R v Worthy (Ruling on Factual Matters)

IN THE SUPREME COURT OF VICTORIA

Revised

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0160

THE QUEEN

SAMUEL WORTHY

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JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATES OF HEARING:	7, 8, 9, 11 August 2017
DATE OF RULING:	3 November 2017
CASE MAY BE CITED AS:	R v Worthy (Ruling on Factual Matters)
MEDIUM NEUTRAL CITATION:	[2017] VSC 808

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CRIMINAL LAW – Murder – Guilty plea – Contested facts as to role of offender – Whether Crown case that offender planned, promoted and prepared for crime and wielded machete capable of proof beyond reasonable doubt – Whether there is mitigation established on offender’s account of diminished role in the events.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Lewis	Office of Public Prosecutions
For the Accused	Mr S Bayles	Stary Norton Halphen

HER HONOUR:

Samuel Worthy appears before the court having pleaded guilty to the murder of Joshua Kane at Macarthur on 23 January 2016. The offence was a joint crime committed with Stuart Campbell and Lanie Snell. Campbell and Snell have already pleaded guilty and have been sentenced for the same murder.

Campbell entered his plea before Lasry J on 20 April 2017 at the Supreme Court sitting in Melbourne. On 1 May 2017, a plea hearing was conducted on behalf of Campbell. On that date, Campbell gave an undertaking to give evidence in accordance with a police statement he had made on 7 April 2017 in which he had outlined how the deceased, Joshua Kane, met his death, and the roles of each of the three accused in carrying out the murder. Campbell was sentenced on 3 May 2017.

The trial of Snell and Worthy was to commence on 8 May 2017, but ultimately both Snell and Worthy entered pleas of guilty on what was to be the first day of trial.

Snell’s plea hearing took place before Lasry J on 5 June 2017 and she was sentenced on 30 June 2017. Worthy, at the time of indicating his willingness to plead guilty and prior to arraignment, did not accept the Crown opening as to the factual background to the charge, although he did accept criminal complicity in the murder. The plea hearing for Worthy was set down for a contested plea before me at Warrnambool commencing 7 August 2017.

At the request of the parties, a view of the crime scene was conducted on 7 August 2017 at Lake Surprise in Mt Eccles National Park. The court viewed the locations relevant to the versions given by Campbell in his police interview and police statement, and Worthy in his record of interview. The view extended to include observing the locations of the entrance to the Mt Eccles National Park, the location of the ranger’s hut, the carpark near the viewing platform that overlooks Lake Surprise, including the approximate position where Snell’s car was said to have been parked, an area where there was bleaching on the balcony ledge, the location of where a bucket and glove were located by police, circumnavigation of the narrow walking path around Lake Surprise, and close inspection of a scrub covered slope some distance downhill from a walking track where police recovered the body of the deceased. This location is depicted in police crime scene photographs.

The principles relevant to fact finding on a contested plea were summarized by Whelan JA in Formosa v R.[1] Those principles are as follows:

1Conventionally the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.
2.It is standard practice to use the depositions and related exhibits as the basic materials.
3.Should either party seek to have the sentencing judge take any additional matter into account in passing sentence it is for that party to bring the matter to the attention of the judge and, if necessary, call evidence about it.
4.A contested factual assertion upon a plea must be proved by admissible evidence. There is however, no requirement that the evidence should all have been given on oath or that there should have been a prior opportunity for cross-examination.
5.A sentencing judge may not take facts into account in a way that is adverse to the interest of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused it is enough if those circumstances are proved on the balance of probabilities.

[1](2012) 36 VR 679.

Whelan JA’s summary of the relevant principles was drawn in part from the well-known cases of R v Storey[2] quoted and approved in R v Olbrich.[3]
[2][1998] 1 VR 359, 369.
[3](1999) 199 CLR 270, 281.

In light of the principles referred to above the Crown tendered and read out in open court a Summary of Prosecution Opening (‘SPO’).[4] After the prosecution opening, defence counsel, Mr Bayles, was invited to indicate disputed aspects of the prosecution opening upon which issue was joined. Following that process, evidence was called by the Crown from key witnesses relevant to the matters in dispute: Stuart Campbell, Myssie Andrews, David Andrews, Scott Wesley, and forensic witnesses Ms Salerno and Mr Gellatly. Mr Bayles called Mr Worthy to give evidence. The court was informed that there was no objection by either party to the court referring to the depositions or exhibits in reaching findings, with the exception of the police interviews or representations of Snell. Written submissions were then filed by the parties further refining the issues in dispute between the Crown and the defence.
[4]Exhibit 1 on the plea hearing.

The parties introductory outline as to issues in dispute

On the first day of the contested plea hearing, Mr Bayles indicated that there was no dispute about the matters set out in the SPO paragraphs 1 to 27, except that his client did not admit that he had a pocket knife in his possession at Mt Eccles on 23 January 2016. Paragraphs 1 to 27 set out preliminary matters about the background of each of the three accused and of the deceased, and indicate the context of their past associations with one another. It is not disputed that Snell, Worthy and Campbell were friendly and were in regular contact in the lead up to the events in January 2016. Snell was aged 34, Campbell was 19 and Worthy was 19. Joshua Kane was aged 20 at the time of this death.

Snell had known Kane since childhood and had previously lived in a caravan alongside Kane’s caravan in the Hamilton Caravan park. There had been a falling out between Kane and Snell because she believed Kane had behaved badly and spoken roughly towards her children when they were neighbours in the caravan park in Hamilton. Snell was also angry that the deceased had belittled her young son at Myssie Andrews’ birthday party on 22 November 2015, at the residence Snell shared at that time with Myssie Andrews and Scott Wesley at Rankin Court, Hamilton.

Worthy and Kane had been best friends for some years. Worthy was in a de facto relationship with Emily Kenny and they had a two-month-old baby. Kane had been in an intimate relationship with Kenny after leaving school and was said to be heartbroken when it broke up. Kenny then began a relationship with Worthy but Kane and Worthy continued their friendship. Campbell and Snell commenced a sexual relationship in late 2015.

Paragraph 25 of the SPO sets out that Kane had broken Myssie Andrew’s trampoline and was paying her back for the value of the trampoline up until December 2015. Worthy allegedly said to Ms Andrews that he would not have anything more to do with the deceased after all the money was repaid. Although this paragraph was said not to be in dispute, Worthy did not ultimately admit that there was any alteration to his friendship with Kane prior to the murder.

Snell’s hatred of Kane was said by the Crown to bear on the motive held by the three accused for the murder. Although Worthy was previously a best friend of Kane, the Crown alleges that Worthy’s attitude towards him had altered in the lead up to the murder and that Campbell was aware of, and joined in on, Snell and Worthy’s hostility towards Kane. The Crown’s case was that all three accused were complicit in the plan to lure Kane into coming with them on a drive out to Mt Eccles National Park for the purpose of carrying out the attack on Kane.

Paragraphs 1 and 35 of the SPO set out the items taken by the accused in preparation for the crime: a machete (owned by Campbell); pocket knives (owned by Campbell); a bottle of bleach; and a change of clothes for each of Worthy and Snell carried in plastic bags. Worthy disputes knowingly being in joint possession of any of these items prior to arrival at the car park at Mt Eccles.

Mr Bayles indicated that the major dispute about the Crown Opening commenced at paragraphs 29 through 34 under the heading ‘Conversations prior to the murder’ in which allegations of Worthy’s involvement in and promotion of a plan to attack Kane are made. The Crown relied on Campbell’s account of Worthy disclosing his desire to harm Kane in a series of escalating discussions in the lead up to the incident. The Crown also relied on Myssie Andrews’ and Scott Wesley’s account of hearing similar conversations prior to the murder and this evidence at paragraphs 32 to 34 of the Opening is contested.

Paragraphs 35 to 40 were said to be disputed in which Campbell’s description of Worthy’s preparation for the attack is set out and Worthy was described as saying he could not wait to do it.

The next area of dispute arises from paragraphs 40 to 42 in which the manner of killing the deceased is described in accordance with Campbell’s statement that Worthy came up behind Kane and attacked him with the machete. After this according to Campbell’s account Kane was said by Worthy to have been unable to be located by Snell and Worthy. Then, after all three returned to the carpark, Worthy and Snell returned down the hill to deal with Kane when he was heard to cry out for help and that Kane was then heard to be silent.

Paragraph 43 is also disputed in that upon returning to the carpark Worthy told Campbell to clean the machete with bleach. Mr Bayles indicated[5] that it was not disputed that Campbell cleaned the machete with bleach but it was contested that Worthy ordered Campbell to do this and handed him the bloodied machete.
[5]Transcript, 8 August 2017, p 16.

It was not disputed by Worthy that after Kane was attacked, Snell’s car was found to have a flat battery and Myssie Andrews was contacted and asked to bring some jumper leads. However, the Crown alleges that Worthy and Campbell walked up to the gate near the main road in order to show Andrews where Snell’s car was. Worthy disputes changing his clothes and removing his shoes in the car park before walking with Campbell to the gate area along with Campbell and being collected by Andrews from there.

Mr Bayles indicated that it was not disputed that there was a discussion between the three accused in the car on the way back to Hamilton as to who would take the blame if they were caught, and that Campbell ultimately agreed to take the blame as he was the only one who did not have children. However, as the hearing progressed, it transpired that Worthy did not admit to participating in any discussion about what had occurred when he was in the car on the way back from Mt Eccles. The sequence of events set out in paragraphs 46 to 48 as to the three accused returning to Mt Eccles the following day was not disputed.

Paragraphs 49 to 51 were not disputed, except that as to paragraph 51, whilst not disputed that Campbell removed the deceased’s SIM card from his phone, it was disputed that this was done on Worthy’s instructions.

The Crown’s allegations about what took place on 28 and 29 January were said not to be disputed by Worthy.

Mr Bayles queried the accuracy of the estimate that the deceased’s body was 70 to 80 metres down a slope from a particular track, adverting to the crime scene view that had taken place the day before and to the location pinpointed by the informant as to where the body was located by police.

Mr Bayles indicated that there was no dispute about the remainder of the prosecution opening regarding the events of Saturday, 30 January, location of items found at Snell’s parent’s house and at each of the accused’s home address, the examination of Snell’s car and the details of the interviews of each of the accused and of the post-mortem examination.

Crown submission about the import of the disputed factual issues

In the written submissions filed by the parties, the prosecution submitted that the Crown’s version of events set out in the SPO was an accurate version of events that fitted with the testimony of Crown witnesses (including Campbell), and with evidence contained in the depositions. The Crown understood that, in broad terms, Worthy contended for the version of events given in his own evidence on 11 August 2017. Therefore, the principal areas of contention were, firstly, as to the involvement of Worthy prior to the murder in planning, promoting and preparing for the killing; and secondly, the question as to whether Worthy physically wielded the machete at any point during the attack on the deceased.

The Crown accepted that since a finding of involvement in planning, promoting and preparing for the crime and physically attacking the deceased with the machete would be findings adverse to the accused, those findings would need to be made on the basis of evidence proved beyond reasonable doubt.

Defence submission about the import of the disputed factual issues

Mr Bayles agreed with the Crown’s characterization of the main areas of dispute[6] and that the Crown bore the onus to establish those aggravating features beyond reasonable doubt. He relied on evidence given by Worthy on the contested plea, submitting that it would mitigate sentence if Worthy’s version were accepted on the balance of probabilities. The defence contention was that Worthy only became aware of the nature of the planned assault whilst in the car park at Mt Eccles, shortly before commencing to walk around the lake with the others, and that Worthy did not take any part in the physical assault on the deceased.
[6] In his written submission filed on 4 September 2017.

Mr Bayles submitted that if the Crown could not satisfy the court as to the circumstances of aggravation relied on by the Crown in respect of promotion and planning, and as to physically wielding the machete; and at the same time the defence could not establish Worthy’s mitigating account on the balance of probabilities, then the court would be left in a middle ground where none of the factual matters put forward by the respective parties on the contested plea were able to be proven to the requisite standard.

Evidence relevant to the question whether Worthy planned, promoted and prepared to violently attack the deceased

Campbell gave evidence in support of the Crown case that Worthy had significant involvement in planning, promoting and preparing for the attack on Joshua Kane.

Campbell said that the first he heard of Worthy wanting to assault Kane was on the night he moved in to Worthy’s house after being evicted from home when his mother gave him an ultimatum to cease using drugs or move out. This was in mid-January 2016. That night they walked to get some cigarette papers and Worthy mentioned wanting to assault Kane and he said he could assault him and win a fight. ‘He was saying he could, um, bash him or something like that’.[7]
[7]Transcript, 8 August 2017, p 105, lns 2-3.

Campbell said this was next mentioned when they were hanging out at Snell’s place a day or a few days later, and the same sorts of things were said.[8] It was then continually brought up for the next few days. Campbell explained that he was in a sexual relationship with Snell during this period and generally ‘hanging out’ with his close friends Snell and Worthy, and that the comments became more frequent and escalated in their violence over a few days. It started as wanting to bash him, then robbing him, then breaking his legs and that it kept increasing.[9] He said Worthy told him he had had a falling out with Kane and although he gave a few reasons, he never gave a clear reason. He did say that they had stopped hanging out together.[10]
[8]Ibid, p 105, lns 19-20, 30-31.
[9]Ibid, p 107, lns 15-19.
[10]Ibid, p 107 ln 23 – p 108 ln 1.

In further evidence about the reasons Worthy gave for wanting to assault Kane, Campbell said, ‘He gave me a few different reasons… I would get a bunch of different stuff, never really gave me one fixed answer’.[11] Campbell referred to the fact that Worthy’s partner had been on a camping trip with Worthy and Kane, and Kane was supposed to have made a move on Worthy’s partner; and also there was supposedly a dispute about a PlayStation game that was borrowed by Kane and damaged or not returned.[12]
[11]Ibid, p 111, lns 25-29.
[12]Ibid, p 112, lns 1-13.

He did not take the comments about harming Kane seriously at first but they became too frequent to just be a joke.[13] Campbell said he told Worthy and Snell that if they wanted to assault Kane they could, but he didn’t want to be part of any actual assault.[14] However, Worthy asked whether Campbell had brought the machete from his mum’s place when he moved out and he confirmed that he had and that it was still in a bag at Worthy’s place.[15]
[13]Ibid, p 108, lns 21-25.
[14]Ibid, p 109, lns 4-6.
[15]Ibid, p 109, lns 17-29.

Campbell said that moving towards 23 January, Worthy told him whilst Snell was also present that he had contacted Kane, inviting Kane to come for a drive or to come and hang out[16] and it was then worked out who would go and pick Kane up and whose car would be used and Campbell was told he should come with Worthy because it would look less suspicious.[17] This was in light of the bad blood between Snell and Kane and the fact that Worthy and Kane had stopped hanging out together. Campbell was aware that Snell had ceased all contact with Kane since the falling out over Snell’s son. After the invitation to Kane, Worthy came over the next morning (to Snell’s place) and picked Campbell up and took him back to Worthy’s place to have Worthy show him where the machete was. Campbell complied and then watched Worthy grab a number of items and place them in his car including plastic bags, a bottle of bleach, blue latex gloves and the machete before returning to Snell’s place.[18] He said ‘I guess I was trying to tell myself that no, everything’s fine, you know, to deny what was going on, but it occurred to me that something very bad was going to happen’.[19] They then went to Snell’s place and Worthy was adamant that they were not taking his car so all three of them moved the items to the boot of Snell’s car, including the machete and Snell went to obtain a change of clothes which she placed in a plastic bag. Worthy had brought his own change of clothes. Worthy told Campbell he wouldn’t need a change of clothes.[20] Each of the three took possession of a pocket knife. The three pocket knives belonged to Campbell and had also been in the bag left at Worthy’s place. Campbell did not realize Worthy had brought them until he saw them in the boot at Snell’s place.[21] Worthy drove with Campbell to collect Kane, leaving Snell behind in case Kane saw Snell and decided not to come.[22] They collected Kane and then went to get Snell despite Kane putting up a little protest, ‘He’s like, “oh does she have to come?”’[23] They stopped at Coles and when Kane went into the store to get a drink,[24] Worthy said that he couldn’t wait to attack him.[25]
[16]Ibid, p 110, lns 16-24.
[17]Ibid, p 111, lns 1-10.
[18]Ibid, p 113.
[19]Ibid, pp 113-4.
[20]Ibid, p 114, ln 28.
[21]Ibid, p 115, lns 25-6.
[22]Ibid, p 115, lns 8-12.
[23]Ibid, p 116, lns 15-16.
[24]This happened at 7.56 pm
[25]Ibid, p 117, lns 6-7.

Under cross-examination, it was put to Campbell that he only stayed one night at Worthy’s house after being evicted from home and did not leave any bags or possessions there. Campbell disagreed, responding that he left a large blue 2010 Scouts Jamboree bag against the wall in the baby’s room at Worthy’s house.[26]
[26]Transcript, 9 August 2017, p 159.

It was also put to Campbell that it was Snell, not Worthy who supplied the items such as bleach, gloves, plastic bags and the like. Campbell disagreed and said he was sitting next to the front door at Worthy’s house with his phone on charge and watched everything being taken out to the car individually by Worthy, and that Worthy’s partner was in the bedroom at the time.[27] He also disputed that it was he and Snell who brought the machete and that he brought the other knives.[28]
[27]Ibid, p 170.
[28]Ibid, p 169.

When cross-examined to the effect that Snell was a substantial driver of discussions about people’s dislike of the deceased and related planning, Campbell said ‘um yeah, we all sort of talked about it equally’.[29] When further questioned that this evidence was in contrast to his evidence-in-chief, that it was Worthy who spoke in an escalating manner about doing things to the deceased he responded by saying, ‘I never really joined in the escalation of violence but didn’t really put up any protests to the conversation’.[30] He conceded he never warned the deceased against going with them.[31]
[29]Ibid, p 168, ln 2-3.
[30]Ibid, p 168, lns 22-24.
[31]Ibid, p 172, lns 16-19.

Campbell denied under cross-examination that he was ‘far more involved in this plan than he was letting on’[32] or that he had any role in assaulting Kane with the machete or a knife.[33] It should be noted at this juncture that Worthy did not testify that Campbell physically assaulted Kane nor did he make any specific allegations as to anything said by Campbell relating to planning the attack on Kane.
[32]Ibid, p 164, lns 11-15.
[33]Ibid, p 164, lns 25-28.

Campbell denied transposing Snell’s role with Worthy’s role in order to protect Snell.[34] He disputed that he was ever in love with Snell. He disputed that Snell rather than Worthy attacked Kane with the machete:

What I also want to suggest to you is that broadly speaking Lanie Snell was the person who planned and drove this incident?---No.
She was the one who came up with the idea, she was the one who planned and organized it and she was the one who drove it forward?---No.
What I also want to suggest is that she was the one who assaulted Josh with the machete?---No.
At least initially?---No.[35]

[34]Ibid, p 165.

[35]Ibid, p 164.

Campbell was cross-examined to the effect that his evidence that he was enlisted to come along to entice Kane did not make sense because Worthy and Kane were better friends than Campbell and Kane. However, Campbell maintained that: ‘That’s what was said to me’.[36] He disputed a suggestion that Worthy was used by Snell and Campbell to get Kane to attend.[37] Campbell responded, ‘That’s not how it happened’.[38] Again, it should be noted at this point that Worthy did not allege in his evidence that he was aware that his role was to lure Kane into going at the behest of Campbell and Snell.
[36]Ibid, p 172, ln 27.
[37]Ibid, p 173, lns 2-5.
[38]Ibid, p 173, ln 9.

Worthy’s evidence relevant to planning or promoting the attack on the deceased

In the course of giving evidence, Worthy initially denied participating in or being present for any conversations about thoughts or plans to hurt Kane, and he asserted that Kane was his best friend.

Okay. So in the period, the number of days prior to that day, there's been some evidence given about a conversation or conversations that were heard where things were said along the lines of "we're thinking of killing Josh". What can you say about such conversations?---I was never a part of any conversations to hurt Josh or do anything to Josh.
Okay. Do you recall hearing such words said?---No.[39]

[39]Transcript, 11 August 2017, p 258, lns 14-21.

He said he had known Kane the longest of the three accused, having known him at school, and that he had met Snell and Campbell through Kane. He said that there was no change to Kane’s status as his best friend in the period before the murder, and there was no falling out between the two of them.[40] He said he was never a part of any conversations to hurt Kane or do anything to Kane, and did not hear such words said.[41] On 23 January, Campbell and Snell simply said they wanted to go for a drive, and Snell said about getting Kane to come so Worthy rang Kane and asked him to come.[42]
[40]Ibid, pp 255-6.
[41]Ibid, p 258, lns 18-21.
[42]Ibid, p 259.

Worthy’s account was that all three accused collected Kane in Snell’s car before going to Coles on the way to Mt Eccles.[43] He also disputed the allegation made by Campbell that he refused to take his own car. This was despite the fact that his car went fine and that he knew that the battery was playing up in Snell's car and it backfired sometimes. ‘I originally thought that we would be taking my car. It was then Lanie made the comment that her car has a full tank of petrol and... she just said to give it a run.’[44] Of the three accused, only Worthy had a driving licence at the time.
[43]Ibid, p 260.
[44]Ibid, p 260, lns 12-16.

Regarding the evidence of Myssie Andrews and Scott Wesley as to conversations involving Worthy and Snell expressing ideas about harming Kane, Worthy denied participating in any such conversations.[45] Worthy disputed doing or participating in any specific acts in preparation for a violent assault and denied Campbell’s account of witnessing Worthy collecting bleach, gloves, plastic bags, and the machete from Worthy’s house before meeting back at Snell’s place.[46] Worthy said he only brought a phone, his wallet and smokes and the clothes he was wearing. He denied carrying a pocket knife.[47] He denied that Campbell left anything stored at his house and he denied collecting the machete from there.[48] He denied coming up with a plan to assault Kane or discussing the idea on a number of occasions in Campbell’s presence. He disputed Campbell’s assertions that outside Coles on the day of the murder he said: ‘I can’t wait to do this’.[49] He disputed telling Campbell that he need not bring a change of clothes as he wasn’t going to be participating.[50] He denied seeing any of the items put into Snell’s car or having a hand in transporting the items out to Mt Eccles.[51]
[45]Ibid, p 258.
[46]Ibid, p 261-3.
[47]Ibid, p 261.
[48]Ibid, p 261-2.
[49]Ibid, p 263, ln 20.
[50]Ibid, p 263, ln 4.
[51]Ibid, p 262.

Asked by his counsel if he had any comment to make about his involvement in the events he said:

um... the night before all this happened, you know, I was only just drinking with Josh and his dad ah at his caravan, um, and then the next day he - his life was getting taken. You know there’s nothing I can ever do to bring him back or say how sorry I am to Josh’s family.[52]

[52]Ibid, p 283.

Towards the end of his evidence-in-chief, Mr Lewis raised an issue as to whether Worthy’s account was consistent with an admission of guilt of murder. Mr Bayles was then given leave to adduce some further evidence from Worthy regarding foreknowledge of a plan to attack Kane. The evidence was as follows:

Mr Worthy, I just need to ask you a few more questions about some of the detail. At the point in time where you rang Josh on the Saturday and asked him to come out with you, what did you believe was going to happen? That Josh would be assaulted.
And by ringing him and asking him to come out, what was your purpose and intention at that time? Going along with it.
And at that time did you realize how serious the assault was going to be? No.
At some point in time, did you realize how serious the assault was going to be? Yes.
And what point in time was that? When Lanie retrieved the machete from the boot of the car.
Sorry, can you say that again please? When Lanie retrieved the machete from the boot of the car.
Just again, where did that happen? At Mount Eccles.
And was that before you all set off on the walk around the lake? It was, yes.
At that point in time what did you then believe about the level of seriousness of the assault that was likely to occur? That Josh would be seriously injured.
With what possible outcome? That he could die.[53]

[53]Ibid, p 286.

Under cross-examination, Worthy’s evidence as to his state of mind and awareness of a planned attack on Kane became less clear.

He was asked about the concession made in evidence-in-chief about awareness of a planned assault on Kane:

On the 23rd, the day that you went around to Rankin Court, at least from that point on and let me make this clear what I suggest to you is that there were discussions over at least a number of days leading up to the 23rd involving you about hurting Josh; what do you say about that? No.
You say nothing, it was just the 23rd; is that right? Yes.
The first you heard of it, is that right? Yes.
So the first you hear about it, there's going to be an assault on Josh and could you ring him up and ask him to come out for the purposes of assaulting him, 23rd; is that right? It wasn't put as an assault on Josh. It was put as push him in the water and leave him to walk back to town.[54]

[54]Ibid, p 301, lns 5-17.

Worthy was cross-examined about the falsity of his police interview in which he made no mention of knowing anything was going to happen to Kane. He conceded that the version given to police was aimed at reducing his responsibility for what took place.

... At the very least, you knew that Josh was going to be hurt when you were at Rankin Court? Yes.
When you called him? Yes.
You say you were his best friend, is that right, or he's best friends with you or he was? Yes.
You rang him knowing he was to be assaulted and asked him out for a drive, correct? Yes.
You saw the machete you say come out of the boot of the car at Mount Eccles? Yes.
Now at the point of time that the machete comes out of the boot there's a lot of time between then and when the attack takes place, isn't there? You walk half way around the lake, don't you? Yes.
Or you go to the lookout first I think on your account of events? Yep.
You go halfway around the lake, correct? Yes.
You don't at any point warn Josh of this, do you? No.
And you maintain that you were best friends with him? Yes.
Well, can you explain why you did nothing in those circumstances? No, I can't.[55]

[55]Ibid, pp 299, ln 18 – p 300, ln 8.

Mr Lewis further challenged Worthy about his awareness of the plan to seriously harm Kane based on his account that the awareness arose when he saw Snell take the machete out of the boot of the car.

And it’s at that point that you realize that you are now party to an agreement to attack Mr Kane with potentially deadly force with the use of a machete: is that right? – – Yes
Can I suggest to you that that proposition of itself makes absolutely no sense and I’ll tell you why I suggest that, and that is there is no logical connection between the plan to push someone in the lake and seeing a machete and at that moment thinking Oh, I am now party to a plan to attack that person with a machete what do you say about that? – – Well as I said sir, the plan was they were going to push him in the lake.[56]

[56]Ibid, p 317, lns 20-30.

Worthy conceded that he was aware that Myssie Andrews has an allergy to bleach, but on his account the bleach came from Myssie’s house at Rankin Court.[57]
[57]Ibid, p 298, lns 3-10.

Key Facts in Issue

The keys facts in issue underpinning the question whether there was any role played by Worthy in planning, promoting and preparing for the attack on Kane include:

– whether Worthy’s friendship with Kane had cooled prior to 23 January;
–whether Worthy spoke of harming or killing Kane in the presence of Campbell prior to 23 January;
–whether Worthy spoke of harming or killing Kane in the presence of Andrews or Wesley;

– whether the plan involved only Worthy and Snell physically attacking Kane;
–whether Campbell’s role was to encourage Kane to come or whether that was Worthy’s role;

– whether only Worthy and Snell took a change of clothes;
–whether Worthy gathered the items in preparation from his house such as bleach, gloves, the machete, knives plastic bags;
–whether Campbell and Worthy alone went to collect Kane from the caravan park before also joining Snell for the trip or whether all three picked up Kane together;

– whether Snell’s car was used at Worthy’s insistence;
–whether Worthy expressed that he couldn’t wait to do it whilst Kane was inside Coles.

Disputed evidence regarding Worthy’s involvement in physically attacking Joshua Kane with the machete

The evidence as to whether Worthy physically attacked Kane is bound up in the general description of events at Mt Eccles given by Campbell and Worthy respectively, in the course of their evidence, and in what they each said in their police interviews. It is also connected to consideration of circumstantial evidence including the physical topography of the area of the crime scene seen on the view, police photographs, and the forensic evidence about items seized from the accused and consideration of the actions of the accused after Kane was attacked.

It is necessary to pay regard to the account given by each of Campbell and Worthy of the events at Mt Eccles. It should also be noted that Snell made some admissions to police as to her role in the events, but I have not relied on any aspect of her police interviews which may have incriminated Worthy or exculpated Campbell in respect of the disputed facts, since Snell has not been called by the Crown as a witness.

Campbell’s description of the attack on the deceased

Campbell said the group set off to walk around Lake Surprise after getting the machete from the boot of the car, along with a bong. Each of the group, including Kane, took turns using the machete to slash at the undergrowth. They walked to a point about half way around the lake to an area of rocks, and Campbell and Snell smoked cannabis from the bong. Campbell referred in his evidence to a sketch he had drawn when he made his police statement in April. When it started to get dark the group decided to leave and walk back to the car.

They were walking single file back up the path — Kane followed by Worthy, Campbell, and then Snell — and had reached an area near the point where the path splits (the path leading down from the carpark meets the path around the lake). It was at that point that Josh was attacked with a machete. Campbell said of Worthy that he,

brought the machete like across his chest into the side of Josh’s neck… and he repeated it twice more. … Josh bent over and Sam brought it back down on the back of his neck. He was screaming and begging Sam to stop…. One hand was holding the side of his neck from being hit. I turned and walked away and as I’m walking away, Lanie walks past me towards Sam and Josh. …
I take a few more steps and then just stop and umm yeah pretty much curl up on the ground … There was a steep incline on one side and the lake on the other so I couldn’t see around the incline.[58]

[58]Ibid, pp 119-20.

Campbell said at this point he could not see the incident because he had retreated around a bend but could hear the deceased screaming and begging Worthy to stop.

Campbell then described how Worthy and Snell approached him and Worthy was shaking and hyperventilating, saying he couldn’t do it and trying to give the blood covered machete to Campbell who refused to take it.[59] Worthy and Snell left him again for a brief time and then re-joined Campbell saying that Kane was gone and suggesting that the three return to the carpark. On the way back along the track Campbell noticed blood in pools along the path, up against rocks and trees.[60] When they got to the carpark he sat on a bench and Snell put her head on his shoulder while Worthy just stood there. Worthy was still shaking, hyperventilating and panicking.[61] Then they heard Kane calling out for help and calling for Sam. Worthy called out ‘give me a minute, hang on’.[62] Worthy tried to get Campbell or Snell to go back with him but Campbell refused. Campbell said,

he was like trying to talk himself into going back there saying that he had to do it. … “I've got to do it, I've got to do it,” something to that effect. He just sort of kept repeating the same thing over and over again.’[63]

Then he left to go back down with Snell.
What happened then?---Um, Josh started screaming again like he had been before, um, and that just stopped and when it stopped I walked back over to where the car was, um, a short time later Lanie and, um, Sam walked back up to the car and, um, Lanie was like rubbing Sam's back and Sam was freaking out.[64]

[59]Ibid, p 121.

[60]Ibid, p 122, lns 12-18.

[61]Ibid, p 122, lns 23-26.

[62]Ibid, p 123, ln 8.

[63]Ibid, p 123, lns 11-17.

[64]Ibid, p 123, lns 24-29.

Campbell then described Worthy handing him the bloodied machete to clean with bleach. He gave a detailed description of where and how this was done including placing the machete on the balcony top rail near the lookout and pouring bleach over it then wrapping it in his t-shirt before placing it in the car.[65]
[65]Ibid, p 124.

Campbell was cross-examined to establish that when they arrived at Mt Eccles Snell got the machete from the car and placed it in a holster on her belt. He said he did not know who took the machete from the boot but that Snell did not place it in a holster on her belt, as the holster was left in the car and she did not have a belt.[66] Campbell disputed under cross-examination that Snell ran forward and attacked Kane with the machete,[67] and that Worthy left to walk the opposite way around the lake and was next seen at the carpark.[68] He denied that it was he or Snell that tried to give the machete to Worthy in the carpark after the attack. Questioned about the extent of blood he saw on the path after the attack he said it was not over a great distance.
[66]Transcript, 9 August 2017, p 173, lns 26-30.
[67]Ibid, p 174, lns 11-15.
[68]Ibid, p 174-5.

Worthy’s description of the attack on the deceased

Worthy’s account given in evidence included the following details about his own actions and the actions of others. When the group arrived at Mt Eccles, Snell got out the machete and put it through her belt. It was in its cover.[69] When they were about halfway around the lake near a fallen tree, Snell began arguing with Kane about insulting her child and about eating all her food.[70] They stopped arguing, it was getting dark and they decided to walk back. It was Kane up front, then Worthy, then Snell then Campbell. It was about three minutes later when Worthy stopped to light a cigarette and Snell rushed by him and struck Kane in the back of the head with the machete.[71] ‘She pushed past me and hit Josh in the back of the neck,’[72] and then …’in the back, the back of the head and neck. When he turned around [Snell] hit [Kane] in the arm and around the chest area.’[73] Worthy started walking back towards the tree where they had been sitting before. He heard Lanie and Stuart shouting out to him but he ignored them and kept walking.[74] He walked around the lake and got back to where the path forked. He walked past it because he didn’t see it in the dark, so he turned around and went back.[75] He found the path leading up to the car park, walked up that path and saw Kane’s singlet lying on the side of the path, just off the path to the right side of the path. He looked around and saw Kane down the embankment standing against an old tree.[76] The locations on Campbell’s diagram of a singlet and tree were said by Worthy to accord with the location of the singlet and tree as seen by him.[77] Kane was about 20-25 meters down the embankment from the main path. There was some broken trees, flattened scrub like a path leading down to where he was.[78]
[69]Transcript, 11 August 2017, p 267.
[70]Ibid, p 268.
[71]Ibid, p 270, lns 5-14.
[72]Ibid, p 270, lns 5-7.
[73]Ibid, p 271, lns 14-17.
[74]Ibid, p 273, lns 10-17.
[75]Ibid, p 276.
[76]Ibid, p 274.
[77]Ibid, p 274.
[78]Ibid, p 275.

Worthy then said:

I went down the embankment to where Josh was. Josh was saying that, you know, why have we done this to him. He was very hard to understand, but by that point he was, sort of he was laying down and sort of crouched up against this tree. Um, he was when I got closer I could see he was coughing blood and he was making a lot of noises.
So by the time you got to him, how was he positioned at that time? He was sort of laying down crouched up against this tree.
And what did you do? I stopped a little bit back from Josh. I was probably there may be a minute, a minute and a half.
M'hmm? Josh stopped making noises or moving altogether. I went I went over to Josh and I, I was trying to feel for his pulse. I don't know if I felt in the right spot, but Josh, he wasn't moving or he wasn't making any noises and I thought at that point that Josh had died.[79]

[79]Ibid, p 274-5.

Worthy testified that he tried to collect his thoughts for a minute and then went back up the path to the car and sat in the back of the car. A short time later Snell and Campbell arrived and said they were looking for him. They gave him the machete, and told him to clean it while they got changed. He put it out of the car and said he would not be doing that. Campbell picked it up and went to clean it.

Under cross-examination about these matters, Worthy was questioned about and conceded that his first version of events given to police upon arrest was that he last saw Kane after dropping him off after Coles.[80]
[80]Ibid, p 287.

He conceded that he staged a phone call to Kane’s mobile phone the day after Kane was killed and referred to that call when questioned by police and, asked police ‘is Josh ok?’, and that this was done to mislead police.[81]
[81]Ibid, p 289.

He admitted that his second version given to police in his formal interview commencing at Q 50 was that Snell hit Kane with the machete and that he left and went the other way around the lake and returned to the car, whereupon Campbell and Snell reappeared and demanded he wash the machete but he refused and put it on the ground.[82]
[82]Ibid, p 290.

He admitted that in his police interview he had said that only Snell handled the machete apart from when he put it on the ground but that in his evidence given in court he said they all handled it.[83] He could not explain this discrepancy and did not admit he was concerned about forensic testing.[84]
[83]Ibid, p 291.
[84]Ibid, p 292.

He agreed that his second version had him going back down from the car park and finding Kane in a bad way, coughing blood and then going quiet, and him checking and finding no pulse, and that he said of this version after giving it ‘that’s the truth I swear’.[85]
[85]Ibid, p 292, lns 20-22.

He admitted that this second version was not the whole truth.[86]
[86]Ibid, p 292.

He agreed he gave a third version after a break in the interview at Q 67 in which he described coming across Kane after walking around the lake and heading back to the car park, and when he saw Kane. In this version, Kane had his t-shirt off and was staggering around, and they spoke to one another and he told Kane he had nothing to do with the attack.

He agreed under cross-examination that he did not ever say this to Kane as it would not have been true.[87] On that version, Kane said he was going to hide and walked off into the scrub.
[87]Ibid, p 294.

In the third version, he said he returned to the car park after seeing Kane on his way up from the lake and that he then went back down to look for Kane and found him right off the path and downhill in the scrub. He accepted there were fundamental differences between version two and version three.[88]
[88]Ibid, p 296.

It was put to him that in fact the truth was that he and Snell went with the machete down from the car park to look for Kane when Kane cried out for help, after the incident. Worthy denied this.

Worthy was cross-examined about and admitted a fourth version that he saw Kane on the way back to the car park. On this version he saw Kane go off into the scrub but that in this version there was no mention of seeing Kane cough blood, or of feeling his pulse or of seeing him twice after the attack.[89]
[89]Ibid, p 305.

He agreed that a fifth version at Q 223-227 had him finding Kane just two metres off the path and being only one and half to two metres from Kane when Kane coughed up blood and expired.[90]
[90]Ibid, p 308.

It was put that his final version given in court placed Kane 25 metres off the path. He was challenged as to how he would have seen him in the darkness with only his mobile phone light. Worthy repeated his evidence that he did see him.[91]
[91]Ibid, p 309.

He was probed as to what Kane was doing and said he was standing leaning up against a tree stump but that when he got to half a metre away he was ‘laying down sort of leaning against the tree’.[92] His neck and head were leaning against the tree so that he was positioned below knee height at Worthy’s feet[93] and had stopped coughing or making noises, so Worthy felt his neck for a pulse.[94] He did not know why he approached him at that point. He did not ever go back towards Kane after being in the car park.
[92]Ibid, p 309.
[93]Ibid, p 310.
[94]Ibid, p 311.

He could not explain why he gave a version to police that the attack by Snell flowed directly from a verbal argument between Snell and Kane and that he wanted to warn Kane but didn’t have a chance,[95] whereas his evidence in court involved a three-to-five minute gap after the verbal argument and before the attack by Snell.[96] He denied he had any chance to warn Kane after the verbal argument and before the attack. He agreed that the version in his police interview was that after Snell abused Kane, they were standing still and ‘I heard the Velcro of the whole top of the machete coming off and she pulled it out ... Josh seen that and tried to run ... That’s how she hit him in the back, because he was facing her when she took the machete out.’[97]
[95]At Q and A 310.
[96]Ibid, p 321, lns 7-9.
[97]Ibid, pp 321-2.

He agreed there were significant differences between the interview description and that which he had given in court.[98]
[98]Ibid, p 322.

He said the first blows were struck to the back of Kane’s neck.[99] He denied wielding the machete at all.
[99]Ibid, p 323.

It was put that Kane’s body was actually found 70-80 metres down the embankment, not 25 meters down.

The key facts in dispute about the attack on Kane turned on whether Worthy’s role in the events was as described by Campbell in his evidence or whether it was as described by Worthy in his evidence. The factual underpinning includes

-whether after the machete was taken from the boot of the car, Snell carried the machete in its cover on her belt;
-whether it was Snell not Worthy who attacked Kane and consideration of the descriptions given by Campbell and Worthy respectively as to the circumstances of the attack;
-whether Worthy turned away during an attack on Kane by Snell and circumnavigated Lake Surprise before seeing Kane and watching him cough blood and go quiet, and then returning to the car and next meeting up with Campbell and Snell there;
-whether Worthy was then asked by the other two to clean the machete but refused and put it out of the car onto the ground.

Campbell’s evidence about walking up to the main road with Worthy and events which followed the crime

It was not disputed by Worthy that Snell’s car would not start, so Myssie Andrews was contacted to attend from Hamilton. However Campbell’s account was that he walked with Worthy up towards the main road to assist Andrews with directions when she arrived. He testified that Worthy and Snell had both changed their clothes and Worthy had taken off his shoes before walking up to the main road and entrance to the national park. He said Worthy’s shoes had blood on them. Worthy was barefoot and complaining about the gravel hurting his feet.

On the way up to the main road Worthy was panicking about police coming, or people having heard Kane cry out and was asking Campbell to check his face for blood. When Andrews’ car appeared they thought it was police at first and hid behind a tree.[100] Then Worthy got into the car behind the driver, but Campbell climbed in through the back into a middle seat owing to the presence of baby seats. They drove to Snell’s car which was then jumpstarted and the three accused drove back to Hamilton in Snell’s car. They discussed the events on the way back. Worthy was repeating over and over ‘we’re fucked, we’re fucked’. Snell tried to console him saying ‘its ok, we’re all in this together’ and he replied, ‘Yes but you two aren’t murderers’.[101] They agreed to give a story that they last saw Kane when they took him down to Coles. It was ultimately agreed that if they were caught, Campbell would take the blame because the other two accused were parents and Campbell had no children.[102]
[100]Transcript, 8 August 2017, p 126.
[101]Ibid, p 127.
[102]Ibid, p 127.

The three accused stopped at Kane’s caravan on the way back from Mt Eccles and broke in and stole a number of items before returning to Rankin Court. Myssie Andrews and her brother were already home from the trip to Mt Eccles when they arrived back.

The three accused returned to the crime scene a few times over the next day or so, to search around. They did not find Kane but Campbell found Kane’s singlet, and Worthy collected Kane’s phone and keys from a ledge in the ranger’s hut. Campbell snapped the SIM card at Worthy’s suggestion.[103] The items stolen from Kane’s caravan were a TV, a PlayStation 3, DVDs, games, and collectable figurines. Snell took the TV and PlayStation; the rest of the items went back to Worthy’s place, although Campbell stole the clothes and could not recall exactly what he did with them.
[103]Ibid, p 130.

When cross-examined about these matters, Campbell disputed that: Worthy was waiting in the back of Snell’s car for the others to return after Kane was attacked; and that Snell came back holding the machete;[104] and that he and Snell told Worthy to clean the machete and Worthy refused.[105] He disputed that Worthy walked alone to the main road from the carpark maintaining that they went together. He also disputed the possibility that he followed after Worthy and that when Myssie and David Andrews arrived, Campbell got in car but Worthy didn’t. Campbell maintained his evidence that he walked to the main road with Worthy and they both got in Myssie’s car and went back up to Snell’s car.
[104]Transcript, 9 August 2017, p 176.
[105]Ibid, p 176.

Campbell conceded that the three accused returned to Mt Eccles on subsequent occasions either two or three times but denied the suggestion that when they went back with torches at night Worthy stayed in the car.[106] Campbell maintained his position that Worthy told him to break Kane’s SIM card[107] and said that when Worthy found Kane’s keys and phone at Mt Eccles, he didn’t want to pick them up because he didn’t want to get his fingerprints on them, so he used a plastic bag.
[106]Ibid, p 177.
[107]Ibid, p 178.

Campbell agreed that on the trip to Mt Eccles he was wearing a dark hoodie, tracksuit pants, and Doc Martin boots.[108] He accepted that the machete found by police was likely wrapped in the t-shirt he had been wearing. He said his shoes had not been washed or cleaned as he continued to wear them to work.[109] Campbell said some small cuts police saw and photographed on his hand that were not related to the incident. One of the cuts was fresh at the time of arrest and was from his work as a kitchen hand and the other cut had not been noticed by him before the arrest. He said it would not have been from knife or machete because he didn’t use either. When asked by Mr Bayles about traces of Campbell’s blood detected on one of his knives he said he was unaware of that.[110]
[108]Ibid, p 180.
[109]Ibid, p 184.
[110]Ibid, pp 189-91.

Campbell denied that he and Snell asked for Worthy’s clothes the day after the event, replying that at that time, Worthy’s clothes were still in the plastic bag in the back of Snell’s car.

Campbell admitted under cross-examination that he misled Kane’s sister, Samara, when she contacted him because Kane was missing. He also conceded that he gave three different versions of events to police when questioned. He admitted that even the final third version which incriminated Worthy still contained some lies.

He admitted he gave a different account as to how he came to steal Kane’s clothes in his police interview, telling police he did it to make it look like Kane had done a runner. He disputed the proposition that Worthy was not involved in stealing from Kane after the murder. He disputed that a portion of his police statement was false where he had said that in the cells, Worthy said he was worried about all the stuff he had taken from Kane’s caravan after the murder, and that Worthy referred to taking Kane’s DVDs, PlayStation, ‘Assassin’s Creed’ figurines, flat screen television and clothing that was all still at his house. Campbell admitted under cross-examination that his statement that Worthy ended up with the flat screen television after the theft from Kane’s caravan was incorrect because Snell ended up with it. He admitted that his police statement omitted details of his own and Snell’s involvement in stealing from Kane after the murder, but said he wasn’t asked to elaborate on that aspect so he didn’t. He disputed that he deliberately lied about the flat screen television.

Worthy’s evidence about walking up to the main road alone and other conduct following the attack on Kane

Worthy gave evidence that after Kane was attacked, at the point when the three accused went to leave Mt Eccles, Snell tried to start the car but it wouldn’t turn over. Worthy told the others he had to go and walked off by himself out of the national park. He went to the opening of the park and waited for 30-45 minutes until a car came past.[111] Worthy did not get into Andrews’ car but later got into Snell’s car and joined Snell and Campbell as Snell was driving out of the national park. They drove back to Rankin Court without stopping anywhere on the way back. He was not party to stealing from Kane’s caravan at any point afterwards and they did not stop off there on the way back from Mt Eccles.[112] He was dropped off at Rankin Court and then left and went home. He was not party to any conversation about the events when in the car on the way back from Mt Eccles or afterwards, except that the night before the arrest, the three of them met at the caravan park once he learned that Kane’s body had been found. Snell said at that time ‘they had gotten away with it.’ That was the only discussion they had about the matter. He conceded that he lied to Kane’s father and sister when Kane was missing regarding Kane’s whereabouts.[113]
[111]Transcript, 11 August 2017, p 277.
[112]Ibid, p 278.
[113]Ibid, p 280.

Mr Lewis cross-examined Worthy about his evidence that the day after the incident, Snell and Campbell came to his house and asked for his clothes; and whether his position was that his clothes were conveniently already in a plastic bag. He agreed that they were.[114]
[114]Ibid, pp 306-7.

Worthy was challenged as to why the three accused arrived back at the Rankin Court address 20 minutes to half an hour after Myssie and David Andrews, when Worthy maintained that they did not stop off anywhere. He said he could not account for the delay.[115]
[115]Ibid, pp 289-90.

Worthy was then cross-examined about his inability to explain the discrepancy between his police interview that only Snell handled the machete (apart from when Worthy put it out of the car), whereas in his evidence in court, he conceded that everyone handled it at some stage.[116]
[116]Ibid, p 291.

The dispute about what occurred in the aftermath of the attack on. Kane therefore is underpinned by:

-whether Worthy changed his clothes or took off his shoes after the attack on Kane;
-whether Worthy walked up to the main road alone and not with Campbell;
-whether Andrews collected both men from the main road before going to Snell’s car or whether Worthy only joined Snell’s car when it was departing Mt Eccles;
-whether the incriminating events were discussed by the three accused in the car on the trip back to Hamilton and whether Worthy made an implied admission in the car saying ‘you two aren’t murderers’;
-whether the three accused broke into Kane’s van on their return to Hamilton from Mt Eccles and stole Kane’s property;
-whether the three accused ever discussed the incriminating events apart from one occasion at the caravan park the night before their arrest;
-whether Worthy got out of the car on a night time visit back to Mt Eccles;
-whether Worthy collected Kane’s phone and whether he told Campbell to remove or break the SIM card.

Myssie Andrews[117]

[117]Transcript, 8 August 2017, beginning p 36.

Myssie Andrews was living at the Rankin Court residence with Scott Wesley and her children, and permitted Snell to move in October 2015. Myssie Andrews’ brother David was also staying there in the lead up to 23 January 2016. Worthy and Campbell were frequent visitors, although Ms Andrews said she discouraged Snell from having Campbell there overnight but this did happen on a few occasions. Snell moved back to the Hamilton caravan park around Australia Day 2016.

Ms Andrews said she reported her suspicions to police that the accused were involved in Kane’s disappearance after learning from Kane’s sister, Samara, that Kane was missing. She went to police in the early hours of the morning on 29 January 2016, disturbed by remarks made by Worthy and Snell in the previous week when they were outside her house in the presence of Wesley and her brother David. They said they could murder Josh and no one would know. On refreshing her memory from her statement, she said it was Worthy not Snell who said this and that Snell added that ‘Yeah we could, I have a car.‘ A few days later, Ms Andrews was aware of Snell, Worthy and Campbell leaving for a drive in the afternoon. Snell had phoned her around 10.30 pm wanting a jumpstart. Andrews was angry as she wanted to go to bed. She drove out there with her brother David and collected Worthy and Campbell from the vicinity of the gate to the national park. Worthy sat in the backseat whereas Campbell went in the boot of the wagon because of child car seats in the rear. When they got to Snell’s car, her brother helped jumpstart it and Snell, Worthy and Campbell left in Snell’s car. The three accused arrived back twenty to thirty minutes after Andrews and her brother.

Ms Andrews also testified that she was aware of the falling out between Snell and Kane that arose at her birthday party at Rankin Court on 22 November 2015 when Kane said to Blake who was unwell, ‘Get up you lazy bastard’. After that, Snell refused to have anything to do with Kane.

Worthy told her that when Kane had finished paying for the trampoline he was not going to talk to him anymore. She noticed Worthy avoided responding to attempts by Kane to communicate with him.

When cross-examined, Ms Andrews agreed she was unhappy with Snell and Campbell using drugs in the back shed while Snell was living in her house.

Regarding the conversation about killing Kane she said Campbell was not present at the time but may have been inside or at the front door. Asked if it might have been Campbell who made the remark instead of Worthy, she replied, ‘Hell no’.

She conceded she was in a panic when she went to the police and this was the result of the combination of the remark she heard, having gone to Mt Eccles and the fact that Kane was missing. She had never heard of Mt Eccles until that night. She was cross-examined from and conceded answers given at committal about being mistaken in her belief that her brother was present at the time of the remark.

She said it was not possible that she was wrong that Worthy was at the gate area with Campbell when she and her brother arrived. She said after returning home she waited up for the others to return.

She was aware that Kane’s friendship with Worthy had soured before that night and assumed they were no longer seeing each other. She conceded that she could not say if Worthy was still visiting Kane at the caravan park in January 2016. Snell moved back to the caravan park around Australia day.

David Andrews[118]

[118]Transcript, 8 August 2017, beginning p 67.

David Andrews described going out to Mt Eccles with his sister. They collected Worthy and Campbell on the way into the National Park and one of them got in the backseat while the other got in the wagon area of the car. After helping jumpstart Snell’s car, the group followed them out from Mt Eccles because they didn’t know the way back, but ‘we lost them’. The group arrived back 20 or 30 minutes later. Under cross-examination he said he did not overhear a conversation in which someone spoke about killing Josh. Cross-examined about confusion on the way out as to where the three accused were, he said they were initially led to believe the group were just outside Hamilton, but then Snell sent a GPS showing that the group were much further away. (Screenshots of the GPS image sent to Andrews by Snell were included in the depositions.) He maintained that both Worthy and Campbell got into the car on the way into the national park and one of them got in through the hatch because of the car seats in the rear seat.

Scott Wesley

Scott Wesley said he was aware that Snell had ceased contact with Kane, and Kane no longer visited the premises at Rankin Court after the incident at the party.

Towards the end of January 2016, there was a conversation that occurred while Wesley was watching daytime television. Snell and Worthy were nearby and one of them said that they were thinking about killing Kane. Worthy said: ’we should chop his head off and put it in your cabinet.’ Missy was not present in the room but was somewhere else in the house. Wesley thought they were joking, high or drunk.

Under cross-examination, Wesley agreed that it had become apparent that Snell was using ‘ice’ during the time she was living at their house and that Myssie was angry about this and asked her not to bring Campbell there.

Wesley recalled that it was the day before Australia Day that Snell moved back to the caravan park. Wesley was aware that Kane and Worthy had been good friends for a long time, but with Snell’s negativity towards Kane, Wesley noticed that Worthy would say negative things about Kane behind Kane’s back.

Under cross-examination, Wesley maintained that it was Snell and Worthy who spoke of killing Kane, not Campbell and Snell.

Carmel Dalton and Michael Turner[119]

[119]Depositions p 200-223.

These witnesses attended Mount Eccles National Park on 24 January 2016 in the late afternoon and stopped at the ranger’s hut where they noticed a mobile phone and keys in the hut. It is not put in contest that the bloodied phone and keys seen by this witnesses belonged to Kane and were later collected by one of the three accused. These witnesses saw three people in the area associated with a white car. It was not disputed that the three people were the three accused who had returned to Mt Eccles on 24 January.

Melanie and Luke Walkenhorst[120]

[120]Depositions p 224-243.

These witnesses went to Mount Eccles to go fishing in the lake around 5.00 pm on 24 January 2016. No vehicles were seen when they arrived and they walked down to the lake and fished for three or four hours. They started walking back to the car when it was starting to get dark around 8.30 pm. On the way back up to the car park, on the path up from the lake, they saw a female and two males, one of whom was using a torch and shining it into the bush. No contest was raised that the three people were the three accused.

Warren Parker[121]

[121]Depositions p 262.

Mr Parker was the manager of the caravan park in Hamilton at the time of the events. He had been made aware that Joshua Kane was missing and on Friday, 29 January he learned that a body had been found at Mount Eccles. That night he saw the three accused out near Worthy’s car at about 10:20 pm. They were talking together and when he approached them to ask what they were doing Worthy said, ‘we are trying to work out where Josh is’.

Garry Foley[122]

[122]Depositions p 180.

This witness is the father of Joshua Kane. He last saw his son on Friday, 22 January 2016 and took him to visit his grandmother before dropping him back to his caravan around 5.00 pm. He recalled telephone contact between his son and Worthy on the way back, and that Worthy was waiting for Josh when they returned. The three of them talked and had some drinks for a couple of hours when he dropped his son home and both young men seemed to be getting along fine. When his son went missing he contacted Worthy to find out what he knew. The witness said his son and Worthy had been friends for years. ‘They were like Siamese twins and were always together.‘ He was aware of the falling out between his son and Snell a couple of months earlier.

Dr Linda Isles, Pathologist[123]

[123]Depositions p 267.

A post-mortem was conducted on 31 January 2016 with the cause of death being multiple injuries. There were, in brief, numerous chopping type injuries, especially around the head. There were also sharp force injuries to the arms and left shoulder, and around the neck; and also a penetrating injury to the upper right abdominal wall.

The injuries were consistent with having been inflicted with a heavy instrument with a sharp edge such as a machete, axe or cleaver.

Alexandra Salerno, Forensic Officer[124]

[124]Transcript, 9 August 2017, beginning p 204.

Items recovered from a plastic “Reject Shop” bag (which was found by police at Snell’s parents’ house inside a black garbage bag ) were analysed for DNA. The bag included a pair of desert boots admitted to be Worthy’s, containing an apparent blood stain pattern, grey jeans and a white “revolution” t-shirt. DNA analysis showed regarding a blood stain on the left shoe a likelihood ratio that the DNA evidence is 100 billion times more likely if Kane had contributed DNA. Regarding a blood stain that was sampled from the front left shoulder region of the t-shirt the DNA result was 100 billion times more likely if Kane was the source.

There was an apparent blood stain on one of Campbell’s shoes but it was not analysed further.[125] There was apparent blood staining on the soles of Snell’s shoes but those stains were not analysed further.

Mark Gellatly,[126] Forensic officer (with experience in Bloodstain Pattern Analysis)

[125]It was not submitted by Worthy that this was Kane’s blood.

[126]Transcript, 9 August 2017, beginning p 225.

Mr Gellatly analysed the bloodstains found on the jeans, brown shoes (desert boot) and white t–shirt (item 34) which were admitted to be Worthy’s. Significant bloodstains were selected for DNA analysis in conjunction with Ms Salerno and those particular blood stains were marked with arrows on photos produced to the court. On the pair of grey jeans, there were numerous transferred blood stains, but no spattered stains. On the left shoe there were seven near circular spattered bloodstains and numerous areas of transferred blood stains on the left shoe. On the right shoe there were four near-circular spattered bloodstains and numerous transferred bloodstains. The blood on the white “revolution” t-shirt had a pattern of spatter. There was blood spatter on both the front and the back of the t-shirt.[127] There were eight spattered bloodstains, two elliptical stains on the front left shoulder, one near-circular stain on the upper right arm and the remaining five were near-circular and sparsely distributed on the lower region of the rear of the t-shirt.
[127]Ibid, p 234.

Spattered bloodstains indicate force in addition to gravity applied to a quantity of liquid blood proximal to the t-shirt and shoes. Assuming Worthy was wearing the shoes and t-shirt at the time the blood was deposited, he was proximal to force of an unknown nature when it was applied to a quantity of Kane’s liquid blood. There were insufficient characteristics within the distribution of those stains to enable further characterisation into more definitive pattern such as impact, cast off or expirations pattern. Mr Gellatly’s analysis relied on the assumptions that all apparent bloodstains observed and commented on were deposited essentially contemporaneous with the events surrounding the death of Kane and that the information provided in the statement prepared by Ms Salerno was correct in the interpretation of DNA results for the relevant items. Asked in cross-examination about how blood spatter could arrive on both the front and back of the t-shirt that is being worn by the wielder of a machete, Mr Gellatly said it could be that ‘the droplets on the front are deposited while facing, and then for some reason they’re turning around, and from another event there’s been deposited, um, on their back;’[128] or, alternatively, the blood is deposited by a long weapon that is being swung in the air with blood being cast off onto the back. ‘There are no features that would allow me to conclude it was a cast-off, but I suppose I couldn’t rule it out as a possible explanation.’[129]
[128]Ibid, p 238, lns 26-30.
[129]Ibid, p 239, lns 4-8.

Crown’s closing submissions
Reliability of Campbell

The Crown placed explicit reliance on the evidence of Campbell to support much, but not all of the factual scenario for which it contended. The Crown conceded that Campbell, like Worthy and Snell, originally told police a false story about taking the deceased to Coles, but then returning him to the caravan park and not seeing him again. However, it was submitted that unlike Worthy and Snell, Campbell’s next version of events was one in which he attempted to take all of the blame for the death of the accused upon himself. That version was clearly wrong, but was consistent with the agreement reached by the three accused in the car on the way back from Mt Eccles.

The false confession by Campbell was recanted when challenged by police, and Campbell’s subsequent version of events in his police interview is closer to that which was given in court. The prosecution emphasized by contrast that Worthy’s version of events had changed a number of times since the original false story about not seeing Kane after Coles, and that Worthy’s explanations removed responsibility from himself for what took place.

The Crown submitted that Campbell’s ultimate version of events in his record of interview had been largely maintained to date. That version was expanded upon in detail in the police statement made in preparation for his sworn undertaking to cooperate with the Crown and in his subsequent evidence on the contested plea. The Crown argued that Campbell’s evidence was consistent with the circumstantial evidence available in this case. For example Campbell alleges that he saw Worthy attack the deceased with the machete and, in fact, Worthy is the only one of the three accused whose clothing and shoes bear spatter blood stains and were found to have DNA consistent with Kane’s DNA.

Secondly, Campbell described the actions of the three accused after the murder in a manner consistent with evidence given by Myssie Andrews and David Andrews.

Thirdly, Campbell’s account that Worthy discussed and promoted the attack on Kane before the murder was consistent with evidence given by Myssie Andrews and Scott Wesley about other similar discussions between Worthy and Snell in their presence.

Crown submissions about preparation, pre-planning and promotion of the plan

The Crown argued that there was no basis for treating the evidence of Myssie Andrews, David Andrews or Scott Wesley as unreliable or lacking in credibility. Both Myssie Andrews and Scott Wesley gave evidence about the cooling of the relationship between Worthy and Kane. They each testified as to specific things said by Snell and Worthy in the days prior to the murder regarding plans to kill the deceased. Both witnesses strongly rejected suggestions made in cross-examination that it was Campbell not Worthy who made the remarks. Therefore, there was independent supportive evidence as to Worthy’s hostility towards the deceased and promotion of the plan to kill him.

The Crown also pointed out that it was as a result of things said by Worthy and Snell in the hearing of Ms Andrews along with the unusual circumstance of rescuing the three accused at Mt Eccles National Park late on the night that Kane went missing that took her to Hamilton police station at 2.30 am on 29 January 2016 to report her suspicions. This sequence of events provided logical support for her evidence of the comments she heard prior to the murder.

Mr Bayles submitted that the Crown allegations about pre-planning found in paragraphs 29 to 38 of the prosecution opening relied solely on the evidence of Stuart Campbell.

Crown submissions in favour of finding that Worthy attacked the deceased with the machete

The Crown further argued that Campbell’s account of the actions of the three accused at the time of the attack on Kane and in the ensuing period between then and the departure of the three accused from Mt Eccles was a plausible and credible account which fitted with independent physical evidence, such as the evidence of blood and DNA found on clothing and footwear of Worthy, in the absence of any similar bloodstains on the clothing and footwear of either Snell or Campbell. The Crown argued that the blood staining on Worthy’s clothing and footwear supported the account given by Campbell and was inconsistent with the account given in evidence by Worthy.

Therefore, the Crown argued that the court should be satisfied beyond reasonable doubt that Worthy did in fact wield the machete in the initial attack upon the deceased at Mt Eccles National Park and that the court should reject Worthy’s account that it was Snell who first attacked the deceased with a machete. The Crown was unable to say whether Worthy was the only person to attack the deceased.

The Crown’s position was that the court should accept Campbell’s evidence despite his complicity in the murder and his position as a cooperating witness who obtained a substantial discount for his plea of guilty and cooperation.

Referring to the attack on Campbell’s credit regarding his disclosure during his evidence about the theft of items from Kane’s caravan on the way back from Mt Eccles after the murder, the Crown submitted that the details of how and when Kane’s property was stolen were not matters of much moment. Campbell’s statement did not specifically refer to his own involvement in the thefts but the Crown argued that the relevant paragraphs of the statement was focussed on narrating what Worthy had said to Campbell in the cells, rather than describing the events themselves. The Crown also argued that there was ambiguity because the paragraph apparently deals with thefts on 23 January 2016 and an earlier theft of a PlayStation.

On the other hand, the Crown submitted that Worthy’s evidence as a whole involved an attempt to downplay his involvement in the murder and in the cover-up afterwards and that the account given in evidence lacked credibility and was implausible. The Crown emphasized the many inconsistent versions given by Mr Worthy when considering his record of interview and his later evidence in court. The Crown argued that Worthy finished the police interview giving a version which his counsel identified as forming the substance of the factual basis for the plea. However, when Worthy came to give evidence, he changed a substantial part of that version stating that he had found the deceased man some 20 to 25 metres off the path, rather than right next to it.

The Crown also submitted that Worthy’s account was contradicted by Myssie and David Andrews as to Worthy’s actions when they arrived at Mt Eccles National Park to rescue the three accused. Worthy’s account of never participating in planning discussions in advance of 23 January was also inconsistent with the evidence of each of Campbell, Andrews and Wesley.

Defence closing submissions

The defence argued that Worthy's account should be accepted that he was not party to planning and preparation for the attack on Kane, but that he witnessed Snell attacking Kane with the machete and did not wield the machete himself. Campbell’s account that Worthy was the attacker was said to be unreliable.

Mr Bayles attacked Campbell’s credit on the basis that he admitted a long history of drug use[130] and that during his sexual relationship with Snell the pair used ice as well as cannabis, whereas Worthy never used drugs.[131] Campbell had conceded that Snell despised Kane whereas Campbell was unable to indicate a strong basis for a hostile motive held by Worthy.
[130]Transcript, 8 August 2017, p 149.
[131]Ibid, p 155.

Mr Bayles submitted that Campbell could be expected to have greater allegiance to Snell given their previous sexual relationship and mutual drug taking, providing a motive for Campbell to inflate Worthy’s culpability and correspondingly reduce Snell’s culpability.

Mr Bayles pointed out that Campbell did not give evidence of overhearing the conversations about harming Kane that Myssie Andrews and Scott Wesley gave evidence about.[132]
[132]Transcript, 9 August 2017, p 156.

Mr Bayles submitted that Campbell had admitted engaging in deceptive conduct after the murder such as breaking into the Kane’s caravan for the purposes of stealing clothes to make it look like Kane had ‘done a runner’, denying to Kane’s sister any knowledge of the Kane’s whereabouts, and denying knowledge of the deceased’s whereabouts when first questioned by police. Attention was drawn to Campbell’s record of interview in which he first gave a false version that the three last saw Kane at Coles, and then gave a false version confessing that he was alone responsible for attacking the deceased, and that his third version inculpated Worthy but still included matters inconsistent with evidence given in court and included admitted lies.

The example was given of Campbell’s explanation about items stolen from the Kane’s caravan after the murder. Mr Bayles submitted, ‘These matters, although peripheral to the central dispute, are still significant factual matters. They demonstrate significant changes in versions given by Mr Campbell and significantly affected the assessment of his credit.’

Mr Bayles also relied on the fact that Mr Campbell admitted that he had received a sentencing discount for his cooperation, having given his statement in accordance with the sworn undertaking and that in giving his statement in advance of the other two accused he had an opportunity to give a version of events that benefited him.[133] He submitted that these matters should lead the court to have serious doubts about Campbell’s reliability, and would ordinarily attract a warning under the Jury Directions Act.
[133]Ibid, p 165.

Mr Bayles submitted that Campbell’s account was implausible, that Worthy would have developed a plan to assault and kill the deceased in circumstances where there appeared to be no strong motive, and Worthy and the deceased had previously been close friends, whereas Snell had developed hatred for the deceased. Mr Bayles also emphasized that Campbell did nothing to stop the murder from happening and participated in acts of concealment after the murder.

Mr Bayles also referred to the fact that a knife was seized by police which had blood on the blade consistent with Campbell’s DNA and that Campbell had a small cut on his hand when photographed and interviewed seven days after the incident.

Mr Bayles made submissions in respect of the evidence of blood found on Worthy's clothing and footwear arguing that the evidence was inconclusive on the question of whether Worthy was the person who wielded the machete at the time the blood was deposited on Worthy clothing.

In respect of Worthy’s evidence that it was Snell who had the motive and who carried out the attack, Mr Bayles submitted that Worthy’s evidence as to those matters, and the matters set out in paragraphs 16 to 22 of the defence written outline, should attract relevant directions about the accused as a witness.

Consideration of Worthy’s position as a witness

The court accepts that it must be remembered that the accused did not have to give evidence and had the right to remain silent, and that the fact that he chose to give evidence does not alter the burden on the prosecution to prove the matters in contention beyond reasonable doubt. The fact that the accused chose to give evidence meant that he undertook to tell the truth and submitted himself to cross-examination. In this case, there is a clear conflict between the evidence of Mr Worthy and the evidence of prosecution witnesses including Campbell, Myssie Andrews and Scott Wesley. If Worthy’s evidence is accepted as true, the court is entitled to rely on that evidence in determining whether the defence has persuaded the court of the key mitigating circumstances relied on by the defence that Worthy was not party to promoting planning for or preparing the attack before 23 January, and was not physically involved in wielding a machete towards Kane during the attack on Kane.

If the court is uncertain whether Worthy's evidence on the disputed issues is true, but thinks it is a reasonable possible that Worthy is telling the truth about those matters, then the prosecution will not have proved beyond reasonable doubt the sentencing facts relied on by the Crown in aggravation.

Even if the court preferred the evidence of Campbell, or other Crown witnesses over the evidence of Worthy the court needs to remember that the requirement to establish circumstances of aggravation beyond reasonable doubt is not simply a matter of preferring one account against another. Much more is needed in order to meet the criminal standard of proof. Also, even if the court rejected the evidence of Worthy, that would not mean that the court should necessarily accept the sentencing facts contended for by the prosecution. It would require the court to put Worthy's evidence to one side in the ultimate consideration of whether the Crown has met its onus as to the circumstances of aggravation.

Consideration of disputed evidence about Worthy's alleged role in planning and promotion of the attack on Kane

Having considered the entirety of the evidence, I am satisfied beyond reasonable doubt that Worthy participated in planning, promoting and preparing for the attack on Kane. I am satisfied beyond reasonable doubt that Worthy had a motive of animosity at the time he participated in planning the attack and that he telephoned Kane to invite him along for the outing with the intention that Kane would be attacked in the course of the outing.

I make this finding in light of my acceptance of the evidence of Campbell, Myssie Andrews and Scott Wesley that by 23 January, Worthy disliked Kane and had been avoiding him.

I accept the evidence of each of Campbell, Andrews and Wesley as to Worthy's participation in statements and discussions of intent to harm Kane in the days leading up to the murder. I agree with the Crown submission that both Andrews and Wesley gave a credible account of overhearing Worthy participating in discussions about killing Kane. It is also relevant to consider the friendly relationship Ms Andrews and Mr Wesley had with Worthy and Snell prior to 23 January. Of the three accused, Campbell was less close with Ms Andrews and Mr Wesley at that time. Ms Andrews and Mr Wesley took no action about the remarks at the time they were made but the unusual events that followed close in time after those remarks triggered their recollection of what had been said.

The evidence of Myssie Andrews and Scott Wesley is directly relevant to establishing Worthy’s participation in the planning and promotion of the killing and can be regarded as supporting Campbell’s account that Worthy was preoccupied with the idea of seriously harming the deceased in the period leading up to 23 January.

The evidence of Campbell was that Worthy first spoke of assaulting Worthy around the time Campbell went to stay with Worthy when he was evicted from home. The discussions about harming Kane escalated when the three accused were together.

Campbell’s account did not appear exaggerated or confused but served to explain how the plan evolved and became more extreme over the course of several discussions between the three accused. Furthermore, under cross-examination Campbell was candid in admitting that he participated in the discussions although not in the more extreme expressions of intent. He indicated an awareness that something very bad was going to be done to Kane before the three accused embarked on the outing to Mt Eccles.

In my view, the decision to go to Mt Eccles was in itself unusual and supports a case that there was a plan to take Kane to a remote location where he would be unlikely to be found. The only explanation proffered by Worthy for going to Mt Eccles was that Campbell and Snell wanted to get out of Hamilton.

Campbell’s account appears plausible that he refused to participate in the physical attack but agreed to facilitate the outing whilst being aware that something very bad was going to be done to Kane and being aware that the machete, bleach and pocket knives had been gathered for that purpose.

In light of the serious falling out between Kane and Snell and the cooling of relations between Kane and Worthy as described by each of Campbell, Andrews and Wesley, it is logical that Kane would have been less likely to go with the group if Snell had gone in the car with the others to collect Kane. It is also significant that Snell’s car was used for the outing, as foreshadowed in the conversation Andrews had earlier overheard. The fact that Snell’s car was taken although it was an unreliable vehicle, whereas Worthy's car was in good working order, supports Campbell’s account that Worthy did not want to risk having his car involved in the planned events.

This supports the proposition that Worthy had knowledge of what was planned. Campbell’s account of Worthy collecting the various items at his house and of how the items came to be placed in Snell’s car from Worthy's car was detailed and credible.

I am satisfied beyond reasonable doubt as to Campbell’s evidence that Worthy collected various items from his house in preparation for the outing including the machete, which had been stored in Campbell’s scouting bag at Worthy's house, pocket knives, bleach, latex gloves and plastic bags, and that Worthy took with him on the outing spare clothes for changing into.

Worthy's account as to not being aware of a plan to seriously harm Kane lacked credibility. There was no consistent explanation as to how he ultimately arrived at the understanding that Kane was to be attacked with the machete before the murder.

Worthy gave evidence that the machete was removed by Snell from the car still in its cover, and that she placed it through her belt at that time. In his later evidence he described hearing the Velcro sound of the machete being removed from its cover by Snell just before the attack. However, Campbell disputed that Snell was wearing a belt and said the sheath for the machete was left in the car. If the machete was carried in its cover and the cover was attached to or put through Snell’s belt and Snell was the attacker then it might be expected that there would be blood on the outside of the machete cover. No belt was recovered amongst Snell’s clothing which had been placed in plastic bags. There is no evidence to suggest proximity of the machete sheath to the carrying out of a bloody attack. Indeed forensic testing found no evidence of blood on the cover.[134] The machete was a substantial object to wear on a belt whilst on a bush walk. It measured 18 cm.
[134]See photobook 2; photos 138-6 of machete and machete cover and photos 138-171 photos of clothing found inside black plastic garbage bag with photos 172-182 depicting reject shop bag also located inside black garbage bag containing Worthy’s grey jeans, “revolution” t-shirt and desert boots.

Worthy's protestations of lack of knowledge prior to arriving at Mt Eccles car park wavered in the course of his evidence and under cross-examination he could not proffer any explanation as to why he concluded that an attack was to take place from the simple act of Snell taking a machete from the boot.

Worthy gave markedly inconsistent answers as to his state of knowledge about what was to be done to Kane. During evidence in chief his assertion that he just thought they were going to hurt Kane by pushing him in the lake and leaving him was entirely unconvincing.

Worthy sought to rely on his close friendship with Kane to exonerate himself from aspects of preparation and planning but conceded that he did nothing to warn Kane in advance of the attack. Whilst Mr Bayles sought to rely on Worthy’s close relationship with Kane to counter the allegation that Worthy nursed hostility towards Kane, the evidence shows that Worthy maintained a close and regular association with Snell despite Snell’s hatred of Kane after the incident in November 2015. It would appear that Kane had not been seeing much of the accused in the lead up to 23 January. Worthy did phone Kane the day before the outing when his father was driving Kane home and was waiting for Kane when he was dropped off, but this social contact is consistent with the decision that had been made to invite Kane to spend time with him the following day.

Worthy's assertion that he had no awareness of the items taken out to Mt Eccles in Snell’s car is also difficult to accept. He admits closely associating with Campbell and Snell on the 23 January before embarking on the outing and on his account all three accused were at Snell’s house before departure. Given that Worthy was tasked with driving Snell’s car, and changed the P plates over from his car as well as taking possession of the car keys, it appears somewhat improbable that he was unaware of the contents of the car. Also, he conceded under cross-examination that Myssie Andrews is allergic to bleach making it less likely that the bleach came from the house Snell shared with Andrews.

Campbell’s evidence that Worthy said outside Coles whilst waiting for Kane that he could not wait to attack him was an admission against interest by Campbell because it showed that he was aware before going to Mt Eccles that Kane was to be seriously harmed. The remark was made in the context of Kane being lured into going on the outing with the three accused.

Consideration of disputed evidence about who attacked Kane with the machete

Campbell’s evidence as set out in these reasons about what took place at Mt Eccles was detailed and credible, and supported by a sketch he independently drew for police showing the key locations where events took place. It should be noted that the tree drawn on the sketch was said by Campbell in his statement to denote the area where they looked for Kane’s body. He said in his statement that Sam said he could not remember exactly where the body was when they returned to the scene to search but thought it was next to a tree down an embankment off the path. The sketch drawn by Campbell was adopted by Worthy in his evidence about where key events happened. Campbell’s account showed how Kane was lulled into a false sense of security during the outing with the three accused, and how he was attacked from behind whilst completely unsuspecting. The description of Worthy’s ambivalent response once he embarked on the bloody assault provides a logical narrative as to how Worthy and Snell came to lose Kane in the darkness after the initial attack, in an area of steep scrub. Campbell’s description of his own response to the attack was also quite compelling. ‘Um, I take a few more steps and then just stop and um yeah, pretty much curl up on the ground’.[135] Similarly there is a level of convincing detail around the description of how Worthy appeared to have cold feet ‘shaking and hyperventilating‘ after embarking on the attack and how he tried to give the machete to Campbell, with Campbell refusing to accept it. This refusal is consistent with Campbell’s evidence as to his previously agreed role in the events. Campbell’s account that Worthy had committed himself to a course of conduct which he quailed at carrying through to completion is entirely plausible.
[135]Transcript, 8 August 2017, p 120.

If Campbell had a motive to give a false account to protect Snell and incriminate Worthy, then the parts of Campbell’s account in which he described Snell’s support for and encouragement of Worthy’s actions at the scene are at odds with that submission. On Campbell’s account Snell went back with Worthy to find Kane the first time Worthy withdrew from the attack on Kane. Then again, when the three accused were in the carpark and Kane called out for help, Snell agreed to go back with Worthy on that occasion to look for Kane. Campbell described in chilling detail Kane’s call for help and Worthy’s reluctance to return from the carpark to where Kane was at that time. If Campbell’s account was invented, it would have been easy to omit that part of the account. Campbell gave precise details of how Snell comforted Campbell by putting her head on his shoulder when they first returned to the carpark after Kane was found to be missing. He then narrated how after Worthy and Snell went back down towards Kane following Kane’s cries for help and then when they returned to the car park a second time, Snell comforted Worthy by rubbing his back at that time. Such details are not easily invented and give emotional texture to the unfolding events.

Campbell explained how he came to wash the machete with the bleach when it was handed to him by Worthy. The physical evidence at the scene as to bleaching of the top rail at the lookout corroborated this part of his account. Similarly, the wrapping of the machete in his own t-shirt was substantiated by evidence about the presentation of the machete when the machete was seized by police from Snell’s parental home.

It is very significant that despite there being no dispute that Kane was attacked with several blows from a machete in the area between the carpark and Lake Surprise, only Worthy’s clothing and footwear showed evidence of blood found to contain Kane’s DNA.[136] Clearly, the attack was a bloody attack as evidenced by Kane’s blood-soaked singlet. Campbell’s evidence of seeing blood on the ground and on the undergrowth surrounding the path as he followed Worthy and Snell back to the carpark fits with the likely nature of the attack. It was not disputed by Worthy that the blood on his clothing and footwear was Kane’s blood but the manner in which the blood arrived there was in dispute. No convincing alternative hypothesis was advanced to support blood spatter arriving on both the front and back of Worthy’s t-shirt. As submitted by the Crown, a hypothesis that it was a result of Kane coughing blood in Worthy’s presence was not borne out by Worthy’s ultimate description of the manner and proximity of his approach to Kane at that time. I also accept the Crowns argument that if Snell was the wielder of the machete and the hypothesis is that blood spatter landed on Worthy because he was nearby, it is hard to reconcile that with the absence of blood spatter on Snell’s clothes and shoes.
[136]DNA testing revealed that it was more likely that the DNA belonged to Kane, and this was not disputed by the parties. In addition, although there was a possible bloodstain on one of Campbell’s shoes, no party sought to argue that it was Kane’s blood or that further analysis of that stain was needed.

I do not place any weight on the small cuts on Campbell’s hand when he was arrested a week after the incident. Campbell worked as a kitchenhand. Nor do I place any significance on traces of blood on a pocket knife. There is no evidence that such a knife was used in the attack on Kane. Campbell’s description in his statement of the knife he had with him that day was that it was a knife that he usually carried.

Worthy’s account of a verbal argument between Snell and Kane in the lead up to Kane being attacked by Snell was given in his evidence in court and in his police interview. If such an argument had occurred with a time gap between the argument and the attack, Kane might be expected to have been on guard as to his personal safety. It is difficult to accept that Kane would have been unable to even partly repel an attack by Snell in such a scenario. Kane’s inability to defend himself is rendered more probable if a surprise attack was launched by a male person attacking with the machete from behind in the manner described by Campbell. The account in Worthy’s police interview of an attack launched when Kane was facing Snell and whilst the argument was occurring is even less plausible.

Worthy was also inconsistent as to whether all four of the group took turns with the machete as he said in court, rather than only Snell and himself as described in his police interview. The former position tied in with evidence given by Campbell.

Worthy’s description of where the first blow was landed on Kane by Snell was quite imprecise and varied between referring to Kane’s neck, back and back of his head.

Worthy’s account that he left and walked the whole way around the lake before coming across Kane on his way back to the car park strained credulity. It was conceded by him that it was dark and he was reliant on his mobile phone torchlight. Having walked around the path in daylight on the view conducted by the court and bearing in mind possible physical differences compared to January 2016[137] the path is nevertheless a difficult one, and a walk around the lake in darkness from the point where the assault allegedly occurred, would have taken some time. This makes it harder to accept that coincidental with Worthy's arrival back to the area where the path splits, he came upon Kane in time to see Kane saying a few words, coughing up blood, and apparently drawing his last breath. Worthy's description in his evidence of Kane’s behavior when observed at this time is also hard to accept. It included seeing Kane standing up against an old tree, 20 to 25 metres down from the path, at a time of night when he claims that he has already missed a fork in the path because it was too dark to see properly. His narrative continues with him going down to where Josh was and he recounts, ‘Josh was saying why have we done this to him. He was very hard to understand but by this point he was sort of laying down and sort of crouched up against this tree’.[138] Worthy described under cross-examination that Kane was ultimately laying on his back with the back of his neck and head up against the tree[139] but there was no real explanation of how Kane went from one position to the next.
[137]For example, the view was conducted in winter, whereas the offence occurred in summer.
[138]Transcript, 11 August 2017, p 274-5.
[139]Ibid, p 310.

The blood spatter and blood transfer on Worthy's t-shirt and shoes did not have a logical relationship with Worthy’s described encounter with Kane after walking around Lake Surprise. Worthy was unable to explain why he approached Kane at this juncture. He did not claim that he was intending to go to Kane’s aid. The parts of Worthy’s interview, which referred to a conversation that he had with Kane in which he told Kane he was not part of the attack, were admitted to be false.

As to the contested fact of whether it was Snell or perhaps Campbell who attacked Kane with the machete, Worthy’s evidence incriminated Snell but he did not give any evidence of seeing or hearing anything pointing to Campbell as a person who physically attacked Kane. His evidence was of seeing Snell attack Kane and of then walking away in the opposite direction. Whilst this version leaves open the possibility that unbeknownst to Worthy, Campbell also attacked Kane, there is simply nothing further in support of that scenario raised by Mr Bayles in cross-examination of Campbell.

Worthy gave an account in his record of interview that he was in the carpark after the attack with the other two accused and then went back down and found Kane and witnessed him coughing blood at which time he went quiet. This version of being in the carpark with the other two accused and then leaving there and going back down and being present during Kane’s death did not form part of his evidence in court. But that version, which is now abandoned by Worthy, bears a peculiar similarity to the account given by Campbell as to Worthy’s actions in departing from the carpark back down the hill in the prelude to Kane’s apparent demise.

As to the defence submission that Campbell falsely blamed Worthy to protect Snell, there was no evidence that Campbell maintained any affection for Snell or had any motive to give a false version aimed at protecting her and incriminating Worthy at the time he made his police statement. In fact, in answer to Mr Lewis he said he never loved Snell.

Consideration of disputed evidence about what was done by the three accused after the attack on Kane

Worthy was said by Campbell to have made statements which could be construed as implied admissions on the way up to the main road and when in the car on the way back from Mt Eccles. Campbell said that as they walked up to the road Worthy had already changed his clothes and taken off his shoes and was worried about the blood splatter on his face. He was worried about whether someone may have overheard the calls for help. Campbell also described that in the car on the way back to Hamilton, Worthy said, ‘You two don’t need to worry because you two aren’t murderers.’

Campbell’s description of how he came to walk out with Worthy after Worthy changed his clothes and took off his shoes, and of being collected by Myssie and David Andrews was detailed and comprehensive. His account is supported by independent evidence from Myssie and David Andrews each of whom gave an unvarnished account of picking up both men near the entrance to the national park. Nothing raised in cross-examination raised any doubt about their evidence on this point.

Campbell testified that Worthy had taken off his bloodied clothes and shoes at the scene and placed them in a plastic bag which was later hidden by Snell at her parents’ house. Those items were found at that location by police in a plastic bag as described by Campbell. Consistent with Campbell’s account that he was told not to bring a change of clothes, the clothes he was wearing that day were not among the items that were bagged up and hidden by Snell, although Snell’s clothes were. This is so despite Worthy’s account that in the carpark, Snell told him to wash the machete while she and Campbell changed.[140]
[140]Ibid, p 276.

It is odd that Worthy would have given his clothes to Snell to hide the next day as he testified, if he was not involved in the assault. It is also odd that, on his account, the clothes he wore the previous day were already in a plastic bag, although he denied taking them off and bagging them in the carpark at Mt Eccles. It is also odd that he would have given the items to Campbell and Snell in circumstances where, on his account, there was absolutely no discussion between the three accused about the incriminating events until the night before the arrest where they were seen by the caravan park manager talking.

The false confession made to police by Campbell to being the sole perpetrator of the attack on Kane is an unusual feature of Campbell’s record of interview, but is explicable by reference to the agreement reached in the car by the three accused on the way back to Hamilton. Campbell’s account of the post offence discussions in the car on the way back from Mt Eccles is supported by what both Campbell and Worthy did in accordance with those discussions; both men gave the same false story about last sighting Kane after the trip to Coles, and Campbell then sought to take the blame for the murder when the police rejected his initial lie.

The Crown allegation as to the agreement that Campbell would take the blame was said by Mr Bayles not to be disputed by Worthy, but Worthy in his evidence ultimately did not admit hearing or participating in any discussion about the crime on the return trip. Worthy’s insistence that he did not participate in the discussion in the car meant that the story he gave police about not seeing Kane after Coles, which matched the story given by Campbell, was never accounted for.

Campbell’s account of Worthy’s fear and paranoia about being caught as they were walking up to the main road and the discussion in the car on the way back gives context to the implied admission Campbell gave evidence of: ‘Yes but you two aren’t murderers’.

Worthy’s account of stopping at Kane’s caravan on the way back to Hamilton is supported by the otherwise unexplained time gap between Myssie and David Andrews arriving home and the three accused arriving. This was the subject of evidence from Myssie and David Andrews and Scott Wesley.

Whilst Campbell gave somewhat inconsistent versions about the circumstances of the accused breaking into Kane’s caravan and stealing from it as between his police interview, statement and evidence in court, I agree with the Crown submission that these inconsistencies did not ultimately detract from the credibility of Campbell’s account as to the critical issues in dispute. Campbell proffered the evidence about the break in and theft occurring on the way back to Hamilton with little prompting, and in spite of the fact that it showed him in a poor light as a participant in that activity.

Campbell’s account of Worthy being reluctant to touch Kane’s phone when he recovered it from the rangers hut appears plausible as does his evidence about complying with Worthy’s request to break the SIM card.

Worthy’s account of not getting out of the car for the nighttime visit to Mt Eccles is contradicted by the evidence of the Walkenhorsts who saw the two men and woman on 24 January.

Worthy’s account of not being present for any discussions about what had occurred apart from the night before the arrests does not sit well with the undisputed re-visiting and searching of the scene by the three accused. It is also hard to accept that the three accused did not have a number of discussions about concealment of the crime.

Campbell’s credibility was attacked on the basis of lies told to Kane’s family after the murder aimed at concealment. This was a legitimate basis for attacking Campbell’s credibility and it is undoubtedly true that Campbell engaged in deceptive conduct to cover up the crime. I have taken this into account in my overall assessment of Campbell’s evidence.

Worthy also admitted to telling lies to Kane family afterwards. Indeed the evidence shows that he sent a number of text messages in response to inquiries by Kane’s father, saying that they last saw Kane after dropping him home from Coles, but that Kane had said he was going to Horsham to pick up a car. He told Kane’s sister in response to her concerns that he had would look for Kane in his caravan and he later rang her back to say he had knocked but there was no answer.[141] He also told others that Kane could be out shooting.
[141]Depositions p 126.

Whilst accepting that the lies told by Worthy after the murder probably arose out of his fear of being arrested, Worthy has sought to place reliance on his previous close friendship with Kane as a factor making him less likely to be responsible for the aggravating features of the crime. This argument has to be viewed in the light of Worthy’s admitted conduct, which included making a fake phone call to the deceased’s phone.

Crime scene evidence

Kane’s body was found 70-80 metres below the Lake Surprise walking track at the end of some matted down scrub according to crime scene examiners. The juncture of the walking track and matted down track was 25 metres below the carpark. Whilst Mr Bayles queried the estimate of 70 metres and I accept the possibility that that is an over-estimate, I do not think it is a significant overestimate. The distance is obviously greater than that which was described by Worthy in his evidence.

Reliability of Campbell as a witness and consideration of Crown case and defence case

Regarding the defence argument that Campbell is unreliable because he is a witness who has received forensic advantage as a cooperating witness, it is accepted that the court must take into account the benefit sought and received by Campbell for his cooperation and undertaking to give evidence, including the expected sentencing discount and the acceptance under cross-examination by Campbell that in the provision of his statement he was in a position to advance a version of events that benefitted him in comparison to his co-accused.

The court accepts the need to warn itself about the fact that Campbell is a criminally concerned witness. Such a warning serves to highlight the need for caution when assessing the evidence of Campbell. It involves keeping in mind that the evidence of witnesses who are criminally concerned in the events before the court may be unreliable because of the risk that such witnesses will seek to shift the blame for the offending onto others and may construct untruthful stories tending to excuse the guilty and incriminate the innocent. The evidence of such witnesses may seem plausible because of the witnesses’ detailed knowledge of the circumstances in which the crime was committed. This may add undeserved weight to what the witness says about the part played by the accused. Such witnesses may make false claims about the involvement of others out of motives of revenge or feelings of dislike or hostility. The fact that the witness has been involved in the criminal activities may impact on the trustworthiness of the witness.

The reliability of Campbell’s evidence could have been affected by the fact that in return for assisting the Crown in the proceedings, he received a less severe sentence then he otherwise would have. This could have motivated Campbell to give false evidence in order to qualify for a reduction in his sentence. Also, having received that sentencing benefit, there could have been a strong incentive to stand by the account because of the risk of re-sentence by the Court of Appeal if he failed to fulfil his undertaking to assist the Crown. Therefore, the court must take the potential unreliability of such evidence into account in determining whether to accept the evidence at all, and if it is accepted in whole or in part, in deciding what weight to give to it. It is also relevant to consider whether or not Campbell’s evidence is supported by other evidence in the prosecution case.

I have carefully considered all of these matters in deciding whether I am satisfied beyond reasonable doubt of Campbell’s evidence. However it is my view that once Campbell decided to cooperate with the Crown and plead guilty to the murder, he gave a full and detailed account with the knowledge that much of what he said reflected adversely on himself as well as the other two accused. I am satisfied that Campbell made a genuine effort to give truthful evidence about the events that took place and that his evidence was truthful and reliable in respect of all the central features at the heart of the contested plea. I am fortified in my views as to the credibility of his account by the aspects of his evidence that are supported by independent witnesses and the circumstantial evidence as detailed above.

I have not placed great weight on aspects of demeanor in my assessment of the evidence of each of Campbell and Worthy bearing in mind the known limitations of doing so. However, I was not left with the impression that Campbell was avoiding answering the questions put to him or was deliberately covering up his own role or going out of his way to incriminate his co-accused. Indeed, the variances between Campbell’s final version in his police interview and his later police statement, suggested that, at the time of his police interview, Campbell was still reluctant to directly incriminate Worthy. In his evidence in court there were questions asked about Worthy which resulted in moderate answers, when the opportunity was available to offer a more inculpatory response. For example when asked about an allegation that Worthy had stolen Kane’s PlayStation before the events, Campbell said he didn’t know if he stole it or borrowed it from Kane.

Worthy’s evidence was at times stilted and lacking in surrounding detail. This may have been contributed to by nerves, but I found him to be an unconvincing witness. His evidence was markedly inconsistent in respect of the central facts at the heart of the contested plea. I found his account of coming upon Kane after walking around Lake Surprise implausible. His account of the events of 23 January and the events before and after that day was unsatisfactory. In rejecting his evidence, and in light of my acceptance of the prosecution witnesses including Campbell, I am unable to find any support for the defence case that Worthy's sentence deserves mitigation on the basis of a diminished role in the events that led to Kane's death.

Ultimately, with all due consideration to the high standard of proof required in respect of the central findings relied on by the Crown, I am satisfied beyond reasonable doubt for the reasons given above that Worthy planned, promoted and prepared for the attack on Kane, and was involved in physically perpetrating the attack with the machete.

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[2017] VSC 808

3 November 2017