at the 7-Eleven service station on the corner of Oxley Avenue and Anzac Avenue shows Angus’ group walking south down Oxley Avenue away from Anzac Avenue.  TAZ can be seen riding a bike towards Angus’ group from the opposite direction with SED on the handlebars.  The two groups begin to interact as they pass each other.  Footage taken from a traffic camera operated by the Department of Transport and Main Roads at the intersection of Anzac Avenue and Oxley Avenue records this first interaction commencing at about 7:43 pm. 

3. At about 7:45 pm members of Angus’ group begin to cross Oxley Avenue towards the 7-Eleven.  Angus’ group does not cross completely at that stage but returns to the same side of Oxley Avenue where they had met the defendants.  There then appears to be some further engagement between the two groups.  Angus’ group then crosses Oxley Avenue to the 7-Eleven.  The traffic camera records this happening at about 7:47 pm.  Footage from a CCTV camera at the 7- Eleven shows the defendants remaining on the footpath furthest from the service station and then, when Angus’ group crossed over to the 7-Eleven, moving off south along Oxley Avenue back in the direction they had first come from.

4. CCTV footage taken from a camera located at the skate park on Oxley Avenue shows NH arriving by car at about 8:01 pm.  He gets out the front passenger door.  The driver remains in the car.  NH walks northwards through the skate park towards the adjacent youth centre.  He meets the defendants at the northern end of the skate park at about 8:04 pm.  NH can be seen passing something to SED.  SED can be seen carrying a satchel type bag at his left hip, with the strap over his right shoulder.  TAZ does not have a bag with him.  The defendants and NH move north away from the skate park towards the youth centre.

5. There is other evidence that the drug transaction occurred near a toilet block attached to the youth centre building.  The transaction was not captured on any CCTV footage.

6. CCTV footage taken from a camera located outside the toilet block shows the defendants and NH entering the toilet block together.  The internal light of the toilet block appears to be off when they enter and does not appear to be turned on during the period the defendants and NH are inside.

7. After about 10 seconds, TAZ is shown emerging from the toilet block alone.  His right hand is visible as he leaves the toilet block and he does not appear to be carrying anything in that hand.  His left hand remains obscured as he walks away from the toilet block due to the angle from which the CCTV footage was captured.  TAZ remains outside the toilet block for about 10 seconds.  In that time, he walks less than 5 metres away from the toilet block before he turns around to face the toilet block, pauses briefly and then returns inside.  As he returns to the toilet block his left hand remains obscured, appearing to be in the left pocket of his shorts.

8. About 10 more seconds pass, then TAZ comes out again and walks away from the toilet block.  The CCTV timestamp when he leaves the toilet block the second time is 8:06:48 pm.  As he leaves the toilet block TAZ’s left hand is visible.  He does not appear to be carrying anything in that hand. 

9. SED is then shown leaving the toilet block about 13 seconds after TAZ at 8:07:01 pm.  By that time SED has been in the toilet block with NH for 42 seconds.  SED moves in the same direction as TAZ, but appears to be running.  As he emerges from the toilet block his left hand is near the top of his bag on his left hip.  He then brings that left hand to meet his right hand before he passes out of camera’s view.

10. NH is shown leaving the toilet block about six seconds after SED at 8:07:07 pm.  He moves in the same direction which TAZ and SED had moved, but at a slower pace than SED.  As he leaves the toilet block he is holding his phone and the light on his phone is on.

11. CCTV footage taken from a camera above the amphitheatre at the youth centre, located on the other side of a wall from the toilet block, shows members of Angus’ group beginning to walk backwards for a few steps at 8:06:58 pm.  After several seconds (8:07:02 pm), one of the group turns and begins to run away from the area of the toilet block with two others following.  The fourth person, which appears to be ST, does not immediately run with the others.  Although the images are not clear, when the footage is slowed it appears to show that SJ was the first to run from the area outside the toilet block and that the defendants then run past ST and chase after the other members of Angus’ group.  After ST walks out of view, NH walks from behind the wall separating the toilet block and the amphitheatre (8:07:13 pm) and eventually sits down on a seat at the amphitheatre (8:07:46 pm).

12. The next available CCTV footage was captured by two cameras located near buildings situated between the youth centre and the museum.  Those cameras face northwards towards Anzac Avenue.  The first covers only a small section at the southern end of the carpark outside the museum.  The positioning of the second camera means it covers most of the carpark.  Those cameras both capture SJ running across the southern end of that carpark.  He is followed closely by TAZ who appears to be only a couple of metres behind.  SED then follows at a greater distance, perhaps five metres behind TAZ.  Angus can be seen trailing at a further distance, something closer to 10 metres behind SED.  At the point where SJ passes out of view in the footage from the second of these cameras, the timestamp is 8:07:33 pm.

1. Footage from the second of the cameras shows that, as he reaches the southern end of the carpark, Angus slows to a walk.  He raises his hands out wide in a gesture which suggests that he is either unable to see where SJ and the defendants have run or is unable to keep up with them any further.  He looks around as he walks to the far side of the carpark and then turns and walks back in the direction he had come from.  As he walks back, he can be seen pointing in the general direction of the intersection of Anzac Avenue and Oxley Avenue.  The time stamp when he passes out of view from the second camera covering the carpark is 8:07:53 pm.  

2. The CCTV compilation later returns to footage from the first of the cameras capturing the small section of the carpark.  It shows Angus walking back in the direction of the amphitheatre and meeting up with someone who appears to be ST.  The two of them walk in a northerly direction towards Anzac Avenue.  CCTV footage taken from a bus travelling in a westerly direction along Anzac Avenue appears to show three people dressed similarly and otherwise matching the appearance of Angus, NM and ST at a bus stop on Anzac Avenue to the west of the entrance to the museum carpark.  The time stamp on the footage when the bus passes the bus stop is 8:08:24 pm. 

3. After SJ runs through the southern end of the carpark, he comes to a walking path which travels in a north-easterly direction along a creek, passing behind the museum.  The footage shows that when he reaches the walking path, SJ turns left and proceeds along it towards Anzac Avenue.  TAZ and SED continue to run after him, however by this stage the pace of all three boys is beginning to slow.

4. As SJ moves along the path away from the defendants and passes behind the museum, the footage shows him looking back towards TAZ and holding his right hand up in the air.  SJ then appears to put that hand into his backpack.  As he does this, TAZ slows to a walk.  SED continues to follow a short distance behind TAZ and has also slowed to a walk.  When the footage between 1:11:13 and 1:11:17 of the CCTV compilation is slowed and viewed frame by frame, it appears to show TAZ holding an object in his left hand which reflects the light from a streetlamp.  As TAZ passes underneath that streetlamp his left hand is no longer visible as he appears to put it in the pocket of his shorts, or perhaps his hoodie.  When SED approaches the same streetlamp, he appears to be carrying something in his right hand.[9]

   [9]CCTV compilation at 1:11:23.

5. At this point the CCTV compilation proceeds to footage from a camera located just past the streetlamp referred to in the previous paragraph.  SJ has slowed and can be seen walking backwards, having turned back to face towards TAZ a second time.  He appears to be holding a thin object in his right hand.  He passes that object to his left hand and runs his right hand through his hair.  SJ’s gestures back to the defendants during this part of the chase appear to be attempts to appease or placate the defendants.

6. As TAZ walks into the frame from the left (CCTV compilation at 1:11:52 to 1:11:53), he now appears to be carrying a long thin object in his right hand.  SJ continues along the path to the point where it meets the footpath along the southern side of Anzac Avenue.  The defendants continue to walk after him.  By the time they reach the front of the museum, SED has drawn level with TAZ.  The CCTV compilation then shifts to footage taken from a camera positioned on the southern footpath of Anzac Avenue facing back along the path being travelled by SJ and the defendants.  That footage captures some of the same events referred to in the last three paragraphs but from further away.  As SJ proceeds past the front of the museum building towards the Anzac Avenue footpath he appears to close his backpack as he continues to walk away from the defendants.[10]  As the defendants continue to walk behind SJ both of SED’s hands are visible.  He does not appear to be holding anything in either of his hands.  TAZ’s right hand is visible and he does not appear to be holding anything in that hand.  TAZ’s left hand appears to be held inside the pocket of his hoodie.[11]

   [10]CCTV compilation at 1:13:12.

   [11]CCTV compilation at 1:13:26 to 1:13:31.

7. The critical CCTV footage was taken by the second camera referred to in [76], located at the southern end of the museum carpark facing north towards the carpark entrance.  The footage taken from that camera shows SJ walking west along Anzac Avenue after he had turned off the walking path.  The timestamp on the footage when he reaches the entrance of the carpark is 8:09:05 pm, about 90 seconds after the same camera had captured him running through the southern end of the carpark.  Angus can be seen walking east along Anzac Avenue from the direction of the bus stop.  SJ walks past Angus on a traffic island which divides the carpark’s entry lane and exit lane.   As he does so he appears to hand something to Angus.  After SJ passes Angus, the defendants can then be seen reaching the entrance to the carpark from the same direction as SJ.  At this point they are about the width of the entry lane from where Angus is standing.  SJ stands still while Angus takes three paces towards the defendants.  As he does so, he appears to be holding a large knife in his right hand, but he keeps both his hands by his sides. 

8. When Angus steps towards them, the defendants pause briefly and appear to take a small step back.  However, before Angus finishes taking his third step, both defendants move towards him.  SED moves faster than TAZ.  Angus takes two steps backwards as SED moves level with him, positioned to his right side.  TAZ is in front of Angus.  He appears to be holding a knife in his left hand as he moves towards Angus.

9. Angus then takes three steps towards TAZ.  TAZ responds by moving backwards to maintain about a metre distance between them.  As that happens, SED moves quickly towards Angus from his right.  Angus turns to his right to face SED.  He kicks out at SED and swings his right arm, holding the knife, in SED’s direction.  While Angus’ attention is on SED, TAZ moves forward quickly and swings his left arm towards Angus’ chest.  Angus then reaches for his chest with his left hand before falling forwards towards the ground. 

10. As Angus begins to fall to the ground SED turns away from him and moves several paces away from the carpark entrance.  At the same time TAZ continues to move towards Angus.  SED stops and turns back towards the carpark entrance appearing to wait for TAZ.  TAZ follows after SED and the two appear to touch hands briefly at waste level before running from the carpark in the direction of the amphitheatre.  NH, who can be seen riding the defendants’ bike from the southern end of the carpark at the time of the altercation, turns around and rides out of the carpark in the direction of the amphitheatre. 

1. As the defendants and NH depart, SJ can be seen placing his backpack on the ground near Angus.  He then appears to reach down and pick something up from the ground close to where Angus is lying and then returns to his backpack.

2. NH and the defendants meet back at the amphitheatre.  NH returns the bike to TAZ.  Before the defendants leave the area, NH appears to take something from his bag and give it to SED at the amphitheatre.

3. NH then leaves the defendants and runs back across the skate park to the car which he had arrived in.  The car leaves as soon as NH returns to it.

4. In the meantime, the defendants ride towards and then across Oxley Avenue, turning north and travelling past the 7-Eleven service station and then across Anzac Avenue.

   NH’s evidence

5. In his examination-in-chief, NH gave evidence that he had known both SED and TAZ for a couple of years before the events on 13 March 2020.  At that time, NH owed SED a “quarter”, or 7 grams, of cannabis.  That quantity of cannabis was worth about $100. 

6. On the afternoon of 13 March 2020, NH was visiting a friend who lived close to the Redcliffe skate park.  While he was there, SED called NH to tell him that he was coming to Redcliffe and wanted to get some of the drugs which NH owed to him. 

7. NH then received a second call from SED who told him that there were some people at the skate park that NH could “get on” from: that is, purchase cannabis.  SED wanted NH to give half of what he might purchase to SED to reduce the debt NH owed him.  SED and NH discussed purchasing a “stick” of cannabis for $25 from the people at the skate park.  SED asked NH to bring money to the skate park.  NH’s evidence was that a stick was about 1.8 grams of cannabis. 

8. When NH left to go to the skate park, he took $25 with him to pay for the cannabis as well as a set of digital scales.  He used scales to weigh cannabis every time he bought it to ensure he was not getting less than he had paid for.  He did not bring any weapons with him to the skate park.

9. NH had a friend drive him to the skate park.  He estimated that they arrived within five minutes of the second telephone call from SED.  Consistently with the CCTV footage, NH said that to the best of his knowledge his friend remained in the car from the time NH got out until the time he returned to the car about 10 minutes later.

10. NH said he walked through the skate park and met SED.  TAZ was with SED, although NH was not aware before he got to the skate park that SED and TAZ were together.  NH gave the $25 he had brought with him to SED.  He was shown a still image taken from the CCTV footage which shows him together with SED and TAZ at the northern end of the skate park.  He said he thought that was when he gave the $25 to SED.  After he gave the $25 to SED there was no further discussion about money that night.

11. NH said the person who supplied them with the cannabis was not anyone he knew or could remember seeing before.  His evidence was that the drug transaction took place a couple of metres away from the toilet block.  Otherwise, he could not remember what happened during the transaction.  He could not remember if there were other persons with the supplier.  He could not remember who was handed the cannabis by the supplier.

12. Eventually the cannabis was given to NH.  NH said that he went into the toilet block to weigh it on his scales.  He took it out of the plastic bag it had been supplied in and placed it on the scales which he positioned on a bench in the toilet block.  The digital screen on the scales showed that the cannabis weighed 1.8 grams.

13. NH said he thought SED went into the toilet block with him, but he was unable to say whether TAZ was also there.  He said there was no discussion while he was in the toilet block weighing up the cannabis.

14. While he was inside the toilet block NH heard some yelling outside but did not hear the specific words being yelled.  He did not know who was yelling.  At the time NH heard the yelling SED ran out of the toilet block.  NH did not know where TAZ was at that point in time.  After SED ran out NH came out of the toilet block and saw that everybody had gone.  He put the cannabis back in the plastic bag and took it with him.  He went to a seat in front of the adjacent amphitheatre and sat down and waited.

15. After sitting for about 3 or 4 minutes, NH heard yelling coming from his right.  He heard words to the effect of “come on cunt” being yelled but he did not know who was yelling.  He did not recognise the voice.  He then rode the bike which TAZ had previously been riding in the direction of the yelling because he thought that was where SED and TAZ could have been.

16. As NH rode towards the area where he heard the yelling coming from, he saw SED and TAZ running towards him.  NH then turned the bike around and rode back towards where he had been sitting at the amphitheatre.  As NH rode back towards the amphitheatre he heard TAZ say, “I stabbed him, bro”.

17. When he reached the amphitheatre, NH gave the bike back to TAZ.  He went to the stage so that he could divide the cannabis and give half to SED because he owed him.  NH saw TAZ and SED ride off and then he ran back through the skate park to his friend’s car.

18. NH said he did not see anyone with any weapons that night.

19. In cross-examination, NH said that in the time from when he met SED and TAZ until they ran away from the toilet block he was with at least one or the other of them.  He confirmed that over that period: nothing was said by either of them about weapons; nothing was said by either of them about threatening anybody; and nothing was said by either of them about stealing anything.  He never saw SED and TAZ discussing something secretly between themselves during that period.

20. NH recalled previously telling police that the cannabis which was given to him “looked pretty bad at the start, but then it weighed up properly.”  He accepted that he told police that because it was the truth; that before he weighed it, NH was concerned that the cannabis appeared to be underweight just from the look and feel of it.

21. As to the yelling or commotion he heard when he was in the toilet block, NH agreed that he understood that it might have been TAZ who was yelling and possibly also the people who had supplied the cannabis.  He said that he could not remember what words were yelled.  NH also could not remember SED saying anything to him before he ran out of the toilet block.  He agreed with the suggestion that the yelling or commotion took him by surprise because nothing that had gone on before he went into the toilet block led him to believe that sort of thing would happen.  He agreed that, from his observation of SED when he ran out, the yelling or commotion also seemed to take SED by surprise.  He agreed that SED did not appear to be waiting for any signal from anybody outside the toilet block.  He said that he had not finished weighing up the cannabis until after SED had left the toilet block.

22. NH acknowledged that, in a statement he provided to police, he described SED as having a squeaky voice.  He agreed that he said that because, at the time of the incident, SED had a distinctive high-pitched voice.  He agreed that SED’s voice was quite different to TAZ’s voice and that it was easy to tell their voices apart.  Later in the cross-examination he was asked questions about the voice he heard yelling “come on cunt” while he was waiting at the amphitheatre and which caused him to ride over in the direction of that yelling.  It was suggested to NH that, because he knew SED and TAZ and knew their voices, the fact that he didn’t recognise the voice which yelled “come on cunt” meant that it was not either of their voices which he heard.  Initially he responded to that suggestion by saying that he couldn’t remember.  Mr Robson then reminded NH of evidence which he gave at the first trial on 31 May 2022.  At that time, NH had agreed: that he did not recognise the voice; that he didn’t know what was going on when he heard someone say the words; and that it was probably fair to say that the voice wasn’t SED or TAZ because he recognised their voices.  He agreed he gave that evidence at the first trial because it was the truth.

23. NH was played part of the CCTV footage which showed him leaving the toilet block after SED had run out.  He agreed that footage showed that he had a mobile phone in his hand and that the torch light on the phone appeared to be on.  He further agreed that the reason the torch light was on was because there was no light in the toilet block.[12] 

    [12]SC Winnington, the officer from the scenes of crime unit who took photographs of the toilet block after the incident, was not able to recall whether the internal light in the toilet block was working.

24. NH was then asked about the statement which TAZ made to him as they returned to the amphitheatre after the incident.  He said that he recalled part of the statement he provided to police, when he was asked about what TAZ had said: “[TAZ] said to me, ‘I think I stabbed him’”.  He then agreed with the suggestion that it was possible that the words TAZ actually said to him as they left the carpark and returned to the amphitheatre were “I think I stabbed him, bro”.

    ST’s evidence

25. ST was SJ’s girlfriend at the time of the incident and they remained in a relationship at the time of the trial.  After the incident, ST spoke to police at the scene along with SJ and NM.  During that conversation ST said that she was sure that three people who approached her group all had knives.

26. ST then took part in four recorded conversations with Senior Constable Christopher Serchen at the Redcliffe police station.  The recording of each of those conversations was tendered.

27. The first recorded conversation took place between 9:06 pm and 10:24 pm on the night of the incident on 13 March 2020.  During that first conversation, ST began by giving a version of events in which she described her group having come from the 7-Eleven, crossing Oxley Road and sitting at a bus stop for about five minutes.  SC Serchen asked her if she saw or heard anything unusual while she was sitting at the bus stop.  ST told him she hadn’t.  She said her group was then walking to the skate park when three people approached them with knives.  She said this happened when the group was about to walk past the amphitheatre stage.  She said two of the people with knives approached SJ, coming straight at him. 

28. ST gave a description of the three people who approached the group.  Based on those descriptions, she referred to TAZ as person 1, to SED as person 2 and to NH as person 3.[13]  By the time she gave those descriptions and started explaining what each of the three people did she said that she had not seen the third person with a knife.

    [13]Although ST was asked and answered questions about “person 1” and “person 2” or the “taller boy” and the “shorter boy”, I have set out her evidence in these reasons by reference to TAZ and SED.

29. ST said she didn’t know if the three people came out of the toilet block or along the pathway next to the toilet block.  She said TAZ had a knife with a four-inch handle and a six-inch blade while SED had a smaller knife with a three-inch handle and a four-inch blade.  She saw TAZ pull his knife out of the waistband of his pants or his pants pocket, hold that knife flat out in front of him at about belly height and walk towards SJ.  She saw SED hold his knife down by his side.  She saw TAZ lunge at SJ’s gut with the knife.  She heard TAZ make a demand for SJ to give him something.  SJ backed away and the knife did not reach him.  ST’s group then ran.

30. ST said the group did not all run in the same direction.  NM ran towards the skate park.  SJ and Angus ran towards the bridge on the other side of the museum and were followed by TAZ and SED.  NH remained at the toilet area.  ST went towards the stage area of the amphitheatre.  She lost sight of Angus and SJ, as well as TAZ and SED who were following them.  She then came out and walked through the museum carpark and waited at the top of the carpark.  She then saw Angus and SJ coming from the main roadway[14] with TAZ and SED still following about 5 metres behind.  When Angus and SJ got to about where she was standing at the top of the museum carpark Angus turned around.  Angus said something like “fuck off” to TAZ and SED and then tried to have a swing at them but missed and tried to kick them but missed again.  She saw TAZ and SED holding knives at that time.  She saw TAZ try to swing with the knife in his left hand towards Angus’ right side but not make contact.  She saw SED yell out at Angus and jump around trying to intimidate him.  She didn’t see SED swing his knife at Angus.

    [14]I understood this to be a reference to Anzac Avenue.

31. ST said that she did not see Angus get stabbed.  After seeing Angus attempt to punch and kick TAZ and SED, she looked over towards SJ briefly.  When she looked back towards Angus, she saw him falling to the ground.  She then saw blood on the blade of TAZ’s knife.  She saw TAZ and SED run straight towards the skate park.

1. The defence under s 31(1)(c) has three elements:

   (a)actual violence was threatened to the defendant or to another person in the defendant’s presence; and

   (b)the violence threatened was unlawful; and

   (c)the act done by the defendant was reasonably necessary in order to resist the threatened violence.

2. The defence under s 31(1)(d) has four elements:

   (a)a threat was made of serious harm or detriment to the person or property of the defendant or another person; and

   (b)the person making the threat was in a position to carry it out; and

   (c)the defendant reasonably believed he or she or the other person was unable to escape the carrying out of the threat other than by the act alleged;

   (d)the doing of the act was reasonably proportionate to the harm or detriment threatened.

3. There is no burden on SED to prove the defence applies.  The burden rests upon the prosecution to exclude the application of the defence.  To do that the prosecution must prove, beyond reasonable doubt, that at least one of the necessary factual circumstances elements was not present.

4. The mere existence of a potential opportunity to render the threat ineffective by some alternative action is not determinative of whether an act is reasonably necessary.  Matters of degree are involved, and I should consider how apparent and realistic the potential opportunity was in light of all of the circumstances in weighing up whether the act was reasonably necessary to resist the threatened violence.

5. There might be a question as to whether, in considering the application of the defence to SED, the “act” referred to in s 31(1) is the act of TAZ as principal offender (stabbing Angus) or the acts by which I have found SED aided TAZ in the unintentional[47] killing of Angus (engaging in the fight together with TAZ).  It is not necessary for me to address that question because, whatever act is considered, I am satisfied that the prosecution has proved beyond reasonable doubt that the defence does not apply to SED.

   [47]In SED’s case for the reasons set out at [339]–[358].

6. As to the defence under s 31(1)(c), for the reasons set out at [280] to [281] and [306] I am satisfied that the prosecution has proved beyond reasonable doubt that the violence which Angus threatened to both TAZ and SED was lawful. Further, for the reasons set out at [287] and [308] I am satisfied the prosecution has proved beyond reasonable doubt that neither TAZ’s act in stabbing Angus nor SED’s act in engaging in the fight together with TAZ was reasonably necessary to resist the violence which Angus threatened. Accordingly, the defence under s 31(1)(c) does not apply to excuse either TAZ’s act, for which SED is criminally responsible under s 7(1)(c), or SED’s acts of aiding which render him criminally responsible.

7. As to the defence under s 31(1)(d), for the reasons set out at [287] and [308] I am satisfied that the prosecution has proved beyond a reasonable doubt that there were not reasonable grounds for:

   (a)TAZ to believe that he, or SED, was unable to escape the threat of harm other than by him stabbing Angus; or

   (b)SED to believe that he, or TAZ, was unable to escape the threat of harm other than by him engaging in the fight together with TAZ. 

8. Accordingly, the defence under s 31(1)(d) does not apply to excuse either TAZ’s act, for which SED is criminally responsible under s 7(1)(c), or SED’s acts of aiding which render him criminally responsible.

   Conclusion on the case against SED

9. I find SED not guilty of the murder of Angus Richard Beaumont.

10. I find SED guilty of the unlawful killing of Angus Richard Beaumont; that is, guilty of manslaughter.