R v Thrupp; R v Taiao; R v Walker; R v Daniels - [2024] QCA 134

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thrupp; R v Taiao; R v Walker; R v Daniels [2024] QCA 134

PARTIES:

In CA No 48 of 2021:

R
v
THRUPP, Trent Michael
(appellant)

In CA No 49 of 2021:

R
v
TAIAO, Davy Malu Junior
(appellant)

In CA No 54 of 2021:

R
v
WALKER, Waylon Ngaketo Cowan
(appellant)

In CA No 70 of 2021:

R
v
DANIELS, Stou
(appellant)

FILE NO/S:

CA No 48 of 2021
CA No 49 of 2021
CA No 54 of 2021
CA No 70 of 2021
SC No 1701 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 11 March 2021 (Boddice J)

DELIVERED ON:

In CA No 48 of 2021; CA No 49 of 2021 and CA No 70 of 2021: 30 July 2024

In CA No 54 of 2021:
Date of Orders: 16 July 2024
Date of Publication of Reasons: 30 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2023

JUDGES:

Mullins P and Bond JA and Livesey AJA

ORDERS:

In CA No 48 of 2021

1.   In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:

(a)   Appeal allowed.

(b) Convictions set aside.

(c)   New trial ordered.

2.   In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.

In CA No 49 of 2021

1.   In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:

(a)   Appeal allowed.

(b) Convictions set aside.

(c)   New trial ordered.

2.   In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.

Date of Orders in CA No 54 of 2021: 16 July 2024

1.   Appeal allowed.

2.   Convictions for manslaughter on counts 1 and 2 of the indictment set aside.

3.   Direct judgment and verdicts of acquittal of manslaughter on counts 1 and 2 of the indictment be entered.

In CA No 70 of 2021

1.   In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:

(a)   Appeal allowed.

(b) Convictions set aside.

(c)   New trial ordered.

2.   In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where two people were lured to a home unit, tortured by being detained at the unit, assaulted, bound, and placed in a toolbox and locked inside it, and then subsequently driven to a wetlands area and disposed of by being placed in the waters and weighed down by concrete and tyres, which resulted in their death by drowning or asphyxiation – where the Crown alleged that the extent of the involvement of the appellants in those events was such as would necessarily attract their criminal responsibility for murder as aiders pursuant to s 7 or s 8 of the Criminal Code (Qld) – where three of the appellants were convicted of murder and one was convicted of manslaughter – where each of the appellants contended the verdicts should be set aside on the basis that the Crown failed to prove they had the state of knowledge, intention or belief necessary to render them criminally responsible – whether the verdicts of the jury were unreasonable and could not be supported having regard to the evidence – whether the verdicts were unreasonable and not supported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellants contended the verdicts should be set aside on the basis that the Crown failed to prove they had the state of knowledge, intention or belief necessary to render them criminally responsible –– whether there were deficiencies in the particulars given to the jury for the case under ss 7 and 8 of the Criminal Code in that they did not identify the aspect of each appellant’s knowledge or intention rendering them liable – where the trial judge gave oral directions and written questions trails for each appellant – whether inconsistency between the oral directions and the question trails occasioned a miscarriage of justice by requiring the jury to reason in a way contrary to law in relation to s 7 liability for murder

Criminal Code (Qld), s 7, s 8, s 10A, s 291, s 300, s 302

Cliff v R [2023] NSWCCA 15, applied
Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, followed
Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37, cited
Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 663, applied
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, followed
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37, cited
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited
Puntigam v The State of Western Australia [2023] WASCA 46, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Barlow (1997) 188 CLR 1; [1997] HCA 19, followed
R v Butler & Lawton & Marshall[2011] QCA 265, considered
R v Dalton (2020) 3 QR 273; [2020] QCA 13, cited
R v Jeffrey [2003] 2 Qd R 306; [1997] QCA 460, followed
R v Keenan (2009) 236 CLR 397; [2009] HCA 1, cited
R v Licciardello [2018] 3 Qd R 206; [2017] QCA 286, followed
R v Mirotsos[2022] QCA 76, followed
R v Quagliata[2019] QCA 45, cited
R v Sherrington & Kuchler[2001] QCA 105, cited
R v Taylor[2021] QCA 15, followed
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

P J Wilson, and J M Goldie and N Edridge, for the first appellant (pro bono)
M Horvath and S F Lamb for the second appellant (pro bono)
D J Walsh for the third appellant
J R Cook for the fourth appellant
N W Crane for the respondent

SOLICITORS:

Bouchier Khan for the first appellant (pro bono)
Brighton Langley Law for the second appellant (pro bono)
Hannay Lawyers for the third appellant
Gilmore Lawyers for the fourth appellant
Director of Public Prosecutions (Queensland) for the respondent

CONTENTS

Introduction...................................................................................................................................................................... 7

Preliminary observations as to the importance to the Crown case of proof of relevant knowledge and intention 8

The section 7 case......................................................................................................................................................... 9

The section 8 case...................................................................................................................................................... 15

The case supported by the Crown’s evidence at trial......................................................................................... 18

The particular catalyst for the offending................................................................................................................ 19

Breton and Triscaru are lured to the Tav............................................................................................................... 19

Breton and Triscaru are tortured and placed in the toolbox................................................................................ 20

Cars leave the Tav...................................................................................................................................................... 26

The aftermath.............................................................................................................................................................. 29

The boot ride hypothesis........................................................................................................................................... 29

Focus on Daniels’ involvement............................................................................................................................... 31

Support for the particularised case..................................................................................................................... 31
Other relevant evidence........................................................................................................................................ 38
Evidence as to the state of Daniels’ knowledge and intention at relevant times........................................ 39

Focus on Thrupp’s involvement.............................................................................................................................. 41

Support for the particularised case..................................................................................................................... 41
Other relevant evidence........................................................................................................................................ 46
Evidence as to the state of Thrupp’s knowledge and intention at relevant times....................................... 46

Focus on Taiao’s involvement................................................................................................................................. 47

Support for the particularised case..................................................................................................................... 47
Other relevant evidence........................................................................................................................................ 51
Evidence as to the state of Taiao’s knowledge and intention at relevant times.......................................... 53

Focus on Walker’s involvement.............................................................................................................................. 53

Support for the particularised case..................................................................................................................... 53
Other relevant evidence........................................................................................................................................ 55
Evidence as to the state of Walker’s knowledge and intention at relevant times....................................... 57

Consideration of Thrupp’s appeal........................................................................................................................... 57

The appeal grounds.................................................................................................................................................... 57

Appeal ground 1: Verdicts unreasonable and cannot be supported................................................................... 58

Relevant principles................................................................................................................................................ 58
It was open to the jury to accept the inculpatory evidence of Harrington and Mareiti............................. 60
Further consideration – section 7 case............................................................................................................... 63
Further consideration – s 8 case.......................................................................................................................... 64
Conclusion.............................................................................................................................................................. 66

Appeal ground 3: Miscarriage of justice by inadequate particulars and directions concerning requisite knowledge, belief or intent........................................................................................................................................................................................ 66

The particulars were inadequate......................................................................................................................... 66
The trial judge’s opening remarks summarised the need to prove intention.............................................. 68
The Crown did not further clarify its case regarding intention..................................................................... 68
The directions in relation to the offences of murder....................................................................................... 69
Consideration......................................................................................................................................................... 71
Conclusion.............................................................................................................................................................. 74

Consideration of Daniels’ appeal.............................................................................................................................. 74

The appeal grounds.................................................................................................................................................... 74

Appeal ground 1: Verdicts unreasonable and cannot be supported................................................................... 75

The argument......................................................................................................................................................... 75
Consideration......................................................................................................................................................... 76
Conclusion.............................................................................................................................................................. 77

Consideration......................................................................................................................................................... 79
Conclusion.............................................................................................................................................................. 79

Consideration of Taiao’s appeal............................................................................................................................... 79

The appeal grounds.................................................................................................................................................... 79

Appeal ground 2: Verdicts unreasonable and cannot be supported................................................................... 80

Consideration......................................................................................................................................................... 82
Conclusion.............................................................................................................................................................. 82

Consideration of Walker’s appeal............................................................................................................................ 83

The appeal grounds.................................................................................................................................................... 83

Appeal ground 1: Verdicts unreasonable and cannot be supported................................................................... 83

Consideration......................................................................................................................................................... 85

Conclusion....................................................................................................................................................................... 86

THE COURT:
Introduction

In the late morning of 24 January 2016, Corey Breton and Iuliana Triscaru were separately lured to a home unit in Kingston. During the remainder of the day, they were tortured by being detained at the unit, assaulted, bound by use of cable ties and duct tape, and then placed in a toolbox and locked inside it. The toolbox was about 2 metres long x 40 centimetres wide x 60 centimetres deep.[1]
[1]ARB 778 - 9.
In the evening the toolbox containing Breton and Triscaru was taken from the home unit and placed on the back of a Toyota HiLux truck. Breton and Triscaru were still alive at this stage. The toolbox containing Breton and Triscaru was then driven to a wetlands area called Scrubby Creek and disposed of by being placed in the waters of a lagoon and weighed down by concrete and tyres.
In the following days, police conducted an investigation into the disappearance of Breton and Triscaru. Police found the toolbox when they were taken to the waterhole by Tuhirangi Tahiata on 10 February 2016, who had been in the HiLux when it drove away from the home unit. Within the toolbox police found the bodies of Breton and Triscaru, bound by zip ties and duct tape and covered by a large amount of rubbish in bags. An autopsy revealed that they died either by drowning or by asphyxiation, although the former was more likely.
The Crown alleged that Tahiata and each of Trent Thrupp, Stou Daniels, Davy Taiao, and Waylon Walker had been parties to the murders of Breton and Triscaru on 24 January 2016. The Crown alleged that Tahiata and Thrupp were most directly involved in the murders because they had driven the HiLux carrying the toolbox to the waterhole and one or both of them had performed the physical act of placing the toolbox in the water. But the Crown alleged that even if Tahiata had performed that physical act by himself, the nature of the preceding involvement of all four of the others was such as would necessarily attract their criminal responsibility pursuant to s 7 or s 8 of the Criminal Code (Qld).
Tahiata was charged on a separate indictment with murder and tried in a separate proceeding. Each of Thrupp, Daniels, Taiao and Walker was charged on indictment with two counts of murder. Thrupp, Daniels and Taiao were also charged with two counts of torture. Walker was not charged with torture. Thrupp, Daniels, Taiao and Walker were tried together before a jury in the Supreme Court.
Thrupp, Daniels and Taiao were convicted on all counts. They were sentenced to life imprisonment on each of the two counts of murder and to 10 years’ imprisonment on each of the two counts of torture, to be served concurrently. Walker was acquitted of murder and convicted of manslaughter. He was sentenced to 12 years’ imprisonment on each count of manslaughter, to be served concurrently.
Each has appealed against their conviction on all counts.
As to Thrupp’s appeal, and for reasons which follow, we would make the following orders:
(a)In relation to the convictions for murder of Breton and Triscaru:
(i)Appeal allowed.
(ii)Convictions set aside.
(iii)Retrials ordered.
(b)In relation to the convictions for torture of Breton and Triscaru, appeal dismissed.
As to Daniels’ appeal, and for reasons which follow, we would make the following orders:
(a)In relation to the convictions for murder of Breton and Triscaru:
(i)Appeal allowed.
(ii)Convictions set aside.
(iii)Retrials ordered.
(b)In relation to the convictions for torture of Breton and Triscaru, appeal dismissed.

As to Taiao’s appeal, and for reasons which follow, we would make the following orders:
(a)In relation to the convictions for murder of Breton and Triscaru:
(i)Appeal allowed.
(ii)Convictions set aside.
(iii)Retrials ordered.
(b)In relation to the convictions for torture of Breton and Triscaru, appeal dismissed.
As to Walker’s appeal, and for reasons which follow, we made the following orders on 16 July 2024:
(a)Appeal allowed.
(b)Convictions for manslaughter on counts 1 and 2 of the indictment set aside.
(c)Direct judgment and verdicts of acquittal of manslaughter on counts 1 and 2 of the indictment be entered.
Preliminary observations as to the importance to the Crown case of proof of relevant knowledge and intention
It will become clear that each of the appellants contended that the verdicts obtained against them should be set aside because the Crown failed to prove that they had the state of knowledge, intention or belief which was necessary to render them criminally responsible for the offences of which they were convicted. It will also become clear that the Crown paid inadequate attention to this requirement at trial. Accordingly, it is appropriate to examine at the outset what the Crown had to prove in that regard.
The section 7 case
Section 7(1) of the Criminal Code is in the following terms:
“7 Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—
(a)every person who actually does the act or makes the omission which constitutes the offence;
(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)every person who aids another person in committing the offence;
(d)any person who counsels or procures any other person to commit the offence.”

Section 10A(1) of the Criminal Code supplements that provision in the following way:
“(1)Under section 7, a person’s criminal responsibility extends to any offence that, on the evidence admissible against him or her, is either the offence proved against the person who did the act or made the omission that constitutes that offence or any statutory or other alternative to that offence.”
Section 7 is structured so as to render criminally responsible as “principal offenders” the actual perpetrator of an offence (s 7(1)(a)); any person who enables or aids the actual perpetrator (s 7(1)(b) and (c)), and any person who counsels or procures the perpetrator to commit the offence (s 7(1)(d)). Even though they are all technically to be regarded as “principal offenders”, it is convenient to refer to a person who is criminally liable under s 7(1)(a) as “the principal offender” in order to distinguish that person from the enablers, aiders, counsellors or procurers mentioned in the other subparagraphs of s 7.
The present case involves the offences of murder, manslaughter and torture. As to those offences:
(a)In R v Barlow, the High Court observed:[2]
[2]R v Barlow (1997) 188 CLR 1 at 9 per Brennan CJ, Dawson and Toohey JJ.
“Section 2 of the Code makes it clear that "offence" is used in the Code to denote the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment. Section 7(a) confirms that "offence" is used to denote the element of conduct in that sense. By the ordinary rules of interpretation, the term must bear the same meaning in pars (b), (c) and (d) of s 7 as it bears in par (a). Section 8, which complements s 7 and extends the net of criminal liability for an offence to the parties who have formed a common intention of the kind therein mentioned, reveals no ground for attributing a different meaning to "offence" in s 8.”
(b)Using the language of R v Barlow and of ss 291, 300 and 302(1)(a) of the Criminal Code:
(i)The offence of manslaughter is established when the Crown proves beyond reasonable doubt that the defendant did the particular act(s) or made the particular omission(s) which caused a prescribed result, namely the death of another person, in prescribed circumstances, namely the killing was unlawful because it was not authorised, justified or excused by law.
(ii)The offence of murder is established when the Crown proves beyond reasonable doubt that the act or omission which unlawfully caused the death was engaged in with the prescribed state of mind, namely that at the time of the act or omission, the defendant intended to kill or do grievous bodily harm to the person killed.
(c)To establish that a defendant was criminally responsible for the offence of murder as the principal offender under s 7(1)(a), the Crown would have to establish first that the defendant did the act(s) or made the omission(s) which unlawfully caused the death. But second, the Crown would also have to establish that at the time the principal offender actually did the act(s) or made the omission(s) which unlawfully caused the death, the principal offender intended to kill or do grievous bodily harm to the person killed. If the Crown proved the former but not the latter, then the defendant would be guilty only of manslaughter.
(d)The offence of torture is established when the Crown proves beyond reasonable doubt that a defendant tortured another person. “Torture” is defined as “the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion.” “Pain or suffering” is defined to include “physical, mental, psychological or emotional pain or suffering, whether temporary or permanent.”
(e)To establish that a defendant was criminally responsible for the offence of torture as the principal offender under s 7(1)(a), the Crown would have to establish first that the defendant did the act(s) which inflicted severe pain or suffering on a person. But, second, the Crown would also have to establish that at the time the principal offender actually did the act(s), the principal offender intended to inflict severe pain or suffering on the person.
Sections 7(1)(b) and 7(1)(c) deal with persons who enable or aid the principal offender. To aid means to assist or help.[3] In this context the section does not necessarily require that the enabler or aider physically help the principal offender to do the act or omission which unlawfully caused the death. Wilful encouragement can be enough and, in this regard, voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. In this regard, reference should be made to the analysis in the judgment of Chesterman JA (with whom Muir and Fraser JJA agreed) in R v Butler & Lawton & Marshall[4], which was recently referred to with approval by this Court in R v Peter; R v Banu; R v Ingui.[5] The factual scenario referred to in the quote below concerned an appeal from the conviction of Lawton, who was present when two others raped a woman, but whose conviction as an aider on the basis of intentional encouragement was overturned. The relevant observations by Chesterman JA were as follows (emphasis added):
[3]R v Sherrington [2001] QCA 105.
[4][2011] QCA 265 at [68] to [71].
[5][2023] QCA 1 at [46], per Dalton JA (with whom McMurdo and Bond JJA agreed).
“Presence by itself is not enough to constitute aiding for the purposes of s 7(1)(c) of the Criminal Code. The law was explained by Macrossan CJ in R v Beck [1990] 1 Qd R 30 at 37 and 38. The Chief Justice said:
‘Intentional encouragement may come from expressions, gestures “or actions intended to signify approval”. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence … can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.
…
It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided. In some cases … where positive intervening acts in support of the commission of the offence by the principal offender may not have occurred it has been natural to speak of encouragement and this will often be an appropriate word to convey, in the absence of direct physical involvement, the relevant active element in the aiding which has taken place.’
There is, in this case, no evidence of expressions, gestures or actions by Lawton intended to signify his approval of what the co‑accused were doing. One must scrutinise the behaviour of the alleged aider to see whether it affords evidence of wilful encouragement. Such scrutiny reveals nothing. The important proposition is that proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider. There were no acts. The intention behind and the effect of the presence of the aider at the scene may make out a case of intentional encouragement. There is no evidence that the appellant’s presence had any effect on the others. Intention is dealt with next.
It is important to recall that the three men encountered the complainant by chance. None of them went to the park intending to commit rape. The meeting was by chance and the offences were opportunistic or fortuitous. In that circumstance it is inaccurate to describe Lawton’s presence as deliberate, or intentional. He was at a place where a crime was opportunistically committed. It is true he did not leave or do anything to discourage those committing the crime from the course they set upon but that does not make him an aider. The point is that there was nothing sinister in his presence. The case may be contrasted with that of a man who goes with others to where a crime is committed, knowing those others intend to commit the crime.
In short the evidence was insufficient to prove that Lawton aided either Marshall or Butler to rape the complainant. The appellant has made out his first ground of appeal. The convictions are unreasonable and cannot be supported having regard to the evidence. The appellant is entitled to be acquitted.”
It is not enough to render a defendant criminally responsible as aider pursuant to s 7(1)(b) or (c) merely to establish that the defendant aided the principal offender in the manner discussed in the previous paragraph. In order to establish criminal responsibility for defendants who are not said to be the principal offenders, but who are said to have aided them, it is necessary that the Crown must prove that alleged aiders had a particular state of knowledge and intention when they aided the principal offender. The Crown cannot establish that a defendant is criminally responsible as an aider to a principal offender unless the Crown can also prove that at the time the defendant did the act(s) or made the omission(s) said to have constituted the aid, the defendant knew the essential matters which constitute the offence committed by the principal offender.[6]
[6]R v Licciardello [2018] 3 Qd R 206; [2017] QCA 286 at 211 to 214 and the decisions there cited.
Accordingly, in the 1997 case of R v Jeffrey it was held that for a defendant to be convicted of murder under s 7(1)(b) or s 7(1)(c), the defendant had to have known that death or grievous bodily harm was intended by the person whose act had killed the victim.[7] McPherson JA put it this way (emphasis added):[8]
“As regards both s.7(1)(b) and s.7(1)(c) of the Code, it is settled that the accused is criminally responsible only if, in giving aid or assistance, he knows that the offence is being committed or is intended: see R. v. Beck [1990] 1 Qd.R. 30, 38; R. v. Jervis [1993] 1 Qd.R. 643, 647-648; which means that it must be proved that he knows the essential facts constituting or making up the offence that is being or about to be committed by the person he is aiding or assisting. See Giorgianni v. The Queen (1985) 156 C.L.R. 473. The requisite state of mind which had to be established against the appellant to make him criminally responsible under s.7(1)(c) was that he knew that one or more of the others was intending to kill or to do grievous bodily harm.”
[7]R v Jeffrey [2003] 2 Qd R 306; [1997] QCA 460.
[8]R v Jeffrey [2003] 2 Qd R 306 at 310.
In the 2021 case of R v Taylor, Fraser JA summarised the position in this way (emphasis added):[9]
“The word “offence” [in s 7(1)] denotes “the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment”. Sections 7(1)(b) and 7(1)(c) apply only if – when the person did or omitted to do the act described in (b) or aided as described in (c) – the person knew the essential matters which constitute the offence committed by another person. Thus, for a person to be responsible for the offence of murder under s 7(1)(b) or s 7(1)(c) that person must have known that whoever did an act that killed the victim did so intending to cause death or grievous bodily harm. Section 7(1)(b) in terms requires the prosecution also to prove that the person did or omitted to do the relevant act for the purpose of enabling or aiding the principal offender to commit the offence. Although s 7(1)(c) does not express any similar requirement, it has been held that it requires the prosecution to prove that the person intended to aid the other person in committing the offence.”
[9]R v Taylor [2021] QCA 15 at [69].
In the present context, it follows that in order to establish criminal responsibility pursuant to s 7(1)(b) or (c) for the murders of Breton and Triscaru, the Crown would have to prove beyond reasonable doubt that at the time when the alleged aider did the relevant act or acts constituting the aid, the alleged aider knew that the principal offender(s) (whoever they were) intended to kill Breton and Triscaru or to do them grievous bodily harm.[10]
[10]The same logic necessarily applies to establishing criminal responsibility pursuant to s 7(1)(b) or (c) for the offence of torture. The Crown would have to prove beyond reasonable doubt that when the alleged aider did the relevant act or acts which are said to have rendered him liable for torture, the alleged aider knew that that principal offender(s) intended to inflict severe pain or suffering on Breton and Triscaru.
If that state of knowledge of the alleged aider could not be established, the aider could not be guilty of murder, but manslaughter would still need to be considered. The aider would be guilty of manslaughter if it could be proved beyond reasonable doubt that when the aider did the relevant act or acts constituting the aid, the aider knew the essential matters which constituted the offence of manslaughter.[11]
[11]A person charged as a party by the operation of s 7 may be convicted of a lesser offence than that committed by the principal offender: see s 10A(1) and R v Barlow. Thus it would not matter that the evidence established that the principal offender was criminally responsible for murder, the aider could still be found to be criminally responsible for manslaughter.
Notably, however, the requirement of proof of knowledge of the “essential matters” does not mean that the aider must know or foresee that the unlawful acts or omissions by the principal offender were such as would actually cause death or grievous bodily harm. All that would need to be proved is that the aider knew that the conduct constituting the offence was occurring or would occur. The conduct in this sense is the conduct, to use the language of R v Barlow which, if accompanied by prescribed circumstances, or if causing a prescribed result, would render a person engaging in the conduct liable to punishment for manslaughter.
This was explained in R v Licciardello[12], in a lengthy discussion by McMurdo JA (with whom Sofronoff P and Douglas J agreed) of which it suffices to quote the following:
[12]R v Licciardello [2018] 3 Qd R 206 at [15] to [30].
“[29] … The appellant in [R v Brown[13]] was found not guilty of murder, but guilty of manslaughter of a man who had been killed by several blows to his head, which could have been caused by fists, feet, boots or a blunt object. The appellant and others went to the deceased’s home in order to collect a drug debt. The appellant was armed with a hammer and there was evidence that he used it to strike the deceased. But there was some evidence that further violence was inflicted on the deceased by others. The prosecution case was that the appellant was guilty of murder either under s 7 or s 8. The appellant’s first ground of appeal was that the trial judge erred in directing the jury about s 7(1)(c), by telling the jury that they could convict him of manslaughter under that provision if they found that he had aided the principal offender with knowledge that that offender had an intention to assault the deceased. It was argued that for the jury to convict the appellant of manslaughter under s 7(1)(c), it was necessary for them to be satisfied both that a reasonable person in his position would have foreseen death as a possible outcome of the assault that he was aiding and that he actually foresaw this. That argument was rejected. McMurdo P said:
[13]R v Brown (2007) 171 A Crim R 345.
‘The case against the appellant at trial under s 7(1)(c) was that he was present and knowingly aided the perpetrator in a lethal assault upon the deceased. To convict the appellant of manslaughter on the basis of s 7(1)(c) in this case, the jury had to be satisfied that the appellant knowingly aided the perpetrator to assault the deceased; the assault was a substantial or significant cause of the death; the killing was unlawful; but not satisfied that the appellant intended to kill or do grievous bodily harm to the deceased.’
In the same case, Holmes JA (as she then was) said:
‘The state of knowledge which the Crown had to prove in order to convict the appellant as an aider under s 7(1)(c) of the Criminal Code was of the ‘essential facts constituting or making up the offence that [was] being or about to be committed by the person he [was] aiding or assisting’; that is to say, the assault which caused the deceased’s death. The direction given met that requirement.’
Conclusion
[30]To be criminally responsible under s 7(1)(b) or s 7(1)(c), a person must know of the offence which is being, or which is about to be, committed by the person he is aiding or intending to aid. That offence is constituted by the conduct (an act or omission) of the other person which attracts criminal liability. If the principal offender's crime requires a specific intent, then s 7(1)(b) or s 7(1)(c) requires the aider to know that he is aiding the other to act (or omit to act) with that intent. But if "the offence" has no ingredient of an intent (or other state of mind) on the part of the person who does the act or makes the omission, all that the aider need know is that the conduct constituting the offence is occurring or will occur.”[14]
[14]R v Licciardello [2018] 3 Qd R 206 at [29] and [30], footnotes omitted, italicized emphasis in original.

The section 8 case

Section 8 of the Criminal Code is in these terms:
“When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

Section 10A(2) of the Criminal Code supplements that provision in the following way:
“(2)Under section 8, a person’s criminal responsibility extends to any offence that, on the evidence admissible against him or her, is a probable consequence of the prosecution of a common intention to prosecute an unlawful purpose, regardless of what offence is proved against any other party to the common intention.”
In Puntigam v The State of Western Australia[15] the Western Australia Court of Appeal pointed out by reference to relevant High Court authority that the identical provision of the Criminal Code WA required the Crown to prove three matters beyond reasonable doubt:
(a)the formation by two or more persons of a common intention to prosecute an unlawful purpose in conjunction with one another;
(b)that in the prosecution of the unlawful purpose an offence was committed; and
(c)that the offence that was committed was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
[15]Puntigam v The State of Western Australia [2023] WASCA 46 at [85(a)] per Buss P.

It is desirable to make these further points.
First, the test as to whether an alleged common purpose has been proved is a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.[16]
[16]McAuliffe v The Queen (1995) 183 CLR 108 at 113 – 114.
Second, in R v Barlow Brennan CJ, Dawson and Toohey JJ explained that “offence” in s 8 is to be understood in the same way as it is understood in relation to s 7, namely as a reference to the element of conduct which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment: see [16](a) above. In this regard, their Honours went on to observe (emphasis added):
“…, "offence" in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made. It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular "nature". Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted.”[17]
[17]R v Barlow (1997) 188 CLR 1 at 10 per Brennan CJ, Dawson and Toohey JJ.
Third, in Darkan v The Queen,[18] the High Court explained that the expression “probable” does not mean “on the balance of probabilities” and means more than “a real or substantial possibility or chance”. Accordingly, the expression “a probable consequence” means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible. It must be probable in the sense that it could well happen. The Court went on to observe:[19]
“It is not necessary in every case to explain the meaning of the expression ‘a probable consequence’ to the jury. But where it is necessary or desirable to do so, a correct jury direction under s 8 would stress that for the offence committed to be ‘a probable consequence’ of the prosecution of the unlawful purpose, the commission of the offence had to be not merely possible, but probable in the sense that it could well have happened in the prosecution of the unlawful purpose. And where it is desirable to give the jury a direction as to the meaning of the expression ‘a probable consequence’ in s 9, a correct jury direction would stress that for the facts constituting the offence actually committed to be ‘a probable consequence’ of carrying out the counselling, they had to be not merely possible, but probable in the sense that they could well have happened as a result of carrying out the counselling.”
[18]Darkan v The Queen (2006) 227 CLR 373 at [78] and [79] per Gleeson CJ, Gummow, Heydon and Crennan JJ.
[19]Darkan v The Queen (2006) 227 CLR 373 at [81] per Gleeson CJ, Gummow, Heydon and Crennan JJ.
Fourth, whether the offence that was committed was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose is to be determined objectively. In R v Keenan the High Court also observed:[20]
“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 follows from the fact that what is a "probable consequence" is to be determined objectively.”
[20]R v Keenan (2009) 236 CLR 397 at [86] per Hayne J (with whom Heydon and Crennan JJ agreed).
Fifth, a person charged as a secondary party by the operation of s 8 may be convicted of a lesser offence than that committed by the perpetrator: see s 10A(1) and R v Barlow in which Brennan CJ, Dawson and Toohey JJ observed:
“The criminal liability of the principal offender for the act done or omission made by him determines the "nature" of the act which the secondary party is deemed to have done or the omission which the secondary party is deemed to have made only in so far as the act done or omission made by the principal offender, when taken in combination with (i) the attendant circumstances, (ii) the result of the act or omission, and (iii) the principal offender's state of mind, was a probable consequence of prosecuting the common unlawful purpose. Thus, if a principal offender does an act or makes an omission in prosecution of an unlawful purpose and, by reason of facts attendant on the doing of the act or the making of the omission, the act or omission renders the principal offender liable to punishment for any of a number of contraventions of the Code, a person who formed a common intention with the principal offender to prosecute that purpose is himself liable to punishment for any contravention that was a probable consequence of prosecuting that purpose.” [21]
[21]R v Barlow (1997) 188 CLR 1 at 11 per Brennan CJ, Dawson and Toohey JJ.
In the present case, the Crown particularised the s 8 case in relation to all defendants in this way:
“The prosecution alleges that [Daniels], …, [Thrupp], [Taiao], … and [Walker] formed an intention and/or entered into an intention already formed by others, to detain [Triscaru and Breton] and place them into and keep them in a toolbox and then dispose of the toolbox with Breton and Triscaru in it and that the intentional killing of Breton and Triscaru was the probable consequence of the prosecution of such purpose.”
Having regard to the above discussion of the law, in order to establish criminal responsibility pursuant to s 8 for the murders of Breton and Triscaru, the Crown would have to prove beyond reasonable doubt that –
(a)Daniels, Thrupp, Taiao, and Walker subjectively formed an intention and/or entered into an intention already formed by others to detain Breton and Triscaru and place them into and keep them in a toolbox and then dispose of the toolbox with Breton and Triscaru in it;
(b)in the prosecution of that unlawful common purpose, the offences of murder (namely the intentional killing of Breton and Triscaru) were committed by a principal offender or by principal offenders; and
(c)the intentional killing of Breton and Triscaru by the principal offender(s) was aprobable consequence of the prosecution of the common unlawful purpose, which must be assessed objectively.
If the intentional killing was not a probable consequence, murder could not be established, but manslaughter would need to be considered. In that case the third element would be that the unintentional but unlawful killing of Breton and Triscaru by the relevant principal offender(s) was the probable consequence of the prosecution of the common unlawful purpose, with the consequence to be assessed objectively.

The case supported by the Crown’s evidence at trial

Under this heading we will narrate the case supported by the evidence admitted as against all defendants[22], before examining in a little more detail the way in which the evidence sheds light on the involvement of each particular defendant.[23]
[22]Subject to two footnoted caveats, where two statements were the subject of belated objection which the trial judge accepted and limited the admissibility of the statements.
[23]There was much evidence of a formal nature proving maps; physical locations; phone numbers; ownership of cars etc and some identification evidence concerning cars and people. Having regard to the arguments at trial and on appeal, it is not necessary to record the detail of that evidence here.
The particular catalyst for the offending
The offending took place against a background of drug dealing and using. Daniels sold drugs. Breton sold drugs. Triscaru had an association with Breton. Many of the other people who had some involvement in the events were drug users. The home unit at which much of the offending took place was well known to them all and was colloquially referred to as “the Tav”. It is convenient to adopt that form of reference.
Phat Khuu sold burner phones to and used to buy drugs from Breton. Khuu gave evidence that he had asked Breton who supplied his drugs and Breton had responded “Islanders”.[24] On 22 January 2016, Khuu texted a photo of Daniels to Breton’s phone, asking Breton “Do you know him?”.[25] He did that because he wanted to know if the person photographed was Breton’s supplier. A text response from Breton’s phone confirmed “Yeah that’s him”.[26]
[24]ARB 531.
[25]ARB 515 and 1233.
[26]ARB 532 and 1235.
On 22 January 2016, Breton showed Lelan Harrington and Blake Marsh the photo and text exchange which Breton had had with Khuu.[27] On the evening of 23 January, Harrington returned to the Tav where he lived with Thrupp and Puna Mariri; he had borrowed Breton’s Courier to drive there. That night, he told Mariri about what he had seen.[28]
[27]ARB 556.
[28]ARB 563.
The events described in the previous two paragraphs comprised the catalyst for everything which followed. As will appear, it may be inferred that Daniels felt threatened by what had happened.
Breton and Triscaru are lured to the Tav
When Harrington woke at the Tav on the morning of 24 January 2016, Mariri told him to go downstairs to talk to Daniels.[29] Someone had obviously told Daniels about the photo and the text exchange and Daniels questioned Harrington about it. Harrington described the conversation in this way:[30]
“Tell us what happened then?---I walked downstairs and [Daniels], [Taiao] and [Thrupp] were – and [Mariri] were all in the living room. And the first thing [Daniels] asked me was, “Did [Breton] have a picture of me?”
…
Right. Now, you had told [Mariri] this. Had you mentioned it to anyone else?---No.
No. However, Blake [Marsh] was present when this was shown to - - - ?---Yes.
- - - you?---Yes.
Did you mention anything about [Triscaru]?---No.
…
Now, did you make a call to [Breton]?---Yes. [Daniels] asked me to call him and ask him to come over and that he just wanted to talk to him.”
[29]ARB 561 and 563.
[30]ARB 563 and 572.
He later said:[31]
“Now, when you – at the time he said he wanted to talk to [Breton], was there anything – did you ask any questions about what would happen?--- No, just - - -
At that stage or at any stage?---No, like, he told me he just wanted to talk to him but I honestly thought he was just going to punch him in the mouth and then send him on his way.
All right. Now, what did you do after you made the telephone call?---I called [Breton], told him to come over and pick up the keys to his Courier, the Ford Courier and – and then he said yes, he’ll be over there soon. Then I hung up and then – and then [Daniels] asked me for the keys and he’s handed them to [Thrupp] and then [Thrupp] still had to go and get the Courier.
All right. So you – you put that the sequence?---And then [Daniels] told me that they’re just going to scare him.”
[31]ARB 572-3.
Harrington’s evidence was that Daniels then told him that Mariri’s got “a puff for you upstairs” and that he then went upstairs and smoked methamphetamine with Mariri.[32]
[32]ARB 573.

Triscaru was not asked to come to the Tav at this time. As is related below, Breton arrived and Harrington heard him being assaulted. Harrington later heard Daniels, discussing with Thrupp and Mariri that someone should call Triscaru to come to the Tav. Shortly afterwards, Harrington heard either Thrupp or Mariri call Triscaru.[33] Telephone records reveal that someone used Breton’s mobile to call Triscaru at 11.48 am[34].
[33]ARB 575.
[34]ARB 1255-1256.
Breton and Triscaru are tortured and placed in the toolbox
CCTV evidence and the testimony of Harrington showed that Breton arrived at the Tav in his Mitsubishi Pajero at about 11.37 am.[35] Harrington’s evidence of what happened once Breton arrived was as follows:[36]
[35]ARB 575; exhibit 20, noting that all references to the CCTV cameras surrounding the unit were 6 minutes fast (see ARB 511). In these reasons we have endeavoured to make that adjustment to the times to which reference is made, insofar as they derive from the CCTV.
[36]ARB 573 to 575.
“…when [Breton] arrived, did you hear that it was [Breton]?---Yeah, because he walked in and he said, “Hey, what’s up? What’s going on? Where’s [Harrington]?
…
Right?---And they said, “Take a seat. He’s just upstairs, having a shower.”
…
Tell us what you heard?---After that, I’ve just heard [Mariri] cock the gun and then heard, like, a bit of a scuffle, and then they’ve asked him if they had – if [Breton’s] got a picture of him. Who does he buy from, who does he sell to.
All right. What did [Breton] say?---Couldn’t really hear. Like, he was, like, mumbling. And then I just heard a loud thud and a scream. And then they asked him who does he get on from, where was the picture taken, and - - -
Who’s asking these questions?---[Daniels].
…
Who’s downstairs?---[Daniels], [Taiao], [Thrupp] and [Mariri], and [Breton].
And did you hear anything else?---And then I heard them turn the music up, and then could sort of hear them, like, just still asking questions. I didn’t know what they were saying, but – and then I just kept hearing loud thuds and [Breton] screaming while he was duct taped around the mouth, yeah.”
Later, as has been related, Harrington heard arrangements being made for Triscaru to come to the Tav.
At 12.21 pm, prior to Triscaru’s arrival, Walker had arrived at the Tav, driving a Kia Ora vehicle and with his then-girlfriend Sarah Conway. Conway’s evidence was that Walker spoke to Taiao and went inside.[37] Conway said that when he came out five minutes later, he told her they had to go get petrol for the Peugeot that was parked next to their Kia. CCTV evidence and Conway’s testimony showed that they left the Tav at 12.25 pm, driving both the Kia and the Peugeot and travelled to a petrol station. Conway’s evidence of what happened sheds light on Walker’s then state of mind. It was as follows:[38]
[37]ARB 1036.
[38]ARB 1037 to 1038; Exhibit 20.
“… What happened there?---Well, [Walker] was sitting in the [Peugeot] and he hadn’t gotten out to fill the petrol from the bowser.
Right, did you do something then?---I believe I went into the store and got drinks and then I came out and he was still sitting there.
Yes?---And I got into the passenger seat of the car.
Yes?---And he was in shock.
What could you say, like, what did you notice about him? You say he was in shock, what’s – what - - -?---He was very silent and he had his hands on his face and he was pale.
Did you ask him, “What’s going on?” or something to that effect?---Yes.
What – and what did he say?---He told me that he had seen a boy at the unit, that he was badly beaten, he had gaffer tape over his mouth, he had zip ties on his body and, yes.
…
Right. Did you say anything to him at that point?---I said we should do something, we should call somebody.
What did he say?---He said, “No, we’re not going to call the fucking police.””
Conway’s evidence was that she and Walker then drove both vehicles to their residence in Slacks Creek.[39]
[39]ARB 1038.
CCTV evidence and the testimony of Harrington[40] suggested that Triscaru arrived by bicycle at the Tav at about 12.28 pm. Harrington’s evidence of what happened once Triscaru arrived was as follows:[41]
40ARB 575; Exhibit 20.
[41]ARB 575 to 578.
“… and then I’ve heard the gate ring again, and then she’s come in. And she’s, like, “What the fuck’s going on,” and then she screamed and then – and then I heard the music go up again and they started asking her questions. And they started – and then I heard loud thuds again with her screaming.
…
…Now, you’ve heard [Triscaru] arrive, and you hear – what happens to her?---She’s walked in, and she’s, like, “What the fuck’s going on,” because [Breton] would’ve been there, tied up, on the couch.
When you say “would’ve been”, why do you say that?---Because that’s how he was when I walked down after - - -
…
What did you hear happening to her?---Sounded like she was sort of freaked out when she walked in, and then they’ve grabbed her and she’s tried to scream. And then they’ve, like, turned the music up and started asking her questions and they’ve just kept hitting her with the pole.[42]
[42]The reference was to a steel pole which he saw when he went downstairs. He described it as a round hollow pole about 2 to 3mm thick and something over a metre in length: ARB 576.
…

What did you see when you got downstairs?---I seen them both with duct tape around their mouth, their hands tied – zip tied. [Breton's] feet were zip tied, and I think [Triscaru’s] feet were just duct taped.
…
Now, did you notice any injuries to either of them?---Yeah, I noticed [Breton] had, like, a stab wound above his left knee. Yeah.
And was there any – how did you know there was a stab wound, there?---There was just all blood, on top of his leg, and down his – down the leg, and his sock was saturated. Yeah.
What about to either of their faces?--- They were just – you could see that they’ve been crying, and [Breton] sort of couldn’t really move his left arm, as well.
Now, did [Daniels], in the presence of these other people, make any comment to you, when the mask was being removed – the tape was being removed?---Well, [Daniels] said to them, “If youse look to scream, I’ll hit youse again, with the pole.”

Tahiata’s phone records show that at 1.32 pm someone (the Crown posit Mariri) sent him a message saying “I need to speak to u right now.asap,tav” followed by “Don’t call”. Tahiata sent a message in response saying “Yo be there in 10”.[43] The HiLux was a vehicle owned by Tahiata. CCTV evidence shows that it was driven into the unit complex at 1.46 pm and driven out of the complex shortly thereafter at 1.59 pm.[44]
[43]Exhibit 40 at ARB 1326, 1338.
[44]Exhibit 20, ARB 1164.
Phone records indicate that at 1.59 pm Breton’s phone was used to text Khuu. It must be inferred that someone other than Breton initiated this correspondence. The correspondence was as follows:[45]
[45]ARB 1235.

Breton’s phone Khuu’s phone

1:59pm You in work today?

4:48pm No sorry mate be in tomorrow

[Referring to the earlier photograph of Daniels that Khuu had sent to Breton’s phone]
5:55pm Do you know that guy?

6:00pm Only seen him come to shop to get phones and cigs

6:01pm Yeah he’s a big timer not a person to fuck with lol

Breton’s phone	Khuu’s phone
1:59pm You in work today?
4:48pm No sorry mate be in tomorrow
[Referring to the earlier photograph of Daniels that Khuu had sent to Breton’s phone] 5:55pm Do you know that guy?
6:00pm Only seen him come to shop to get phones and cigs
6:01pm Yeah he’s a big timer not a person to fuck with lol

Ngatokoona Mareiti’s evidence was that at 3.38 pm there was telephone contact between her and Daniels in which Daniels asked her to come to the Tav.[46] CCTV evidence and the testimony of Mareiti shows that she arrived at the Tav with Webbstar Latu and two other friends at about 4.08 pm.[47] Mareiti and Latu went into the residence and asked whether there were any drugs to buy. Daniels said “[n]ot yet” and asked her to wait and to tell the two people who were waiting outside to leave.[48] They left and Mareiti then became involved with the events which transpired.
[46]ARB 818.
[47]ARB 818; Exhibit 20.
[48]ARB 819.
Mareiti’s evidence was that upon entering the Tav she had seen Breton and Triscaru on the couch. She saw that they were in trouble because Breton had a “scratch” on his leg and Triscaru had been crying and looked like she had been hit on the mouth.[49] Daniels asked her to search Triscaru’s bra, which she did, finding nothing.[50] She then went into the garage with Daniels and Latu, where Daniels showed Mareiti a picture of himself on Breton’s phone and the messages between Khuu and Breton. Mareiti’s evidence of their conversation was as follows:[51]
“…what did [Daniels] say about that – that photograph and those messages?---His – he said he was – he wanted to know why his photo was on his phone.
Yes, anything else?---And we all thought that they were trying to set him up.
Right, “we all thought”, now you’ll have to - - -?---It’s like - - -
Who says – who’s saying what to who?---Well, I thought that he was being set up and I assumed he thought that too, every single one of us.
Right, was there any conversation about that?---No, not really.”
[49]ARB 820, 848.
[50]ARB 581, 829.
[51]ARB 822.
Mareiti saw Breton and Triscaru being asked why Daniels’ photo was on Breton’s phone.
Mareiti said she was then asked by Daniels to purchase alcohol and by Thrupp to purchase cleaning equipment.[52] The apparent purpose was to clean up blood from the floor and couch at the Tav. Daniels provided Mareiti with money.[53] Mareiti called her friend Torise Titimanu and asked him to meet her at the unit; he picked her up in a Toyota Yaris and CCTV evidence shows that the two left the unit and returned at 6.14 pm.[54] Just before she had left to go to the shops, she saw Breton and Triscaru had had their hands and feet tied up with duct tape, she acknowledged that she did not see that occur and that it was possible that they may have been bound that way when she first arrived at the Tav.[55]
[52]ARB 824 and 825.
[53]ARB 825.
[54]ARB 827; Exhibit 20.
[55]ARB 829-30.
Harrington’s evidence was that after Mareiti and Titimanu had left, Latu and Thrupp had brought a toolbox from the garage into the loungeroom.[56] Daniels then told Breton and Triscaru to “get in the box, to go lay down in it”.[57] The lid had been left open at this stage and Harrington said that at one point, when no one else was around, he had seen Triscaru climb out of the toolbox and put her hand to her mouth telling Harrington “to shush”.[58] Harrington said that he immediately ran upstairs to notify Daniels, Taiao and Mariri and then assisted Taiao and Thrupp with putting Triscaru back into the toolbox.[59] Thrupp had been in the garage. Harrington’s evidence was that when he came back downstairs Thrupp’s hand was over Triscaru’s mouth which had blood running from it. Harrington helped them put her back in the toolbox, they shut the lid and locked it.[60]
[56]ARB 582.
[57]ARB 582.
[58]ARB 583.
[59]ARB 583.
[60]ARB 713.
CCTV evidence shows Tahiata returned in the HiLux to the Tav at 6.10 pm, Walker returned in the Peugeot at 6.14 pm and Mareiti returned in the Yaris at 6.14 pm.[61]
[61]ARB 827, 850-851 and exhibit 20.
Once she returned to the Tav at 6.14 pm, Mareiti observed that the two people who had been on the couch when she left were now in a closed toolbox that she had earlier seen in the garage.[62] She heard a woman screaming from inside.[63] She said that Daniels, Thrupp and Tahiata were out the back of the unit when she arrived.[64] She overheard a conversation between them where she heard the word “Coolangatta” mentioned and she heard Tahiata say that “he was going to do it”.[65]
[62]ARB 828.
[63]ARB 830.
[64]ARB 831.
[65]ARB 831-2; 851.
She said that Taiao was upstairs at the unit.[66] She also said that the person who brought the Peugeot to the unit (i.e. Walker) was upstairs at the unit.[67] Mareiti and Harrington both gave evidence that once Mareiti had returned to the unit they began cleaning up.[68] Harrington said that Latu began cleaning blood off the couch with methylated spirits, before pouring the liquid on the ground and wiping it up with towels.[69]
[66]ARB 831.
[67]ARB 832.
[68]ARB 585, 832.
[69]ARB 584.
Harrington gave evidence that Breton and Triscaru had been banging on the lid. Taiao had opened the lid and punched Breton and then Triscaru twice in the head; Triscaru had put her arms out of the toolbox to prevent the lid from being closed again, and Daniels had sliced her arms with a knife and told her to put her “fucking hands down”.[70]
[70]ARB 586.
Harrington gave evidence that items that had been used to clean up the Tav were put in garbage bags and the garbage bags were loaded into the toolbox on top of Breton and Triscaru by Daniels, Taiao, Thrupp and Mariri.[71] Harrington’s evidence was that the lid of the toolbox was unlocked to allow the rubbish to be put in and then locked again once that happened.[72] Harrington and Mareiti said that about 20 minutes after that the toolbox was taken to the HiLux and strapped on the back of the HiLux by Tahiata, Taiao, Thrupp and Latu.[73] Harrington said that when the toolbox was initially picked up Tahiata nearly dropped it and then Daniels pushed Harrington forward and told him to help Tahiata.[74] Music was played loudly so as to cover the screams of Breton and Triscaru in the toolbox.[75]
[71]ARB 585.
[72]ARB 714.
[73]ARB 833, 834 and 586.
[74]ARB 586.
[75]ARB 587.
Although Walker had arrived back at the Tav at about 6.14 pm, the evidence did not suggest that he actually participated in putting Breton and Triscaru in the toolbox or in carrying the toolbox to the HiLux. Harrington suggested that Walker had been in the garage and around the stairs. He conceded that Walker (who he referred to as the “lanky maori”[76]) arrived after Breton and Triscaru had been locked in the toolbox.[77] Harrington said that while they were both in the garage Walker had asked him if “it was my first time doing this” and Harrington shook his head.[78] Harrington said that from what he did see of Walker, he would agree that Walker’s body language was that of someone who did not want to be there.[79] Harrington did say that whilst Walker was on the stairs Walker was in a position to see the toolbox carried through the hallway to the front door of the Tav and to hear Breton and Triscaru kicking and screaming because they were really loud.[80] However, in cross-examination some doubt was cast on the extent to which Walker could have seen the toolbox whilst it was still inside the unit.[81] However no doubt was cast on his ability to perceive that Breton and Triscaru must have been in the toolbox, when it was carried out from the unit. Harrington said that blood had leaked from the toolbox all the way out to the front door and that he had mopped up the pool of blood which had leaked out.[82]
[76]The identification as such was a formal admission: ARB 1224.
[77]ARB 755-756.
[78]ARB 596.
[79]ARB 758.
[80]ARB 773.
[81]ARB 756.
[82]ARB 587.
The HiLux had been backed into the carpark outside the front door and the toolbox loaded there. A neighbour had seen a ute with a toolbox strapped on the back at the Tav. She had heard “[l]oud music… in the truck and banging noise” which she later clarified sounded like “a banging noise like a hand on the toolbox banging”.[83] Another neighbour also heard loud music and banging coming from a ute leaving the Tav.[84] Another neighbour heard loud music and “kicking sounds” from the back of a green ute.[85] His partner heard “really loud music” coming from a car at the same time.[86]
[83]ARB 797 to 798.
[84]ARB 809.
[85]ARB 955.
[86]ARB 950.
Once the toolbox was loaded onto the HiLux, Tahiata and Thrupp then got into the HiLux and the other individuals got into different cars.[87] Not all the rubbish had been loaded into the toolbox: Harrington said that there were still some bloody towels and stuff which had been emptied out of Triscaru’s bag which was placed in garbage bags and thrown into the tray of the Ford Courier.
[87]ARB 835.
Cars leave the Tav
CCTV evidence and the testimony of Mareiti[88] suggested that the circumstances of various people departing from the Tav on the evening of 24 January was as follows.
[88]ARB 835-6; Exhibit 20.
Commencing at about 8.30 pm with only a few minutes separating the first and last vehicles, a convoy of five vehicles left the “Tav” in this order:[89]
(a)the Peugeot driven by Walker with Daniels as a passenger;
(b)the HiLux driven by Tahiata with Thrupp as a passenger and carrying the toolbox which held Breton and Triscaru;
(c)the Mitsubishi Pajero driven by Latu with Mareiti as a passenger;
(d)the Toyota Yaris with Titimanu; and
(e)Breton’s Ford Courier driven by Harrington with Mariri and Taiao as passengers.
[89]ARB 836-7.
Traffic cameras show the Hilux carrying the toolbox drove eastbound along the Pacific Motorway at 8.32 pm before it “doubled back” and drove westbound on the Ipswich Motorway at 8.39 pm,[90] ending up at Scrubby Creek. The toolbox could be seen in the traffic camera images.[91]
[90]Exhibit 24.
[91]Exhibit 24.
Harrington gave evidence that he, Mariri and Taiao had initially driven the Ford to a shisha bar near the Tav where they ordered shisha, and Mariri and Taiao used their mobile phones.[92] At the instruction of Taiao, Harrington then drove the two of them to a nearby cul-de-sac called Mudgee Street where a dirt road could be used to access Scrubby Creek.[93] There Harrington observed the HiLux driving on that road away from the lagoons. Harrington said that Tahiata got out of the HiLux and walked over to the Ford. Harrington observed that Tahiata was splattered with mud. Harrington observed the following conversation between Tahiata and Taiao:[94]
“… [Taiao] asked him, “Is it done?” And [Tahiata] said, “Yes, it’s done.””[95]
[92]ARB 590.
[93]ARB 590.
[94]ARB 592.
[95]At ARB 602, Counsel for Daniels made a belated objection to the admissibility of this conversation against Daniels. Counsel for the Crown accepted the objection. The trial judge told the jury the evidence of the conversation could only be used against Taiao (ARB 603).
At approximately 10.46 pm both vehicles then left that location with Harrington and Taiao in the Ford, following Tahiata and Thrupp in the HiLux back to the shisha bar. Harrington could see that Thrupp was in the front seat of the HiLux. Once there, Harrington said that Mariri got into the HiLux and the vehicle drove away.[96]
[96]ARB 593.
Taiao had then asked Harrington if he knew a place that they could burn the Ford Courier.[97] Harrington suggested Beaudesert, and at 11.39 pm they stopped at a petrol station to purchase a fuel can and fuel. On the way to Beaudesert, however, they had been stopped by police and taken to the local police station as Harrington had been driving the Ford unlicensed and Taiao was not licensed to drive a manual vehicle.[98] Eventually they were released from the police station and, having obtained a lift from a friend, made their way back to the Tav by about 4.00 or 5.00 am. Thrupp and Mariri arrived soon after. Back at the Tav, Harrington said he and Thrupp had a conversation whilst Taiao was asleep:[99]
[97]ARB 593.
[98]ARB 594-595.
[99]ARB 597-8.
“Did you talk – where did you talk?---We were talking in the living room for a bit and then we all went upstairs into the master bedroom and then me and [Mariri] were sitting on the recliner. [Taiao] went to sleep on the bed and [Thrupp] was just laying on the floor.
Was there any conversation up there?---Yes.
Tell us what was said?--- [Thrupp] was just laying there and then he said, “I don’t know why we had to do that to [Triscaru].”
How had the topic arise?---Hey?
How had the topic arisen?---Pardon?
How had the topic arisen – how did it start?---Because we were all talking downstairs, like, I remember [Taiao] kept saying, “Just stop thinking about it. Just pretend like it never happened.” And – and then as we were upstairs, [Thrupp] like, “So, so what – so, like, what did you do?” And then - - -
You asked him that?---Yes.
Yes, go on. And what did he say?---And he said that – that he opened the box. He shot them both in the head and that they put them back in, they drilled holes in the toolbox and they had holes in - - -
You said they?---That he and [Tahiata] put holes in the toolbox and him and [Tahiata] tried to sink it and that he was standing on top of it until it was underwater and that they put rocks and ties to keep it at the bottom of the water.
Now you mentioned before, He said, “I don’t know why we had to do that to [Triscaru].”
Did he say anything else about that?---Like, he said that [Breton], he didn’t really give a fuck about, but like, he broke his one rule that he – that he made to his Mum that, like, he’s never hurt a woman.”[100]
[100]At ARB 602, Counsel for Daniels made a belated objection to the admissibility of this conversation against Daniels. Counsel for the Crown accepted the contention. The trial judge told the jury the evidence of the conversation could only be used against Thrupp (ARB 603).
Mareiti gave evidence that the Mitsubishi and the Yaris had initially headed towards Coolangatta because she had misunderstood that that was where the group had been going. Following a phone call between Mareiti and Daniels, both vehicles had turned around, with Titimanu driving to his home address and the Mitsubishi driving towards Cleveland.[101] Mareiti said she met Daniels at a service station in Capalaba at 9.55 pm where Daniels asked her to leave the Mitsubishi at Cleveland.[102] At 10.30 pm Mariri called Daniels.[103] The Mitsubishi containing Walker and Daniels and the Peugeot containing Latu and Mareiti then drove to Cleveland where they left the Pajero in a carpark. The four of them then got into the Peugeot.[104] Mareiti said that they then drove around looking for the Hilux before going back to the unit.[105]
[101]ARB 839 and 852, 1280.
[102]ARB 852.
[103]Exhibit 32; Mariri is using a phone registered to Chase Davy which is asserted by the Crown.
[104]ARB 841 and 842.
[105]ARB 841.
There was little evidence to indicate where the Peugeot containing Daniels and Walker had travelled in the intervening hour. Traffic camera and cell phone evidence provided some support for Mareiti’s evidence that the Peugeot drove towards Cleveland before meeting the Mitsubishi in Capalaba as described above.[106]
[106]ARB 1138, 1139 and exhibit 27.
The aftermath
On 25 January 2016, Daniels, Thrupp and Taiao all checked into the Evolution Apartments in Brisbane City and stayed there until around 9 or 10 February 2016.[107] Walker attended for a few hours on 25 January 2016 but left the same day.[108] He later purchased a one-way ticket to Auckland and flew out on 13 February 2016.[109]
[107]ARB 1224.
[108]ARB 1225.
[109]ARB 1225.
Breton’s partner and their daughter had flown to Sydney on 20 January 2016, having been driven to the airport by Breton. They flew back to Brisbane on 29 January 2016 and Breton was not there to meet them as he was supposed to be.[110] His partner reported him missing the following morning.[111]
[110]ARB 496.
[111]ARB 497.
On 10 February 2016, Tahiata took police to a waterhole at Scrubby Creek. On 11 February 2016 police divers located at that waterhole the toolbox containing both deceased, weighed down by concrete and tyres. When the toolbox was eventually recovered by police and opened, they found that rubbish had been placed in the toolbox on top of Breton and Triscaru.
The boot ride hypothesis
A particular exculpatory hypothesis was raised at trial through the cross-examination of Harrington and of Mareiti, namely the so-called “boot ride” hypothesis. In drug circles and presumably for intimidation purposes, a boot ride occurs when a person is put in a car boot (hence the name), taken for a drive so as to put them in fear of their lives, and then let go.
The relevant exchange between counsel for Daniels and Harrington was (emphasis added):[112]
[112]ARB 638-639.
“Right. You never heard [Daniels] say to anyone, “Well, look, let’s kill them. Let’s hurt them.” Do you agree with that?---No – yeah.
You don’t – you do agree with that. Okay. Good?---Never heard him say it.
No. When they left, you understood what was going to happen was that they were going to be driven somewhere, let out of the box, and made to walk home. That’s what you thought was going to happen?---That’s what I was assuming. Yeah.
All right. And, indeed, you pleaded guilty, didn’t you, to two – to four offences. Two counts of assault occasioning bodily harm whilst in company, and two counts of deprivation of liberty, relating to this incident. Correct?---Yeah.
And just for completeness, your head sentence was a suspended sentence of 18 months for a period of 36 months. Correct?---Yeah.
And that was on the 4^th of June, 2018. Do you agree?---Yeah.
And the basis for that was – just excuse me. Sorry, your Honour. Was this – that at no time did you believe the victims were going to die. That you believed they’d be taken or driven somewhere and let go. Correct?---Yep.
You’ve heard the term of a boot ride, correct?---Yep.
That’s a fairly common practice, isn’t it, in drug circles?---Yeah.
Where people are put in a boot or a container, taken - - -?---Yeah.
- - - for a drive - - -?---Sometimes around the block, yeah.
- - - given a bit of a scare, and then let go. Correct?---Yeah.
Right. And this had all the hallmarks of that, didn’t it? All the characteristics of it?---A bit extreme, though.
Remember I asked you that exact same question?---Yeah.
And you said yes?---Yeah.
I asked you – this is at 487:
And this had all the hallmarks of a boot ride; correct?---Yes.
?---Yeah.
That’s the - - -?---Yes.
- - - situation, isn’t it? Correct?---Yeah”

This argument must be rejected for the same reasons as it was in relation to Daniels. Taiao identified evidence which was said to be consistent with the boot ride hypothesis, but nothing so identified was sufficient to demonstrate that it was not open to the jury to reach the contrary view.
In our view it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of Taiao on the offences of murder, for the same reasons as we have expressed in relation to Daniels’ appeal.
This appeal ground fails.
Appeal ground 3: Miscarriage of justice by inadequate particulars and directions concerning requisite knowledge, belief or intent
The relevant part of the question trail for Taiao which was left with the jury in relation to the count of the murder of Breton was as follows:
“[1]Are you satisfied beyond reasonable doubt that Breton was detained and placed in a toolbox at the unit on 24 January 2016?
[2]If no, your verdict will be not guilty to murder and not guilty to manslaughter.
[3]If yes to [1], are you satisfied beyond reasonable doubt that the death of Breton on 24 January 2016 was caused by his placement in the toolbox which was itself placed in Scrubby Creek?
[4]If no to [3], your verdict will be not guilty to murder and not guilty to manslaughter.
[5]If yes to [3], are you satisfied beyond reasonable doubt that Breton was placed in the toolbox and the toolbox placed in Scrubby Creek with the intention that he be killed or suffer grievous bodily harm?
[6]If no to [5], your verdict is not guilty to murder but you must consider manslaughter.
[7]If yes to [5], are you satisfied beyond reasonable doubt that Taiao, by doing any or all of the acts relied upon by the Crown in Annexure E, aided in the intentional killing of Breton?
[8]If yes to [7], your verdict will be guilty of murder.
[9]If no to [7], are you satisfied beyond reasonable doubt that Taiao formed an intention or entered into an intention already formed by others to detain, place and keep Breton in a toolbox and then dispose of the toolbox with him in it?
[10]If yes to [9], are you satisfied beyond reasonable doubt that the intentional killing of Breton was the probable consequence of the prosecution of that purpose?
[11]If yes to [10], your verdict will be guilty of murder.
[12]If yes to [9] but no to [10], are you satisfied beyond reasonable doubt that the unintentional but unlawful killing of Breton was the probable consequence of the prosecution of that purpose?
[13]If yes to [12], your verdict will be not guilty of murder but guilty of manslaughter.
[14]If no to [9] – [12], are you satisfied beyond reasonable doubt that Taiao, by doing any or all of the acts in Annexure E, aided in the unintentional but unlawful killing of Breton?
[15]If yes to [14], your verdict will be not guilty of murder but guilty of manslaughter.
[16]If no to [14], your verdict will be not guilty of murder and not guilty of manslaughter.”
The “Annexure E” mentioned in question 7 was a dot point listing of the acts which the Crown had particularised. As mentioned, we have identified those acts in the table at [97] above.
The relevant part of the question trail left with the jury in relation to the count of the murder of Triscaru differed only in that her name was substituted for that of Breton. Accordingly it suffices to consider this ground by reference only to Breton.
Consideration
Questions 1 to 7 of the question trail were framed on the basis that Taiao’s liability for murder was as an aider but not a principal offender. Questions 7 and 8 frame the critical final questions the answers to which would result in a verdict guilty of murder as an aider pursuant to s 7. Questions 9 to 12 address the s 8 case. And Questions 14 to 16 address the case of aiding an unintentional but unlawful killing.
Question 1 to 4 established the critical causation hypotheses. Questions 5 and 6 then dealt with intention, but as was the case in relation to the similar questions posed in relation to Thrupp, they referred to intention at two different times and two different places (namely at the Tav where Breton and Triscaru were placed in the toolbox, and, later, at Scrubby Creek where the toolbox was placed in the lagoon). And again because the question was expressed in the passive voice it did so without identifying whose intention had to be considered. Indeed, as was the case with Daniels, it is difficult to see how Question 5 could be construed as referring to Taiao’s intention, because there was no evidence he was at Scrubby Creek, so if the toolbox was placed in the Scrubby Creek with the intention that Breton be killed or suffer grievous bodily harm it could not have been Taiao’s intention, but must have been a reference to the intention of the principal offender (ex hypothesi, on this basis, Tahiata).
Question 7 then just asked the jury to consider whether Taiao aided in the “intentional” killing “by doing any or all of the acts relied on by the Crown in Annexure E”. The question did not specify whose intention was intended to be assessed. Given the structure of the question trail, the jury would probably have interpreted the intentional killing as a reference to the principal offender’s intention, not that of Taiao. Nor was any mention made of Taiao as aider needing to have any particular knowledge or intention at any particular time.
The problem then was that without requiring any consideration at all of the existence of particular knowledge or intention of Taiao, Question 8 directed a verdict of murder if Question 7 was answered in the affirmative. As was the case in relation to Thrupp and Daniels, that required the jury to reason in a way which was contrary to the law discussed at [18] et seq above because it did not require the jury to address the critical question whether, at the time Taiao did the acts said to have constituted the aid, Taiao knew that that the principal offender(s) (whoever they were) intended to kill Breton or to do him grievous bodily harm or shared that intention.
The significance of those errors must be evaluated in the same way as was done in relation to Thrupp and Daniels. The result is that in our view Taiao has demonstrated that there was a miscarriage of justice in relation to the verdict of murder of Breton, and, it would follow, also of Triscaru.
Conclusion
The consequence of finding that a miscarriage of justice occurred in relation to appeal ground 3 is that it becomes unnecessary to consider appeal ground 1.
The verdicts on the two counts of murder should be set aside and retrials ordered.

Consideration of Walker’s appeal
The appeal grounds

Walker appealed on two grounds:
(a)Ground 1: That the verdicts are unreasonable and cannot be supported having regard to the evidence.
(b)Ground 2: The trial Judge erred in his directions relating to flight, lies and post-offence conduct.
Walker also embraced the argument which had been advanced for Thrupp in relation to the directions given to the jury about knowledge, belief or intention in relation to ss 7 and 8 of the Criminal Code. It is convenient to refer to this as his appeal ground 3.
Ground 1 must first be considered because if it were to be made good, Walker would be entitled to an acquittal on each of the counts he faced. If either ground 2 or ground 3 were to be made good, then Walker would be entitled to a retrial in respect of each count.
Appeal ground 1: Verdicts unreasonable and cannot be supported
Walker, like Daniels and Taiao, was not present at the time the toolbox containing Breton and Triscaru was placed in the water at Scrubby Creek. We have earlier identified how the evidence supported the Crown case of aiding and the evidence from which inferences might be drawn as to Walker’s knowledge and intention.
To our minds the resolution of this appeal ground turns on whether it was open to the jury to conclude that the Crown had excluded beyond reasonable doubt the boot ride hypothesis in relation to Walker’s state of mind. If it had not, then it would not have been open to the jury to conclude that he joined the particularised common intention, so s 8 would not form a pathway to guilt. And if it had not, and it was a reasonable possibility that his state of mind was that Breton and Triscaru were to be taken on a boot ride, then it could not have been open to the jury to find that he knew the essential matters which constituted the offence of manslaughter because even on that hypothesis he needed to know that the conduct constituting the offence was occurring or would occur. And that conduct could not include conduct which involved releasing Breton and Triscaru.
The evidence reveals that Walker was present at the Tav on two occasions. The evidence of Conroy is telling as to his state of mind when he left the Tav after the first occasion. But notwithstanding having that state of mind he then returned to the Tav and stayed there for a little over 2 hours. He later admitted that he had to keep his composure because the boss (namely Daniels) was there. He interacted with Harrington when they were both in the garage. He participated in the convoy by driving Daniels away from the Tav. His presence was not neutral. His voluntary and deliberate presence on that second occasion without opposition or real dissent was evidence of wilful encouragement or aiding of some unlawful activity.
But the evidence does not reveal that he was party to the torture or the cleaning activities. On the second occasion he was in the garage and had a much-reduced ability to see what was going on. He was much further removed from the action that were the other appellants. The notion that he might have thought that he was participating in a boot ride was not fanciful at all. It seems to us that it was not open for the jury to conclude that that possibility was excluded beyond reasonable doubt. It would then follow that we find that it was not open to the jury to conclude that his guilt of manslaughter was proved beyond reasonable doubt.
It would follow that this appeal ground must succeed. It was for these reasons that on 16 July 2024, we made the orders previously recorded. In light of our conclusion it is unnecessary to consider the remaining appeal grounds. However, because it is a ground which has succeeded in relation to the other appellants, we will, and for completeness, address appeal ground 3.
Appeal ground 3: Miscarriage of justice by inadequate particulars and directions concerning requisite knowledge, belief or intent
We observe that even if we had reached a different view on appeal ground 1, appeal ground 3 would have succeeded, albeit for slightly different reasons to those expressed in relation to the other appellants.
The relevant part of the question trail for Walker which was left with the jury in relation to the count of the murder of Breton was as follows:
“[1]Are you satisfied beyond reasonable doubt that Breton was detained and placed in a toolbox at the unit on 24 January 2016?
[2]If no, your verdict will be not guilty to murder and not guilty to manslaughter.
[3]If yes to [1], are you satisfied beyond reasonable doubt that the death of Breton on 24 January 2016 was caused by his placement in the toolbox which was itself placed in Scrubby Creek?
[4]If no to [3], your verdict will be not guilty to murder and not guilty to manslaughter.
[5]If yes to [3], are you satisfied beyond reasonable doubt that Breton was placed in the toolbox and the toolbox placed in Scrubby Creek with the intention that he be killed or suffer grievous bodily harm?
[6]If no to [5], your verdict is not guilty to murder but you must consider manslaughter.
[7]If yes to [5], are you satisfied beyond reasonable doubt that Walker, by doing any or all of the acts relied upon by the Crown in Annexure G, aided in the intentional killing of Breton?
[8]If yes to [7], your verdict will be guilty of murder.
[9]If no to [7], are you satisfied beyond reasonable doubt that Walker formed an intention or entered into an intention already formed by others to detain, place and keep Breton in a toolbox and then dispose of the toolbox with him in it?
[10]If yes to [9], are you satisfied beyond reasonable doubt that the intentional killing of Breton was the probable consequence of the prosecution of that purpose?
[11]If yes to [10], your verdict will be guilty of murder.
[12]If yes to [9] but no to [10], are you satisfied beyond reasonable doubt that the unintentional but unlawful killing of Breton was the probable consequence of the prosecution of that purpose?
[13]If yes to [12], your verdict will be not guilty of murder but guilty of manslaughter.
[14]If no to [9] – [12], are you satisfied beyond reasonable doubt that Walker, by doing any or all of the acts in Annexure G, aided in the unintentional but unlawful killing of Breton?
[15]If yes to [14], your verdict will be not guilty of murder but guilty of manslaughter.
[16]If no to [14], your verdict will be not guilty of murder and not guilty of manslaughter.”
The “Annexure G” mentioned in question 7 was a dot point listing of the acts which the Crown had particularised. As mentioned, we have identified those acts in the table at [109] above.
The relevant part of the question trail left with the jury in relation to the count of the murder of Triscaru differed only in that her name was substituted for that of Breton. Accordingly it suffices to consider this ground by reference only to Breton.
Consideration
Questions 1 to 7 of the question trail were framed on the basis that Walker’s liability for murder was as an aider but not a principal offender. Questions 7 and 8 frame the critical final questions the answers to which would result in a verdict guilty of murder as an aider pursuant to s 7. Questions 9 to 12 address the s 8 case. And Questions 14 to 16 address the case of aiding an unintentional but unlawful killing.
Question 1 to 4 established the critical causation hypotheses. Questions 5 and 6 then dealt with intention, but as was the case in relation to the similar questions posed in relation to Thrupp, they referred to intention at two different times and two different places (namely at the Tav where Breton and Triscaru were placed in the toolbox, and, later, at Scrubby Creek where the toolbox was placed in the lagoon). And again because the question was expressed in the passive voice it did so without identifying whose intention had to be considered. Indeed, as was the case with Daniels and Taiao, it is difficult to see how Question 5 could be construed as referring to Walker’s intention, because there was no evidence he was at Scrubby Creek, so if the toolbox was placed in the Scrubby Creek with the intention that Breton be killed or suffer grievous bodily harm it could not have been Walker’s intention, but must have been a reference to the intention of the principal offender (ex hypothesi, on this basis, Tahiata).
Question 7 then just asked the jury to consider whether Walker aided in the “intentional” killing “by doing any or all of the acts relied on by the Crown in Annexure G”. The question did not specify whose intention was intended to be assessed. Given the structure of the question trail, the jury may well have interpreted the intentional killing as a reference to Tahiata’s intention, not that of Walker. Nor was any mention made of Walker as aider needing to have any particular knowledge or intention at any particular time.
The problem then was that without requiring any consideration at all of the existence of particular knowledge or intention of Walker, Question 8 directed a verdict of murder if Question 7 was answered in the affirmative. As was the case in relation to Thrupp, that required the jury to reason in a way which is contrary to the law discussed at [18] et seq above because it did not require the jury to address the critical question whether, at the time Walker did the acts said to have constituted the aid, Walker knew that the principal offender(s) (whoever they were) intended to kill Breton or to do him grievous bodily harm or shared that intention.
If Walker had been convicted of murder, then the significance of those errors would have had to be evaluated in the same way as was done in relation to Thrupp, Daniels and Taiao, and with the same result. But Walker was only convicted of manslaughter. It is difficult to see how the misdirection about appropriate reasoning in relation to counts on which he was not convicted could amount to a miscarriage of justice in relation to the count on which he was convicted.
However, that cannot be an end to the analysis. We do not know by which path the jury arrived at the verdict of manslaughter. One possibility is that they did so by somehow proceeding via Questions 14 and 15. In those circumstances a similar difficulty arises as arose in relation to the earlier directions. We observe:
(a)As has been mentioned at [18] to [21] above, in order to be guilty of an offence as an aider to a principal offender the jury would have to be persuaded that at the time the defendant did the act(s) or said to have constituted the aid, the defendant knew the essential matters which constitute the offence committed by the principal offender.
(b)In the present context, the result would be that in order to establish criminal responsibility as an aider for the offence of manslaughter, the Crown would have to prove beyond reasonable doubt that at the time when Walker did the relevant act or acts which are said to have rendered him liable for manslaughter, Walker knew the essential matters which would constitute the offence of manslaughter committed by the principal offender(s) (whoever they were).
(c)The problem then is that Questions 14 and 15 do not identify what it was that Walker had to know. In that respect it is the same error as in relation to Questions 7 and 8 and its significance must be evaluated in the same way as was done in relation to Thrupp, Daniels and Taiao.
The result would have been that if we had rejected appeal ground 1, we would have formed the view that Walker has demonstrated that there was a miscarriage of justice in relation to the verdict of manslaughter of Breton, and, it would follow, also of Triscaru. That would have justified setting aside those verdicts and ordering a retrial.
Conclusion
As to Thrupp’s appeal, we would make the following orders:
(a)In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:
(i)Appeal allowed.
(ii)Convictions set aside.
(iii)New trial ordered.
(b)In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.
As to Daniels’ appeal, we would make the following orders:
(a)In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:
(i)Appeal allowed.
(ii)Convictions set aside.
(iii)New trial ordered.
(b)In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.
As to Taiao’s appeal, we would make the following orders:
(a)In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru:
(i)Appeal allowed.
(ii)Convictions set aside.
(iii)New trial ordered.
(b)In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.
As to Walker’s appeal, on 16 July 2024 we made the following orders:
(a)Appeal allowed.
(b)Convictions for manslaughter on counts 1 and 2 of the indictment set aside.
(c)Direct judgment and verdicts of acquittal of manslaughter on counts 1 and 2 of the indictment be entered.

CITATION:	R v Thrupp; R v Taiao; R v Walker; R v Daniels [2024] QCA 134
PARTIES:	In CA No 48 of 2021: R v THRUPP, Trent Michael (appellant) In CA No 49 of 2021: R v TAIAO, Davy Malu Junior (appellant) In CA No 54 of 2021: R v WALKER, Waylon Ngaketo Cowan (appellant) In CA No 70 of 2021: R v DANIELS, Stou (appellant)
FILE NO/S:	CA No 48 of 2021 CA No 49 of 2021 CA No 54 of 2021 CA No 70 of 2021 SC No 1701 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 11 March 2021 (Boddice J)
DELIVERED ON:	In CA No 48 of 2021; CA No 49 of 2021 and CA No 70 of 2021: 30 July 2024 In CA No 54 of 2021: Date of Orders: 16 July 2024 Date of Publication of Reasons: 30 July 2024
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2023
JUDGES:	Mullins P and Bond JA and Livesey AJA
ORDERS:	In CA No 48 of 2021 1. In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru: (a) Appeal allowed. (b) Convictions set aside. (c) New trial ordered. 2. In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed. In CA No 49 of 2021 1. In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru: (a) Appeal allowed. (b) Convictions set aside. (c) New trial ordered. 2. In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed. Date of Orders in CA No 54 of 2021: 16 July 2024 1. Appeal allowed. 2. Convictions for manslaughter on counts 1 and 2 of the indictment set aside. 3. Direct judgment and verdicts of acquittal of manslaughter on counts 1 and 2 of the indictment be entered. In CA No 70 of 2021 1. In relation to the convictions on counts 1 and 2 of the indictment for the murders of Breton and Triscaru: (a) Appeal allowed. (b) Convictions set aside. (c) New trial ordered. 2. In relation to the convictions on counts 3 and 4 of the indictment for the torture of Breton and Triscaru, appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where two people were lured to a home unit, tortured by being detained at the unit, assaulted, bound, and placed in a toolbox and locked inside it, and then subsequently driven to a wetlands area and disposed of by being placed in the waters and weighed down by concrete and tyres, which resulted in their death by drowning or asphyxiation – where the Crown alleged that the extent of the involvement of the appellants in those events was such as would necessarily attract their criminal responsibility for murder as aiders pursuant to s 7 or s 8 of the Criminal Code (Qld) – where three of the appellants were convicted of murder and one was convicted of manslaughter – where each of the appellants contended the verdicts should be set aside on the basis that the Crown failed to prove they had the state of knowledge, intention or belief necessary to render them criminally responsible – whether the verdicts of the jury were unreasonable and could not be supported having regard to the evidence – whether the verdicts were unreasonable and not supported by the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellants contended the verdicts should be set aside on the basis that the Crown failed to prove they had the state of knowledge, intention or belief necessary to render them criminally responsible –– whether there were deficiencies in the particulars given to the jury for the case under ss 7 and 8 of the Criminal Code in that they did not identify the aspect of each appellant’s knowledge or intention rendering them liable – where the trial judge gave oral directions and written questions trails for each appellant – whether inconsistency between the oral directions and the question trails occasioned a miscarriage of justice by requiring the jury to reason in a way contrary to law in relation to s 7 liability for murder Criminal Code (Qld), s 7, s 8, s 10A, s 291, s 300, s 302 Cliff v R [2023] NSWCCA 15, applied Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, followed Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37, cited Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 663, applied HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, followed M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37, cited Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited Puntigam v The State of Western Australia [2023] WASCA 46, cited R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited R v Barlow (1997) 188 CLR 1; [1997] HCA 19, followed R v Butler & Lawton & Marshall[2011] QCA 265, considered R v Dalton (2020) 3 QR 273; [2020] QCA 13, cited R v Jeffrey [2003] 2 Qd R 306; [1997] QCA 460, followed R v Keenan (2009) 236 CLR 397; [2009] HCA 1, cited R v Licciardello [2018] 3 Qd R 206; [2017] QCA 286, followed R v Mirotsos[2022] QCA 76, followed R v Quagliata[2019] QCA 45, cited R v Sherrington & Kuchler[2001] QCA 105, cited R v Taylor[2021] QCA 15, followed SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	P J Wilson, and J M Goldie and N Edridge, for the first appellant (pro bono) M Horvath and S F Lamb for the second appellant (pro bono) D J Walsh for the third appellant J R Cook for the fourth appellant N W Crane for the respondent
SOLICITORS:	Bouchier Khan for the first appellant (pro bono) Brighton Langley Law for the second appellant (pro bono) Hannay Lawyers for the third appellant Gilmore Lawyers for the fourth appellant Director of Public Prosecutions (Queensland) for the respondent