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[2025] QCA 233
respondent. Appeal dismissed. Neither ground of appeal was made out: [139].
The appellant admitted that his scissors caused Mr Tagaloa’s death but argued that he acted in self-defence and did not intend to kill or cause grievous bodily harm. The Court of Appeal examined the video evidence and the other trial evidence independently. It concluded that the jury could reject self-defence and infer the required intent from the circumstances of the blow. The trial judge was not required to repeat counsel’s argument that the stabbing may have been reflexive or fear-driven, because the directions and evidence had adequately put the issue before the jury. The appeal was dismissed.
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2,514 words · generated 07/10/2026
R v Djentuh [2025] QCA 233 was an appeal against a jury conviction for murder. The appellant, Seyram Kwami Djentuh, admitted that he stabbed Lauie Tagaloa in the neck with scissors and that the injury caused Mr Tagaloa’s death. The contested trial issues were whether Mr Djentuh acted in self-defence and whether he intended to kill or cause grievous bodily harm. The Court of Appeal dismissed the appeal on 21 November 2025.
No linked legislation citations have been extracted yet.
The events began during the early hours of 11 July 2022, after two groups encountered one another in Fortitude Valley. Mr Djentuh had bought scissors at a convenience store after asking about a back door and, according to the shop assistant, saying that men outside wanted to stab him: [10], [71]. His case was that he had acquired the scissors for protection and feared serious harm. The Crown relied on his conduct at the store and later events as inconsistent with that account.
At the train station, the groups argued and fought. The evidence included CCTV and mobile-phone footage, witness testimony and Mr Djentuh’s own account. The prosecution evidence was that Mr Tagaloa approached Mr Djentuh with his arms by his sides and without a weapon; Mr Djentuh moved forward, placed his left hand on or near Mr Tagaloa’s chest and struck his neck with the scissors: [16]-[17]. The wound was 11.5 cm deep and injured the carotid artery, jugular vein and larynx: [17], [79]. The medical evidence attributed death to blood loss and asphyxia: [79].
The jury convicted Mr Djentuh of murder. On appeal, he argued first that the verdict was unreasonable because self-defence could not be excluded, or alternatively because the jury could not rule out a lack of intent to kill or cause grievous bodily harm. His second ground was that the trial judge’s directions on intent were inadequate because they did not expressly revisit defence counsel’s submission that the blow was unthinking or driven by fear: [5]-[6], [108], [128]. Hall AJA gave the principal reasons. Mullins P and Crow J independently assessed the evidence and agreed with the proposed dismissal: [1], [140].
The court treated the footage as important, direct evidence of the critical events. It did not view the appeal as a simple question of whether some evidence could support conviction. The task was to assess independently the sufficiency and quality of the whole evidence, then ask whether it was open to the jury to be satisfied beyond reasonable doubt. In doing that, an appellate court had to give full regard to the jury’s primary responsibility and its advantages in seeing and hearing the evidence: [106]-[107].
For self-defence, the footage of the fatal moment was central. Hall AJA described Mr Tagaloa as approaching quickly but with his arms by his sides and unarmed. Mr Djentuh leaned forward, put his left hand on or near Mr Tagaloa’s chest, and struck with the scissors at the neck: [114]. The court considered that the footage did not support an inference of an immediate risk to Mr Djentuh’s life or of serious harm at that moment. It was consistent with a retaliatory or pre-emptive act: [114]-[115].
The court also assessed the evidence leading up to the stabbing, rather than treating the final seconds in isolation. It identified matters the jury could regard as undermining Mr Djentuh’s account: his approaches to Mr Siologa, his participation in the exchanges at the station, his earlier deployment of the scissors, and inconsistencies in his explanation for obtaining and using them: [116]. The court noted that the appellant had used the scissors in stabbing movements before the fatal blow and that those movements began before physical contact: [116]. It also considered the evidence about his conduct in and around the convenience store, his calls, the time he remained there, and his failure to tell his friends of the alleged threat: [116]-[118].
The appeal court did not need to decide whether Mr Tagaloa had ever possessed a knife in his bag. It considered that, at the moment of the fatal blow, Mr Tagaloa was not holding a knife and that there was no basis for Mr Djentuh to believe he had one then: [119]. The court’s conclusion was that the jury could find that at least one element of self-defence was absent. It specified possible bases: that there was no unlawful assault by Mr Tagaloa, that any assault did not give rise to a reasonable apprehension of death or serious harm, or that Mr Djentuh did not believe the act was necessary for protection: [120].
The intent ground also failed. The court relied on Mr Djentuh’s acceptance that he intended to hit Mr Tagaloa with the scissors and cause harm, and his acceptance that a neck stabbing was likely to kill. Although he denied aiming for the neck, the footage showed a single, direct and quick blow: [121]. The court considered that the jury could infer the intention to kill or cause grievous bodily harm from that evidence: [121]-[123]. It did not hold that every intentional strike with scissors establishes murderous intent. Its conclusion was confined to whether the inference was available on the whole evidence in this trial.
For the directions ground, the court accepted the general requirement that a trial judge must direct on the relevant law, relate the directions to the evidence and fairly put the accused’s case. But the judge need not refer to every submission or contention. Whether an omitted reference matters depends on whether it was necessary to ensure jurors had sufficient knowledge and understanding to determine the case according to the evidence: [130]-[131].
The alleged omission concerned counsel’s submission that the stabbing might have been an unthinking act or driven by fear. Hall AJA reasoned that the rapid sequence was evident in the footage, which had been played repeatedly, and was not disputed: [132]-[133]. The trial judge directed the jury to decide whether Mr Djentuh had the requisite intent immediately before the blow, and explained that the intent did not need to have existed for a long time: [125], [134]. The judge had also read parts of Mr Djentuh’s evidence describing the events as occurring in a split second and denying that he knew he had hit anyone, and told the jury it could consider his evidence about intention: [126]-[127], [136]. In those circumstances, repeating defence counsel’s precise submission was not necessary, and its omission did not cause a miscarriage of justice: [135]-[138].
The judgment presents the governing approach to an unreasonable-verdict appeal as established and uncontroversial: [106]. It draws on M v The Queen and other High Court authorities for the appellate court’s task. The court must independently weigh the whole evidence, including competing evidence, and decide whether it was open to the jury to be satisfied beyond reasonable doubt. That inquiry is not merely a legal sufficiency test: [106]. The appellate court must not disregard the jury’s responsibility or the benefit of seeing and hearing witnesses. Nor is the appellate function to replace trial by jury with a new trial conducted on appeal: [106].
The court also referred to R v ZT [2025] HCA 9 for the character of the jury’s advantages. Those advantages are not necessarily limited to oral testimony. Depending on the evidence and issues, they may include the jury’s collective experience in assessing how evidence unfolds, witness manner and tone, and interactions: [107]. The reasons apply that consideration to Mr Djentuh’s credibility, while also making an independent assessment of the footage and other evidence: [117].
On intent, the judgment’s account is tied to the trial direction and the particular evidence. The trial judge told the jury that intent could be inferred from the circumstances and conduct before, during and after the stabbing, and that it could arise immediately before the lethal act: [125]. Hall AJA held that the evidence permitted the jury to infer intent here: [121]. The judgment does not announce a new test for murderous intent.
For jury directions, the court followed the approach stated in R v Wright [2025] QCA 211: directions should address the law relevant to the issues, be related to the evidence and fairly put the accused’s case, but need not catalogue every submission: [130]. It also cited Domican v The Queen for the proposition that whether a judge must refer to an evidentiary matter or argument depends on whether the reference is necessary for the jury to discharge its task: [131].
The decision therefore applies existing principles to the trial record rather than identifying a change in the law. The “before and after” distinction is best understood as the law as stated in the authorities cited by the court, and its application in this appeal. The judgment text supplied does not set out a legislative amendment or claim that the decision altered doctrine.
At [106], the court says the appellate question is whether the evidence, considered as a whole, could leave the jury satisfied of guilt beyond reasonable doubt, while taking account of the jury’s advantages. In plain English, an appeal court must do its own careful review, but it must not forget that the jury saw and heard the witnesses and had primary responsibility for deciding the facts.
At [114], the court focuses on the video of the stabbing. It says Mr Tagaloa approached without a weapon and with his arms by his sides, while Mr Djentuh moved forward and struck him in the neck. In plain English, the court considered the recording inconsistent with an immediate threat that made the stabbing necessary for protection.
At [120], Hall AJA says the jury could find that at least one element of self-defence had not been established. The significance is that the court did not need to determine every disputed detail about the earlier confrontation or the alleged knife. The evidence at the fatal moment could itself support rejection of self-defence.
At [121], the court says it was open to infer intent from the appellant’s admission that he meant to strike Mr Tagaloa with the scissors, together with the direct blow to the neck and the surrounding evidence. In plain English, the jury could infer intent from what Mr Djentuh did and the circumstances, notwithstanding his denial that he aimed at the neck.
At [135], the court says the trial judge did not have to repeat defence counsel’s argument about an unthinking or fear-driven act. That conclusion depended on the whole presentation to the jury: the footage, the judge’s direction about when intent had to exist, and the earlier reference to the appellant’s evidence. It is not a general statement that defence submissions can always be omitted.
The decision is relevant to criminal appeals that contend a jury’s guilty verdict was unreasonable or unsupported by the evidence. Its reasoning is particularly engaged where the appeal court can review the whole record, including video or other objective recordings, and must assess whether the jury could be satisfied beyond reasonable doubt. The judgment emphasises that an appellate court must explain its own assessment and give due weight to the jury’s advantages: [106]-[107], [114]-[123].
It is also relevant where self-defence is disputed and the evidence includes a sequence of events before the alleged defensive act. In this case, the court examined the appellant’s earlier conduct, the acquisition and use of the scissors, the groups’ movements, the alleged weapon, and the moment of the stabbing: [116]-[120]. The reasoning highlights that a claim of fear before a confrontation does not, by itself, resolve whether the accused was acting in self-defence at the later moment of force. Here, the court distinguished the earlier statement to the shop assistant from the question of the appellant’s state of mind about fifteen minutes later: [118].
The intent analysis may be relevant where a defendant admits the act causing death but disputes the intention required for murder. The court considered the manner, location and directness of the blow, the appellant’s admissions, and the sequence recorded on video: [121]. The judgment does not make the mere use of a weapon conclusive. Its reasoning concerns whether the particular evidence allowed the jury to infer intent.
The directions reasoning may be relevant where an appellant says a trial judge failed to repeat a particular defence submission. The inquiry described at [130]-[136] is contextual: what the judge directed, what evidence had been highlighted, what the jury saw, and whether the omitted repetition was needed for a fair understanding of the defence and the issues.
The judgment was delivered on 21 November 2025. The materials provided do not identify decisions delivered after R v Djentuh that applied, distinguished or otherwise treated it. It is therefore not possible, from this judgment alone, to describe its subsequent treatment by later courts.
The judgment itself identifies the authorities it applies or considers. It follows M v The Queen on the appellate assessment of an allegedly unreasonable verdict: [106]. It follows R v Wright [2025] QCA 211 on the essential requirements of a jury summing up: [130]. It considers R v ZT [2025] HCA 9 on the nature of jury advantages: [107]. It also cites Domican v The Queen on whether a judge must refer to particular evidence or argument: [131].
Those relationships describe how the Court of Appeal used the authorities in this decision. They do not establish how subsequent courts have treated Djentuh. A later-treatment account would require later judgments not included in the supplied material.
The judgment decides the appeal on the evidence and directions in this case. It does not resolve, in the abstract, how a claim of self-defence should be assessed in every fast-moving confrontation. The court’s observations about the footage, Mr Tagaloa’s posture and the appellant’s actions are case-specific: [114]-[120].
The court did not determine whether Mr Tagaloa had previously had a knife in his bag. It found that this issue did not need to be resolved because he was unarmed when he approached at the time of the fatal blow and the evidence did not provide a basis for Mr Djentuh to believe he then had a knife: [119]. The judgment therefore leaves that earlier factual dispute undecided.
The reasons also do not prescribe a universal level of detail required in directions on intent. They state that judges need not refer to every submission, and that necessity depends on whether the jury has sufficient understanding to decide the case: [130]-[131]. How that standard applies where the evidence is less clear, the sequence is not recorded, or the defence evidence has not otherwise been brought to the jury’s attention remains dependent on the circumstances of each trial.
Finally, the judgment does not address later judicial treatment or any subsequent legal development. Those matters cannot be established from the supplied decision. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Djentuh [2025] QCA 233
PARTIES: R / v / DJENTUH, Seyram Kwami / (appellant)
FILE NO/S: CA No 174 of 2024 / SC No 34 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: Supreme Court at Brisbane – Date of Conviction: 6 August 2024 (Martin SJA)
DELIVERED ON: 21 November 2025
DELIVERED AT: Brisbane
HEARING DATE: 8 October 2025
JUDGES: Mullins P and Hall AJA and Crow J
ORDER: The appeal be dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a trial of murder – where the appellant admitted that he had stabbed the victim in the neck with scissors, and that this had caused the victim’s death – where the only issues at trial were whether the appellant was acting in self-defence and whether he had an intent to kill or do grievous bodily harm – where the appellant argues that the verdict was unreasonable or cannot be supported having regard to the evidence – where the appellant argues that self-defence could not be excluded by the jury on the evidence at trial – where, in the alternative, the appellant contends that the jury could not rule out that he acted without an intention to kill or do grievous bodily harm – whether it was open to the jury to conclude beyond reasonable doubt that the appellant was not acting in self-defence and, at the time of stabbing, he had an intent to kill or do grievous bodily harm – whether the trial judge erred in his directions by failing to refer to a submission made by defence counsel in his closing address that the stabbing was an unthinking act, or a response driven by fear / BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48, cited / Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited / Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited / Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28, cited / GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, cited / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed / Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited / R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited / R v Hillier (2007) 228 CLR 618; [2007] HCA 13, cited / R v Nguyen (2010) 242 CLR 491; [2010] HCA 38, cited / R v Wright [2025] QCA 211, followed / R v ZT (2025) 281 CLR 137; [2025] HCA 9, considered / SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited / Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12, cited
COUNSEL: A M Hoare KC, with M W C Harrison, for the appellant / G J Cummings for the respondent
SOLICITORS: Vered Turner Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I have made my own independent assessment of the evidence adduced at the appellant’s trial. I have reached the same conclusion as Hall AJA that the verdict of guilty of murder was neither unreasonable nor unsupported by the evidence. I otherwise agree with the reasons of Hall AJA that the appeal must be dismissed.
HALL AJA:
Summary
In the early hours of the morning of 11 July 2022, there was a confrontation at the Fortitude Valley train station between a group of men of which the appellant was a member and another group of which Lauie Tagaloa was a member. The appellant was armed with a pair of scissors that he had purchased earlier that night from a convenience store. During the confrontation the appellant stabbed Mr Tagaloa in the neck with the scissors. This caused an 11.5 cm wound that penetrated the left jugular vein, the left carotid artery and the larynx. Mr Tagaloa died from the injury.
The appellant was convicted after a trial of murder. The appellant admitted that he had stabbed Mr Tagaloa in the neck with the scissors, and that this had caused the death of Mr Tagaloa. The only issues at trial were whether the appellant was acting in self-defence and whether he had an intent to kill or do grievous bodily harm.
The appellant appeals against his conviction. There are two grounds of appeal. The first ground alleges that the verdict was unreasonable or cannot be supported having regard to the evidence. The appellant contends that self-defence could not be excluded by the jury on the evidence at the trial. In the alternative, the appellant contends that the jury could not rule out that he acted without an intention to kill or do grievous bodily harm. On the primary argument, the appellant submits that he should have been acquitted. On the alternative argument, the appellant submits that he should only have been found guilty of manslaughter.
The second ground alleges that the learned trial judge’s summing up to the jury in respect of intent was inadequate. The appellant contends that the trial judge erred in his directions by failing to refer to a submission made by defence counsel in his closing address that the stabbing was an unthinking act, or a response driven by fear.
In my view, on the available evidence it was plainly open to the jury to conclude beyond reasonable doubt that the appellant was not acting in self-defence and, at the time of the stabbing, he had an intent to kill or do grievous bodily harm. Further, the directions of the trial judge on intent were sufficient. Neither of the grounds of appeal has been established. The appeal should be dismissed.
Prosecution case
The prosecution case was that on the evening of 10 July 2022, the appellant and two of his friends, Mr Tawhiti and Mr Wilson-Bunyan, went to Fortitude Valley.1 Mr Tagaloa and a number of his friends were also in Fortitude Valley at the same time.2 The two groups did not know each other before that night.3
At 3.00 am on the morning of 11 July 2022, the licenced premises in Fortitude Valley closed and patrons spilled out onto the streets.4 The appellant’s group left a bar and the appellant had a verbal altercation with a man who left in a taxi.5 The group then walked to Brunswick Street Mall, where there were some fast-food restaurants.6 Mr Tagaloa’s group also left licensed premises around the same time and, after waiting for a short time outside to meet a friend, also walked to the mall, arriving about 20 minutes later.7 Members of both groups went into the fast-food restaurants to get food. After buying his food the appellant walked out to the front of the store and stopped in front of Mr Tagaloa and Mr Siologa, a member of Mr Tagaloa’s group.8 There was an exchange, and Mr Siologa took off his jacket. They faced off before Mr Siologa walked away and the appellant stood beside a planter box eating his food. There was then an interaction between the appellant and Mr Tagaloa which involved a challenge to a fight. The appellant said he wanted to get a drink and pointed to the Night Owl convenience store.9
At 3.43 am, the appellant entered the Night Owl convenience store and asked if there was a back door.10 He then attempted to steal a pair of scissors. When confronted by the shopkeeper he agreed to purchase the scissors and said that there were men on the street who wanted to stab him.11 He remained in the store for about 15 minutes and was joined by his two friends. During this time the appellant made several telephone calls on his mobile telephone. Mr Tagaloa walked past the store, after relieving himself in a nearby laneway, and the appellant made a gesture in his direction.
Defence case
The appellant admitted that Mr Tagaloa died as a result of the injury inflicted by him with the scissors.39 The only issues at trial were whether the appellant’s act was lawful and whether the appellant held an intent to kill or do grievous bodily harm at the time the injury was inflicted. The appellant’s case was that his act was lawful because he was acting in self-defence.40
The appellant’s case was that he had acquired the scissors from the Night Owl only a short time earlier.41 He had said at the time that his reason for needing the scissors was that there were men outside who wanted to stab him. This was said to show that he had a genuine fear for his life and that he had acquired the scissors to defend himself.
The appellant’s case was that at the time of the stabbing, he reasonably believed that his act was necessary to protect himself from a threat to his life or a threat of grievous bodily harm from Mr Tagaloa. That belief was said to be reasonably held having regard to the fact that the appellant had seen Mr Tagaloa assault two of his friends moments before, inflicting injuries to both of them.42 The appellant and his friends had been chased down and he was backed into a corner, with no other options, when he struck out with the scissors.43
Ground 1 - was the verdict unreasonable or unsupported by the evidence?
Sergeant Cummins
9.49 pm - the appellant, Mr Wilson-Bunyan and Mr Tawhiti cross Brunswick Street from the Valley Metro.
9.55 pm - they enter Birdees nightclub.
12.40 am - they leave Birdees nightclub.
12.51 am - they enter Ric’s Bar.
3.07 am - they leave Ric’s Bar and begin to walk down Ann Street.
3.12 am - Mr Siologa walks from Su Casa onto Ann Street.
3.39 am - Mr Wilson-Bunyan and Mr Tawhiti go into a McDonald’s store and order food. The appellant walks into a nearby kebab shop. Shortly afterwards Mr Tagaloa and a number of his friends, including Mr Siologa, walk towards the kebab shop.
3.40 am - after leaving the kebab store with his food, the appellant walks to where Mr Siologa and Mr Tagaloa are standing. There appears to be some verbal interaction, and Mr Siologa takes off his jacket and hands it to Mr Tagaloa. The appellant then turns and walks towards the centre of the mall, followed by Mr Siologa. Mr Siologa drops something and picks it up. Mr Tagaloa then hands him back his jacket and walks over to the appellant.
3.42 am - the appellant walks to a planter box and Mr Siologa walks over to him and they face each other. Mr Siologa turns and walks away, back towards another friend. The appellant walks in the same direction, points towards the top right of Brunswick Street mall. The appellant and Mr Siologa appear to talk to each other. The appellant then walks in the direction he was pointing.
3.43 am - the appellant walks into the Night Owl convenience store, picks up a bottle of water from the fridge, then walks to the front counter, and talks to the shop assistant. The appellant has a mobile telephone in his hands. He then walks to the back of the store, returns and pays for the bottle of water and appears to be speaking into his mobile phone. The appellant walks to the back of the store again, then takes a pair of packaged orange scissors from a shelf, and opens the packet. He tucks the orange handled scissors into the back of his jeans. The shop assistant approaches him, takes the package to the front counter and the appellant follows.
3.48 am - Mr Wilson-Bunyan enters the store and walks to the front counter with the appellant. The appellant stands near an ice cream fridge talking on his telephone. Mr Wilson-Bunyan stands near him. They then walk towards the front door and Mr Wilson-Bunyan puts a bottle of water on the counter.
3.51 am - The appellant continues to talk on his telephone, looks towards the front door, pulls his hand out of his pocket, and makes a gesture. Mr Wilson-Bunyan then pays for his water and walks towards the front door followed by the appellant.
3.55 am - Mr Tawhiti comes into the Night Owl and joins the appellant and Mr Wilson-Bunyan near the ice cream fridge. They then walk out of the Night Owl together and begin to walk down the mall in the direction of the kebab shop. They pass the kebab shop and continue to walk down the mall in the direction of Valley Metro.
3.59 am - The appellant, Mr Tawhiti and Mr Wilson-Bunyan walk towards the entrance to Valley Metro and go inside. Mr Siologa approaches and also walks towards the entrance. Mr Wilson-Bunyan then walks out of Valley Metro towards Mr Siologa and is followed by the appellant and Mr Tawhiti. Mr Tagaloa then walks from the footpath in their direction. Mr Ulberg follows Mr Tagaloa.
4.03 am - Mr Tagaloa walks over to Mr Ulberg, then picks up his bag and hands it to Mr Ulberg. Mr Tawhiti, the appellant and Mr Wilson-Bunyan stand in a line and Mr Siologa stands in front of them.
4.04 am - Mr Tawhiti, the appellant, Mr Wilson-Bunyan, Mr Tagaloa and Mr Siologa are standing together at the entrance to Valley Metro.
Mr Tawhiti
Mr Tawhiti gave evidence that on the evening of 10 July 2022 he went to Fortitude Valley with the appellant and Mr Wilson-Bunyan.46 They took the train and went to the Birdees nightclub arriving at around 8.00 pm or 9.00 pm. He said that they had been drinking alcohol at the appellant’s house before leaving.47 He said that he had drunk as much as five to six cans of pre-mix alcohol. They continued to drink at the nightclub. He could not say what the appellant was drinking.
Mr Tawhiti said that they went to another 'little establishment' after Birdees.48 They then left with the intention of walking to the train station.49 They stopped at a McDonald’s restaurant, where Mr Tawhiti got some food. Mr Tawhiti assumed that the others did too.50 He thought that they also stopped at the Night Owl convenience store.
Mr Tawhiti said that when they got to the train station, they were stopped by one person who was part of another group of people.51 Mr Tawhiti said that this person stopped the appellant, Mr Wilson-Bunyan and himself while they were inside the train station by yelling from outside the door. He could not remember what the person was yelling. Mr Tawhiti said that he and his friends went outside to see what was happening.52 As he walked towards the person who was yelling, two other people joined that man. He had not seen them before that night.53 He said there was a little bit of an altercation, and it seemed like the other men had got the wrong people because they were getting mad for no reason. He said that he could not remember what was being said and that it was 'a bit all over the place'.54
Mr Tawhiti said that he remembered seeing Mr Wilson-Bunyan get thrown to the ground and kicked and that he (Mr Tawhiti) ran over to help him.55 He then got thrown onto the ground himself and stomped on the head and punched. He said he felt a bit concussed after that. He said that it was the 'bigger man' who assaulted both he and Mr Wilson-Bunyan. Mr Tawhiti said that he backed up a bit, was punched again, and that there was a bit of blood coming off his head. He said that he was stumbling back behind the appellant towards the train station. The other group of men were pushing forward against them. That was the last thing he remembers before seeing some police officers pointing guns at him. He did however recall turning away and running to the train station with the appellant and Mr Wilson-Bunyan. They went down to one of the platforms and then into the toilet, where the police found them.
Mr Wilson-Bunyan
Mr Wilson-Bunyan also gave evidence about going to Fortitude Valley with Mr Tawhiti and the appellant on the evening of 10 July 2022.62 He said that they had gone first to the appellant’s house where they had been drinking. He was feeling slightly intoxicated by the time they left.
Mr Wilson-Bunyan said they went to the Birdees nightclub where they continued to drink.63 The next place he could remember attending was the McDonald’s restaurant. He could not remember going anywhere else between those places. He said that he recalled some shouting at the front of the McDonald’s. He could not recall whether Mr Tawhiti and the appellant were with him at that time, nor could he recall whether the appellant and Mr Tawhiti went into McDonald’s with him.64 He thought there was more than one person shouting. He could not recall what was being said or what the people shouting looked like.
Mr Wilson-Bunyan said that he recalled walking towards the train station with the appellant and Mr Tawhiti.65 The next thing he remembered was being punched in the face. This occurred just outside the train station. He said there was another group of men, but he could not say how many were in that group. He said there was some arguing or bickering that occurred before he was punched. He could not recall what the arguing was about. The only thing he could recall was that he insulted them by calling them 'Tongans' when he thought they were Samoans.66 He did this deliberately to offend them. This escalated the argument, and it was then that the fight started. He could not describe the person who punched him but said that he continued to be hit after being punched in the face. He was not sure whether he was hit by one or more people. Mr Tawhiti was also hit, but Mr Wilson-Bunyan could not say whether it was by someone different to the person hitting him. He could not see the appellant.
Mr Wilson-Bunyan then limped back towards the train station. He was limping because his leg was 'stuffed' as a result of an injury that occurred while he was being assaulted.67 As he walked towards the train station the appellant and Mr Tawhiti were behind him. He could hear shouting from both groups. The appellant then grabbed him, and they started running. They ran to the platform of the train station.
Mr Jones
Mr Jones said that in July 2022, he was working as a crowd-controller at the Kitty Club on Brunswick Street.73 The Kitty Club is diagonally across the road from the train station. He worked on the night of 10 - 11 July 2022, finishing at 3.30 - 4.00 am.
As Mr Jones was walking to his car, he saw people arguing near the train station. He recognised two of the people, Mr Siologa and Mr Ulberg, though he only knew them by their first names.74 Mr Ulberg was one of his co-workers. He knew Mr Siologa through friends. He walked over and stood with Mr Ulberg.
Mr Jones started recording what occurred on his mobile telephone. He later provided that recording to the police. What is depicted in that recording is summarised above at [13]-[16].
Mr Jones agreed that at the start of the recording he can be heard saying, “[s]mack him. Kill him. Kill him.”75 He said that the appellant told him, “[p]ut your fucking phone away.”76 Towards the end of the recording Mr Jones said, “Lau, leave it.” This was directed at Mr Ulberg. He said that because he felt 'it was going to escalate'. He saw that the appellant had a sharp object in his hand. He stopped filming at that point.
Mr Jones said that the next thing he saw was the appellant get 'the knife' out and stab Mr Tagaloa.77 He said he could not hear either of them say anything and that it was 'like a blur'. He demonstrated the movement he saw the appellant make and agreed that it was a swinging motion at shoulder height and that Mr Tagaloa was hit in the neck. The appellant then took off running. Mr Jones chased him with Mr Ulberg and saw the appellant jump the turnstiles. He then heard screaming and returned to see Mr Tagaloa on the ground and 'blood everywhere'.
Mr Siologa
Mr Siologa said that he went to Fortitude Valley that evening and met with friends, including Mr Tagaloa and Mr Ulberg, at Su Casa.78 He drank alcohol but could not recall how much. They stayed to closing time. They then stood outside on the street waiting for other friends to join them. He said that at this time there were a few men across the street yelling.79 Those men crossed over and spoke in an aggressive tone, though not to Mr Siologa’s group specifically.
Mr Siologa said that he and some of his friends then walked to a kebab shop. He and Mr Tagaloa were standing outside the kebab shop chatting when the appellant approached them.80 Mr Siologa recognised him as one of the men who had been yelling on the street earlier. The appellant 'came off aggressively',81 though Mr Siologa could not recall what was said. The situation escalated and Mr Siologa offered to fight the appellant. The appellant agreed, and Mr Siologa took off his jacket.82 However, the appellant then went into the Night Owl and Mr Siologa waited outside. At some point Mr Siologa walked back to the kebab shop.
Mr Siologa said that the next thing that happened was that the appellant and his friends walked down to the train station. He followed them and caught up when they were inside the complex, continuing to walk away from him. He yelled out to them, words to the effect that they come to him and 'sort it out'.83 The appellant and his friends walked back to where Mr Siologa was, just outside the doors to the train station complex. By this time Mr Tagaloa and Mr Ulberg had also joined him. Everyone was 'bickering' in an aggressive tone.84 There was some shouting and yelling. He could not remember anything specific that was said.
Mr Siologa said that a fight then broke out. He took off his jacket and dropped it on the floor. The appellant pulled out a 'knife' from behind his back and swung it towards Mr Siologa 'five or so times'.85 Mr Siologa dodged and none of the swings made contact. Punches were being exchanged. Mr Siologa chased after the appellant when he ran towards the train station but stopped when he heard screaming. He did not see the appellant stab Mr Tagaloa.
Mr Ulberg
Mr Ulberg said that he met with friends, including Mr Tagaloa and Mr Siologa, at about 10 - 10.30 pm at Su Casa.93 At the end of the night, they left and waited for a friend, who was a DJ at the club, on the street. He walked his friend to his car and then walked to the mall with the rest of the group. He did hear somebody saying that 'the boys' were going to get into a 'little altercation',94 but he did not really take any notice.
Mr Ulberg said that after he bought some food, he was sitting outside when Mr Siologa got up to follow the men with whom he had an altercation earlier outside the club. He and Mr Tagaloa followed Mr Siologa. As they neared the train station, he heard Mr Siologa saying “I heard you ask me for a one-on-one.”95 There was arguing and Mr Siologa was repeating the same statement, which was addressed to the appellant. The appellant was responding, but Mr Ulberg could not recall what he said.
Mr Ulberg said that Mr Tagaloa wanted to join in the altercation and asked Mr Ulberg to hold his jacket, bag and phone. He did not see Mr Tagaloa with a knife.96
A fight then started. Mr Tagaloa engaged the two other men, while Mr Siologa had an 'arguing battle' with the appellant. Mr Ulberg said that Mr Tagaloa punched one man, '[dropped] him', and then '[proceeded] to the next to do the same thing'.97 Those two men then got up and rejoined the appellant and they began to walk to the train station. At that point he heard someone say, “he’s got a knife.”98 He then saw that the appellant had something like a butter knife in his hand. The appellant swung the knife at Mr Siologa. Mr Ulberg tried to get his friends to come away by saying it was not worth it, but they both still tried to engage with the appellant. The appellant then swung his arm and made contact with Mr Tagaloa’s neck.99
The appellant and his friends then ran in the direction of the train station. Mr Ulberg ran after them but turned around when he realised that Mr Tagaloa had been injured.
In cross-examination Mr Ulberg agreed that Mr Tagaloa had come back and picked up his bag which was on the floor near Mr Ulberg’s feet. He could not recall if Mr Tagaloa had gone through his bag. He could not recall anyone saying that the 'big man' had a knife. He repeated that he did not see Mr Tagaloa with a knife. He denied that when Mr Tagaloa returned to his bag, he was either putting a knife away or taking one out.
Mr Siale
Mr Siale was also in Mr Tagaloa’s group at Su Casa. Mr Siale saw the appellant when he was in the mall and understood that there was supposed to be a fight with him and someone else.103 However, the appellant went into the Night Owl. Mr Tagaloa said that the appellant was going to get a drink. Mr Siale then went into a store to buy food and when he came out Mr Tagaloa and Mr Siologa had gone. He and some of the others later walked to the train station, by which time Mr Tagaloa had already been stabbed.104
In cross-examination Mr Siale said that he had known Mr Tagaloa since primary school. On this night Mr Tagaloa was in a good mood and intoxicated.105 Sometimes Mr Tagaloa’s mood could change, and he got into fights. He was a good fighter. He agreed that Mr Tagaloa was a little over 6 foot tall and weighed over 100 kilograms.
Mr Makalima
Mr Makalima was also in Mr Tagaloa’s group at Su Casa. When they left there was a 'group of guys' across the road who were yelling and swearing.106 That group crossed the road and the appellant was saying something about wanting to fight. This was not directed to anyone in particular. The appellant was moved on by a security officer at Su Casa.
Later Mr Makalima was sitting with his friends eating food in the mall when he saw the appellant’s group walk past. He pointed and said, “[h]ey, aren’t those the same guys from Su Casa?” Mr Siologa then got up and followed them.107 Mr Tagaloa and Mr Ulberg followed soon after. They all walked towards the train station. He and his other friends later walked to the train station, by which time Mr Tagaloa had already been stabbed.
Mr Harris
Mr Fale
Mr Pongi
Mr Reid
Mr Reid was with a friend in the food court of the train station complex when he heard a commotion at the doors to the complex. He moved to get a better view and saw about six or seven men arguing and swearing.112 They were on the right side of the hallway. Mr Reid walked towards the front doors on the left side of the hallway. As he got closer, he pulled out his phone and started filming. The film was given to the police and a copy was tendered during trial as exhibit 13. That events depicted in that video are described above at [16] - [18]. After the recording ended, he ran to the 7-Eleven and screamed out for someone to call the police and an ambulance. He then went back to where Mr Tagaloa was lying, grabbed a jumper and tried to stop the bleeding.113
In cross-examination, Mr Reid agreed that the appellant had approached him and asked why he was recording.114 He did not notice anything in the appellant’s hand at that time. He did not notice the scissors until he viewed the video.
Ms Barnes
Mr Kennedy
Mr Kennedy had died since giving his statement and preliminary hearing evidence, which were read to the jury. He stated that he was at the train station and saw a group of three men who appeared to be Samoan shaping up to another group of three men, who also had dark skin (one of whom was the appellant).118 He heard words being exchanged like, “[c]’mon,” and, “[y]ou want to go?”119 The two groups started fighting and the Samoan men got the better of the others, knocking two of them to the floor.
Mr Kennedy stated that the remaining man (the appellant) reached behind his back and pulled out what looked like a knife. Mr Kennedy was standing about 5 – 6 metres away.120 He described the knife as being about 20 cm long, though he could only see the blade. The appellant held the knife in front of him and was saying, “[f]uck off. Fuck off.”121 The Samoan men were saying things like, “[y]ou won’t fucking use that,” and, “[c]ome on.” Both groups moved into the shopping area of the train station. The man with the knife swung it at one of the Samoan men, striking him in the neck. Blood immediately spurted from the Samoan man’s neck, and he fell to the floor.122
In cross-examination at the preliminary hearing, Mr Kennedy said that one of the Samoan men had said words along the lines, “I’m glad you won’t use it. You won’t use it, cunt.”123
Mr Thete
Senior Constable McCarthy
Mr Morris
Constable Brock
Sergeant Cummins
Sergeant Cummins was recalled to explain how he obtained the footage from Mr Tagaloa’s phone. He said that the phone was obtained from one of Mr Tagaloa’s sisters, who provided it on the day of the incident.131
Sergeant Cummins also said that Mr Tagaloa’s bag and Mr Siologa’s jacket were not located. CCTV footage from the train station showed that those items were stolen by other people.132 Although those other people were identified the property was not recovered.
In cross-examination, Sergeant Cummins confirmed that Mr Tagaloa had a criminal record and that at the time of the incident, he was on probation with a condition that he not drink alcohol.133 Sergeant Cummins also confirmed that Mr Siologa had a criminal record, but that the appellant did not have a criminal record. Sergeant Cummins was not aware of any pat down search of Mr Siologa at the scene and was not aware of him possessing any weapons. During re-examination, Sergeant Cummins clarified that Mr Tagaloa’s criminal record comprised of two convictions of arson of a motor vehicle.
Dr Phillips
Dr Phillips is a forensic pathologist who supervised the postmortem examination of Mr Tagaloa. A blood sample was taken and the blood alcohol content was 0.089 per cent.134 Mr Tagaloa was 184 cm tall and 125.6 kilograms in weight.135
Dr Phillips said that the cause of death was the stab wound to the neck. The wound was 11.5 cm deep and transected the jugular vein, the carotid artery and the larynx.136 A wound of this type would require the use of moderate force.137 The wound was consistent with the scissors found on the railway tracks. Mr Tagaloa died from a combination of blood loss and asphyxia from blood entering the lungs.138
In cross-examination, Dr Phillips confirmed that there was bruising to Mr Tagaloa’s left and right knuckles.139
Mr Djentuh
The appellant said that he was 22 years old and 20 years old at the time of the incident. He has no relevant criminal record. At the time of the incident, he was living with his mother. He had known Mr Wilson-Bunyan from primary school and Mr Tawhiti for about four years.140
On 10 July 2022, he had played golf in the afternoon with Mr Wilson-Bunyan, Mr Tawhiti and two other friends.141 He went back to his house with Mr Wilson-Bunyan and Mr Tawhiti, and they had some alcoholic drinks there. The appellant then proposed to go out. They took the train to Fortitude Valley. They went to Birdees and then on to Ric’s Bar.142 Mr Wilson-Bunyan had an altercation with someone in the bar. They left at closing time, just after 3.00 am.143
The appellant said that after leaving Ric’s Bar, Mr Wilson-Bunyan pointed out the person who had an issue with him.144 The appellant approached the man to resolve the problem. That was achieved and they all shook hands. However, the man then approached them again in an aggressive manner and the appellant pushed him away.145 The man then said that he was joking, and they all shook hands again and hugged. The man’s Uber pulled up and his mood changed again, and the man said he would have “fucked [the appellant] up.”146 The appellant then started yelling and swearing. He admitted that he was aggressive. He was pulled off the road by Mr Wilson-Bunyan.147
The appellant then spoke to Mr Siologa, who asked “[w]hat was that all about?”148 The appellant said, “[i]t was nothing. A guy being cheeky. I think he wanted a fight.” He did not recall being asked to leave the area by a security guard.149 He then walked with his friends to the mall. On the way there was a fight between other men, and the appellant got on a box to try to break the tension. Another man kicked him and he sternly told the man to stop.
Ground 1 - relevant law
The independent assessment of the appellate court is undertaken in an adversarial context, and it is for the parties to identify the evidence that the court must review and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.195 The appellate court’s task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.196 The appellate court – in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused – must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or, the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.197 The appellate court’s function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. The critical issue is whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.198 The setting aside of a jury’s verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by jury.199 The appellate court’s reasons must disclose its assessment of the capacity of the evidence to support the verdict.200 The ultimate question for the appellate court must always be whether the appellate court thinks, that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.201
Ground 1 - submissions
The appellant submits that he was entitled to a complete acquittal because the prosecution did not exclude self-defence.205 He argues that a reasonable jury could not rule out that the appellant feared for his life. Alternatively, he submits that he was entitled to a partial acquittal, being a verdict of manslaughter, as the prosecution did not prove that the fatal blow was inflicted with intent to kill or cause grievous bodily harm.
The appellant contends that the evidence was that he reasonably perceived that he would be stabbed or suffer serious harm.206 His evidence that he had such a perception was supported by evidence of his actions at the Night Owl. In particular, that the appellant informed the shopkeeper of his fear of being stabbed, that he obtained the scissors in that context and asked the shopkeeper if he could leave through a rear door.
The appellant submits that he and his associates were confronted by the deceased and his associates. In the course of that confrontation the appellant’s friends, Mr Tawhiti and Mr Wilson-Bunyan, were both violently assaulted. The appellant’s group retreated into the train station complex and were followed by the deceased and his associates. The appellant submits that he only produced the scissors when confronted by the combined aggression of Mr Tagaloa and his associates. The single stab wound was inflicted by the appellant in response to an imminent physical threat. The fact that Mr Tagaloa did not have a knife in his hands at the time is material but not determinative. Even in the absence of such a weapon the appellant could reasonably apprehend that he would suffer serious harm.
The Crown submits that the verdict was not unreasonable and is supported by the evidence. As regards what occurred in the Night Owl, the Crown submits that the appellant said he wanted to use the back door without giving a reason.207 He attempted to steal a pair of scissors and then lied about doing so. When he was caught by the shopkeeper, he proffered as an explanation that there were people outside waiting to stab him. Furthermore, his actions whilst in the shop, including making telephone calls but not to the police or to call a taxi, are inconsistent with any sense of fear on his behalf. These events occurred between 3.34 am - 3.47 am and Mr Tagaloa was not stabbed until 4.07 am.
The Crown also refers to the gesture made to the deceased when he walked past the Night Owl and the failure to inform his friends of any threat when they walked with him.208 Further the appellant stopped to take a bite of one of his friend’s burgers on leaving the Night Owl and whilst near to where Siologa and his associates were standing. He then walked at a leisurely pace to the train station. His action in returning to the front of the train station on hearing shouting is not consistent with fear. The appellant did not produce the scissors for the first time when he stabbed the deceased. He had used them as an offensive weapon prior to that time.
Ground 1 - disposition
It is important to emphasise that in this case a major component of the evidence was the CCTV and mobile telephone footage. Any assessment of the conduct and actions of the appellant must include reference to the direct evidence afforded by that footage. In particular, the claim of self-defence must be viewed in the light of the footage of the stabbing. That footage shows that Mr Tagaloa approached the appellant quickly but with his arms by his side. He was not armed. The appellant leaned forward, placed his left hand on or near Mr Tagaloa’s chest, and punched with his right hand holding the scissors at Mr Tagaloa’s neck. The footage does not support an inference that at the time of the stabbing the appellant was subject to any immediate risk to his life or of serious harm. It is consistent with either a retaliatory or pre-emptive act of violence on the part of the appellant.
This court has had the benefit of viewing the video footage. There is no basis for concluding that that footage is any way inconsistent with the verdict of the jury. To the contrary, it is well capable of supporting a conclusion that the appellant was not acting in self-defence. Of course, that was not the only evidence on this issue.
The evidence supporting the claim of self-defence came principally from the appellant, supported to some extent by the evidence of Mr Tawhiti, Mr Wilson-Bunyan and the shop assistant at the Night Owl, Mr Thete. The appellant’s own evidence contained inconsistencies and improbabilities. For example: The appellant presented himself as being the object of unprovoked aggression from Mr Siologa and Mr Tagaloa. He gave the impression that he did not seek a fight and, indeed, was trying to avoid one. That evidence sits uncomfortably with the video footage, which shows him approaching Mr Siologa outside the kebab shop and at the train station. Furthermore, the appellant’s actions at the train station show him to be a very willing participant in the verbal exchanges and the physical confrontation that took place.
He accepted in cross-examination that it was possible that he only told Mr Thete that were people outside trying to stab him when he was caught trying to steal the scissors. That was also Mr Thete’s evidence. The possibility that this was a false statement made to explain the attempted theft is readily apparent.
He initially claimed that he obtained the scissors to protect himself but wanted to conceal them, as showing them might aggravate the situation. Later he claimed that he wanted to show the scissors to deter any aggression from the other group. He agreed that he produced the scissors before any physical contact had occurred.
He claimed that he stayed in the Night Owl for as long as he did because he was in fear. However, when Mr Tagaloa walked past the shop, he gestured to him in a manner that was not consistent with fear. His claim that his gesture was a ‘peace sign’ was implausible.
Whilst in the Night Owl he made a number of telephone calls using his mobile telephone and yet none of these calls was to the police or for transport. This is not consistent with his claim that he was in fear and looking for a way to escape. His explanation that he did not think he could call the police because he had not been hurt lacked credibility.
He accepted that he and his friends walked slowly to the train station and that they passed near to the other group of men. He also paused to take a bite from the burger of one of his friends. This is not consistent with an urgency to escape that the appellant claimed he had. Whilst he said he told his friends not to walk slowly, he did not tell them that he had been threatened. His explanation that he did not tell them because he ‘did not want to stress them out’ was unconvincing.
He accepted that he and his friends walked back to the entrance to the train station when Mr Siologa called out. He explained this as being because Mr Wilson-Bunyan wanted to walk back, and that he tried to hold Mr Wilson-Bunyan back. However, he accepted in cross-examination that the video footage did not show him trying to hold Mr Wilson-Bunyan back. He also accepted that even at this stage he did not tell his friends that he had been threatened.
He claimed that Mr Tagaloa had removed a knife from his bag and displayed it to him and his friends before returning it to the bag. However, the video footage does not show Mr Tagaloa in possession of a knife at any point, and he was certainly not holding one when he was stabbed. The person who was closest to Mr Tagaloa at this point, Mr Ulberg, denied that he had a knife. The only other witness who referred to a knife was Mr Wilson-Bunyan, who only recalled it in his evidence as an apparent afterthought. Mr Tawhiti said that he did not see anyone holding a weapon but said that he had 'vibes' about the big man.
The appellant swore at Mr Jones and told both him and Mr Reid to stop filming. It is hard to reconcile this with the appellant being in fear for his life. It is more consistent with the appellant being concerned that there was a record of him bringing a weapon to a fist fight. His denial of that proposition lacked credibility.
The use of the scissors was not isolated, and the appellant did not merely display the scissors as a deterrent, he struck out with them in stabbing movements aimed at both Mr Siologa and Mr Tagaloa. This use of the scissors occurred at several points in the altercation and commenced before any physical contact had occurred.
Both Mr Tawhiti and Mr Wilson-Bunyan were behind the appellant when he struck Mr Tagaloa the fatal blow. Whilst both had been previously assaulted, neither was involved in any physical altercation at that point in time. Furthermore, their injuries were not apparently serious. They were not of such a nature as to support any fear on the part of the appellant that he was at risk of death or serious injury.
At the time of the fatal blow Mr Tagaloa was unarmed and standing with his arms by his side. The video footage does not support an inference that there was an imminent risk of death or serious harm from Mr Tagaloa.
The appellant was not trapped or backed into a corner. He was able to successfully escape moments after the fatal blow, despite being pursued by others. This is inconsistent with the appellant’s claim that at this point, he had no option other than to stab Mr Tagaloa.
The appellant claimed that he was not aware at the time that he had stabbed Mr Tagaloa in the neck but accepted in cross-examination that he had intended to hit him with the scissors. Moreover, he immediately ran away holding the scissors and disposed of them on the railway tracks.
It was plainly open to the jury to reject the appellant’s evidence regarding his state of mind. Furthermore, the jury had the distinct advantage of seeing and hearing the appellant give evidence. There may well have been features of the appellant’s evidence – such as his manner and tone – which reinforced an adverse finding regarding his credibility. In my own assessment of the appellant’s evidence, I am unable to conclude that a reasonable jury would necessarily have accepted the appellant’s claim that he was in fear for his life and acted in self-defence.
The appellant places emphasis on his statements to the shop assistant, Mr Thete, regarding a back door and that someone on the street was trying to stab him. The question about a back door might be consistent with a desire to avoid confrontation at that point but does not, in itself, support an inference that the appellant was, some fifteen minutes later, in fear for his life. Whether he was acting in self-defence at that point depends critically on the assessment of the video evidence. The appellant’s statement, regarding a threat of being stabbed by other men on the street, must be seen in the light of the fact that he did not claim to have seen any knife at this time, or to have any fear that Mr Siologa had one (though he said he thought one of the other men might). In any event, this statement is explicable as being a false claim made to justify his attempt to steal the scissors.
The evidence of Mr Tawhiti and Mr Wilson-Bunyan was comparatively brief and provided little by way of support for the claim of self-defence. As already noted, the evidence of Mr Wilson-Bunyan about a knife appeared to be an afterthought and was not consistent with the video footage, which showed no weapon in Mr Tagaloa’s hand at any time. Nor was it consistent with the evidence of other witnesses, for example Mr Ulberg. Mr Tawhiti did not see a knife. In any event, it is not necessary to resolve the issue of whether Mr Tagaloa had a knife in his bag in order to exclude self-defence. On any view Mr Tagaloa did not have a knife when he approached the appellant at the time of the fatal blow, and there was no basis for the appellant to believe that he had one.
It was plainly open to the jury to conclude, beyond reasonable doubt, that at least one of the elements of self-defence was excluded. That is, it was open for the jury to conclude either that the appellant was not unlawfully assaulted by Mr Tagaloa, that any assault was not such as to cause a reasonable apprehension of death or serious harm, or, that the appellant did not believe that his act was necessary to protect himself from death or serious harm. The video footage of the incident was significant evidence in this regard. On that evidence Mr Tagaloa, as he approached the appellant, had his arms by his side and was not carrying a weapon or making any overt threatening gestures. It was the appellant who moved towards Mr Tagaloa, placed his left hand on or near Mr Tagaloa’s chest, swung his right hand upward bearing the scissors, and inflicted a single blow to the neck. That blow was delivered with sufficient force to inflict the 11.5 cm wound that caused the death of Mr Tagaloa. The jury were entitled to conclude from that evidence that the appellant was not acting in self-defence.
Ground 2 - summing up
“Intent and intention are familiar words. We use them frequently. In this context, there is nothing unusual. They carry their ordinary meaning and for you to determine what the [appellant's] intention was, you need to consider drawing an inference from the facts which you find to be established on the evidence concerning his state of mind. What did he intend at the time? You have to assess that by reference to all the other evidence concerning him and concerning the things that were happening.
A person intends to cause death or grievous bodily harm if that is what he means to do and as I said, such an intention can be inferred or deduced from the circumstances in which the death occurred, from the conduct of the [appellant] before, at the time of it happening, or after he stabbed Mr Tagaloa in the neck. You can look at all of those things and of course, whatever [the appellant] said about his intention may be looked at for the purpose of deciding what that intention was.
Intention does not have to exist for a long time. Intention can arise at the very moment before the lethal action is taken. The prosecution does not have to show that the [appellant] intended to do this all night. It only has to show that the [appellant] intended to do this just before it happened.”
Earlier in the summing up, the trial judge referred to evidence in the context of self-defence. He read out significant parts of the appellant’s evidence, including that part where the appellant referred to the stabbing having occurred in a split second and that he did not notice or feel anything when he swung the scissors, nor did he know that he had hit anyone.
The trial judge also provided the jury with a question trail or road map, which stated the following under the heading ‘Intent’:210
“Has the prosecution satisfied you beyond reasonable doubt that when the [appellant] stabbed Mr Tagaloa he did so intending to kill him or cause him grievous bodily harm?”
Ground 2 - submissions
The appellant submits that in his closing address, defence counsel referred to the possibility that the swing was not aimed with precision or directed to a particular area. Defence counsel suggested that the blow could have been an unthinking act or a response driven by fear, without thought or necessary intent. The appellant contends that in his directions on the element of intent the trial judge should have incorporated defence counsel’s submissions in this regard.211 The appellant also submits that the trial judge should have reminded the jury of the evidence given by the appellant regarding his absence of intent.
The Crown submits that the trial judge directed the jury that if they were satisfied that the killing was unlawful, they could only convict of murder if satisfied that the appellant intended to kill or do grievous bodily harm.212 This direction precluded a verdict of guilty of murder without a positive finding of an intention to kill or cause grievous bodily harm. Because the jury had to first exclude unlawfulness before considering intention, a more fulsome direction on manslaughter could not realistically have led to a different verdict. The Crown also notes that trial counsel made no complaint about the summing up, nor did he seek a redirection on the issue of intent.
Ground 2 - disposition
This court recently referred to the essential requirements of a summing up in R v Wright.213 A trial judge’s obligations when giving directions to a jury is to refer to so much of the law as is relevant to determine the issues in the case. The directions should be related to the evidence in the trial. The trial judge is required to put fairly before the jury the case which the accused makes. It is not however necessary for the trial judge to refer to every submission or contention made by counsel.
A trial judge is not bound to refer to all of the evidence or analyse all the conflicts in the evidence. The failure to refer to aspects of the evidence does not, of itself, mean that there has been a miscarriage of justice. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.214
The appellant’s complaint is that the directions were deficient because they did not specifically refer to defence counsel’s submissions that the act of stabbing was an unthinking act, or a response driven by fear. In substance this was a submission that due to the speed of events and the appellant’s apprehension, he acted reflexively without any specific intention. The concern of the appellant appears to be that the jury may not have appreciated that these factors may be relevant in determining whether the intent existed.
In the circumstances of this case, it could hardly have been lost on the jury that the act of stabbing occurred as part of a fast-moving sequence of events. Those events were captured by video footage which was played numerous times to the jury. That evidence was not complex or difficult to understand. Nor was that evidence in dispute in the trial.
The trial judge directed the jury that in order to convict of murder they must be satisfied beyond reasonable doubt that the appellant had an intent to kill or do grievous bodily harm immediately prior to the blow with the scissors. As his Honour properly noted, such an intent does not have to be held for a long time, and it is sufficient if it is held in the moment preceding the infliction of the injury. The attention of the jury was, therefore, focussed on that point in time.
There is no reasonable possibility that in deciding whether the appellant had the requisite intent, the jury would have overlooked the surrounding circumstances of the stabbing, including the speed of the events. Reference to the submissions of defence counsel on this issue was not necessary to ensure that the defence case was properly put to the jury. Nor was it necessary to repeat defence counsel’s submissions in order to ensure that the jury had sufficient knowledge and understanding of the evidence. The trial judge was not bound to refer to the submissions of defence counsel in the directions on intent. The failure to remind the jury of those submissions did not occasion a miscarriage of justice.
Conclusion
Neither of the grounds of appeal has been made out. The appeal should be dismissed.
CROW J: I have made my own assessment of the evidence adduced in the appellant’s trial. I agree with Hall AJA’s analysis of that evidence and in particular the important CCTV footage and video recordings which captured the events the subject of the charge of which the appellant was convicted. The appeal ought to be dismissed.
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R
Djentuh [2025] QCA 233
(2013) 88 ALJR 101
(2022) 274 CLR 651
(1992) 173 CLR 555
(2014) 88 ALJR 779
(2017) 91 ALJR 698
(1994) 181 CLR 487
(1987) 163 CLR 454
(2016) 258 CLR 308
(2007) 228 CLR 618
(2010) 242 CLR 491
(2025) 281 CLR 137
(2011) 243 CLR 400
(2016) 256 CLR 482
Appeal dismissed. Neither ground of appeal was made out: [139].
The appellant then left the store and began walking towards the Fortitude Valley train station with his friends. At one point the appellant paused to wait for his friends and took a bite from one of their burgers.14 Mr Tagaloa’s group did not initially notice that the appellant’s group had walked past. However, Mr Siologa, Mr Tagaloa and another friend, Mr Ulberg, then followed and caught up with the appellant’s group at the train station.15
Mr Siologa called out to the appellant’s group whilst at the doors to the train station complex.16 The appellant’s group turned around and walked back to the doors. Mr Wilson-Bunyan and Mr Siologa both removed their jackets and engaged in a verbal exchange.17 The appellant and Mr Tagaloa then joined them, such that the two men on each side faced each other. At this point the appellant reached to the back of his jeans for the scissors.18 Mr Tagaloa walked away to where his bag was lying near Mr Siologa’s jacket. He took his mobile telephone from the bag which he gave to Mr Ulberg. Mr Ulberg used that phone to film some of what then happened.19 Another man, Mr Jones, who had just finished working at nearby premises, also filmed the events with his telephone.20
A fight then broke out. Mr Tagaloa and Mr Wilson-Bunyan took swings at each other.21 The appellant pulled the scissors out from behind his back and lunged at Mr Tagaloa. Mr Siologa stepped in and pushed the appellant away. They then faced off, the appellant still holding the scissors in his right hand and striking out with them in Mr Siologa’s direction.22 Whilst this was occurring, Mr Tagaloa assaulted Mr Wilson-Bunyan and then Mr Tawhiti. Mr Tawhiti fell to the ground and Mr Tagaloa punched and stomped on him.23 Mr Jones yelled, “[k]ill him, smash him,” at this point.24 Mr Tagaloa then walked to where the appellant and Mr Siologa were still engaged in facing off against each other.
Mr Tawhiti and Mr Wilson-Bunyan both walked over and rejoined the appellant, who was standing near the entrance to the train station still holding the scissors.25 Mr Tawhiti had a limp and Mr Wilson-Bunyan had an injury to his head that was bleeding. Mr Tagaloa approached, and the appellant made a stabbing motion with his right hand.26 Mr Tagaloa removed the jacket that he was wearing. He had nothing in his hands.
Both groups then moved into the complex, whilst continuing to face each other and exchanging abuse.27 Mr Ulberg walked in and tried to pull Mr Siologa and Mr Tagaloa away. The appellant noticed Mr Jones filming and yelled at him to stop. Both groups continued to move in the direction of the train station. They continued to exchange abuse and the appellant yelled, “[d]o it then. Do it then.”28 Mr Siologa then took a swing at Mr Tawhiti and the appellant lunged at Mr Siologa with the scissors in his right hand. Mr Tagaloa pointed at his chest and then at his neck.29 Mr Ulberg again pulled his friends away and they turned and began walking towards the doors.30 Mr Jones stopped filming at this point but another man, Mr Reid, who had been waiting for a train, heard the yelling and moved out to the plaza and began filming with his mobile telephone.31 The appellant noticed this and asked Mr Reid why he was filming.32
Mr Siologa turned around and walked back towards the appellant and adopted a fighting stance.33 The appellant made a rapid forward punch movement with his right hand towards Mr Siologa’s head. Mr Siologa dodged back and there was no contact. On the prosecution case there was no contact with the appellant at any time.
Mr Tagaloa then walked quickly towards the appellant with his arms by his sides.34 The appellant leaned forward, placed his left hand on or near Mr Tagaloa’s chest, and punched with his right hand holding the scissors at Mr Tagaloa’s neck. The scissors made contact and caused an incised wound that was 11.5 cm deep and severed the left carotid artery, left jugular vein and the larynx.35 This injury was the cause of the deceased’s death.
The appellant fled to the train station and jumped the turnstiles to get to the platform. Mr Siologa set off in pursuit but turned around when he heard his friends calling out that Mr Tagaloa needed help.36 The appellant was seen by a railway worker walking to the edge of the platform and bending down. Mr Tawhiti and Mr Wilson-Bunyan joined the appellant on the platform, and they all went to the toilets.37 Police attended shortly after, found the appellant and his friends and also discovered the scissors on the railway tracks.38
As noted, the critical events were captured on mobile telephones and CCTV footage. That footage was tendered at the trial and was relied on by the Crown in its case.
Mr Tawhiti said that throughout the time he was at the Fortitude Valley train station, he “didn’t see anything in anyone’s hands.”59
In cross-examination, Mr Tawhiti was shown part of the CCTV footage showing the entrance to the train station.60 He agreed that at one point he started to clap and point at the big man. He said that he thought that at that time the big man was holding his bag or satchel. He was then asked whether he had said something to the effect that the big man had a knife. He said he thought so because the man was holding his bag and whispering to his mate and his instinct was that the big man had something. He agreed that he had not seen anyone holding a weapon of any sort but said that the big man had given 'vibes' when he was holding his bag.61
Mr Wilson-Bunyan then said that he recalled something that he had left out.69 He said that before the fight happened one of the men in the other group had pulled a knife. He said that the person who did that was of stocky build and had brown skin. He could not say whether the person was taller or shorter than him. He said that the knife was like a Swiss Army knife. He could see the blade and it was about a few inches long. The handle was red. He said that the someone in the other group showed them the knife but could not say how this was done. He said that the person who held the knife had it in their right hand and he demonstrated by showing his hand moving down towards his waist. He did not see the knife for very long and could not say where it went.70 He said that there would have been a conversation with the appellant and Mr Tawhiti about the knife, but he could not recall what it was.
Mr Wilson-Bunyan said that he could also recall that Mr Tawhiti was hurt and that he was bleeding from the head and that his eye was black.71 When asked about his own injury he said that he was on crutches for a week but that his leg injury healed after two weeks. He said that he never saw anything in the appellant’s hands.
In cross-examination, Mr Wilson-Bunyan was shown the CCTV footage showing both groups at the entrance to the train station. He agreed that at one point in the footage, he is pointing at something. When asked what he was pointing at, he said it was the knife.72 He did not recall saying anything about the knife at the time.
In cross-examination, Mr Siologa accepted that when he first took his jacket off outside the kebab shop, it was because he was getting ready to fight. He conceded that he had previously falsely said that he took his jacket off because he was hot.86 He also accepted that he was ready to fight when he followed the appellant’s group to the train station.87 He denied any attempt on his part to downplay his role in initiating the fight. He agreed that he was on probation at the time for assaulting other people in Fortitude Valley and that he had a criminal record for violent offending. He accepted that his memory of the events was 'pretty average'.88 However, he said that he was sure that the appellant was aggressive to him first.
It was put to Mr Siologa in cross-examination that outside the kebab shop he had said to the appellant, “[i]f you don’t fight me, I’ll stab you,” and, “[m]y boys would stab a cunt like you.”89 He denied saying those things. He did remember that the appellant had said at one point, “[n]o, fuck off. Leave us alone.”90 He accepted that he wanted to teach the appellant a lesson, by which he meant a one-on-one fist fight. He accepted that his intention was to hurt the appellant and that he made that clear to the appellant.
Mr Siologa denied seeing Mr Tagaloa with a knife or that anyone had said that the '[b]ig man’ had a knife.91 He said the appellant had a knife and he was trying to block the appellant from getting to his friends. He did not hear anyone say, “[s]mash him. Kill him.” He did remember punching one of the appellant’s friends as they were walking inside the station complex. He said he had also punched the appellant in the face.
In re-examination, Mr Siologa said that neither he, Mr Tagaloa, or any of their friends had knives that night.92 Once the fight broke out the appellant did not say that he wanted it to stop.
Mr Ulberg did not recall operating Mr Tagaloa’s phone to record the events but accepted that exhibit 8 was footage recorded on a telephone that he was holding. He did not remember Mr Tagaloa telling him that he wanted him to film the fight. He did recall someone saying, “[s]mash him. Kill him.”102
At the mall the appellant bought pizza from the kebab shop. Upon exiting,151 he approached Mr Tagaloa and Mr Siologa and asked, “[y]o, what’s going on? What are (you) doing for the night?”152 Mr Siologa then asked what had happened at Ric’s. The appellant responded by saying, again, “[i]t was nothing. It was just a guy – I think he wanted to fight – being cheeky.”153 Mr Siologa asked him if he thought he was tough and if he thought he was tough enough to fight him. Mr Siologa then hopped off the barrier where he was sitting and took off his jacket. The appellant walked away, and Mr Siologa followed him, repeatedly challenging him to a fight. The appellant responded by saying, “[w]hat for? What’s this over? Why?” As well as 'no'.154 There was no direct exchange with Mr Tagaloa, but when Mr Siologa took off his jacket Mr Tagaloa held him back and said “[i]t’s all good. I’ll sort this out.”155
The appellant said that he responded to Mr Siologa by saying, “[n]o. I don’t want to fight. I’m eating my pizza.”156 Mr Siologa then said words to the effect that he and his mates would stab a person like him. The words he thought that were used were '[m]e and my boys would stab a cunt like you'.157 Mr Siologa was not armed when he said this. The appellant said that while he was not concerned that Mr Siologa was armed, he was concerned that his mates might be. He kept saying things like, “[w]hat’s this over? It’s not that deep.”158 Mr Siologa then gave him an ultimatum: '[f]ight or get stabbed'.
The appellant said that he then felt ill from stress and adrenaline.159 He said that he was going to the Night Owl and walked away. When he went in to the Night Owl he asked for the back door. He said he could see a security door behind the counter and pleaded to the shop assistant to be allowed to use it.160 He told the shop assistant that there were people outside trying to stab him. He then waited around a corner of the store and tried to call people on his phone. He said he tried to call Mr Wilson-Bunyan, Mr Tawhiti, and other people he thought could pick them up.161 He got through to an ex-girlfriend and asked if she could get him an Uber or pick him up. He said he could not call for an Uber himself as he had been locked out of his account.
The appellant said that he took the scissors and put them down his pants because he thought he was being threatened with being stabbed and needed protection as a 'last resort'.162 He did not try to purchase them at first because he did not want anyone to see he was buying them, because it would escalate the situation. When the shop assistant approached him, he apologised and said he would pay for the scissors, which he did.163 He was joined in the Night Owl by Mr Wilson-Bunyan and Mr Tawhiti, but he did not tell them what had happened outside. He did not remember seeing anyone from the other group or recall making any gestures to anybody outside. He told his friends that they needed to get to the train station to get the last train.
The appellant said that he and his friends left the Night Owl and walked to the train station. He saw the other group of men sitting at the kebab store. He told his friends to stop walking slowly and not to talk to anyone.164 He took a bite of Mr Wilson-Bunyan’s burger. It took 2 - 3 minutes to walk to the station. When they were about 50 metres inside the station complex, the appellant heard yelling from the entrance. He heard someone say something like, “[f]ucking pussy. Get back here pussy.”165 The appellant said that Mr Wilson-Bunyan wanted to suss out the shouting, but the appellant said to leave it alone. The appellant tried to grab Mr Wilson-Bunyan and then followed him to the entrance.166 He could see that the man yelling was Mr Siologa and that he was shaping up. Mr Siologa was saying, “[y]eah. Pussies. I’ll fuck all of youse up.”167 Mr Wilson-Bunyan took off his jacket and handed it to the appellant. The appellant told Mr Siologa to, “[f]uck off.”168 He said that at least fifteen times. He also said to Mr Wilson-Bunyan to forget about it and 'just leave'. He said to Mr Siologa, “[y]ou win. I don’t care. We’re leaving.” He was 'almost sober' at this point.
The appellant said that Mr Tagaloa and Mr Ulberg came up but were just 'spectating at first'. Mr Tagaloa approached Mr Wilson-Bunyan and tried to grab Mr Wilson-Bunyan’s jacket off the ground. The appellant put his hand behand his back to intimidate or bluff that he had something dangerous there.169 Mr Tagaloa said something like, “[y]eah, I can do that too.” Mr Tagaloa then walked away to where his satchel was with Mr Ulberg and pulled out a knife. Mr Wilson-Bunyan and Mr Tawhiti pointed at the knife and saying words to the effect, “[o]h brah, you’re so tough. Like, look at you pulling out a knife.”170 The appellant then took his hand away from behind his back, leaving the scissors there. He said he did this because he did not want things to escalate to a knife fight. Mr Tagaloa put the knife back in his bag and handed his phone to Mr Ulberg.
The appellant said that Mr Tagaloa then approached Mr Wilson-Bunyan, and Mr Siologa approached him. Punches were thrown.171 Mr Siologa punched the appellant to the side of the head. He then took out the scissors and swung them at Mr Siologa whilst trying to get to Mr Wilson-Bunyan, who was on the ground. His main focus was on Mr Siologa who was standing in front of him, 'flinching' at him. He then saw that Mr Tagaloa had Mr Tawhiti on the ground and was stomping on him. He feared Mr Tawhiti was dead. He swung out with the scissors four times 'as a repellent'.172 He said he did not intend to make contact, and did not do so at this stage.
The appellant said that he then saw Mr Tagaloa walking straight at him. He said he thought he was going to die. Telling the men to go away had not worked. Mr Wilson-Bunyan got up and came over next to him and they began to walk backwards. He heard Mr Jones say, “[k]ill him. Get him. Smash him.”173 He thought there were five or six men in the other group by this time. He backed up 3 or 4 metres and put the scissors away. Mr Tawhiti joined him, and Mr Siologa punched Mr Tawhiti. He got the scissors back out at this point and again swung out with them to stop the other men coming close.174 He saw Mr Jones and another man filming and told them to stop. Mr Siologa then ran back toward him and said, “[l]eave our fucking boy alone.”
The appellant said that Mr Tagaloa appeared to come out of nowhere, walking pretty quickly directly at him. His main focus was still on Mr Siologa. He saw Mr Tagaloa for a “split second.” He was thinking “[t]his is where I’ll die.”175 He had seen Mr Tagaloa take down his friends with no effort. He did not know if Mr Tagaloa had gone back to get his knife. Mr Siologa had hold of him, possibly by the shirt. He swung the scissors without aiming and then started running. He did not know he had hit anyone.
The appellant said that when he swung the scissors, he had no other options available to him.176 He ran to the train station, jumped the barrier, and went down the steps to the platform. He saw blood and thought that he had been stabbed, so he checked himself over. His friends joined him and both were injured. He threw the scissors on the train tracks because he did not want the police to think he was dangerous.177
In cross-examination it was put to the appellant that in the altercation outside Ric’s Bar he was the aggressor, as shown in the CCTV footage. He accepted that the footage could be interpreted as him being aggressive, but said he was not trying to be aggressive.178 Later he said that the aggression was mutual. However, he denied that he was offering to fight the other man when yelling at him from across the road. He characterised his conduct as 'cheeky'.179 He denied trying to provoke other people to fight with him.
The appellant agreed that he approached Mr Siologa and Mr Tagaloa in the mall but denied trying to provoke them. He said that they offered to fight him, but he did not want to fight anyone.180 He continued to eat his pizza to give the appearance that he was calm. He said he could not walk away as he did not want to turn his back on someone who had threatened to stab him and could king-hit him. However, when Mr Siologa gave him an ultimatum to either fight or be stabbed, he felt ill and knew he had to walk away.181 He said he was going to get water and walked to the Night Owl. He denied asking for the back door so that he could sneak up on the other men. He accepted that it was possible he did not say, “there are people out there trying to stab me,” before taking the scissors.182 He denied he was saying that just to justify why he had tried to take the scissors. He accepted that whilst in the Night Owl, he did not try to call the police or ask the shop assistant to do so. He said he did not think he could call the police because no one had hurt him. He said he asked other people to call him an Uber or a DiDi, including his ex-girlfriend, who refused.183 He did not call a taxi because he had run out of money. He believed his friends did not have enough money for a taxi either.
It was put to the appellant that when Mr Tagaloa passed the front door of the Night Owl, he had given him 'the finger'.184 He strongly disagreed and said he had made a peace sign. He agreed that he did not tell his friends that he had been given an ultimatum. He said that this was because he did not want to stress them out. He also did not want there to be any suggestion that they should try to work things out with the other men.
The appellant agreed that on leaving the Night Owl, he and his friends had walked past where the other men were sitting.185 He said that he did so because that was the direction towards the train station. He accepted that he had stopped at one point for his friends to catch up. He had felt extremely ill but agreed that he had taken a bite from the burger of one of his friends.
At the station when Mr Siologa yelled at them, the appellant said that he told Mr Wilson-Bunyan to, “[f]orget this. Don’t go there. Trust me.”186 He did not tell Mr Wilson-Bunyan that Mr Siologa had threatened to stab him. He then said that it was possible that he said that Mr Siologa had a knife, but he could not remember. After viewing the video footage, the appellant accepted that he had not grabbed Mr Wilson-Bunyan and tried to pull him back.
The appellant agreed that he had put his hand behind his back to make the other men think he had something dangerous.187 He was asked how this could be reconciled with him saying that at the Night Owl he did not want them to know he had acquired the scissors. He said that this was because at the train station things had escalated from one person angry to three people threatening them. He believed that the threat of the scissors would be enough to deter the other men. He accepted that at this point no one had been touched.
The appellant accepted that in the CCTV footage no knife can be seen being held by Mr Tagaloa. However, he maintained that he saw it.188 He said that he did not back away at that point because he was, “frozen in shock.” He agreed that Mr Tagaloa did not have a knife when he walked back over to where he and his friends were.
After being shown the CCTV footage, the appellant agreed that he had pulled the scissors out before being hit by Mr Siologa. He accepted that his evidence to the contrary was wrong.
The appellant accepted that as Mr Tagaloa walked towards him he had the scissors above his head. He accepted that the scissors were moving in Mr Tagaloa’s direction and that he intended to hit him with them. However, he denied that he was aiming for his neck.189 Only a couple of punches had been thrown at him at that point. He was not sure whether Mr Wilson-Bunyan had been hurt. He said he felt that he and his friends were going to die. He did not call out for help because no one was around.
The appellant accepted that the video footage does not record him asking the other men to leave. He agreed that it does record him calling Mr Jones a 'pussy cunt' and a 'snitch' and telling him not to film.190 He denied that his concern was being caught with scissors at a fist fight. He also accepted that he was swearing at the other group of men. He did not recall saying, “[d]o it. Do it,” but accepted that it was possible.191 He denied wanting to inflict as much harm as possible. He accepted that to stab someone in the neck would likely kill them. He denied threatening to stab Mr Tagaloa and disagreed that Mr Tagaloa had touched his neck in response to such a threat.
The appellant accepted that he ran away after stabbing Mr Tagaloa and that he was able to get away at that point. He maintained, however, that running away was not an option that was open to him earlier.
The Crown submits that on the whole of the evidence it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. Further any doubt experienced by this Court should be resolved by the advantages enjoyed by the jury.
As to the issue of intent, an inference of the requisite intent was available to be drawn on the evidence. The appellant accepted in cross-examination that he intended to strike Mr Tagaloa with the scissors and cause him harm. He also accepted that to stab someone in the neck was likely to kill them. Whilst he denied aiming for the neck, the video footage showed that there was a single, direct, and quick blow. It was open to infer from that evidence that the appellant held the intent to either kill Mr Tagaloa or to cause him grievous bodily harm.
In my view, the jury, acting reasonably, was not precluded by the evidence at trial from convicting the appellant of murder. The jury was entitled to be satisfied beyond reasonable doubt on the whole of the evidence that the appellant unlawfully killed Mr Tagaloa with the requisite intent for murder. The trial record does not require a conclusion that a reasonable jury must necessarily have had a doubt about the appellant’s guilt on the charge of murder. The verdict was not unreasonable.
The verdict was supported by evidence that the jury was entitled to accept, and by inferences that the jury was entitled to draw. The nature and quality of the evidence at the trial was sufficient to remove any doubt that the appellant was guilty of murder. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt about the appellant’s guilt.
Ground 1 fails.
As to the suggestion that the jury should have been reminded of the appellant’s evidence regarding his absence of intent, the trial judge did in fact read to the jury those parts of the appellant’s evidence where he specifically denied having an intent and where he described the speed of events and swinging the scissors without aiming them. Whilst this was done in the context of self-defence, it nonetheless must have drawn the attention of the jury to that evidence. Furthermore, in the intent direction, the trial judge told the jury that they could consider what the appellant had said in evidence in regard to intent. That could only have been understood as reference to the evidence previously referred to.
It should also be noted that trial counsel made no complaint about the directions or sought a re-direction on the issue of intent. Whilst counsel for the appellant properly points out that failure of defence counsel to object is not fatal to a ground of this nature, it is telling that experienced counsel who was closely involved in the trial did not perceive any problem with the directions.
Ground 2 fails.
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M v The Queen (1994) 181 CLR 487 at 492-493 (Mason CJ, Deane, Dawson & Toohey JJ); Zaburoni v The Queen (2016) 256 CLR 482 at [56] (Gageler J); GAX v The Queen (2017) 91 ALJR 698 at [25] (Bell, Gageler, Nettle & Gordon JJ). ↩
M at 492 - 493; SKA v The Queen (2011) 243 CLR 400 at [14] (French CJ, Gummow & Kiefel JJ). ↩
SKA at [22]-[24]. ↩
R v ZT (2025) 281 CLR 137 at [11] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). ↩
Morris v The Queen (1987) 163 CLR 454 at 473 (Deane, Toohey and Gaudron JJ); M at 492-493; SKA at [20]. ↩
M at 493; R v Nguyen (2010) 242 CLR 491 at [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ); SKA at [13]. ↩
Dansie v The Queen (2022) 274 CLR 651 at [16]. ↩
R v Baden-Clay (2016) 258 CLR 308 at [65]-[66]. ↩
SKA at [22]-[24]; BCM v The Queen (2013) 88 ALJR 101 at [31] (Hayne, Crennan, Kiefel, Bell and Keane JJ); GAX at [25]. ↩
M at 494-495; R v Hillier (2007) 228 CLR 618 at [20] (Gleeson CJ); Fitzgerald v The Queen (2014) 88 ALJR 779 at [5] (Hayne, Crennan, Kiefel, Bell and Gageler JJ); Baden-Clay (2016) 258 CLR 308 at [66]; ZT at [7]. ↩
(2025) 281 CLR 137. ↩
ZT [9]. ↩
ZT [10]. ↩
Appellant’s Outline of Submissions at [11]. ↩
Appellant’s Outline of Submissions at [12]. ↩
Respondent’s Outline of Submissions at [32]. ↩
Respondent’s Outline of Submissions at [37]. ↩
Transcript of Proceedings (5 August 2024), page 17, lines 10-30. ↩
Appeal Record Book, Volume 2, page 523. ↩
Appellant’s Outline of Submissions at [16]. ↩
Respondent’s Outline of Submissions at [55]. ↩
[2025] QCA 211 [34]-[36]. ↩
Domican v The Queen (1992) 173 CLR 555 at 560-561. ↩