R v Wal Wal
[2025] QSC 37
•12 March 2025
Draft
SUPREME COURT OF QUEENSLAND
CITATION: R v Wal Wal [2025] QSC 37 PARTIES: The KING
v
WAL WAL, Kresto;
(first defendant)
WAL, Gabreal Wal;
(second defendant)
WAL, Santo;
(third defendant)
WAL WAL, Yohana;
(fourth defendant)
LOKOLONG, Joseph;
(fifth defendant)
MAJOK, Majok Riel;
(sixth defendant)
DENG, Alex Edward;
(seventh defendant)
KON, Chan Kuchmol;
(eighth defendant)
YAAK, Abraham Ajang;
(ninth defendant)
ABIO, Ben;
(tenth defendant)
MAKUOL, Juma Makuol Deng; and
(eleventh defendant)
MAKUACH, Malat Akoi
(twelfth defendant)FILE NO/S: Indictment No.1070 of 2024 DIVISION: Trial Division PROCEEDING: Trial (Judge Alone) ORIGINATING Supreme Court of Queensland at Brisbane COURT: DELIVERED ON: 12 March 2025 DELIVERED AT: Brisbane HEARING 12 November 2024; 13 November 2024; 14 November 2024; DATES:
15 November 2024; 18 November 2024; 19 November 2024; 20 November 2024; 21 November 2024; 22 November 2024;
25 November 2024; 27 November 2024; 28 November 2024;
29 November 2024; 2 December 2024JUDGE: Crowley J
VERDICTS: 1. In respect of Kresto Wal Wal: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
2. In respect of Gabreal Wal Wal: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
3. In respect of Santo Wal: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm
with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
4.
In respect of Yohana Wal Wal: Not guilty on all counts.
5. In respect of Joseph Lokolong: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
6. In respect of Majok Riel Majok: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6
(unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
7. In respect of Alex Edward Deng: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
8. In respect of Chan Kuchmol Kon: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count
11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
9. In respect of Abraham Ajang Yaak: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
10. In respect of Ben Abio: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
11. In respect of Juma Makuol Deng Makuol: Count 1 (murder): Guilty; Count 2 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 3 (unlawful grievous bodily harm
with intent to do grievous bodily harm): Guilty; Count 4 – alternative (unlawful wounding): Guilty; Count 5 (unlawful wounding with intent to do grievous bodily harm): Not guilty; Count 5 – alternative (unlawful wounding): Guilty; Count 6 (unlawful wounding with intent to do grievous bodily harm): Guilty; Count 7 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 8 (unlawful striking with intent to do grievous bodily harm): Not guilty; Count 9 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 10 (unlawful striking with intent to do grievous bodily harm): Guilty; Count 11 (unlawful assault occasioning bodily harm, whilst armed with a dangerous weapon and in company): Guilty.
12. In respect of Malat Akoi Makuach: Not guilty on all counts. CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – where the Crown alleged that the defendants, armed with various weapons, were involved in a violent attack upon another group of persons – where the co-accused are each charged with one count of murder and various other offences against the person against numerous complainants – whether the defendants are guilty of the charges
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – AID, ABET, COUNSEL OR PROCURE – where the Crown was unable to identify the individuals who did the act constituting the offence – where nine of the defendants were alleged to be present at the scene of the attack – whether proof of voluntary and deliberate presence is sufficient to prove aiding by intentional encouragement and support pursuant to s 7(1)(c) of the Criminal Code (Qld)
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE – where the Crown was unable to identify the individuals who did the act constituting the offence – where the Crown alleged the defendants formed a common intention to prosecute an unlawful purpose of inflicting serious physical harm upon a member or members of the complainant group – whether each defendant had the requisite knowledge and intention and was criminally responsible as a party to the alleged common unlawful purpose pursuant to s 8 of the Criminal Code (Qld)
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – WITHDRAWAL – whether the defendants had withdrawn prior to the commission of the offences
CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – where some witnesses had used social media to aid identification of a defendant – where a witness had discussed the identification of a defendant with another witness – whether the identification evidence could be accepted as reliable
CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – STANDARD OF PROOF – CIRCUMSTANTIAL EVIDENCE – where the Crown case was based largely on circumstantial evidence – where the Crown’s circumstantial case was a ‘strands in a cable’ case but certain facts were said to be indispensable intermediate facts – whether certain inferences can be drawn from facts proven by the circumstantial evidence – whether the Crown is able to exclude other hypotheses said to be consistent with innocence
CRIMINAL LAW – EVIDENCE – CORROBORATION AND POST-OFFENCE CONDUCT – ADMISSIONS AND CONDUCT OF ACCUSED – LIES, DENIALS ETC – where the Crown relied on post-offence conduct said to demonstrate consciousness of guilt in proof of a particular fact or facts in issue – where the Crown allege the defendants lied in police interviews – where the Crown allege the defendants deleted telephone records – whether the post-offence conduct demonstrated consciousness of guilt
Criminal Code (Qld), s 7(1)(a), s 7(1)(c), s 8, s 302, s 317, s
615B(1), s 615C(1), s 615C(3)
Alexander v The Queen (1981) 145 CLR 395, cited
Barca v The Queen (1975) 133 CLR 82, cited
Chamberlain v The Queen (No 2) (1984) 153 CLR 521, cited
Domican v The Queen (1991) 173 CLR 555, applied
Edwards v The Queen (1993) 178 CLR 193, applied
Knight v Jones [1981] Qd R 98, distinguished
R v Baden-Clay (2016) 258 CLR 308, applied
R v Beck [1990] 1 Qd R 30, cited
R v Brien & Paterson [1999] 1 Qd R 634, cited
R v Emelio [2012] QCA 111, applied
R v Hillier (2007) 228 CLR 618, applied
R v Menniti [1985] 1 Qd R 520, applied
R v Reid [2019] 1 Qd R 63, applied
R v Ritchie [1998] QCA 188, citedShepherd v The Queen (1990) 170 CLR 573, cited
COUNSEL: N Crane for the Crown
S Lynch for the defendant, Kresto Wal WalJ Hunter KC for the defendant, Gabreal Wal Wal
D Funch for the defendant, Santo Wal
C Wilson for the defendant, Yohana Wal Wal
J Kennedy for the defendant, Joseph Lokolong
M Harrison for the defendant, Majok Riel Majok
A Cappellano with A Cousen for the defendant, Alex Edward
Deng
J Fenton for the defendant, Chan Kuchmol Kon
A Hoare KC with G Gunn for the defendant, Abraham Ajang
Yaak
L Reece for the defendant, Ben Abio
V Drago for the defendant, Juma Makuol Deng Makuol
A Freeman KC for the defendant, Malat Akoi MakuachSOLICITORS: Office of the Director of Public Prosecutions (Queensland)
for the Crown
Phillips Crawford Lawyers for the first defendant, Kresto
Wal Wal
Guest Lawyers for the second defendant, Gabreal Wal Wal
Fisher Dore Lawyers for the third defendant, Santo Wal
Rostron Carlyle Rojas Lawyers for the fourth defendant,
Yohana Wal Wal
Beavon Lawyers for the fifth defendant, Joseph Lokolong
Hannay Lawyers for the sixth defendant, Majok Riel Majok
TWC Lawyers for the seventh defendant, Alex Edward Deng
AW Bale & Son for the eighth defendant, Chan Kuchmol
Kon
Karsas Lawyers for the ninth defendant, Abraham Ajang
Yaak
Jasper Fogerty Lawyers for the tenth defendant, Ben Abio
Alexander Rashidi Lawyers for the eleventh defendant, Juma
Makuol Deng Makuol
Legal Aid Queensland for the twelfth defendant, Malat Akoi
Makuach
Shepherd direction on identification ....................................................................................... 22
Witnesses giving evidence by audio-visual link ......................................................................... 22
Special witnesses ......................................................................................................................... 22
Expert witnesses .......................................................................................................................... 23
Prior inconsistent statements ....................................................................................................... 23
Witnesses not called .................................................................................................................... 23
Defendants not giving evidence .................................................................................................. 24
Admissions and statements against interest ................................................................................ 24
Lies demonstrating consciousness of guilt .................................................................................. 25
Transcripts of recordings ............................................................................................................. 26
Other post-offence conduct demonstrating consciousness of guilt ............................................. 27
Motive ......................................................................................................................................... 27
Directions on criminal responsibility and offence elements ...................................................... 28 Further directions on withdrawal ................................................................................................ 28
The evidence .................................................................................................................................. 29 Key exhibits and matters not in dispute ...................................................................................... 30
Admissions .............................................................................................................................. 30
Detective Sergeant Paul Jedrasiak – O’Callaghan Park and vehicles of interest .................... 31
Detective Senior Constable Cameron Buckingham – CCTV compilation .............................. 34
Essential matters not in dispute ............................................................................................... 35
A possible motive – the assault on John Wal .............................................................................. 36
Admissions .............................................................................................................................. 36
Detective Sergeant Joel Munn ................................................................................................. 36
CCTV around Ipswich earlier on 13 September ......................................................................... 37
Events at Willow Rd ................................................................................................................... 38
Madeleine Page ....................................................................................................................... 38
Cameron Waite ........................................................................................................................ 39
Detective Senior Constable Buckingham ................................................................................ 40
Base station data and maps .......................................................................................................... 40
Daniel Qamar .......................................................................................................................... 40
Raymond Chang ...................................................................................................................... 40
Telstra base station evidence for Mr Majok ............................................................................ 49
Arrival at Zillmere ....................................................................................................................... 50
CCTV compilation .................................................................................................................. 50
Andrew Toth ........................................................................................................................... 53
Nicole Jardie ............................................................................................................................ 53
Kathleen O’Callaghan ............................................................................................................. 54
CCTV at Zillmere before the incident ......................................................................................... 55
GPS location data ........................................................................................................................ 62
Detective Senior Constable Buckingham – Cellebrite downloads .......................................... 62 Accounts of the complainant group............................................................................................. 69
Kyle Avenido .......................................................................................................................... 69
Turuk Shong ............................................................................................................................ 74
Ronal Eresto ............................................................................................................................ 76
Zaki Adwanga ......................................................................................................................... 80
Rami Eresto ............................................................................................................................. 89
Aida Subek .............................................................................................................................. 97
Valentino Uchala ..................................................................................................................... 98
Ammanuel Woldemariam ..................................................................................................... 100
Ayuong Awan ....................................................................................................................... 105
Rose Mabior .......................................................................................................................... 112
Accounts of eyewitnesses .......................................................................................................... 120
Robert Savage ....................................................................................................................... 120
Alicia Savage......................................................................................................................... 122
David Briggs ......................................................................................................................... 125
Eva Willmot .......................................................................................................................... 127
CCTV at Zillmere after the incident ...................................................................................... 132
Evidence of first responders ...................................................................................................... 134
Detective Sergeant Paul Jedrasiak ......................................................................................... 134
Dr Stephen Rashford ............................................................................................................. 135
Senior Constable Bob Green ................................................................................................. 136
Constable Harry Chen-Shing Wu .......................................................................................... 136
Sergeant David Shelley ......................................................................................................... 137
Constable Sang Moon ........................................................................................................... 137
Crime scene examinations and forensic evidence ..................................................................... 138
Senior Constable Renee Torok .............................................................................................. 138
Senior Constable Luke Cervetto ............................................................................................ 140
Senior Constable Ashley Mileham ........................................................................................ 141
Sergeant Grant Raven ............................................................................................................ 143
Senior Constable Liam Richards ........................................................................................... 145
Sergeant Wesley Hetherington .............................................................................................. 146
DNA analysis evidence ............................................................................................................. 150 Deborah Rogers ..................................................................................................................... 150
Medical evidence of injuries ..................................................................................................... 159
Admissions ............................................................................................................................ 159
Dr Lauren Head ..................................................................................................................... 161
Dr Eric Richman .................................................................................................................... 161
Dr Julian Williams ................................................................................................................ 162
Dr Samantha Duncan ............................................................................................................ 163
Dr Gavin Fincher ................................................................................................................... 163
Dr Helen Davis ...................................................................................................................... 164
Dr Mohammad Ahmad .......................................................................................................... 164
Dr Gary Hall .......................................................................................................................... 164
Dr Keith Towsey ................................................................................................................... 165
Mr Mekonnen’s autopsy ............................................................................................................ 167 Dr Nadine Ford ...................................................................................................................... 167
Police interviews ....................................................................................................................... 170
Detective Senior Constable Amanda Thomas – Recorded conversation with Ben Abio ...... 170
Detective Sergeant Kevin O’Hanlon – Recorded interview with Ben Abio ......................... 171
Detective Sergeant Michael Earner – Recorded interview with Malat Makuach ................. 172
Detective Senior Constable Jonathan Peters – Recorded interview with Alex Deng............ 174
Detective Sergeant Mark Challenger – Recorded conversation with Yohana Wal Wal ....... 175
Other police investigations ........................................................................................................ 176
Detective Senior Constable Belinda Ferguson (née Gregg) .................................................. 176
Officer Mitchell Seccombe ................................................................................................... 178
Detective Sergeant Reid Taylor ............................................................................................ 179
Detective Sergeant Kevin O’Hanlon ..................................................................................... 180
Detective Sergeant Jedrasiak ................................................................................................. 180
Makuol’s telephone call ............................................................................................................ 183
Mobile phone examinations ...................................................................................................... 184
Detective Senior Constable Buckingham .............................................................................. 184
Neil Robertson....................................................................................................................... 198
Telephone records ..................................................................................................................... 200
Rival contentions ......................................................................................................................... 203 The Crown case ......................................................................................................................... 203
Legal principles and party liability ........................................................................................ 204
Circumstantial features of the group’s movement ................................................................. 207
Individual defendants ............................................................................................................ 214
The Defence cases ..................................................................................................................... 221
Malat Makuach ...................................................................................................................... 221
Juma Makuol ......................................................................................................................... 228
Ben Abio ............................................................................................................................... 233
Abraham Yaak ....................................................................................................................... 237
Chan Kon............................................................................................................................... 239
Alex Deng ............................................................................................................................. 240
Majok Majok ......................................................................................................................... 259
Joseph Lokolong ................................................................................................................... 261
Yohana Wal Wal ................................................................................................................... 263
Santo Wal .............................................................................................................................. 266
Gabreal Wal........................................................................................................................... 270
Kresto Wal Wal ..................................................................................................................... 273
Consideration of common issues and general factual findings ............................................... 276
Travelling to Zillmere ............................................................................................................... 277
Events after arriving at Zillmere ............................................................................................... 282
What happened at Willow Rd? .................................................................................................. 287
Who remained with the cars? .................................................................................................... 289
The “violent propensities” of members of the complainant group ............................................ 289
“Bottles were being thrown” ..................................................................................................... 292
Credibility and reliability of Crown witnesses .......................................................................... 292
Kyle Avenido ........................................................................................................................ 292
Turuk Shong .......................................................................................................................... 293
Ronal Eresto .......................................................................................................................... 294
Zaki Adwanga ....................................................................................................................... 294
Rami Eresto ........................................................................................................................... 294
Aida Subek ............................................................................................................................ 295
Valentino Uchala ................................................................................................................... 295
Ammanuel Woldemariam ..................................................................................................... 295
Ayuong Awan ....................................................................................................................... 295
Rose Mabior .......................................................................................................................... 296
David Briggs ......................................................................................................................... 297
Robert Savage ....................................................................................................................... 297
Alicia Savage......................................................................................................................... 297
Eva Willmot .......................................................................................................................... 297
The attack .................................................................................................................................. 298
The attackers ......................................................................................................................... 298
Motive for the attack ............................................................................................................. 300
A planned and co-ordinated attack ........................................................................................ 300
The approach of the attacking group ..................................................................................... 303
Weapons produced and used by the attackers ....................................................................... 303
Commencement of the attack ................................................................................................ 304
Particular acts of violence and injuries .................................................................................. 304
The timeline analysis ................................................................................................................. 313
The withdrawal argument .......................................................................................................... 325
The Crown’s post-offence conduct arguments .......................................................................... 326
The forensic evidence ................................................................................................................ 329
Consideration of the individual cases ........................................................................................ 331 Kresto Wal Wal ......................................................................................................................... 331
Relevant facts and circumstances .......................................................................................... 331
Identification evidence .......................................................................................................... 336
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 345
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 345
Findings and conclusions about the s 8 common unlawful purpose case ............................. 347
Gabreal Wal .............................................................................................................................. 348
Relevant facts and circumstances .......................................................................................... 348
Identification evidence .......................................................................................................... 353
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 357
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 357
Findings and conclusions about the s 8 common unlawful purpose case ............................. 357
Santo Wal .................................................................................................................................. 359
Relevant facts and circumstances .......................................................................................... 359
Findings and conclusions about the s 8 common unlawful purpose case ............................. 366
Yohana Wal Wal ....................................................................................................................... 368
Relevant facts and circumstances .......................................................................................... 368
Findings and conclusions about the s 8 common unlawful purpose case ............................. 374
Joseph Lokolong ....................................................................................................................... 375
Identification evidence .......................................................................................................... 375
Relevant facts and circumstances .......................................................................................... 380
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 385
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 385
Findings and conclusions about the s 8 common unlawful purpose case ............................. 386
Majok Majok ............................................................................................................................. 387
Identification – Relevant facts and circumstances ................................................................ 387
Other facts and circumstances established by the circumstantial evidence ........................... 392
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 394
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 394
Findings and conclusions about the s 8 common unlawful purpose case ............................. 395
Alex Deng ................................................................................................................................. 396
Complainants’ evidence ........................................................................................................ 397
Relevant facts and circumstances .......................................................................................... 398
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 405
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 405
Findings and conclusions about the s 8 common unlawful purpose case ............................. 405
Chan Kon .................................................................................................................................. 407
Relevant facts and circumstances .......................................................................................... 407
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 413
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 414
Findings and conclusions about the s 8 common unlawful purpose case ............................. 414
Abraham Yaak........................................................................................................................... 415
Relevant circumstantial evidence .......................................................................................... 416
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 420
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 421
Findings and conclusions about the s 8 common unlawful purpose case ............................. 421
Ben Abio ................................................................................................................................... 422
Relevant circumstantial evidence .......................................................................................... 423
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 430
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 430
Findings and conclusions about the s 8 common unlawful purpose case ............................. 430
Juma Makuol ............................................................................................................................. 432
Identification evidence .......................................................................................................... 432
Relevant circumstantial evidence .......................................................................................... 434
Findings and conclusions about the defendant’s acts in the park and the s 7(1)(a) case ....... 441
Findings and conclusions about the s 7(1)(c) aiding case ..................................................... 442
Findings and conclusions about the s 8 common unlawful purpose case ............................. 442
Malat Makuach .......................................................................................................................... 443 Relevant facts and circumstances .......................................................................................... 444
Verdicts ........................................................................................................................................ 451
Annexure “A” .............................................................................................................................. 459
Annexure “B” .............................................................................................................................. 474
Annexure “C” .............................................................................................................................. 480
Over three weeks, commencing on 12 November 2024, the defendants stood trial before me, sitting without a jury, on an indictment which initially jointly charged each of them with the commission of the following offences:
Count 1: Murder Counts 2, 3, 7 to 10: Malicious act with intent Counts 4 to 6: Malicious act with intent
ALTERNATIVELY
Unlawful woundingCount 11: Assault occasioning bodily harm, while armed, in company
Upon arraignment each of the defendants pleaded not guilty to all 11 counts.
At the end of the Crown case, I allowed the Crown to amend Count 2 on the basis that there was a variance between the evidence and the indictment. In short, the evidence was incapable of proving that the injury sustained by the complainant, Kyle Avenido, amounted to grievous bodily harm, as originally alleged, but was capable of amounting to an injury in the nature of a wounding. Having been satisfied of the matters required under s 572 of the Criminal Code, I permitted the Crown to amend the indictment to that extent. Count 2, as amended, therefore charges each of the defendants that they, with intent to do grievous bodily harm, unlawfully wounded Kyle Avenido.
Further, at the close of its case and having regard to the evidence adduced at trial, the Crown accepted that it could not maintain the principal offence charged in Count 4. Accordingly, the Crown endorsed the indictment that it would not proceed further with that allegation, and I ordered that the defendants were each discharged in respect of that charge. Consequently, only the Count 4 alternative charge of unlawful wounding was maintained.
Overview of the Crown case
Each of the charges arise out of an incident that occurred at O’Callaghan Park, Zillmere, late in the afternoon on 13 September 2020. Several witnesses referred to this location as “the Zoo”. In summary, the Crown case is that on that day a group of persons of mostly African ethnicity (the complainant group) were gathered in the park, playing card games and drinking alcohol on and around the verandah of a small, green, demountable building (the canteen), located next to some baseball fields, when, at about 5.25 pm, they were set upon by another group of persons of African appearance (the attacking group) who were armed with bats, knives, machetes or other bladed instruments. The Crown alleges that many of the offenders were disguised, to an extent, in that they were mostly dressed in dark coloured clothes, wore long pants and long sleeve tops, and had their faces partially covered by masks or hoods.
The Crown alleges that a violent confrontation then ensued, during which several members of the complainant group were struck and stabbed by members of the attacking group. It is not disputed that one member of the complainant group, Girum Mekonnen, was fatally stabbed. Similarly, it is not disputed that others sustained serious injuries amounting to grievous bodily harm or unlawful wounding. The Crown says that after the melee, members of the attacking group fled the scene and were collected by three cars driven by other members of the group, who had been waiting nearby while the attack was carried out.
The Crown case is that each of the defendants was complicit in the attack, either as part of the attacking group which perpetrated the violence in the park, or as a driver of one of the “getaway” cars. It alleges the attack was planned and co-ordinated and was carried out in retaliation for an earlier violent group assault upon a man named John Wal.[1] That incident occurred outside the Town Square shopping centre at Redbank Plains on 8 September 2020. John Wal is the brother of the defendants Kresto Wal Wal, Gabreal Wal,[2] Santo Wal and Yohana Wal Wal. The Crown says the defendants suspected that members of the complainant group had been involved in that incident and upon somehow becoming aware that the complainant group was congregating in O’Callaghan Park, they arranged to travel there with weapons, driving in convoy from the Ipswich area to Zillmere in the three cars, for the purpose of seeking retribution by carrying out a violent attack upon those they believed were responsible for the assault on John Wal.
[1] Sometimes John Wal is referred to as John Wal Wal but for consistency I will just use the surname “Wal”.
[2] Sometimes Gabreal Wal is referred to as Gabreal Wal Wal but for consistency I will just use the surname “Wal”.
Although nine the defendants are alleged to be part of the attacking group, the Crown cannot identify the person or persons who fatally stabbed Mr Mekonnen. The Crown case is that whoever murdered him was necessarily one of the persons within the attacking group who perpetrated the violence in O’Callaghan Park. A similar position pertains in respect of each of the other alleged offences.
In terms of alleged criminal responsibility, the Crown case against each defendant, for each charge, is put on one or more of the following alternative bases:
(a) that they were an actor who did the act constituting the offence – s 7(1)(a) of the Criminal Code; or (b) that they aided an actor in committing the offence – s 7(1)(c) of the Criminal Code; or (c) that they were a party to a common unlawful purpose to inflict serious physical harm upon a member or members of the complainant’s group, and the offence committed was a probable consequence of the prosecution of that common unlawful purpose – s 8 of the Criminal Code.
The Crown accepts that the defendants Santo Wal, Yohana Wal Wal and Malat Makuach did not attend the park, but alleges they were the drivers of the three cars that picked up the fleeing attackers. Accordingly, they are only said to be liable for the offences committed by the attacking group by virtue of s 8 of the Criminal Code. Each of the other defendants are said to be liable under s 7(1)(a), s 7(1)(c) or s 8.
The Crown provided written particulars of the charges against each defendant.[3] As a consequence of the amendment of Count 2, I also permitted the Crown to amend its particulars. A copy of the amended particulars is annexed.[4]
[3] MFI “A”.
[4] Annexure “A” – Amended Particulars.
Given the Crown is unable to prove the identity of the person who did the act constituting the offence in each instance, the Crown case largely rests upon s 8 and the allegation that each of the defendants was a party to the alleged common unlawful purpose to inflict serious physical harm upon a member or members of the complainant group.
Irrespective of how the Crown case is framed, the crucial facts in issue in the trial relate to proof of the presence of the defendants at Zillmere, proof of the identity of those who attended the park as part of the attacking group, proof of their participation in the incident and events and proof of the requisite knowledge and intention on their part in respect of the alleged plan to inflict serious physical harm upon a member or members of the complainant group. The Crown case in each respect is largely circumstantial. The Crown relies upon various strands of evidence to establish each of these essential matters in the case against each defendant.
General principles and directions of law
General features of a judge alone trial
In conducting the trial as a judge sitting without a jury, I have been required to apply, so far as is practical, the same principles of law and procedure as would be applied in a trial before a jury.[5] If the law requires or prohibits a warning to be given to a jury in particular circumstances, I must take that requirement or prohibition into account if the circumstances arise in this trial.[6] I may make any findings and give any verdict which a jury could have made. Any finding I make or verdict I give has the same effect as if rendered by a jury.[7] I am obliged to give reasons for my judgment, which must include the principles of law that I have applied, the finding of fact I have relied upon, and the processes of reasoning by which I have reached my verdicts.[8]
[5] Criminal Code, s 615B(1).
[6] Criminal Code, s 615B(3).
[7] Criminal Code, s 615C(1).
[8] Criminal Code, s 615C(3); R v FAX (2020) 5 QR 117.
Presumption of innocence, burden and standard of proof
The Crown bears the onus of proving that a defendant is guilty of a charge. There is no onus upon any defendant to prove any fact, let alone their innocence. The defendants are each presumed innocent of all charges against them. The presumption of innocence remains unless and until the Crown proves any defendant is guilty of a charged offence. The standard of proof in each case is beyond reasonable doubt. Proof beyond reasonable doubt is the highest standard of proof known to the law. It contrasts with the civil standard of proof, on the balance of probabilities. The criminal standard of proof beyond reasonable doubt is much higher than the civil standard.
In order to convict any defendant of a charged offence I must be satisfied beyond reasonable doubt of every essential element of that offence and of every essential matter required to establish the defendant’s criminal responsibility for that offence.
Duty to act only on the evidence
In reaching my verdicts, I must act impartially and dispassionately and only on the evidence presented during the trial. My task is an exercise in logic and reason and is to be undertaken free from all feelings of sympathy, prejudice, bias and emotion.
Multiple accused and multiple charges
I am cognisant that there are twelve individual defendants who are each jointly charged with committing eleven offences. Whilst the defendants have been jointly tried, each defendant is entitled to have the case against him decided on the evidence, and on the law, that applies to him, and as it relates to each particular charge. I must separately consider the cases against, and for, each of the defendants. I must return a separate verdict on each charge and my verdicts do not necessarily have to be the same for each defendant or for each charge.
My conclusion as to whether I am satisfied beyond reasonable doubt of the guilt of any one defendant on any charge has no bearing on my consideration of whether I am satisfied beyond reasonable doubt of the guilt of another defendant on any charge.
Evidence and fact finding
In reaching my verdicts I must consider the whole of the evidence. The evidence is the testimony of the witnesses and the other exhibits admitted as evidence in the trial. In addition, I must also consider the various facts formally admitted by the parties, which I take to be proven without requiring further evidence to be adduced.
I must find the facts in respect of the relevant issues raised at trial and decide any factual disputes having regard only to the evidence adduced at trial. It is for me to decide what evidence I accept or reject and what weight I give the evidence I do accept. In doing so, I must consider the credibility, reliability and cogency of the evidence.
I may accept the whole of what a witness says, or only part of it, or none of it. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’s evidence. I may accept parts of it, if I think it is worthy of acceptance. It is for me to decide whether a witness is telling the truth and correctly recalls the facts upon which he or she has testified.
My acceptance or rejection of any evidence given by a witness may be based on a number of things, including what the witness had to say in the witness box; the manner in which the witness gave their evidence; the general impression which he or she made upon me when giving evidence; the opportunity the witness had to see, hear or know the things that the witness testified about; any statements which the witness may have made at an earlier time, such as in a police witness statement or at a committal hearing; and my assessment of other evidence, including from other witnesses, documents, recordings or other exhibits.
Inferences
I may find facts are directly proven by the evidence or are indirectly proven by way of inference from other established facts.
Although I may draw inferences from the existence of other facts, I may only draw reasonable inferences; any inferences drawn must be based on the facts that I find proven; and there must be a logical and rational connection between the facts I find established by the evidence and any deduction or conclusion I reach. Intuition or guesswork are not permitted. I must not engage in speculation or conjecture to fill in any gaps in the evidence.
Circumstantial evidence
When the case against an accused person rests substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. In such a case, it is necessary that proof of a defendant’s guilt beyond reasonable doubt is not only a rational inference, but also that it should be the only rational inference that the circumstances would enable to be drawn.[9] If there is any rational hypothesis consistent with innocence the defendant is entitled to be acquitted.[10]
[9] R v Baden-Clay (2016) 258 CLR 308, [46] (Baden-Clay), citing Barca v The Queen (1975) 133 CLR 82 (Barca).
[10] Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shepherd v The Queen (1990) 170 CLR 573 (Shepherd).
For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a finding of guilt if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.[11]
[11] Baden-Clay, [47], citing Barca.
In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[12] The evidence is not to be looked at in a piecemeal fashion.[13]
[12] Ibid, citing R v Hillier (2007) 228 CLR 618, 637 (Hillier).
[13] Ibid, citing Hillier, 638.
I bear in mind that where the Crown advances a circumstantial case, a distinction must be drawn between the underlying facts and circumstances that may be established by inference and the ultimate inference of guilt that the Crown contends ought to be drawn in all the circumstances. In such a case, it is not necessary to prove each individual underlying fact or circumstance relied upon by the Crown to any particular standard, let alone prove that it is the only reasonable or rational inference to be drawn. Such a standard of proof only applies to the ultimate inference of guilt. The cogency of the inference of guilt is derived from the cumulative weight of the circumstances, not the quality of proof of each circumstance.[14]
[14] Shepherd, 592–593 (McHugh J), 579 (Dawson J); cited in R v Waters [2023] QCA 243, [139]–[140].
I also bear in mind that it is not incumbent on a defendant either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. At all times, it remains for the Crown to prove the accused's guilt of an offence beyond reasonable doubt.[15] The Crown is thus required to exclude any rational hypothesis consistent with innocence that reasonably arises on the evidence.
[15] Baden-Clay, [62].
Identification evidence
As to the second matter, the Prosecution must prove that the alleged offence was committed in carrying out or in furtherance of the alleged common unlawful purpose.
As to the third matter, the Prosecution must prove that the alleged offence committed was a probable consequence of the prosecution of the alleged common unlawful purpose.
You must consider the nature of the alleged offence committed, including any necessary intention required to be proven under the elements of that offence, and decide whether its commission was a probable consequence of carrying out the alleged common unlawful purpose. The Prosecution must satisfy you that the alleged offence committed was a probable consequence which would have been apparent to an ordinary reasonable person with the Defendant’s state of knowledge at the time when the common unlawful purpose was formed. That test is an objective one and is not whether the Defendant himself recognised the probable consequence or realised or foresaw it at the time the common purpose was formed.
A ‘probable consequence’ means more than a mere possibility. For a consequence to be a probable one, it must be one that you would regard as probable in the sense that it could well have happened. So, for the alleged offence actually committed to be ‘a probable consequence’ of carrying out the common unlawful purpose, the commission of the alleged offence must be not merely possible, but probable in the sense that it could well have happened in the prosecution of the common unlawful purpose.
Annexure “C”
Preliminary Directions on Offence Elements
Introduction
These directions are to be read with and accompany the directions set out in the document of the individual Defendants charged with committing the particular alleged offence you are considering on the basis that they are alleged to be an actor who committed the offence. Similarly, unless otherwise indicated, all references to ‘the alleged offence’ and ‘the complainant’ refer to the particular charge and the person the subject of the particular alleged offence that you are considering.
‘Preliminary Directions on Criminal Responsibility’.
Onus and standard of proof
The Prosecution has the onus of proving each charge against each Defendant. The standard
of proof in each case is beyond reasonable doubt.
A criminal offence is made up of elements. To prove a charge beyond reasonable doubt the
Prosecution must prove all elements of the alleged offence beyond reasonable doubt.
Count 1: Murder
Under our criminal law it is unlawful to kill any person unless such killing is authorised, justified or excused by law and any person who commits an unlawful killing will be guilty of either murder or manslaughter, depending on the circumstances of the case. In this case, the Prosecution alleges that the circumstances constitute the offence of murder.
To prove the alleged offence of murder the Prosecution must prove each of the following elements beyond reasonable doubt:
1. Girum Mekonnen is dead;
2. The Defendant caused his death;
3. The Defendant did so unlawfully;
4. The Defendant intended to kill him or to do grievous bodily harm to him.
Element 1 requires the Prosecution to prove that Girum Mekonnen is dead. That is not a held when an act is done. ‘Intended’ refers to a past state of mind held when an act was done.
matter in dispute in this case.
Element 2 requires the Prosecution to prove that the Defendant caused Girum Mekonnen’s
death.
A person who causes the death of another, directly or indirectly and by any means whatever,
is deemed to have killed that other person.
It is not necessary to prove that the alleged act of the Defendant was the sole or only
contributing cause of death. However, it must be proved the Defendant’s act was a
substantial or significant cause of death or contributed substantially to the death.
The Prosecution alleges that the Defendant stabbed Girum Mekonnen causing the injury
that caused his death. You will need to decide whether the Defendant did that act and, if so,
whether by doing that act the Defendant caused Girum Mekonnen’s death.
Element 3 requires the Prosecution to prove that in causing Girum Mekonnen’s death the
Defendant did so unlawfully.
‘unlawfully’ means not authorised, justified or excused by law. Any killing of a person is
unlawful, unless authorised, justified or excused by law.
Element 4 requires the Prosecution to prove the mental element of intention. The
Prosecution must prove the Defendant intended to either cause Girum Mekonnen’s death or
to do him grievous bodily harm.
‘grievous bodily harm’ means the loss of a distinct part or an organ of the body, or serious
disfigurement, or any bodily injury of such a nature that, if left untreated, would be likely
to endanger life, or be likely to cause permanent injury to health, whether or not treatment
is or could have been available.
‘intention’, ‘intent’ and ‘intended’ are ordinary words that carry their ordinary meanings.
Alternative offence for Count 1: Manslaughter
The first three elements of the offence of murder make up the elements of the offence of manslaughter. Proof of them without proof of the fourth element of intention would prove the offence of manslaughter.
Although it is not expressly stated in the indictment, the offence of manslaughter is an inherent alternative charge to murder. However, it only becomes available as an alternative in the event you are satisfied beyond reasonable doubt of the first three elements of the offence of murder but not satisfied of the fourth element, requiring proof of the Defendant’s intention. In that case you would find the Defendant not guilty of murder but may find the Defendant guilty of manslaughter.
Counts 2 & 3: Grievous bodily harm with intent to cause grievous bodily harm
To prove the alleged offence of grievous bodily harm with intent to cause grievous bodily harm the Prosecution must prove each of the following elements beyond reasonable doubt:
1. The Defendant did grievous bodily harm to the complainant;
2. The grievous bodily harm was unlawful;
3. The Defendant acted with intent to do grievous bodily harm to the complainant.
Element 1 requires the Prosecution to prove that the Defendant did an act which caused said the Defendant did grievous bodily harm to the complainant:
grievous bodily harm to the complainant.
| • | For Count 2, the Prosecution alleges the Defendant caused a chest injury to the complainant Kyle Avenido that amounted to grievous bodily harm. |
| • | For Count 3, the Prosecution alleges the Defendant stabbed the complainant Ronal Eresto, an injury that amounted to grievous bodily harm. |
‘grievous bodily harm’ means the loss of a distinct part or an organ of the body, or serious disfigurement, or any bodily injury of such a nature that, if left untreated, would be likely to endanger life, or be likely to cause permanent injury to health, whether or not treatment is or could have been available.
Element 2 requires the Prosecution to prove the mental element of intent. The Prosecution must prove that when the Defendant did the alleged act he intended to do grievous bodily harm to the complainant.
‘intention’, ‘intent’ and ‘intended’ are ordinary words that carry their ordinary meanings. They are largely interchangeable. ‘Intention’ and ‘intent’ refer to a present state of mind held when an act is done. ‘Intended’ refers to a past state of mind held when an act was done.
Counts 4, 5 & 6: Unlawful wounding with intent to cause grievous bodily harm
To prove the alleged offence of unlawful wounding with intent to cause grievous bodily harm the Prosecution must prove each of the following elements beyond reasonable doubt:
1. The Defendant wounded the complainant;
2. The wounding was unlawful;
3. The Defendant acted with intent to do grievous bodily harm to the complainant.
Element 1 requires the Prosecution to prove that the Defendant did an act which wounded to cause the particular result of grievous bodily harm, but less serious harm was caused to the complainant.
the complainant.
‘wounded’ means the true skin was broken and penetrated, not merely the cuticle or outer
skin.
Element 2 requires the Prosecution to prove that the wounding of the complainant was
unlawful.
‘unlawful’ means not authorised, justified or excused by law.
Element 3 requires the Prosecution to prove the mental element of intent. The Prosecution
must prove that when the Defendant did the alleged act he intended to do grievous bodily
harm to the complainant.
‘grievous bodily harm’ means the loss of a distinct part or an organ of the body, or serious
disfigurement, or any bodily injury of such a nature that, if left untreated, would be likely
to endanger life, or be likely to cause permanent injury to health, whether or not treatment
is or could have been available.
‘intention’, ‘intent’ and ‘intended’ are ordinary words that carry their ordinary meanings.
They are largely interchangeable. ‘Intention’ and ‘intent’ refer to a present state of mind
held when an act is done. ‘Intended’ refers to a past state of mind held when an act was
done.
Alternative offences for Counts 4, 5 & 6: Unlawful wounding
To prove the alleged offence of unlawful wounding the Prosecution must prove each of the following elements beyond reasonable doubt:
1. The Defendant wounded the complainant;
2. The wounding was unlawful.
Element 1 requires the Prosecution to prove that the Defendant did an act which wounded agreed that the Defendant is not guilty of the primary charge. That is, you must first all be agreed that the Prosecution has not proven each of the elements of the primary alleged offence beyond reasonable doubt.
the complainant.
‘wounded’ means the true skin was broken and penetrated, not merely the cuticle or outer
skin.
Element 2 requires the Prosecution to prove that the wounding of the complainant was
unlawful.
‘unlawful’ means not authorised, justified or excused by law.
The alternative offences for Counts 4, 5 and 6 do not require proof of any mental element
of intention to cause a particular result.
Counts 7, 8, 9 & 10: Unlawful striking with intent to cause grievous bodily harm
To prove the alleged offence of unlawful striking with intent to cause grievous bodily harm the Prosecution must prove each of the following elements beyond reasonable doubt:
1. The Defendant struck the complainant;
2. The striking was unlawful;
3. The Defendant acted with intent to do grievous bodily harm to the person.
Element 1 requires the Prosecution to prove that the Defendant struck the complainant. By the statement of the charge in the indictment, the Prosecution alleges that for Counts 7, 8 and 9 the Defendant did so with a bat; while for Count 10 the Prosecution alleges that the Defendant did so with a bat or bladed instrument.
Element 2 requires the Prosecution to prove that the striking of the complainant was intending to cause the particular result of grievous bodily harm, but less serious harm was caused to the complainant.
unlawful.
‘unlawful’ means not authorised, justified or excused by law.
Element 3 requires the Prosecution to prove the mental element of intent. The Prosecution
must prove that when the Defendant did the alleged act he intended to do grievous bodily
harm to the complainant.
‘grievous bodily harm’ means the loss of a distinct part or an organ of the body, or serious
disfigurement, or any bodily injury of such a nature that, if left untreated, would be likely
to endanger life, or be likely to cause permanent injury to health, whether or not treatment
is or could have been available.
‘intention’, ‘intent’ and ‘intended’ are ordinary words that carry their ordinary meanings.
They are largely interchangeable. ‘Intention’ and ‘intent’ refer to a present state of mind
held when an act is done. ‘Intended’ refers to a past state of mind held when an act was
done.
Count 11: Assault occasioning bodily harm, whilst armed and in company
To prove the alleged offence of assault occasioning bodily harm the Prosecution must prove each of the following elements beyond reasonable doubt:
1. The Defendant assaulted the complainant;
2. The assault was unlawful;
3. The Defendant thereby did the complainant bodily harm.
While proof of these three elements beyond reasonable doubt would prove an offence of assault occasioning bodily harm, the Prosecution here also alleges the following circumstances of aggravation:
4. The Defendant was armed;
5. The Defendant was in company.
To prove the aggravated form of the offence charged, the Prosecution must satisfy you beyond reasonable doubt of each of the offence elements and of the existence of the two circumstances of aggravation at the time the offence was committed.
If you are satisfied that the Prosecution has proven the three offence elements beyond reasonable doubt but are not satisfied that the Prosecution has established the circumstances of aggravation, you may find the Defendant guilty of the offence of assault occasioning bodily harm. If you are satisfied that the Prosecution has proven the three offence elements and one of the circumstances of aggravation, you may then find the Defendant guilty of the offence of assault occasioning bodily harm with that circumstance of aggravation.
Element 1 requires the Prosecution to prove that the Defendant assaulted the complainant. By its particulars the Prosecution alleges that the Defendant did so by striking the complainant in the hand with a baseball bat
Any person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without that person’s consent is said to ‘assault’ that other person.
Element 2 requires the Prosecution prove that the assault upon the complainant was that the Defendant was armed with a baseball bat when he assaulted the complainant.
unlawful.
‘unlawful’ means not authorised, justified or excused by law.
Element 3 requires the Prosecution to prove that the Defendant’s unlawful assault caused
bodily harm to the complainant.
‘bodily harm’ means any bodily injury which interferes with health or comfort.
The circumstance of aggravation that the Defendant was ‘in company’ refers to the allegation that the complainant was confronted by the combined physical presence of the Defendant and one or more other persons at the time the Defendant assaulted the complainant.
Table of Contents
Overview of the Crown case ......................................................................................................... 15
General principles and directions of law ..................................................................................... 17
General features of a judge alone trial......................................................................................... 17
Presumption of innocence, burden and standard of proof ........................................................... 17
Duty to act only on the evidence ................................................................................................. 18
Multiple accused and multiple charges ....................................................................................... 18
Evidence and fact finding ............................................................................................................ 18
Inferences .................................................................................................................................... 19
Circumstantial evidence .............................................................................................................. 19
Identification evidence ................................................................................................................ 20
Exhibits 49.1–49.3.
I note that during the Wickr messages exchanged between the defendant and the users “n33k101” and “c4cartier23” that at 10.53.59 pm on 13 September 2020, c4cartier23 wrote “Slim out the hospital”, which was obviously a nickname reference to the defendant (who is seen on the CCTV compilation footage leaving the hospital around 10.13 pm). I further note the defendant’s iPhone username was “Teflon Slim” and his Instagram account handle was “momoneyslim”.
AM17 indicates >100 billion times more likely if Alex Deng contributor.
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