R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220

CRIMINAL LAW - EVIDENCE - MATTERS RELATIING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - where three co-accused were charged with manslaughter - where their trials were heard together - where the deceased died following an altercation with one or more of the accused - where the trials were heard together - where at the close of the Crown case a no case submission was made on behalf of each accused - whether it was open on the evidence for the jury to find that the fatal blow was inflicted after the deceased went to ground - whether it was open on the evidence for the jury to find that the accused, or any one of them, substantially caused or contributed to the death of the deceased - whether it was open on the evidence for the jury to that find that the accused, or any one of them, aided the other or others to commit the offence of manslaughter

CRIMINAL LAW - GENERAL MATTERS - ANCILLIARY LIABILITY - COMPLICITY - AID, ABET, COUNSEL OR PROCURE - GENERALLY - where three co-accused were charged with manslaughter - where their trials were heard together - where at the close of the Crown case a no case submission was made on behalf of each accused - whether it was open on the evidence for the jury to find that the accused, or any one of them, was either a principal offender under s 7(1)(a) Criminal Code (Qld) or an aider under s 7(1)(b) or s 7(1)(c) Criminal Code (Qld)

JURY - FUNCTIONS OF JUDGE AND JURY - where three co-accused were charged with manslaughter - where their trials were heard together - where at the close of the Crown case a no case submission was made on behalf of each accused - where it was submitted that the testimony of a number of witnesses was unreliable or had been discredited - whether the case should be left to the jury

EVIDENCE - ADDUCING EVIDENCE - WITNESSES - GIVING EVIDENCE - CROSS-EXAMINATION - AS TO WHAT - PRIOR INCONSISTENT STATEMENTS - where three co-accused were charged with manslaughter - where their trials were heard together - where at the close of the Crown case a no case submission was made on behalf of each accused - where a witness was cross-examined about a previous inconsistent statement made to the police - where the witness admitted making that statement - whether the previous statement (or part thereof) had been "proved" within the meaning of s 19, s 101 and s 102 of the Evidence Act 1977 (Qld) - whether the previous statement was received in evidence as the truth of the facts stated by reason of s 101 of the Evidence Act 1977 (Qld)

Criminal Code (Qld), s 2, s 7, s 293, s 302 and s 303

Evidence Act 1977 (Qld), s 19, s 101 and s 102

Case Stated by DPP (No 2 of 1993) [1993] SASC 4152; (1993) 61 SASR 1, cited

Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, followed

May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, followed

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, cited

R v B and P [1999] 1 Qd R 296; [1998] QCA 45, cited

R v Beck [1990] 1 Qd R 30, distinguished

R v Da Costa [2005] QCA 385, cited

R v Galbraith [1981] 1 WLR 1039, cited

R v Hill [1988] 1 Qd R 654, cited

R v Jeffrey [1997] QCA 460, cited

R v Lowery and King (No 2) [1972] VicRp 63; [1972] VR 560, cited

R v Lowrie & Ross [2000] 2 Qd R 529; [1999] QCA 305, followed

R v Morgan [1994] VicRp 41; [1994] 1 VR 567, cited

R v Sherrington & Kuchler [2001] QCA 105, followed

R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590, cited

R v Summers [1990] 1 Qd R 92, cited

R v Walton & Harman [2001] QCA 309, cited

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, cited

Office of the Director of Public Prosecutions (Qld) for the Crown

Quinn & Scattini for Wade Lee Goldsworthy and Blake Nathan Goldsworthy

[1] Wayne Dover died in the early hours of Saturday, 30 November 2013. He had been involved in an altercation that took place outside a nightclub in Maroochydore shortly after 3.00 am that morning.

[2] The medical cause of death is uncontroversial; Mr Dover's left vertebral artery was ruptured during the course of the altercation and this, in turn, caused a subarachnoid haemorrhage from which he could not recover despite the best efforts of those who attended on him in the immediate aftermath of the incident.

[3] Two brothers, Wade and Blake Goldsworthy, along with their friend, Matthew Hill, are alleged by the Crown to have participated in the altercation with Mr Dover. Each has been charged on indictment with his manslaughter. Their trial commenced before a jury and me on 12 September 2016 and, at the close of the Crown case, counsel for each accused submitted that there was no case to answer.

[4] This is my ruling on each of the no case submissions.

[5] When a no case submission is made, the question of law to be decided is "whether on the evidence as it stands [the accused] could lawfully be convicted".[1] If the answer to that question is in the affirmative, the case must be left with the jury. If not, it is the duty of the trial judge to direct a verdict of acquittal.

[6] The approach that must be taken to the determination of that question was authoritatively laid down by the High Court in Doney v The Queen,[2] as follows:

"[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."[3]

[7] It follows that a trial judge who is called on to rule on a no case submission must take the Crown case at its highest. Furthermore, questions of credibility, reliability or the weight to be accorded particular evidence are all matters within the exclusive province of the jury. So, too, are inconsistencies in the evidence; they are for the jury to resolve.[4] Nor is it for a trial judge to consider whether a verdict of guilty returned by the jury on the evidence comprising the Crown case might later be determined by the Court of Appeal to be unsafe or unsatisfactory. That is not the test.[5]

[8] The jury is the arbiter of the facts. As the Court remarked in Doney, it is fundamental to the determination of the facts that "the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful".[6] As to questions concerning the reliability of particular evidence, the Court accepted as correct the following proposition taken from R v Galbraith:[7]

"Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of the witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."[8] [Emphasis in original]

[9] Of course that is not to say that a trial judge should not consider whether evidence that has a "tenuous character" or an "inherent weakness or vagueness" should be the subject of a warning to the jury but, even if such a warning is given, that evidence will still be available for use by the jury subject to that warning.[9] It is then a matter for the jury to decide what weight should be given to that evidence.

[10] Where the Crown case rests either wholly or partly on circumstantial evidence, a no case submission is to be decided on the basis of such inferences that are reasonably open in support of the Crown case. It is not the function of a trial judge to choose between inferences which are reasonably open to the jury.[10] Just as the determination of the facts is a matter for the jury, so too is the drawing of inferences based on those facts.[11] The judge must therefore proceed on the basis that "the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution".[12] That however does not mean that reasonable hypotheses consistent with innocence arising on the Crown case can in every instance be ignored. To the contrary, the task of the trial judge is to determine whether the evidence is capable in law of supporting a verdict of guilty. Thus, if the evidence in the Crown case is incapable of excluding all reasonable hypotheses consistent with innocence, the evidence will not be capable in law of proving the charge and there will be no case to answer in relation to it.[13] That is just another way of saying that it is only if the evidence is such that an inference of guilt is incapable of being drawn beyond reasonable doubt that it might be concluded there is "in law no material on which a verdict of guilty might be found", however that point is not reached merely by the existence of a "possible inference consistent with innocence".[14] It follows that the question whether the Crown has excluded every reasonable hypothesis consistent with innocence is a question for the jury; whether the evidence as a whole, and taken at its highest, is capable of doing so is one for the judge.

[11] For completeness it should be said that what is required of the Crown in discharging the onus of proof of guilt is not that every possibility of innocence be excluded by the evidence but only that every possibility be excluded. As such:

"The existence of an admitted possibility but one that is assessed by experts in the field as being 'extremely unlikely', or 'very remote', or the result of a 'very rare coincidence' is not sufficient to introduce a reasonable doubt precluding the jury from being satisfied to the requisite standard of proof of guilt."[16]

[12] In broad scope, the evidence led in support of the Crown case was to the following effect.

[13] Each of the accused as well as Mr Dover were in attendance at the nightclub until it closed at around 3.00 am. A number of witnesses were called by the Crown in an attempt to establish what Mr Dover and each of the accused were doing, and who they interacted with, whilst in the nightclub. Their evidence was assisted, for better or worse, by CCTV footage from within the premises. It is unnecessary for the purposes of this application to survey this evidence in any detail. Rather, what is important to this application is what took place outside the nightclub after each man had left.

[14] As to that, a number of witnesses were called to give evidence about what they could recall having seen or heard before, during and after the altercation on which the Crown relies. CCTV footage from outside the nightclub was also adduced, along with photographic and other exhibits.

[15] The CCTV footage from outside the nightclub is of poor quality. An "enhanced" version and an "enhanced, cropped" version of the part of the footage which the Crown says captures at least part of the altercation is also in evidence. Ultimately, what can or cannot be discerned from the footage will of course be a matter for the jury to decide. However, much of the argument advanced in support of the no case submissions focused on what it was contended could be clearly discerned from the footage and, so, I should indicate what I am prepared to accept in that regard for the purposes of the respective arguments. To my observation, the footage is of sufficient quality to identify each of the accused, Mr Dover and a number of relevant witnesses leaving the nightclub, and the sequence in which they did. It is also sufficient to identify where each of those persons is situated immediately prior to the altercation. From that point on, it is difficult to discern precisely what is captured on the footage save for the specific aspects mentioned in what follows.

[16] Relying on parts of the CCTV footage as well as the evidence of a number of witnesses, the Crown contends that immediately prior to the altercation Mr Dover was standing with one of those witnesses, Bianca Evangelista, on the boardwalk outside the nightclub. At the same time, Wade Goldsworthy was standing a few metres from and roughly opposite to Mr Dover and Ms Evangelista, Matthew Hill was seated in a position off to the left and in front of them, Blake Goldsworthy was standing several metres behind and to the right of them, and a witness, Joanna Main, was standing at an exterior corner of the foyer to the nightclub some metres in front and to the right of them. As I have said, the positioning of each of these persons at this point in time can be sufficiently made out from the footage.

"Do I take it from that your best memory was that he was unconscious once he hit the ground?---Yes, or very close to unconsciousness."[33]

[28] Indeed, with only one exception, there is no evidence in the Crown case to support the proposition that Mr Dover remained conscious after falling to the ground. That one exception arises only in the trial of Wade Goldsworthy and only because he gave a number of answers in his record of interview to police that might be taken as supporting the conclusion that Mr Dover was conscious for a short period of time when he was on the ground. Given that nothing said by Wade Goldsworthy to police could be admissible in the trials of Blake Goldsworthy or Matthew Hill, it follows that, at least so far as they are concerned, all of the observational evidence strongly points to the fatal blow having been inflicted whilst Mr Dover was still on his feet.

[29] So, what does the Crown attempt to make of all the evidence taken as a whole? The best answer to that question appears in the summary which the Crown prosecutor provided to the jury at the conclusion of his opening:

"What the Crown contends in this case, ladies and gentlemen, is that [Mr] Dover was provoked into action by Wade Goldsworthy. He had reacted to the insults of being called a sleaze. At the point in time after [Mr] Dover has struck Wade Goldsworthy, most likely through a punch, given the injury identified to Wade Goldsworthy's eye, Wade Goldsworthy, the Crown says, has moved some distance away from [Mr] Dover. And at that snapshot point in time, ladies and gentlemen, the Crown say Blake Goldsworthy moves with speed towards [Mr] Dover. The Crown says that Matthew Hill rises from his seated position very close to [Mr] Dover. The Crown contend that it is at this snapshot point in time that all three men then join the altercation, the Crown says, demonstrating their intended support for what follows, through their deliberate presence and action.

With some force, [Mr] Dover is taken from his feet. Where this force likely caused the rotation and the tear to the vertebral artery each is criminally liable, as the person forcibly taking [Mr] Dover from his feet, or if not as that person forcibly taking from his feet, aiding or encouraging that person to do so and to act. There is support, the Crown says, for this being the timing of the blow [causing] the vertebral artery tear. As explained by the pathology of the injury, it causes rapid onset of loss of consciousness in seconds and is consistently observed through the inaction of [Mr] Dover on the ground.

[Alternatively the] concerted blows delivered by each of the accused while the prone [Mr] Dover lay on the ground ... may have been responsible for the rotational force causing the tear to the vertebral artery. The Crown contends that if this were a factual conclusion drawn by you in this trial, that each is [criminally] liable as either the perpetrator of the blow causing the injury or certainly as encouraging or aiding that perpetrator through their evident support in their actions of also assaulting [Mr] Dover at that point in time.

These actions of the three men before you, ladies and gentlemen, the Crown says, were not in lawful defence of any one of them. The death of [Mr] Dover when struck by a blow or blows from one or in combination was, the Crown says, a foreseeable, possible outcome of that action."[34]

Some observations about the charge and the ways in which it is advanced

[30] By s 303 of the Criminal Code (Qld), a person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter. The crime of murder is defined by s 302 of the Code and it is of course not alleged that any part of that definition can apply in this case. By s 293 of the Code, a person is deemed to have killed another if he "causes the death of" that other person "directly or indirectly, by any means whatever". A person "causes the death of" another if his act is a substantial or significant cause of death, or substantially contributed to the death.[35] That question is to be determined by the jury "applying their common sense to the facts as they find them, at the same time appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter".[36]

[31] Thus, in order to succeed on the indictment against any one of the accused, the Crown must prove that the particular accused substantially caused, or contributed to, the death of Mr Dover and, further, that the act causing death was unlawful in the sense that it was not authorised, justified or excused by law.

[32] At the commencement of the trial, the Crown supplied particulars. These were to the effect that "an altercation took place between" Mr Dover and Wade Goldsworthy, that Blake Goldsworthy and Matthew Hill "joined in that assault" and that, during the assault, Wade Goldsworthy, Blake Goldsworthy or Matthew Hill or "in combination with one or more of them" inflicted a blow or blows that caused or substantially contributed to Mr Dover's death. In the alternative, it was particularised that Wade Goldsworthy, Blake Goldsworthy or Matthew Hill "enabled, aided or encouraged the other or others" by "participating in the altercation".

[33] The Crown case was therefore put on alternate bases: either that one or more of the accused was a principal offender, that is to say, the person or persons who actually did the act making up the offence (s 7(1)(a) of the Code) or that one or more of the accused aided the commission of the offence by one or both of the others by participating in the altercation (s 7(1)(b) or s 7(1)(c) of the Code). The Crown in effect says that each accused must have been either a principal offender under s 7(1)(a) or an aider under s 7(1)(b) or s 7(1)(c).

"The question most commonly arises, as it did in R v Jeffrey,[38] in cases in which a group of people engage in physically assaulting another person, who dies as a result of injuries inflicted by one or more of the participants, in circumstances in which it is impossible afterwards to say who inflicted the fatal blow or other force."[39]

[36] As to the "requisite state of mind" under s 7(1)(b) or s 7(1)(c) of the Code, attention must be directed to the language used in those provisions. By s 7(1)(b), every person who "does or omits to do any act for the purpose of enabling or aiding another person to commit the offence" is deemed to have taken part in committing the offence. By s 7(1)(c), every person who "aids another person in committing the offence" will also be deemed to have taken part in committing the offence. Lowrie & Ross was concerned with convictions for murder. In that context, McPherson JA noted what he and Davies JA had said in Jeffrey the effect that, in order to establish criminal responsibility under what is now s 7(1)(c) of the Code, the aider must know that the principal was intending to kill or to do grievous bodily harm. His Honour continued:

"Once such a state of mind or knowledge on the part of one of the participants is established, he (or she) becomes criminally responsible for the act or acts of any of the others (whether identifiable or not) that cause or substantially contribute to the death and consequent murder of the victim. In instructing the jury in such a case, it is, I consider, ordinarily sufficient to direct that, once a participant in such an assault becomes aware that life-threatening force is being used by one or more of the others, he or she is, by continuing to assist in the assault, liable to be found guilty if the victim's death results from injuries inflicted by any of the participants. In applying this approach to such a case, it is of course, necessary to bear in mind that it is proof of the existence of the requisite state of mind or knowledge on the part of the participant that is decisive of responsibility for the offence that ensues. If that element is not established in the case of a particular offender, he will not be guilty of murder ...".[40]

[37] Subsequently in R v Sherrington & Kuchler,[41] an appeal against convictions for manslaughter, McPherson JA said this:

"In applying s 7(1), it is necessary to bear in mind the word 'offence' is to be read in the light of s 2 of the Code as meaning the act (or omission) which renders the person doing it liable to punishment. See R v Barlow (1997) 188 CLR 1, 9. More may be needed in some cases, where the offence is constituted not by an act alone but by an act accompanied by what their Honours in R v Barlow described as 'prescribed circumstances'; as, for example, in the case of murder, where under s 302(1)(a) an element of the offence is the intention to kill or to cause grievous bodily harm. Manslaughter under the Code is an offence which, by virtue of ss 293 and 300, is constituted by an act (or acts) alone which, without intention, causes death or (when read with what was said in Royall v The Queen) significantly or substantially contributes to causing death."[42]

[38] Therefore, to the extent that the Crown seeks to rely on s 7(1)(b) of the Code in this case, it will be necessary to prove beyond reasonable doubt that the relevant accused did an act "for the purpose of enabling or aiding" one or both of the other accused to commit the offence of manslaughter. That will require proof to the same standard on the part of the relevant accused of knowledge that one or both of the other accused was committing, or was about to commit, the offence of manslaughter along with proof that the relevant accused did an act intending it to enable or aid the commission of that offence.[43]

[39] On the other hand, reliance by the Crown on the differently worded s 7(1)(c) of the Code may be seen to invoke slightly different considerations. Returning to the judgment of McPherson JA in R v Sherrington & Kuchler,[44] his Honour explained what the Crown must establish:

"That provision deems a person who aids another in committing an offence to have 'taken part in committing it'. The word 'aids' is an ordinary English word, which means 'assists' or 'helps'. At common law it was and is used in conjunction with 'abets' in order to describe a person who was present at the commission of a felony. In R v Lowery and King (No 2) [1972] VicRp 63; [1972] VR 560, 561, Smith J said that aiding and abetting meant doing one or other of three things, while being aware that a crime is being committed. His Honour identified those three things as: (1) intentionally helping the principal in the first degree to commit the crime; or (2) intentionally encouraging him by one's presence or behaviour to commit it; or (3) intentionally conveying to him by words or presence and behaviour that one is assenting to and concurring in the commission of the crime. In Victoria the Appeal Division has since held that physical presence at the commission of the crime is not an essential ingredient of criminal responsibility of a participant or principal in the second degree at common law. See R v Morgan [1994] VicRp 41; [1994] 1 VR 567. According to that decision, at common law it is enough that the accused is party to a common design or plan or arrangement that is carried out by the commission of the crime. This, however, implies the existence of a pre-arranged plan of some kind, which, as I have said, is not a requirement under any of the first three paragraphs of s 7(1) of the Code.

Under the Code a person does not need to be present at the commission of the crime in order to be deemed by s 7(1)(c) to have 'taken part in' committing the offence by aiding or assisting another in committing it. Of course, it is either explicit or implicit in s 7(1)(c) that the assistance must be given to another 'in' committing the offence, which must mean that the participant is aware at least of what is being done or perhaps will be done by the other actor."[45]

[40] It is therefore necessary in order for the Crown to establish accessorial liability under s 7(1)(c) of the Code that it is proved beyond reasonable doubt that the relevant accused intentionally took part in the offence of manslaughter, that is, he must have aided the commission of the offence with knowledge of the essential matters which go to make up that offence (an act or acts substantially causing or contributing to the death of Mr Dover) and he must therefore have been aware of what was being, or would be, done. In other words, before criminal liability can attach under s 7(1)(c), it must be proven beyond reasonable doubt that the relevant accused knowingly aided the principal offender.[46]

[41] The aiding of another in the commission of an offence by deliberate presence amounting to "intentional encouragement" was discussed by Macrossan CJ in R v Beck.[47] His Honour said:

"Intentional encouragement may come from expressions, gestures 'or actions intended to signify approval'. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.

Attention has been drawn to the difference in the language adopted in the subparagraphs of s.7 for example by Philp J. in R. v. Solomon [1959] Qd R 123 at 128.

The intention involved in the criminal activity referred to in subs. 7(b) emerges from the use of the phrase 'act for the purpose of ...'. Similar express words are absent from subs.7(c) but as Philp J. observed it is hardly possible to aid the commission of an offence without awareness of the offence which is (or might be) committed. From the different points of view adopted in each, the two subsections widen the field which either alone might cover although there can be common ground between them. It is notable that just as subs.7(b) is not expressed in such terms as does any act which has the effect of enabling or aiding another person to commit the offence', so subs.7(c) is not expressed in terms does any act which has the effect of aiding any person in committing the offence'. If subs.7(c) were so expressed it would catch a lot of innocent people in its net, e.g. the taxi driver who innocently drives the passenger part of the way to the place where a crime will be committed by him. For this reason it is obvious enough that 'aids' in subs.(c) means 'knowingly aids' and this is the way it has been interpreted in the cases: per Philp J. in R. v. Solomon and per Matthews J. in R. v. Wylie Payne and Harper (C.A. 27, 28/1977; Court of Criminal Appeal, 25 May 1977, unreported).

It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided. In some cases ... where positive intervening acts in support of the commission of the offence by the principal offender may not have occurred it has been natural to speak of encouragement and this will often be an appropriate word to convey, in the absence of direct physical involvement, the relevant active element in the aiding which has taken place."[48]

[42] It is useful to commence with what should now be obvious. Wade Goldsworthy's record of interview aside, the evidence in the Crown case is such that the hypothesis to the effect that the fatal blow was struck when Mr Dover was still on his feet is not only a reasonable one, it is likely to be correct.[49] That concession was made when the Crown case was opened and it was carried through in the submissions advanced in response to the no case submissions.

[43] The submissions made on behalf of the Crown in response to the no case submissions therefore naturally focused on the evidence as to what occurred prior to Mr Dover falling to the boardwalk. That evidence, as I have said, is to be found in the testimony of Ms Main as well as the CCTV footage. Ms Main did not recall seeing Mr Dover lunge towards Wade Goldsworthy but conceded the possibility that she may not have seen the "start of the fight".[50] When giving evidence, she was taken several times to the relevant portions of the CCTV footage, but she maintained her version that Mr Dover had been confronted by three or four men before one of those men punched him.[51] Whether that was when the vision of each of the accused and Mr Dover was obscured, or partly obscured, on the footage will be a matter for the jury to determine, but it is that "coincidence of presence"[52] of each of the accused and Mr Dover that the Crown submits makes it possible to reconcile Ms Main's evidence with the CCTV footage.

[44] Thus the Crown submitted that, if Ms Main's account is accepted by the jury, there is evidence that each of the accused was involved in a confrontation with Mr Dover prior to him being struck a blow by one of them. This is then relied on by the Crown to support the alternate cases advanced against each accused, that is to say, as the person who struck the fatal blow to Mr Dover or as a person who aided another person to strike that blow. In the latter regard, the aiding is said to be constituted by "deliberate presence ... designed to aid by encouragement".[53]

[45] Turning then to the individual no case submissions, it is convenient to deal with them in a different order to that in which the accused appear on the indictment.

[46] In written submissions from the Crown, the following concession was made with respect to Blake Goldsworthy:

"The pathway to criminal liability for Blake Goldsworthy must on the testimony in this trial now be limited to the jury accepting, that his observed movements towards the incident and a deliberate presence at the time of a force taking [Mr Dover] to the flooring, is that from which it is inferred to have been intended to offer encouragement to whichever of Matthew Hill or Wade Goldsworthy used that force, and inferred to have been known to that individual using the force."[54]

[47] On Ms Main's account, it cannot be said that Blake Goldsworthy inflicted any violence on Mr Dover, whether before or after he fell to the boardwalk. Rather, as the above concession makes clear, the case is put on the basis of "deliberate presence" at the time when Mr Dover was struck while he was still on his feet. Furthermore, unlike the cases advanced against Wade Goldsworthy and Matthew Hill, the Crown cannot on Ms Main's account allege any continuing involvement by Blake Goldsworthy when Mr Dover was on the ground.

[48] To establish criminal liability under s 7(1)(c) of the Code - and the case against Blake Goldsworthy can be nothing other than that given the concession made by the Crown - there must be evidence capable of proving beyond reasonable doubt that he knowingly aided the commission of the offence of manslaughter. For the reasons previously discussed, that requires proof that Blake Goldsworthy acted with knowledge of the essential matters which go to make up that offence (an act or acts substantially causing or contributing to the death of Mr Dover) and was aware of what was being, or would be, done. As far as the evidence extends in this case, the jury would be entitled to find that, after his brother was struck by Mr Dover, Blake Goldsworthy reacted by rushing towards the position in which Mr Dover and his brother must have been. There is however no other evidence on which the jury could act to infer the requisite state of mind on the part of Blake Goldsworthy.

[49] Although Macrossan CJ remarked in Beck that the "distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess",[55] that must be taken as presupposing the existence of some evidence on which such an assessment can be made. Here there is virtually none and what evidence there is - of one man's instantaneous reaction to his brother being struck - must be regarded as entirely equivocal. There is otherwise no evidence of any "telltale acts ... performed by the alleged aider"[56] on which the jury could rationally infer that Blake Goldsworthy knowingly added his presence to an act that substantially caused or contributed to Mr Dover's death or that he was even aware of what was being, or would be, done. In this regard, it is well to remember that a person who provides an unwitting assistance to an offender by the contribution of his or her presence cannot be fixed with criminal liability under s 7(1)(c) of the or, indeed, otherwise.

[52] It was argued on behalf of Wade Goldsworthy that the Crown could not exclude beyond reasonable doubt that Mr Dover suffered the fatal injury prior to falling to the ground. Assuming that to be so, it was contended that there was no evidence that Wade Goldsworthy undertook any "action that could possibly be said to have caused or significantly contributed to the death of Mr Dover".[57] As such, it was submitted that the Crown could not exclude on its own case a reasonable hypothesis consistent with the innocence of Wade Goldsworthy.

[53] One of the problems with those submissions is that they appear to misunderstand the role of a trial judge. As earlier discussed,[58] whether the Crown has excluded every reasonable hypothesis consistent with innocence is a question for the jury. It is only if the evidence is such that an inference of guilt is incapable of being drawn beyond reasonable doubt that it might be concluded that there is no case to answer. Moreover, the evidence in the trial of Wade Goldsworthy includes the record of interview he provided to police. Although it may well be that the jury accepts the submission that Wade Goldsworthy continued to punch Mr Dover on the ground when he was unaware that Mr Dover was unconscious, it is open to the jury from the answers he provided to police to conclude that Mr Dover was still conscious at that time. If that is accepted, then the jury could reason that the fatal blow (whether by punch or kick) must have been delivered when Mr Dover was on the ground. Of course, such a conclusion would appear to fly in the face of the other evidence in the case to which I have made mention but it is simply not correct to submit that, on the evidence available to the jury in the trial of Wade Goldsworthy, the Crown could not exclude beyond reasonable doubt that Mr Dover suffered the fatal injury after falling to the ground.

[54] Likewise, the submission that there is no evidence that Wade Goldsworthy undertook any action that could have caused or contributed to the death of Mr Dover must be rejected. Ms Main supplied direct evidence to the contrary. In this regard, the submission was made on behalf of Wade Goldsworthy that Ms Main's evidence was "so contrary to the [CCTV] footage" that no weight should be attached to it,[59] but questions of weight are for the jury to determine. Furthermore, the observations I make below concerning Matthew Hill apply with equal force to Wade Goldsworthy.

[58] Matthew Hill participated in a record of interview with police, and it was led as part of the Crown case. In it, he disavowed any particular knowledge of, or involvement in, the altercation. The Crown relies on the record of interview principally because it is alleged to contain probative lies.

[59] That made clear, it was submitted on behalf of Matthew Hill that he had no case to answer because (1) there was no evidence that he unlawfully killed Mr Dover and (2) the Crown case "primarily rests upon the testimony of witnesses whose evidence has been found to be either unreliable and or discredited".[64]

[60] Dealing with the second of those points first, there has not yet been a finding that the evidence of any witness in this case is unreliable or unworthy of credit. Those are matters for the jury to consider and find, if appropriate. As to the first point, and as already stated in relation to the no case submission made on behalf of Wade Goldsworthy, Ms Main gave direct evidence of the involvement of a person (whom it is open to the jury to conclude was Matthew Hill) in the altercation prior to Mr Dover falling to the ground. Depending on the view the jury takes of that testimony when considered alongside the other evidence in the case, it is open to the jury on the whole of the evidence to be satisfied that Matthew Hill either struck Mr Dover when he was on his feet or aided another to do so. The species of aiding that the Crown alleges is engaged by that evidence is deliberate presence designed to aid the person striking the blow. It will be open to the jury to draw an inference to that effect based on the evidence given by Ms Main as to what she observed before Mr Dover fell to the boardwalk as well as what she observed concerning the continued involvement of the "dreadlocked" males after he fell.

[61] It was also submitted on behalf of Matthew Hill that the Crown was "not able to exclude the possibility that the fatal blow [occurred] prior to any physical involvement by Mr Hill" or "prior to any intention being formed by Mr Hill to aid, assist or encourage".[65] For the same reasons I expressed in connection with the no case submission made on behalf of Wade Goldsworthy, whether either hypothesis is reasonable and, if so, has been excluded are matters that are entirely for the jury to determine.

[63] Blake Goldsworthy does not have a case to answer on the indictment, and the jury will accordingly be directed to return a verdict of not guilty with respect to him.

[64] Wade Goldsworthy and Matthew Hill have a case to answer on the indictment.

[1] May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658.

[2] [1990] HCA 51; (1990) 171 CLR 207.

[7] [1981] 1 WLR 1039 at 1042

[8] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214.

[10] R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590 at 592.

[11] R v Hill [1988] 1 Qd R 654.

[12] Case Stated by DPP (No 2 of 1993) [1993] SASC 4152; (1993) 61 SASR 1 at 5 per King CJ.

[14] R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590 at 592.

[15] R v Summers [1990] 1 Qd R 92 at 98 per McPherson J.

[31] Respondent's Submissions at par 13.

[33] Ibid. See also the evidence of Sean Hancock to similar effect: T. 3-63.

[35] See Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 411 and 423. See also R v Sherrington & Kuchler [2001] QCA 105 at [4] per McPherson JA.

[36] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 425, 441; R v Sherrington & Kuchler [2001] QCA 105 at [4].

[37] [1999] QCA 305; [2000] 2 Qd R 529 at 535.

[38] [1997] QCA 460.

[39] R v Lowrie & Ross [1999] QCA 305; [2000] 2 Qd R 529 at 535. See also R v Sherrington & Kuchler [2001] QCA 105 [5]; R v Walton & Harman [2001] QCA 309 at [30] - [31] per Thomas JA and Jones J.

[41] [1999] QCA 305; [2000] 2 Qd R 529.

[43] Where there is an assault by more than one person on another that leads to death in circumstances not amounting to murder, it may be relatively straightforward to establish that each did acts that aided the other in substantially causing or contributing to the death but it will often be more difficult for the Crown to establish that, in so acting, it was the purpose of either one of them to enable the other or others to bring about that result. See R v Sherrington & Kuchler [1999] QCA 305; [2000] 2 Qd R 529 at [11] per McPherson JA.

[44] [1999] QCA 305; [2000] 2 Qd R 529.

[45] At [12] - [13]. See also R v Da Costa [2005] QCA 385 at [3] - [4] per McPherson JA and [31] per Douglas J (Keane JA agreeing with both judgments).

[46] See R v B and P [1998] QCA 45; [1999] 1 Qd R 296 at 297, 307 - 309 and 311.

[47] [1990] 1 Qd R 30.

[49] In this regard, the Crown submitted that, if the evidence of Ms Main about loss of consciousness as assisted by the expert opinion of Prof Ellis is accepted by the jury, that is the "irresistible conclusion".

[52] Respondent's submissions at par 17.

[55] [1990] 1 Qd R 30 at 37.

[57] Submissions on the behalf of Wade Goldsworthy at p 22.

[59] Submissions on behalf of Wade Goldsworthy at par 5.

[61] Counsel for Wade Goldsworthy and the Crown prosecutor submitted that the statement only went to credit whereas counsel for Matthew Hill submitted that it went to the truth of the facts stated pursuant to s 101 of the Evidence Act 1977 (Qld).

[62] See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 469 per Deane, Toohey and Gaudron JJ.

[64] Outline of Submissions on behalf of Matthew Hill at par 7.