Factual Background
8 There is no issue between the offenders Adam Samuel Jones, Adam Jones, Samuel Mark Jones and Lydia Jones and the Crown as to the relevant factual background. An Agreed Statement of Facts was tendered in the case involving Samuel Mark Jones. With one or two minor exceptions, it is common ground that it also contains the relevant factual background against which the offenders Adam Samuel Jones, Adam Jones and Lydia Jones are to be sentenced. In reciting the facts I have placed considerable reliance on what appears in that document particularly insofar as it reflects the evidence which was adduced during the course of the trial. Having said that, it is important to emphasise that there are gaps in the narrative of events that cannot, given the state of the evidence, be satisfactorily filled in. There are however some areas of factual dispute so far as the cases involving Samuel Jones and Elizabeth Jones are concerned. In due course, I shall identify those areas of dispute and the significance which they assume in the sentencing process.
9 In approaching the task of making the relevant findings of fact, I must proceed in accordance with well-established principles: see R v Isaacs (1997) 41 NSWLR 374; R v Olbrich (1999) 199 CLR 270; GAS v The Queen; SKJ v The Queen (2004) 217 CLR 198.
10 The offenders and their family, as well as the deceased and his family, are Romany gypsies. Although both families were originally from the United Kingdom, they have lived in this country for many years. They reside in caravan parks and lead itinerant lifestyles which see them move around fairly frequently. Although members of the two families were acquainted with each other, they did not know each other particularly well. However the families became closer when the offender Adam Jones married Ellen Smith. Arrangements for the wedding, which took place in November 2004, gave rise to tension between the families. Those tensions led the young couple, who were then aged 18, to elope. Nonetheless it would appear that those tensions had abated by the time the events which give rise to these proceedings occurred.
11 The fatal incident took place at Tuggerah Village caravan park at Kangy Angy on the Central Coast at which members of the Jones family and the Smith family were then residing. Adam Samuel Jones and his wife Lydia Jones were occupying site 55. Adam Jones and Ellen Smith occupied site 41 which was a short distance away. The deceased and Noah Henry Smith, also known as Noah Smith Snr, are Ellen Smith's uncles. They also resided at the caravan park, albeit on sites at the other end of the park, close to the amenities block. A number of other members of the Smith family also resided at the caravan park.
12 During the evening of 8 October 2005 Adam Samuel Jones, Adam Jones and Lydia Jones were socialising at the caravan park with members of the Smith family. At around about 11 pm an argument developed. On the face of it, the argument was trivial. It seems to have been precipitated by remarks made by Adam Samuel Jones to Ellen Smith's mother, Mary Isabella Smith. I am satisfied that it amounted to no more than friendly banter. Mary Smith certainly did not take offence at the remarks.
13 The deceased's reaction however was quite different. He, unlike Mary Smith, did not laugh it off. He became upset with Adam Samuel Jones and told him that he did not appreciate the fact that he was taking "the piss out of [Mary Smith]". It is not without significance that the deceased had been drinking heavily that day. Indeed he had spent much of the day at a nearby club with his brothers, John and Noah. The evidence indicated that the deceased was an experienced drinker and that he could, and did, consume significant quantities of alcohol on a very regular basis. A toxicology report, conducted at post-mortem, reveals that the deceased had a blood alcohol reading of 0.227. The evidence leads me to the conclusion that the deceased, fuelled by alcohol, was behaving in an aggressive manner during the course of this initial incident.
14 Nonetheless it was the actions of Adam Jones which escalated the tension. He produced a knife which he pointed at the deceased. He said to his father words to the effect of, "We can stab him Dad". The argument then became quite heated. The deceased tried on several occasions to physically attack Adam Jones. He also taunted him by saying that he was not enough of a man to be worth fighting. When the deceased was restrained from attacking Adam Jones, he then grabbed hold of Adam Samuel Jones' collar and said to him, words to the effect of, "Come on, I'll fight you. You think you're the big man, let's see what you can do." Louisa Smith, the deceased's mother, gave evidence that from her observation Adam Samuel Jones was clearly reluctant to engage in a fight.
15 Adam Jones was asked several times to put the knife away and eventually did so. The evidence suggests that the matter was resolved, at least temporarily, when the deceased and Adam Samuel Jones agreed that they would "sort things out in the morning".
16 Various members of the Smith family gave evidence that they anticipated that this meant that the two protagonists would meet, in accordance with Romany gypsy tradition, for the purpose of having a fist fight the following morning. Be that as it may, I am quite satisfied however that various members of both families had other intentions. In any event, the parties dispersed and returned to their respective caravans. The evidence as to what happened at the caravan park from that point until the onset of the fatal incident is, at best, sketchy.
17 Evidence elicited from mobile phone records reveal that a call was made at about 11.30 pm from the phone owned by Adam Samuel Jones to the phone owned by his parents Samuel Jones and Elizabeth Jones who were then residing at the Parklea caravan park. The only direct evidence as to what was said emerges from Michael Bennett, a friend of Samuel Jones, who said that Samuel Jones told him that he had been informed that there were "dramas" up at the caravan park. Whatever was said prompted the couple to travel immediately to Kangy Angy. Samuel Mark Jones was also residing at Parklea at the time and it can readily be inferred that contact was also made with him, probably through his wife. At 11.38 pm the phone owned by Samuel Jones and his wife was used to contact the phone owned by Lydia Jones. At 11.48 pm, the swipe card owned by Samuel Jones and Elizabeth Jones, was used to activate the boom gate at the Parklea caravan park. It is apparent from the phone records that they then left the Parklea area and made their way up the F3 freeway towards the Tuggerah Village Caravan park, where they arrived at approximately 12.30 am.
18 Although he travelled separately from his parents, Samuel Mark Jones also made his way up to Tuggerah arriving there at about the same time as his parents. The mobile phone records reveal that a number of other persons were contacted by Samuel Mark Jones as he travelled to the caravan park. The overwhelming inference from all the evidence, which was led in the case against him, is that he was responsible for recruiting those persons to attend the park for what was anticipated to be some kind of a fight. That inference is made even more irresistible when regard is had to the contents of two of those calls which Samuel Mark Jones made to a Michael Walker. Those calls had been lawfully intercepted by police in respect of an entirely separate investigation. During the course of the trial, I ruled that that evidence was not admissible in the case against the other offenders. Those calls were tendered, without objection, in the proceedings against Samuel Mark Jones.
19 Ellen Smith gave evidence that, prior to the arrival of those persons, she observed her husband, Adam Jones, collect a sword from their van and take it to his father's caravan. She said that she also observed Adam Samuel Jones collect various items, including a baseball bat, and place them on the ground outside his caravan.
20 At some later stage, Ellen Smith saw Samuel Jones and Samuel Mark Jones in the vicinity of Adam Samuel Jones' caravan. They were in the company of another male whom she did not know. According to Ellen Smith, Lydia Jones told her that "It will be a fair fight". She also said that when she asked Samuel Jones to ensure that "nothing bad happened", he had replied "I can't baby, it's out of my hands".
21 At approximately 1.20 am, the five offenders, other than Lydia Jones, together with at least three other persons who were not known to members of the Smith family, approached the male members of the Smith family from the vicinity of the amenities block. Those persons were armed with a variety of weapons which included hand axes, machetes, swords, knives and iron bars. The Crown case was that those persons participated in a joint criminal enterprise, the purpose of which was to attack the deceased intending thereby to kill him or to inflict grievous bodily harm upon him. The Crown case was that each of the offenders was a principal in the first degree in that each participated in the attack upon the deceased by striking him with a weapon or weapons. There was no challenge on behalf of any of the offenders to the evidence given at trial that Samuel Mark Jones and several other persons were also engaged in the fatal incident. Nor was there any challenge to that aspect of the case during the sentence proceedings.
22 The evidence given by the 11 members of the Smith family who claimed to have witnessed the fatal incident is that no member of their family was armed with a weapon. They gave evidence that the attack had been totally unexpected and unprovoked and that members of their family had been defenceless in the face of what was essentially an onslaught. That part of the evidence was subjected to sustained attack by counsel who appeared on behalf of the various offenders. It is readily apparent from the jury's verdicts that they rejected that aspect of the evidence given by members of the Smith family. I, too, have little hesitation in rejecting it. In doing so, I have had regard, inter alia, to a significant body of evidence from which it was clearly open to infer that in the period between the initial incident and the fatal incident, various male members of the Smith family, including the deceased, had gathered together a number of weapons in anticipation of a fight between the two families. The weapons which they had collected included a tomahawk, a machete, a meat cleaver, wooden sticks and socks which contained lead objects within them. Those items were located lying together at site 81, which is close to where the fatal incident occurred. It is reasonable to infer that they were secreted there by at least one member of the Smith family. Of particular significance is the fact that DNA consistent with that of each of the deceased, Noah Henry Smith and their father John Smith, respectively, was discovered upon some of those items. Even more importantly, Noah Smith's blood was located upon one of the weapons. Noah Smith was quite unable, despite persistent questioning, to explain how it may have found its way there. Because Noah Smith was injured during the course of the fight, the only reasonable available inference is that his blood fell onto the weapon either then or whilst the weapons were being carried to site 81. To that material, may be added the evidence of Noah Henry Nathan Smith (Noah Smith Jnr). He told police that his grandfather had been in possession of a pickaxe handle. Somewhat improbably, he sought to retract that observation whilst giving evidence.
23 As I have said, the evidence given by members of the Smith family, that the attack upon them was unexpected and unprovoked and that they were unarmed, simply cannot be reconciled with the evidence to which I have just referred. Moreover, the evidence that the eleven members of the Smith family, amongst whom were several women and children, were all standing around sometime after 1am in the morning for the purpose of socialising, defies belief. The evidence indicates that the women were inside one of the vans whilst the men were outside the van. I am satisfied that the men, at least, had all gathered together in anticipation that a fight was in prospect. John William Smith told police that "we were concerned that members of the Jones group would return and start trouble". He said that if they did so "then we would have to fight them as a group". Caroline Smith said that she had a "feeling" that something would happen. She also gave evidence that as the group of offenders approached, she heard someone yell out words to the effect of "they're here". There was, of course, no time in the period between the approach of the offenders and the beginning of the fight for the members of the Smith family to arm themselves. It is apparent, in those circumstances, that they had already armed themselves for the very reason that they anticipated that there would be some sort of fight involving the use of weapons.
24 Both Adam Samuel Jones and Adam Jones told police, in recorded interviews, that prior to the fatal incident they observed members of the Smith family gathering weapons together at their end of the park. They asserted that that group of persons, which included the deceased, had also taunted and threatened them.
25 The evidence disclosed that the deceased observed the offenders as they approached from the area of the amenities block. It seems that he was armed at the time with what appeared to be a pick axe handle. As I have already said, other male members of his family were also either armed or had ready access to weapons. The deceased immediately moved towards Adam Samuel Jones and grabbed him around the throat area. The deceased was then struck a number of blows which forced him to the ground. Whilst he lay on the ground on his stomach he was subjected to a further attack. The Crown case is that each of the offenders struck the deceased a number of blows during the course of the fatal incident. Whilst all this was happening, Samuel Mark Jones produced a pistol which he pointed at members of the Smith family. Even if it was only an imitation pistol, the production of it clearly changed the dynamics of what was presumably intended to have been a pitched battle involving the use of weapons. The introduction of the pistol effectively prevented the Smith family members from using their weapons during the course of the fight. This also partly explains why the offenders received only relatively minor injuries from their participation in the fight.
26 The female members of the Smith family, together with several of their children (whom as I have said were inside one of the caravans), heard the commotion and came out to see what was occurring. They each gave evidence as to what they had been able to observe.
27 The Crown case was that the offenders attacked Noah Smith when he attempted to render assistance to the deceased. It contended that there was a joint criminal enterprise, the purpose of which was to attack and wound Noah Smith with the intention of killing him. However the jury's verdicts are to be understood as indicating that it was only satisfied to the requisite standard that each of the offenders was a party to, and participated in, an attack upon Noah Smith in which the intention of each of them was merely to wound him.
28 A number of witnesses gave evidence that Adam Samuel Jones and Adam Jones each struck him with an axe or a blade. Adam Jones admitted, during a conversation on 20 October 2005 with Ellen Smith, which was covertly recorded by police, that he had stabbed Noah Smith. A knife that he owned, which had the blood of Noah Smith upon it, was subsequently located at the scene by police. Noah Smith gave evidence that Samuel Jones had struck him in the head with an iron bar. Samuel Jones declined to be interviewed by police. His version of events, which was elicited through the evidence of his friend Michael Bennett, with whom he spoke prior to his arrest, was that he in fact had been attacked by Noah Smith. Mr Bennett gave evidence that Samuel Jones told him that he had sustained an injury to his forearm during the course of that attack. There was a photograph in evidence which depicted that injury. So far as that aspect of the matter is concerned, Samuel Jones relied upon self-defence, an explanation which the jury plainly rejected. Nonetheless, I accept that Samuel Jones was struck forcefully with an implement during the course of the fatal incident.
29 Towards the end of the incident, Adam Jones struck Ellen Smith's 16 year old sister, Mary Rose on the shoulder with an object causing her a minor injury. His case was that she had first struck him in the hand. Although he did sustain an injury to his hand, the jury rejected the offender's claim that he had been acting in self-defence at the time of that incident.
30 The offenders and their accomplices then fled the scene. At approximately 1.25 am Louisa Smith, the deceased's mother, called the police emergency service line and requested the immediate attendance of police and ambulance officers at the scene. Police and ambulance officers arrived there at approximately 1.40 am. Unfortunately, despite the efforts of ambulance officers, nothing could be done to revive William Smith who had already died. Noah Smith, who was in a distressed state and was bleeding heavily, was treated at the scene. He was then taken to Gosford Hospital where he received further treatment from Dr Arora. He had sustained a deep 20 cm laceration, which ran from his neck and down his back, as well as lacerations to his scalp, face, hands and groin. He had also suffered a blunt force trauma to his forehead. In Dr Arora's opinion, the wound to his back would have been occasioned by a weapon with a blade measuring at least 20 cm.
31 Dr Lee, a forensic pathologist, conducted the post-mortem upon the deceased. His examination revealed that the deceased had sustained 18 sharp force injuries to his head, face, torso, arms, hands and legs. Dr Lee described those injuries as being stabbing, chopping and slash type wounds. The fatal injury was caused by a single blow which penetrated the deceased's left lung. The Crown was unable however to attribute the infliction of the fatal wound to any particular offender. It was Dr Lee's opinion that that injury was most likely to have been caused by a carving type knife. The deceased's injuries were caused, in his opinion, by a variety of weapons. Some of the injuries were consistent with the use of weapons such as a machete or an axe or something of a similar kind, whilst others were consistent with having been inflicted with a smaller knife.
32 Dr Lee gave evidence that, in all likelihood, many of the blows would have been inflicted whilst the deceased was lying still on the ground. It was Dr Lee's opinion that the deceased was likely to have survived for only a couple of minutes after the attack. Dr Lee said that the deceased had also sustained a number of blunt force injuries. The effect of his evidence was that the injuries sustained by the deceased were consistent with an attack upon him lasting only a short period of time but during which multiple weapons were used, each with a considerable degree of force. The deceased's blood was located upon a machete, which police discovered in a creek bed behind the caravan site occupied by Adam Samuel Jones.
33 Ellen Smith did not observe the fatal incident because she had remained in the caravan which she occupied with her husband. Her attention was nonetheless attracted when she heard screaming. She came out of her caravan and saw her husband, Adam Jones and his father running towards her and away from the crime scene. Her husband was carrying a Samurai sword which was normally kept in their caravan. It had blood upon the blade. She saw that Adam Samuel Jones was covered in blood and that he was carrying a machete. She observed them go into the caravan occupied by Adam Samuel Jones. She noticed that he was bleeding from a minor injury to his head, whilst her husband had a minor injury to his hand. She heard her husband say to his father words to the effect of "he was hard to take down".
34 Ellen Smith then heard her sisters, Mary Rose and Louise, arrive outside the van occupied by Adam Samuel Jones. They were yelling out words to the effect of "he's dead, he's dead". Lydia Jones, who was inside the caravan at the time, responded by saying, "Well, if he's dead, he's dead". Ellen Smith then saw Adam Samuel Jones produce a gun with which he threatened her two sisters. As a result, they left the area. Police subsequently discovered that firearm beside the bed in that caravan. Another rifle, together with ammunition, was also found in the caravan. It was the discovery of those weapons which gave rise to the Form 1 matters to which I referred earlier. There was evidence that the sound of gunshots were heard coming from that area of the park at some stage during, or shortly after, the incident. The evidence upon this issue however, is inconclusive, and I have had no regard to it for sentencing purposes.
35 Ellen Smith observed Lydia Jones use a towel to remove the blood from the machete and the sword which she had seen earlier in the possession of her husband and his father. Ellen Smith then saw Lydia Jones remove those items and place them outside the caravan. The items were subsequently located in that position by police. It was this conduct that formed the basis for her conviction as an accessory after the fact to manslaughter, it being common ground that she was not at the scene of the fatal incident. No DNA or fingerprints were discovered upon the items which Lydia Jones had wiped down. However the deceased's blood was located upon various items in the caravan which she shared with her husband.
36 Before the police arrived, Ellen Smith saw Adam Samuel Jones and Adam Jones run from the scene. Immediately after the incident, Samuel Jones and Elizabeth Jones went to a nearly service station at which they waited for a short time. Family members made contact with each other by mobile phone presumably in order to arrange the return trip to Sydney. In due course, Adam Samuel Jones and Adam Jones met up with Samuel Jones and Elizabeth Jones who then drove them back to Parklea. They arrived there at about 4 am. Lydia Jones, who remained at the caravan with her two children, maintained contact with her husband and his parents during this period of time. Mobile phone records demonstrate that Samuel Mark Jones went to Terrigal where it appears that he stopped using his mobile phone after making a final call to his wife at 4 am.
37 At about 7 am that morning, Adam Samuel Jones handed himself into police at Blacktown. He told them that he thought that he may have killed someone. He gave police a version of events in which he suggested that he had been set upon by the deceased and members of his family and that he had struck the deceased in self-defence. He also admitted to having struck Noah Smith. He maintained that no other member of his family had been involved in the altercation with the Smith family.
38 The following day, Elizabeth Jones was spoken to by police. In a recorded interview, she told them that she had not been at the Tuggerah Village caravan park on the night in question. She was subsequently arrested on 15 October. Lydia Jones, who declined to speak to police, was arrested on 9 December 2005.
39 Samuel Jones and Adam Jones fled to Queensland where they were arrested on 26 October. They were driven there from the Newcastle area by Michael Bennett. Samuel Mark Jones who was with them at the time of their arrest managed, as I have said, to elude police.
40 Adam Jones admitted to police that he had struck both the deceased and Noah Smith. He also raised the issue of self-defence both in a recorded interview with police and in the intercepted conversation with his wife to which I referred earlier. He told police, amongst other things, that he had gone to the assistance of his father whilst he was being attacked by members of the Smith family. He also said that his grandfather had been hit in the arm with a weapon by Noah Smith and that his grandfather had, in turn, struck Noah Smith.
41 The cases advanced at trial on behalf of each of the offenders were somewhat different. As I have said, Adam Samuel Jones and Adam Jones each pleaded guilty to manslaughter. By their pleas, they each admitted that not only were they present at the fatal incident, but that they had participated in the events which culminated in the death of William Smith. They each maintained however that they had acted in self-defence. Nevertheless they acknowledged that their actions in doing so were not only unreasonable, but that they were excessive in all the circumstances. They also contended that they had been acting under provocation. They also each accepted responsibility for having inflicted injuries upon Noah Smith. For that reason they each pleaded guilty to malicious wounding although they put in issue the Crown case that their intention had been to either kill him or to inflict grievous bodily harm upon him. As I have said, the jury resolved that issue in their favour.
42 The case advanced on behalf of Samuel Jones was that although he was present at the scene whilst the fatal incident was occurring, he was not involved in any way whatsoever in the attack upon the deceased. His case, as I have said, was that his participation was limited to an altercation with Noah Smith whom, he contended, had assaulted him.
43 The case advanced on behalf of the offender Elizabeth Jones, which emerges from her record of interview, was that she was not present at the scene of the fatal incident. As she had not at any stage left Parklea, it was her case that she bore no responsibility for what had occurred to either the deceased or to Noah Smith.
44 It is against that background that the question of the basis upon which the offenders are to be sentenced for the crime of manslaughter, is to be determined. It was accepted on behalf of Adam Samuel Jones and Adam Jones that they stood to be sentenced upon the basis that following the initial incident, and after having observed various members of the Smith family gathering weapons, they feared that the deceased and other members of his family were arming themselves for the purpose of attacking them and other members of their family. In that context, it is to be observed that the deceased was a huge man weighing in the vicinity of 140-150 kilograms. Adam Samuel Jones told police that he was aware of the deceased's reputation, when intoxicated, for getting into fights. Furthermore, at least at the outset of proceedings, the Smith family clearly had greater numerical strength.
45 The case advanced on behalf of Adam Samuel Jones and Adam Jones was that it was in those circumstances that they had acquired weapons and had gone to the amenities block in anticipation of a fight. In fact, it is common ground that they went there with a view to engaging in, what the Crown aptly described as a "pre-emptive strike" upon the deceased and other male members of his family. Notwithstanding the fact that the deceased took the first step towards Adam Samuel Jones as the other group approached, there is, as the Crown correctly observed, no evidence that members of the Smith family actually intended to launch an attack upon the Jones family that evening. As I have said, each of those offenders accepted that their actions, albeit that they were committed in self-defence or in defence of another or others, were excessive.
46 Each of those offenders also relied upon the fact that the actions of the deceased, both during the course of the initial incident and subsequently, including the gathering of weapons as well as the taunts and threats made to them by members of the Smith family, constituted conduct which induced them to lose their self-control. Accordingly each contended that he had been acting under provocation. The matter has proceeded upon the basis that there is a significant degree of overlap between the issues of excessive self-defence and provocation in this case.
47 It was faintly suggested, at one stage in written submissions, that the verdict in respect of Adam Samuel Jones might be explicable on the basis that his actions constituted an unlawful and dangerous act or acts. As I understand the situation, that submission was not ultimately pressed and accordingly I do not need to deal with it.
48 The position so far as Samuel Mark Jones is concerned is that his plea of manslaughter was proffered and accepted by the Crown upon exactly the same basis, namely that his conduct amounted to an act or acts done in excessive self-defence and under provocation.
49 The Crown submitted that Samuel Jones and Elizabeth Jones should be sentenced upon a similar basis. Although they did not personally witness the earlier incident, it is common ground that they learnt of it and, prompted by a natural concern for their family, attended the scene in order to render some measure of support to them.
50 It was submitted by Mr Stewart, who appeared on behalf of the offender, Samuel Jones, that his client should be sentenced upon the basis that he was part of a joint criminal enterprise, the purpose of which was merely to assault the deceased. The submission was further refined to a contention that the offender was part of a "common purpose to assault [the deceased] in a fist fight in which he would be present and in support". In short, it was submitted that his culpability should be characterised as manslaughter by an unlawful and dangerous act. It was made quite explicit in submissions that such a conclusion would have the necessary consequence that this offender's criminality should be assessed as being less serious than it would be were he to be sentenced upon the basis for which the Crown contended. It is clear however from what the Court said in Isaacs (supra) (at 381) that such an assumption is unwarranted. As the Court there made clear, each case turns upon its own particular facts.
51 Whilst it is true that manslaughter by an unlawful and dangerous act was left to the jury as a possible basis upon which a verdict of manslaughter could be returned, I reject the submission that it is the appropriate basis upon which this offender should be sentenced.
52 In considering this issue, I remind myself that it is critical to keep firmly in mind the way in which the case was conducted before the jury. The Crown case, as I have said, was that each of the offenders was engaged in a joint criminal enterprise to attack the deceased with the intention of either killing him or inflicting grievous bodily harm upon him. As I have also said, the case put on behalf of Samuel Jones was that his participation was limited to an altercation with Noah Smith, whom he contended, had assaulted him. His case was that he acted in self-defence in response to that assault. As I have also said, clearly enough the jury rejected the case advanced on behalf of the offender. That was hardly surprising given the evidence adduced in the Crown case from no fewer than nine members of the Smith family who placed Samuel Jones at the scene and said that he was directly involved in the attack upon William Smith. Indeed of the eleven Smith family members who gave evidence of having observed the fatal incident, only Louisa Smith and Caroline Smith did not give evidence of seeing him there that evening.
53 It is true that a number of legitimate criticisms can be made about the evidence given by members of the Smith family. The evidence given by each of them to the effect that no member of their family had been in possession of a weapon that night, was patently false. The same observation can be made of the suggestion made by them that no member of their family had done anything at all, let alone anything provocative, to cause the Jones family to confront them at the amenities block. In the same vein, there were a number of instances of witnesses exaggerating the nature and extent of the involvement of the Jones family in the events leading up to the fatal incident and corresponding attempts by them to minimise the role played in them by members of their own family.
54 Furthermore, evidence given by some members of the Smith family, in which they sought to explain prior inconsistent statements made either to police or in court, was often quite implausible. On other occasions, it emerged that, some of the witnesses at least, whether deliberately or not, had "got their heads together" in respect of some parts of their evidence. Finally, there was evidence before the court that several of the witnesses from the Smith family had convictions for offences of dishonesty, a matter which may well have affected their overall credibility. There was also evidence that several members of the Smith family had, on a prior occasion, acted in concert in a quite violent fashion in circumstances which bore some similarity to the present incident.
55 The circumstances themselves in which the fatal incident occurred, rendered some of the observations made by members of the Smith family, somewhat unreliable. That was hardly surprising given that the scene was described as being hectic, chaotic and confusing. The incident itself was over very quickly. It took place at night in an area which was poorly lit. It occurred within a very confined space which was occupied by a number of persons who were brandishing a variety of weapons. In those circumstances, the eyewitnesses were entitled to be fearful for their own safety.
56 So far as the evidence of the nine witnesses who observed Samuel Jones involved in the attack upon the deceased is concerned, there are certain matters which also need to be highlighted. Three of them, Louise Smith, John Smith and Joseph Smith were unable to identify what, if anything, the offender had in his hands. Louise Smith gave evidence that she did however see the offender strike the deceased whilst he was on the ground. Four witnesses, Mary Rose Smith, John Mark Henry Smith, Noah Smith Snr and Noah Smith Jnr said that they saw him with knuckle-dusters. Mary Rose gave evidence that he also had an axe, as did Mary Isabella. Mary Rose also gave evidence that he was using "chopping motions" whilst striking the deceased. Both John Smith and John Mark Henry Smith gave evidence to similar effect. Noah Smith Jnr said that he also had a normal knife whereas Noah Smith Snr said that he also had an iron bar. John William Smith said that he observed him with a "shiny-object".
57 Notwithstanding those apparent discrepancies, the thrust of the evidence given by each of the nine eyewitnesses to whom I have referred, was to provide a broadly consistent account of this offender's involvement in the offences. Each of the witnesses rejected the suggestion, put on behalf of the offender, that he had not been involved in the attack upon the deceased. Nor did their evidence provide the offender with any real evidentiary basis for the proposition that his participation was confined to an altercation in the area near the amenities block.
58 But that was not the only evidence in the Crown case. Ellen Smith gave evidence that she had observed the offender at the caravan park at a point in time, which was approximately 45 minutes prior to the fatal incident. He was then in the vicinity of Adam Samuel Jones' caravan, close to which various weapons had been assembled. Ellen Smith gave evidence, which was not disputed, that she asked him to ensure that the fight would be fair. As I have said, he replied that he could not give that guarantee as the matter was "out of his hands". That evidence fastened this offender with at least some awareness that a fight was to occur. True it is that Ellen Smith did not see him with a weapon and it may be that the offender contemplated, at that stage, that there would be nothing more than a fist fight. Be that as it may, it is quite unrealistic however to contend, as counsel did, that the offender's state of awareness did not subsequently change. It must have become obvious to him at some stage that members of the Smith family, as well as members of his own family, had weapons and that they were going to use them in the fight.
59 Of very considerable importance is Dr Lee's evidence concerning the nature and extent of the wounds sustained by the deceased. It not only provides strong support for the general tenor of the evidence given by members of the Smith family, which I accept, but it also strengthens the inference, which in my view is compelling, that the blows inflicted upon the deceased were struck with either an intention to kill or to inflict grievous bodily harm.
60 Finally, it is to be observed that the offender chose not to give evidence either at trial or during the sentence proceedings to contradict the direct evidence of his involvement in those offences. Nor for that matter did any of the other offenders.
61 For all those reasons, I reject the submission that the liability of the offender Samuel Jones for manslaughter should be found to have arisen from an unlawful and dangerous act or acts. Nevertheless, I am disposed to accept the submission that the offender's motive in attending the fight was one borne out of a desire to ensure the safety of his family rather than to personally engage in the hostilities and that his decision to involve himself in the fight only arose late in the piece.
62 Having said that I accept, for what it is worth, that the offender was not responsible for the serious injuries which were inflicted to Noah Smith's back. I see no reason however not to accept Noah Smith's evidence that the offender struck him in the forehead with an iron bar. On the other hand, as I have said, I am disposed to accept that the offender himself suffered the injury to his forearm at about the same time and that it is more than likely that Noah Smith was responsible for causing it.
63 The submission which was advanced in written submissions on behalf of the offender Elizabeth Jones, albeit that it was subsequently somewhat refined, is that I should find that although she was present as part of the joint criminal enterprise she was neither armed, nor physically involved, in the attack upon the deceased. For a number of reasons I would reject that submission. First, mere presence at the scene of a crime is not a sufficient basis for attaching liability to a person for a criminal offence. Secondly, even if the liability was expressed in terms that this offender acted in such a fashion as to have aided and abetted some or all of the other offenders, such a finding would be wholly inconsistent with the way in which the issues were litigated at the trial. The Crown's case, as I have said, was that she was not only present but that she was an active participant, as a principal in the first degree, in the unlawful killing of the deceased. Her case at trial of course was that she was not even present at the fatal scene.
64 Even more importantly, there is more than a sufficient evidentiary basis to support the Crown contention as to the nature and extent of her participation. Seven of the eleven witnesses from the Smith family gave evidence that they observed the offender Elizabeth Jones at the scene of the fatal incident. Four of those witnesses, Louise Smith, Mary Rose Smith, John Mark Henry Smith and his father, John William Smith, all gave evidence that they saw the offender participating in the attack upon the deceased with a weapon. Louise Smith gave evidence that she saw the offender crouching down stabbing the deceased as he lay on the ground. She said that although she did not know what kind of weapon she had with her, she saw that she was stabbing to the side of his stomach and to his back. Mary Rose Smith described the offender as having a knife in her hand, crouching down and stabbing the deceased to the top half of his body as he lay on the ground on his stomach. John Mark Henry Smith gave evidence that he saw the offender with a kitchen knife. He said that she used that knife to stab into the deceased as he lay on the ground. He said that she appeared to be stabbing into his stomach area. His father said that he saw the offender with a knife during the course of the incident and gave evidence that she used it during the attack upon the deceased.
65 Of the other three witnesses who gave evidence of seeing the offender at the scene, Noah Smith Jnr said that he saw the offender, along with other members of the Smith family, gathered around the deceased as he was lying on the ground. He did not see a weapon in her hand. Nor did he see anyone actually striking the deceased whilst he was on the ground. He did say however that he was terrified because the gun was being pointed at him at that time. Caroline Smith observed the offender crouching down beside the deceased as he was lying on the ground on his stomach. Although she was unable to see any weapon in the offender's hands, she did see that she was moving her arms backwards and forwards towards the deceased. As this was happening, she said that she could hear slopping noises coming from the deceased's body. Mary Isabella Smith described seeing the offender crouching down beside the deceased stabbing into the middle of his back. She had earlier indicated that she believed that she had had an axe but said that, at the time of the stabbing, she believed that she was in possession of a different weapon.
66 Moreover, Ellen Smith gave evidence that following the incident, she went to stay at Parklea Caravan Park. Whilst she was there she said that she had several conversations with Elizabeth Jones. Ellen Smith gave evidence that she (the offender) had told her that she had put a "big iron pole [which she had on her]" into the dustbin because it had her fingerprints on it. On a subsequent occasion, the offender expressed her concern to Ellen Smith that her fingerprints might be discovered by police. When Ellen Smith asked her why she was concerned, she said that the offender had replied "Because I was there, because I was there". The Crown relied upon this evidence to establish that, at the very least, the offender was present at the time of the fatal incident and that she was armed at the time. Although it was at one stage conceded on behalf of the offender that she may have had possession of the iron bar, I am not satisfied to the requisite standard that this offender used such a weapon during the course of the incident.
67 It is perfectly true, as Mr Whitehead who appeared on behalf of the offender pointed out, that none of the remaining four members of the Smith family gave evidence of even having seen the offender on the night of the incident. He also pointed out that Caroline Smith had not seen Elizabeth Jones' face but had recognised her by her hair whilst neither John William Smith nor John Mark Henry Smith had originally told police that she was involved. The jury obviously concluded that those matters were not of sufficient weight to raise a reasonable doubt about the participation of the offender in the fatal incident. Finally, it is to be observed that the offender, as was her entitlement, elected not to give evidence. The body of evidence to which I have referred thus remained entirely uncontradicted. Her case depended, as I have said upon her record of interview. It is hardly surprising, given some of the patently false things that she said during the course of that interview, that the jury rejected it as being a truthful version of events.
68 Notwithstanding the deficiencies which were asserted concerning the evidence given by members of the Smith family, it is nonetheless clear that there is a considerable measure of consistency in the versions given by them as to the role performed by the offender, Elizabeth Jones, in this offence.
69 Given the challenging circumstances in which the witnesses made their observations, I am inclined to the view that the failure of the four witnesses to nominate the offender does not significantly undermine the rest of the evidence given in the Crown case, particularly in light of the evidence of Dr Lee to which I have already referred. Accordingly, I see no rational basis upon which I should reject the direct evidence of those witnesses. Moreover, the fact that there may have been imperfections in the Crown case against the offender, does not provide any real assistance in resolving the issue as to the basis upon which her liability for the offence of manslaughter is to be assessed.
70 Accordingly, I shall proceed to sentence the five offenders in question upon the basis that each is a principal in the first degree to the manslaughter of the deceased and that the basis upon which their liability is to be assessed is that each was acting, at the relevant time, in excessive self-defence or defence of another or others and also under provocation.
71 Having said all that, I am unable to conclude that this offender's culpability is of the same magnitude as her co-offenders. Although I am satisfied that she arrived at the caravan park at about 12.30 am, the evidence is completely silent as to what she was doing between then and when she joined in the attack upon the deceased. I am certainly not prepared to conclude that she arrived at the amenities area with any hostile intent. I am prepared to sentence her upon the basis that her participation was a spontaneous response to a situation in which she perceived that members of her family were under threat of imminent violence. In other words, the evidence does not support a conclusion that her actions revealed the same degree of planning as her co-offenders.