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[2026] QSC 12
General information, not legal advice.
Supreme Court of Queensland
2026-02-04
Johnstone J
Original judgment source is linked above.
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - where the principal offender was convicted of murder at a separate trial-- where the accused is charged with being an accessory after the fact to murder - where at the close of the Crown case a no case submission was made on behalf of the accused - whether it was open on the evidence for the jury to find that the accused had knowledge of the principal offence - whether it was open on the evidence for the jury to find that the accused assisted the principal offender to conceal her location - whether lies told by the accused proved knowledge of the principal offence - whether lies told infer consciousness of guilt
Case Stated by DPP (No 2 of 1993) [1993] SASC 4152; (1993) 61 SASR 1
Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
Dymock v Western Australia [2019] WASCA 213
May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
R v Box & Martin [2001] QCA 272
R v Carter; Ex parte Attorney-General (Qld) [1990] 2 Qd R 371
R v Dalton [2020] QCA 13; (2020) 3 QR 273
R v English (1993) 10 WAR 355
R v Galbraith [1981] 1 WLR 103
R v Goldsworthy, Goldsworthy & Hill [2016] QSC 2020
R v Hill [1988] 1 Qd R 654
R v Kirby [1998] 2 Qd R 57
R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267.
R v SCL [2016] QCA 107; [2017] 2 Qd R 401
R v Smart [2023] QCA 222
R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590
R v WBS [2022] QCA 180
R v Wildy (2011) 111 SASR 189
Winning v The Queen [2003] WASCA 245
[1] On 21 May 2021 Chante Lee White murdered Kayla Lee Golding. Ms White was convicted of murder on 24 July 2025 following a trial. The defendant, Mr McAuliffe is charged as being an accessory after the fact to the murder.
[2] Ms White murdered Ms Golding by inflicting a cutting wound with a knife to the left side of Ms Golding's neck. The wound Ms White inflicted was 86 millimetres long and in excess of 30 millimetres deep. The wound perforated the skin and the subcuticular tissues, and both perforated and transfected the left carotid artery and incised the left jugular vein. Despite this wound, Ms Golding made her way down stairs from the third floor of an apartment complex to the driveway from where, she was transported to the Townsville University Hospital via ambulance. She was declared dead at 9:30 pm on 21 May 2021.
[3] The wound was inflicted inside the main bedroom of Unit 12 in an apartment complex located at 771 Riverway Drive shortly before 7:16 pm on 21 May 2021. Ericka Gail McConnell, was in the apartment at the time the wound was inflicted and was in the bedroom with Ms White and Ms Golding. She saw Ms White inflict the knife wound on Ms Golding. Also present in the apartment at the time the wound was inflicted was Ms White's daughter who was 6 years of age, and Ms McConnell's daughter who was 4 years of age. They were in the second bedroom.
[4] The uncontroverted evidence of Ms McConnell[1] is that she and her daughter, together with Ms White and her daughter left the apartment block after Ms Golding was wounded in Mr McAuliffe's car. The car was parked under the apartment block. They left prior to emergency services attending at the address.
[5] On 23 May 2021 Ms White was arrested and charged with murder. In locating Ms White, police relied on information given to them by Mr McAuliffe.[2] Also on 23 May 2021, but prior to Ms White's arrest, Mr McAuliffe was arrested and charged with being an accessory after the fact to murder.
[6] The trial of Mr McAuliffe commenced on 27 January 2026, the Crown closed its case on 2 February 2026. Following the closing of the Crown's case, counsel for Mr McAuliffe submitted that Mr McAuliffe had no case to answer on the indictment, or the natural alternative being accessory after the fact to manslaughter.
[7] On 3 February 2026 I ruled that Mr McAuliffe had no case to answer on the charge on the indictment or the natural alternative being accessory after the fact to manslaughter.
[8] I therefore directed the jury to return verdicts of not guilty in respect of the charge and the alternative, which it did. I then discharged Mr McAuliffe.
[9] These are my reasons for determining that Mr McAuliffe has no case to answer on the indictment.
[10] Mr McAuliffe is charged in the following terms:
"That on the twenty-first day of May, 2021 at Townsville in the State of Queensland, one CHANTE LEE WHITE murdered one KAYLA LEE GOLDING and that JAMIE ALAN McAULIFFE between the twenty-first day of May, 2021 and the twenty-third day of May, 2021 at Townsville knowing the said CHANTE LEE WHITE had committed the said crime assisted her in order to enable her to escape punishment."
[11] The Crown particularised the charge in this way:
[12] At the close of the Crown case, the Crown tendered a document entitled "Admissions" which was admitted into evidence as exhibit 114. As part of those admissions, it is admitted by Mr McAuliffe that Kayla Lee Golding is dead and that she was murdered by Chante Lee White. Inherent in that admission is that Ms White has the requisite state of mind. Accordingly, particulars 1 - 4 are taken to be proved and I would have instructed the jury of that.
[13] Particulars 5 and 6 would have remain in issue and the Crown is required to prove each of them beyond reasonable doubt before the jury can be satisfied that Mr McAuliffe is guilty.
[14] Therefore, the elements of the principal offence which remain for the Crown to prove (that is, before proving the provision of assistance) are:
(a) that Mr McAuliffe knew that Ms Golding was dead; and
(b) that Mr McAuliffe knew that Ms White caused Ms Golding's death intending to kill her, or to cause grievous bodily harm.
[15] In R v Goldsworthy, Goldsworthy & Hill [2016] QSC 2020, Burns J made the following observation:
"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" 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."
[16] In making that observation his Honour referred to May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658.
[17] The High Court in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214 said:
"It follows that if 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."
[18] Having referred to Doney, Burns J said (omitting references):
"[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. 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.
[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". As to questions concerning the reliability of particular evidence, the Court accepted as correct the following proposition taken from R v Galbraith:
"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." [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 .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. Just as the determination of the facts is a matter for the jury, so too is the drawing of inferences based on those facts. 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". 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. 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". 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 reasonable possibility be excluded."
[19] I accept Burns J's analysis as correct and observe that in making the above observations, Burns J also referred to R v Galbraith [1981] 1 WLR 1039; R v Stewart; ex part Attorney-General [1989] 1 Qd R 590, R v Hill [1988] 1 Qd R 654 and Case Stated by DPP (No 2 of 1993) [1993] SASC 4152; (1993) 61 SASR 1, R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590 and R v Summers [1990] 1 Qd R at 92.
[20] Of particular relevance in the present case is the decision of King CJ in Case Stated by DPP. There, King CJ said (at 5):
"I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence." [references omitted]
[21] The accused was charged under section 307 of the Criminal Code as an accessory after the fact to murder. Section 10 provides: "A person who receives or assists another who is, to the person's knowledge, guilty of an offence, in order to enable the person to escape punishment, is said to become an accessory after the fact to the offence."
[22] In my opening remarks to the jury, with the consent of counsel, I provided the jury with a document entitled "Initial Written Directions to the Jury" which was marked as MFI A. It contained the following explanation of the elements of this offence for the purposes of this trial:
"Before Mr McAuliffe can be found guilty, the prosecution must prove each of the following elements of that offence beyond reasonable doubt:
1. That the principal Chante Lee WHITE murdered KAYLA LEE GOLDING; and
2. That after the murder was committed, the defendant Jamie Alan MCAULIFFE assisted Chante Lee WHITE; and
3. That when the defendant Jamie Alan MCAULIFFE assisted Chante Lee WHITE he knew or believed that Chante Lee WHITE, the principal offender had murdered KAYLA LEE GOLDING; and
4. That the Defendant, Jamie Alan MCAULIFFE, performed the act of assistance with the purpose of enabling Chante Lee WHITE to escape punishment.
[23] Carter J in R v Carter; Ex parte Attorney-General (Qld) [1990] 2 Qd R 371 (at 378) referred to the phrase "guilty of an offence" in section 10 and said that it:
"...cannot mean "has been "convicted of an offence" because the knowledge of the accused in the definition of the offence of being an accessory must necessarily ante-date the conviction of the principal offender. In my view the phrase should be construed to mean "has done the acts necessary to constitute an offence". It is beyond doubt that at the trial of the accessary it is incumbent upon the Crown to establish that the principal offender did the acts necessary to constitute an offence and that with that knowledge the alleged accessory either received or assisted the principal offender in order to enable him to escape punishment."
[24] The decision in Carter is not without controversy: R v Kirby [1998] 2 Qd R 57; R v Dalton [2020] QCA 13; (2020) 3 QR 273; but not in relation to the remarks set out above.
[25] Commenting on these remarks, Buss P and Mazza J in the Court of Appeal of Western Australia in Dymock v Western Australia [2019] WASCA 213 (at 81) said "we do not understand his Honour to have decided that the other person referred to in s 10 of the Queensland Code will be guilty of an offence of murder, for the purposes of s 10, even though the victim has not died when the alleged accessory after the fact receives or assists the other person."
[26] It is also well-established that a person may be charged as an accessory to a lesser offence despite the conviction of the principal offender of a more serious offence: Carter (at 57, 66), Winning v The Queen [2003] WASCA 245 (at 127, 244).
[27] As a consequence, the trial proceeded on the basis that because manslaughter remains a natural alternative to murder which must be left to the jury irrespective of whether it is an alternative count on the indictment, should the jury find Mr McAuliffe not guilty of the charge, it will then be required to return a verdict on the alternative charge of accessory after the fact to manslaughter.
[28] This was explained by me in my opening remarks to the jury and the elements of murder and manslaughter, as set out in the Benchbook directions in tabular form, were also reproduced in MFI A.
[29] In Dymock, the Court of Appeal was also concerned with the offence of accessory after the fact to murder, and in particular, the question of the accused's knowledge that the offence (of murder) has been committed.
[30] In their joint judgment, Buss P and Mazza JA said:
"[82] We turn to consider the meaning of the word 'knowing' in s 10(1) of the Code. Neither the word 'knowing' nor any cognate forms of the word are defined in the Code.
[83] In Winning, Roberts-Smith J expressed the view that an accused will 'know' that another person has committed the offence of murder if the accused has 'actual knowledge or belief' that the other person has unlawfully killed the victim with the requisite intention for murder [244]. His Honour said:
It is apparent from the terms of s 10(1) itself, that knowledge is integral to the offence it creates. The word 'knowing' requires actual knowledge or belief that the principal offender has committed an offence (R v English (1993) 10 WAR 355 at 362). Thus, even though the principal offender may have committed the offence of wilful murder, if on the state of the accused's knowledge or belief of the facts the offence committed would have been murder or manslaughter, then that person could be guilty as an accessory only to an offence of murder or manslaughter [244].
[85] The word 'knowing', in the context of the accused 'knowing that another person has committed an offence' within s 10(1), is concerned with the accused's state of mind. The word connotes that the accused is aware that the other person has done the acts or made the omissions constituting the offence. The necessary awareness is an actual belief that the other person has done the relevant acts or made the relevant omissions. An accused will 'know' that the other person has committed an offence, for the purposes of s 10(1), if the accused's actual belief is founded on his or her personal observation or other sensory perception of the other person's relevant acts or omissions. Similarly, an accused will 'know' that the other person has committed an offence, for the purposes of s 10(1), if the accused's actual belief is founded on information he or she has received that the other person has done the relevant acts or made the relevant omissions. The instances we have given as to the circumstances in which an accused will 'know' that the other person has committed an offence, for the purposes of s 10(1), are not exhaustive."
[31] Mitchell JA agreed that proof of actual knowledge but cautioned embracing completely the view of Roberts-Smith J. His Honour said (at 123):
"I agree with Roberts-Smith J that the term 'knowing' in s 10 of the Criminal Code encompasses belief. However, a person who mistakenly believes that an event has occurred will not 'know' that the event has occurred as a matter of ordinary language. In my view, a person who believes that another has committed an offence cannot be said to 'know' that the other person has committed an offence, within the meaning of s 10, unless the other person has actually committed the offence. The State was required to establish that the appellant knew that his co-offenders had committed an offence. He will only have known that they had committed an offence if they had actually done so and the appellant was aware of the essential circumstances constituting the offending."
[32] I agree with the distinction drawn by Mitchell JA.
[33] Here the Crown does not assert that Mr McAuliffe believed at any point in time that Ms Golding was dead. Rather, it submits that on the basis of the evidence it has led, the only reasonable inference available is that Mr McAuliffe knew that Ms Golding was dead. This knowledge is said to have been acquired from a series of circumstances occurring on 21 May 2021 and Mr McAuliffe's conduct on 22 and 23 May 2021
[34] In its submissions, the Crown has identified ten particular allegations which it submits would enable the jury, acting rationally, to infer that the defendant had knowledge of Ms White's unlawful killing. The Crown does not, in its submissions, differentiate between evidence it submits could enable the jury to conclude that Mr McAuliffe knew Ms Golding had died, and knowledge of Ms White's state of mind. Accordingly, I will address these issues as to knowledge in the same manner.
[35] Having regard to the principles I have outlined above, the question to be determined on this application is whether, accepting all the evidence for the prosecution and drawing all inferences most favourable to the prosecution which are reasonably open to be drawn, could the jury acting reasonably and rationally be satisfied of Mr McAuliffe's guilt beyond reasonable doubt, because the Crown has been able to exclude all reasonable alternative hypotheses consistent with innocence.
The Crown's case as to knowledge of death and intention
[36] In its written submissions, the Crown accepted that "there is no evidence of a conversation between the defendant and the principal, where White admitted to the defendant [that] she had unlawfully killed Kayla Golding"[3]. To this admission must be added the direct and uncontradicted evidence[4] given by Erica McConnell, being the witness who observed Ms White inflict the wound on Ms Golding, that at the time that occurred, the defendant was not in the apartment. Further, the only direct evidence of when Mr McAuliffe learned that Ms Golding had died was given by him in a voluntary interview with police conducted on the afternoon of 23 May 2021 at Townsville Police Station in which Mr McAuliffe said[5] that he read that Ms Golding had died "in the Sunday Papers". The Crown tendered news papers articles from the Townsville Bulletin published on 22 May 2021 (exhibit 113) and the Sunday Mail published on 23 May 2021 (exhibit 114). Exhibit 113 reported that a "suspected stabbing" had occurred in Riverway Drive in Condon on 21 May 2021. The article did not mention Ms Golding. In any event, there is no evidence that Mr McAuliffe read this article. Exhibit 114, being the article published on 23 May 2021 did refer to Ms Golding by name and that she was deceased. This may have been the article Mr McAuliffe told the police he read.
[37] Given these facts, to prove beyond reasonable doubt that Mr McAuliffe had actual knowledge that Ms White had committed the offence of murder, the Crown makes a number of allegations based on the evidence from which it intends to invite the jury to draw inferences which it says are reasonably available to conclude beyond reasonable doubt that Mr McAuliffe had the requisite knowledge of the offence committed by Ms White when providing the assistance he is alleged to have provided.
[38] It is important to recall at this stage that an inference may be reasonably open on the evidence that the defendant had knowledge that an offence had been (or indeed may have been) committed. The knowledge which the Crown must prove that Mr McAuliffe had was actual knowledge that the offence, the subject of the charge, had been committed.
[39] If, despite drawing all inferences most favourable to it, the Crown cannot exclude any reasonably available alternative hypotheses consistent with Mr McAuliffe not knowing that Ms Golding was in fact dead, he will have no case to answer. Similarly, if the Crown can exclude any such hypothesis, but cannot exclude a competing hypothesis that Mr McAuliffe knew that Ms White killed Ms Golding unlawfully (that is, without lawful excuse but without the requisite intent), he will have no case to answer on the charge, but will have a case to answer on the natural alternative.
Circumstances of the principal offence and the conduct of Mr McAuliffe on 21 May 2021
[40] It is convenient to deal with the first five[6] of the allegations on which the Crown relies together. They are:
(a) the defendant heard the deceased's screams after the wound to her neck inflicted;
(b) the defendant attended Unit 12, a short time after the infliction of the fatal wound to the deceased;
(c) having attended Unit 12 shortly after the infliction of the wound, it would have been obvious to the defendant that the injury to Ms Golding was significant;
(d) the defendant assisted Ms White in the clean-up of the deceased's blood or at the very least observed Ms White engaged in the clean-up within Unit 12; and
(e) driving out of 771 Riverway Drive, the defendant observed Kayla Golding prone on the driveway such that whilst Ms Golding was not yet dead, when he drove the killer away, he knew she was mortally wounded.
[41] As already mentioned, the evidence of Ms McConnell is that Mr McAuliffe was not in the apartment at the time Ms White inflicted the wound on Ms Golding.
[42] The direct evidence about Mr McAuliffe's whereabouts at or around the time Ms White inflicted the wound on Ms Golding's neck establishes the following:
(a) prior to the event, the defendant attended Parkside Shopping Centre driving a blue Peugeot hatchback[7];
(b) he left the shopping centre at 7:06 pm;
(c) at 7:14.58 pm he sent a text message to Ms Golding which the Crown concedes suggests he was not with Ms Golding at that time[8];
(d) by about 7:16 pm Mr Brian Nicholl, who was a resident in the apartment complex in Unit 15, saw Ms Golding on the driveway of 771 Riverside Drive, after the wound had been inflicted;
(e) at about 7:20 pm, Mr McAuliffe drove his car with Ms White, Ms McConnell and their daughters out of the apartment complex.
[43] The facts referred to in [42](d) and (e) is derived from:
(a) Admission 10 which is that Mr Nicholl called Triple 0 at 7:16.56 pm and that call lasted 3.05 minutes; and
(b) the evidence of Mr Nicholl which was "I was still get - just finishing up with the ambulance when I seen them drive out".[9]
[44] When Mr Nicholl saw the car leave, he was on his balcony. The apartment complex is five stories high, including the common carpark on the ground floor. It comprises 16 apartments with four units per floor, two of which front Riverway Drive with balconies overlooking that street, and two which face the back of the block. Unit 15 is on the top left corner of the complex when looked at from Riverway Drive. Unit 12 is on the second top floor, on the right.
[45] The photographic evidence[10] also establishes that the common carpark contains car spaces on both sides. It does not have a door or other barrier to enter it. Access to each unit can be achieved via a staircase or a lift. Again looking at the complex from Riverway Drive, the staircase is positioned in approximately the middle of the carpark on the lefthand side, and the lift is opposite the staircase on the right. Both the lift and the staircase therefore give access to a landing on each floor in between the four units on the floor. The lift requires the use of a fob, issued to each occupant.
[46] Relevantly, the bedroom in which Ms Golding was wounded was immediately inside the entrance way of Unit 12. The bedroom in which the two girls were at the time was further down the hall which led to a kitchen and then a living room and the balcony beyond.
[47] Mr Nicholl was on his balcony when he heard "a real bad screaming noise. It was like a screaking (sic) ...sound like someone in real bad trouble"[11]. This caused him to look over and he "saw a young lady on the - go down on the left-hand side. And she was there and then all of a sudden, she rolled over and I saw a big pool of blood" [12].
[48] He identified that this first area was close to the wall of letterboxes on the left of the complex looked at from Riverway Drive. He said that after he saw this, he "grabbed" his phone and rang the ambulance (meaning Triple 0).[13] When he looked over the balcony a second time, he observed that Ms Golding had moved "about five feet" towards the road way and then fallen over again.[14]
[49] Another resident, James Waddington also gave evidence. He could not remember his unit number but identified that he lived on the second floor on the right hand side. He remembers that the balcony door was open and that he heard a "Gargling "help""[15] come from outside. This caused him to go to the balcony and look over.[16] Mr Waddington saw Ms Golding fall to the ground in the first area identified by Mr Nicholl.
[51] The Crown submits[20] that Mr McAuliffe was in his car in the ground floor carpark at the time the wound was inflicted. The Crown also submits that because the lift could only be accessed by use of a fob, the defendant would have had to have use the stairs to access Unit 12. However none of these submissions is based on any direct evidence.
[52] Mr Nicholl gave evidence that he was on his balcony waiting for the football to start on the television at 7:30pm. He said "I just went out on the verandah. That's where I sit most of the time to get me air and that, you know, 'cause I got COPD bad. I sit out and I got me table out there and me books and radio and everything else."[21] He said he did not see any vehicles enter the carpark whilst he was out there.[22] He suffers from chronic obstructive pulmonary disease and it may be observed has obvious difficulty standing for long periods of time. I took his evidence to mean he was sitting at the time he heard the first noise. What he was not asked was whether, from a seated position he could see the road or the driveway, particularly given he was on the fifth floor and, as is revealed by the photographs of the apartment complex (for example, exhibit 1), the balcony balustrade is solid concrete. It would seem most improbable that he could. The point being that even though Mr Nicholl gave evidence that he did not see any vehicles going into the complex, it would seem this evidence could only mean, as a matter of logic, that he did not see any vehicles entering the complex once he was standing looking over.
[53] No other witness saw (relevantly) Mr McAuliffe's car enter the apartment block. Ms McConnell gave evidence that when she and Ms White left the apartment complex, Mr McAuliffe's car was parked next to Ms Golding's car which, from exhibit 9 would appear to be the fifth car park in from the driveway. [23] There was also some sort of concrete service-type recessed area between the first two car parks in and the next set of carparks.
[54] Given the text message sent by Mr McAuliffe to Ms White at 7:14.58 pm which the Crown submits[24] means that Mr McAuliffe was not in the apartment at the time it was sent, it is reasonable to infer that Mr McAuliffe arrived and parked his car between about 7:15 pm and a little before 7:16.56 pm. Once this inference is drawn, having regard to the evidence of where the car was parked, it is also reasonable to infer that Mr McAuliffe may not have heard any sound from Ms Golding because of the fact that he was either still in the car when what Mr Nicholl heard occurred or that he had already exited his car and been ascending in the lift.
[55] In oral submissions, the Crown submitted that Mr McAuliffe could not have taken the lift because he did not have a fob, however no evidence was led to support this submission. Further, and because it is relevant for another submission the Crown makes, it is important to note that Mr McAuliffe had, in his words, "started stayin' there." He also told police he stayed there on the night before.[25] This was also consistent with the evidence of Ms Golding's daughter that Mr McAuliffe had been "Having sleep over lots of times".[26] Mr Waddington also gave evidence that he could identify Mr McAuliffe's car because he had seen him pull up in it on previous occasions.[27] It follows that there is no evidence by which the jury could conclude beyond reasonable doubt that Mr McAuliffe travelled up the stairs to Unit 12 rather than via the lift.
[56] It follows that there is also therefore no evidence by which the jury could conclude beyond reasonable doubt that Mr McAuliffe heard Ms Golding's scream.
[57] This leads to the next inference which the Crown says is open and is the only reasonable inference available on the evidence, namely that on the basis of the amount of blood deposits in the stairwell and inside Unit 12, it would have been obvious to him that the injury to Ms Golding was significant.
[58] As I have said, there is no evidence that Mr McAuliffe used the stairs to travel up to Unit 12 either at the time, or shortly after Ms Golding travelled down it in her injured state. The Crown led a significant about of evidence from police officers with specialties in forensic evidence as well as photographs as to blood spattering and other blood deposits at regular intervals on the stairwell as well as in the first bedroom in the apartment and in the entry area to Unit 12.
[59] In particular there was evidence from Sergeant Walker as to a luminol examination she conducted on the inside of the front door and the floor inside the threshold.
[60] To summarise her evidence[28], luminol is a chemical that reacts with any sort of blood as well as cleaning products such as bleach, rust, metal and some vegetable and plant materials. It is a presumptive test to see if blood may be present on a surface not visible to the naked eye. After the luminol is sprayed on the surface, and light is shone on the surface and anything with which the luminol reacts will glow with a blue fluorescent appearance. Photographs of the luminol tests were tendered in a bundle as exhibit 107.1-107.5. Some of the photographs show the luminol streaks running down the door which is a normal consequence of gravity. As I understood the evidence, the luminol does not enable quantification of the volume of blood that was on any particular surface. With reference to the floor area the witness said that:
"this reaction - um - here was quite vibrant and quite persistent - um - which is quite indicative of a positive reaction to blood - um - and also, what we some - being - of course, we often use luminol to look for blood that's not visible to the naked eye, so it may have been cleaned up. Um - particularly with this area, even - um - it's almost directly in line with the front door there, some of the - um - positive reactions had sort of, like, a white mark to it, or a - sort of a - a curved - um - sort of shape or design - um - which can indicate cleanup as well."[29] She went on to describe a "wiping sort of mark"[30].
[61] The witness gave evidence about blood spattering elsewhere in and around the entry area of the apartment. There was blood present on a tea-towel in the laundry which was proximate to this area. It is clearly the case that the jury could reasonably infer that had Mr McAuliffe in fact entered the apartment, he would likely have seen the presence of some blood as referenced by the police witnesses. He also would have concluded that Ms Golding had been seriously injured.
[62] But the Crown seeks to go further. There was a mop in a bucket located inside the front door of Unit 12. As part of the Admissions, Mr McAuliffe admitted that his left palm print was located on the exterior front door frame, a fingerprint of his right middle finger was located on the back of the main bedroom door and a fingerprint of his left middle finger was located on the mop handle.
[63] The knife, which had been replaced in its sheath, was located in the vacant block next to the apartment complex on the right when looked at from the Riverway Drive. Mr McAuliffe's DNA was located on the handle of the knife, as was Ms White's. It was admitted that "When a person touches a surface, it is possible for their DNA to be transferred onto that surface. The transferred DNA may be recovered and then subjected to DNA comparison. There are many factors which effect weather DNA is transferred to a surface and can be recovered for analysis. These include nature of the surface and the conditions of the surface has been subjected to in the time between deposition and recovery of the DNA." [31]
[64] The Crown also led evidence from Sergeant Bartulovich who has been working in the Queensland Police Service as a Scenes of Crime investigator since 1999. He holds a Bachelor of Science and Masters of Science and Forensic Science. He gave the following evidence in cross examination[32]:
With respect to if a person is to touch another person, it's possible that their DNA could be deposited on that other person; do you agree with that?‑‑‑That's correct.
And then if that second person was to touch an object, it's possible that the first person's DNA would end up on that object as well; do you agree with that?‑‑‑Yeah, that's correct.
And that is often referred to as secondary transfer; do you agree with that?‑‑‑Yeah, that's correct.
Now, with respect to DNA and fingerprints, it's difficult to precisely time when either DNA or fingerprints are deposited on objects which are recovered and examined later; do you agree with that?‑‑‑I do agree with that, yes. We - we - uh - very limited situations, we'd be able to provide a specific time area.
[65] The evidence therefore establishes that whilst the fingerprint evidence is sufficient to establish that Mr McAuliffe was in the apartment at some time prior to the incident, and the fingerprint on the mop handle gives rise to an inference that he may have used it to undertake a clean-up of the blood (as the Crown alleges), there was no evidence that the mop itself had been used in any clean up. Further, the Crown exclude the equally reasonable inference available that he had touched the three surfaces on an earlier occasion, particularly how given how often he had been in the apartment. There was a further possibility that could not be excluded, namely that he arrived at the apartment after any cleaning had occurred and he moved the mop and bucket as he and the four others including the two children left the apartment.
[66] The DNA on the knife handle was equally equivocal given the possibility of secondary transfer identified by Sergeant Bartulovich. It should also be observed that in any event, even if the jury were satisfied from the presence of Mr McAuliffe's DNA on the knife that he was responsible for disposing of it in the yard next door, it could not have reasonably relied on that fact to conclude that Mr McAuliffe therefor must have, as the Crown submits, either assisted Ms White in a clean-up of the scene, or at least observed Ms White cleaning-up the scene. There are other reasonable hypotheses that cannot be excluded. For example, if Mr McAuliffe in fact entered the apartment, he may have done so after any cleaning had been done. He may have re-sheathed the knife and either he or Ms White may have discarded it into the yard next door through a window. That disposal could have happened after any cleaning had been done.
[67] Further, Ms McConnell did not give any evidence that Mr McAuliffe actually entered the apartment. It is admitted that Ms McConnell telephoned Triple 0 at 7:17.54 pm. The duration of thar call was 5.13 minutes. She gave this evidence[33]:
MS SHEPPARD: Ms McConnell, do you recall where you were when you initiated that Triple O call?‑‑‑Yes. I was in Chante's apartment walking towards the balcony.
And do you know where you were at the end of that phone call?‑‑‑We were in Jamie's car, heading out of there.
When you say "we", who was in Jamie's car?‑‑‑Jamie was driving. Chante was in the front passenger and I was in the back with the two girls.
The two young girls being ‑ ‑ ‑?‑‑‑Oh - Sophia and Mackenzie.
Okay. How did you get down to the car park?‑‑‑We took the elevator.
Can I have exhibit 7, please. And if that can be on the visualiser. Thank you. Who took the elevator?‑‑‑Yes.
Who took the elevator?‑‑‑Ah - myself, Chante, Jamie, Sophia and Mackenzie.
And having taken the elevator, where did you go?‑‑‑We went into Jamie's car.
[68] That evidence of itself does not enable a jury to conclude one way or the other what in fact Mr McAuliffe did when he arrived at Unit 12.
[69] The Crown also relies on a submission that a male voice can be heard on the recording from 2.09 minutes onwards (commencing at 7.20.01 pm) as evidence from which the jury would conclude that Mr McAuliffe was in the apartment. The jury would have been entitled to infer that the male voice was that of Mr McAuliffe given the evidence of Ms McConnell. But it does not follow that the jury would be satisfied that this meant he was in the apartment for some of that time.
[70] As I have referred to above at paragraph [43], Mr Nicholl said, he saw the car leave the apartment complex as he was finishing up his Triple 0 call. That call lasted 3.05 minutes and commenced at 7:16.56 pm. That means he finished the call at 7.20.01, being precisely the time the male voice was first heard on the recording of Ms McConnell's Triple 0 call. Prior to that, the three adults and 2 children had travelled down in the lift, traversed the carpark to Mr McAuliffe's car, entered the car, and driven out to a point on the driveway where Mr Nicholl could see the car from the fifth floor. No witness who gave evidence suggested the car exited at any particularly noticeable speed. Mr Nicholl estimated 5 or 6 kilometres an hour. He said there was "no rushing or squeal[34]g".34. For this reason, it would not have been reasonable to conclude from the presence of a male voice on the recording of Ms McConnell's Triple 0 call that the only reasonable inference available was that Mr McAuliffe was in the apartment, let alone cleaning up or observing Ms White cleaning up.
[71] The last aspect of the Crown's submissions on this first point is the evidence led from Mr Nicholl and Mr Waddington as to the blood they saw around Ms Golding in the two points where she had laid on the driveway. Ms Flower who lived with Mr Waddington also gave similar evidence.[35] It need not be set out in detail. Forensic photographic evidence reveals a significant amount of blood staining the driveway in two places. The jury would readily conclude that anyone seeing Ms Golding from their vantage point would have been justified in concluding that she had been wounded and the effect of that wounding was severe.
[72] Ms White's daughter also gave evidence about seeing "red paint". She said it came from Ericka (Ms McConnell).[36] She did not say how much she saw. Relevantly however, no witness other than Ms McConnell gave evidence of actually seeing the wound that Ms White had inflicted on Ms Golding. There is also no evidence that the wound was visible from the position in which Ms Golding was lying at the time Mr McAuliffe drove away. As I understood this submission, the Crown intended to rely on this evidence to invite the jury to conclude that Mr McAuliffe knew that Ms Golding had been mortally wounded (in the sense that she could not survive), when he drove out. The Crown made the following allegations in support of this principal submission in its written submissions[37]:
(a) The defendant drove White from the unit complex prior to the arrival of emergency services in a blue Peugeot that was later located at the Townsville Showgrounds. (Exhibits 65-71)
(b) Mr Nicholl observed the car drove in a curved direction (Exhibit 2) around Kayla Golding. The vehicle travelled out from under the carpark, out on the drive and around Ms Golding, travelling at 5/6 km/h. At least one window on the driver's side was down as he observed an arm resting on the window.[38] When the vehicle drove past, and Golding was in the second position, he heard "just a gurgling and just a groaning sound".[39]
(c) Hassan Kugor went downstairs, after looking over the balcony, to the driveway, because he "seen someone laying down there."[40]
(d) James Waddington, after looking over the balcony, he observed Kayla Golding and "there was a pool of blood. Yeah, you could see it was getting bigger."[41] The car drove around the person on the driveway and left onto Riverway Drive.[42]
(e) Sheryl Flower, when looking over the balcony, observed Kayla Golding laying right of the red mail wall. Her head was on her side. Ms Flower "thought she'd already passed on as well. There was just blood all around her"[43]. Ms Flower went back inside the unit, and she then heard a vehicle leave the area of the complex.
(f) First responding police and ambulance services arrived at approximately 7.30pm.[44] Exhibit 27 depicts the positioning of the deceased on the driveway at 7.30pm horizontal to Riverway Drive, across the left-hand side of the driveway. Golding was unable to move independently. She lay on her stomach with her head in the direction of Riverway Drive.
(g) Riverway Drive is a dual carriage way. Leaving 771 Riverway Drive, a vehicle can only turn left in the direction of the Willows Shopping Centre. (Annexure A) The defendant would have had to have looked right and observed Ms Golding, when leaving the complex.
[73] First, it ought be observed that the Crown's characterisation of the evidence of Mr Nicholl in (b) is not correct. What Mr Nicholl described as what he heard, was not said by him to have been heard "when the vehicle drove past". That submission conflates his evidence. No witness gave evidence as to what they heard emanate from Ms Golding when the car drove past her.
[74] Second, it does not follow in any event that because certain witnesses formed opinions as to Ms Golding's condition based on their observations from different perspectives, that Mr McAuliffe either made the same observations or formed the same opinion. He was driving a vehicle at ground level at night and did not stop as he drove past. Necessarily what he saw at the moment in time as he drove past would be different to what residents on their balconies saw directly from above. The fact that Mr McAuliffe drove around Ms Golding's body whilst she was still alive does not mean that he saw or heard any of the things which the other witnesses describe.
[75] Finally, it is an objective fact that Ms Golding was not pronounced dead until more than 2 hours later. When emergency responders arrived at 7:30 pm she was making audible groaning noises which was record on body-camera footage which the jury heard.[45]
[76] As I have said, the Crown relies on this evidence as being sufficient to enable the jury to conclude beyond reasonable doubt that Mr McAuliffe knew that Ms Golding was mortally wounded in the sense that she could not have survived but in my view the evidence is not sufficient for the jury to rationally draw that inference. On the basis of what the Crown had proved, the evidence does not rise to that level.
Conduct of Mr McAuliffe on 21 May 2021 after leaving the apartment complex
[77] The next three allegations which the Crown makes[46] can also be considered together. They are:
(a) the defendant drove the principal to 159 Nathan Street, Cranbrook where he remained in her company on the evening of 21 May 2021;
(b) the defendant requested to be driven past 771 Riverway Drive on the evening of 21 May 2021; and
(c) between leaving the unit complex and requesting a drive-by of the units, the defendant had a conversation with Ms White as to the circumstances of the killing.
[78] The evidence establishes that after leaving the apartment complex, Mr McAuliffe drove to his current residence in Nathan Street. Whether he drove directly there or not is not established on the evidence.
[79] CCTV footage of a "United" service station in Cranbrook together with the evidence of Ms McConnell proves that at 8.19pm she purchased a new SIM card with cash. The car she arrived in was driven by Mr McAuliffe but was owned by Ms Marissa Luby.
[80] The evidence of Ms Luby and her partner Mr Ronald Stockham was somewhat confused as to timing, but generally not as to effect. The Crown summarised[47] the salient parts of their evidence in this way:
"Mr Stockham received a telephone call from the defendant whilst shopping and asked if he "could have give him a lift."[4]
Ronald Stockham attended the defendant's unit on three occasions on the evening of 21 May 2021:
(i) First occasion was to take the defendant's car to his house to try to repair;
(ii) Second occasion was to return the defendant's car to him at his unit;
(iii) Third occasion was to return Ms White's wallet in the Mazda and obtain his mobile which he left in the defendant's car.
[81] Mr Stockham gave evidence[50] that he worked with Mr McAuliffe at the Townsville Showgrounds and had gone to the West End pub on Friday after which he had dropped Mr McAuliffe at 771 Riverway Drive before 5pm. He knew this to be his girlfriend's house and that Mr McAuliffe's residence was in Nathan Street.
[82] Mr Stockham also gave evidence that he drove past Nathan Street later, but before dark, and noticed[51] "Jamie's partner was standing out the front of his house, on Nathan Street... And there was two - two ladies and two kids or something there."
[83] It seems unlikely that his occurred at this time and both counsel seemed to agree in oral submissions that the jury should be invited to conclude that these events took place later in the evening.
[84] The effect of Mr Stockham's evidence was that he recalled Mr McAuliffe called Mr Stockham and asked for a lift. He says he drove past and said he did not have room but that he would come back once he dropped Ms Luby at home. When he returned, he swapped cars, in the sense that he left Ms Luby's car with Mr McAuliffe and he took Mr McAuliffe's car with him to see if he could fix it. Whilst not a mechanic, Mr Stockham said he had a good deal of experience fixing cars. Mr Stockham said that there was a problem with the gear box which he could not fix and then decided to return the car.
[85] Eventually Mr Stockham and Ms Luby decided to return the Peugeot and retrieve Ms Luby's car and they drove together to Riverway drive (not Nathan Street). From an answer he gave in evidence[52], he went there because having dropped Mr McAuliffe there after work, he assumed that is where he would have gone in Ms Luby's car. At this point, Mr Stockham and Ms Luby observed a number of police vehicles with lights flashing at the apartment complex at 771 Riverway Drive. Because of this, Ms Luby called Mr McAuliffe with her phone on speaker to ask him why he did not tell him about the police there. From that phone call, Mr Stockham also learned that Mr McAuliffe was still at his Nathan Street residence.
[86] The evidence[53] is that the only phone call Mr McAuliffe received from Ms Luby was at 11.06.38pm for 44 seconds. He also made a phone call to Ms Luby at 11.45.45 for 34 seconds.
[87] Both Ms Luby and Mr Stockham gave evidence that they drove past Riverway Drive with Mr McAuliffe in the car.
[88] The Crown summarised[54] the evidence in this way:
(a) The defendant requested to be driven past the units, knowing of a large police presence to assess the situation, not to collect the principal's scripts. Ronald Stockham gave evidence that the defendant requested to visit a friend in Kelso.[55] Marissa Luby gave evidence that the defendant requested to drive past the unit, and "to have a look at all the police there, to show Vic"[56].
(b) Stockham, Luby and the defendant drove past the units in both directions. The car did not stop. It travelled at either normal speed, or slower than the normal speed. When driving past there were still a large number of police and emergency services present. The defendant "just didn't really say anything"[57] when the car went past the units the first time. The defendant said "not much no" or "nothing" when the car went past closest to the units.[58]
(c) Stockham drove past the units on Riverway Drive, such that even the driver was able to observe a blanket on the driveway depicted in Exhibit 1.[59]
[89] The Crown postulated that the "defendant would have observed the driveway whether from the front passenger (Stockham) or the back seat (Luby). He would have observed the large volume of blood and that Golding was no longer present at the address."[60]
[90] In oral submissions, the Crown also submitted that after Mr McAuliffe had driven past the apartment complex with Ms Luby and Mr Stockham, knowing what he did from earlier when he left the apartment complex knowing of the injury to Ms Golding, "it must have occurred to him that there was a serious police investigation occurring at the complex relating to Ms Golding". That may well be so, and it may well be the case that the jury would have agreed with that submission.
[91] However, knowledge of a serious police investigation relating to Ms Golding is not the same as knowledge of her death. In oral submissions, perhaps alive to the shortcomings of that submission, the Crown went further and submitted that the fact that Ms Golding was no longer at Riverway Drive when he drove past, meant that the only rational inference open to the jury is that Mr McAuliffe must have known by that time that Ms Golding had died.
[92] The difficulty with such a proposition is obvious because the equally rational available inference which cannot be excluded (because it is the fact) is that Ms Golding was not dead and had been taken to hospital to be treated.
[93] The two other circumstances relied on by the Crown may be addressed briefly.
[94] The first is the allegation that Mr McAuliffe drove Ms Golding and her daughter (together with Ms McConnell and her daughter) to his residence in Nathan Street where he remained in her company on the evening of 21 May 2021.
[95] From the facts just described, this is not correct. In addition, Ms Golding and Ms McConnell attended the McDonald's restaurant opposite the residence at Nathan Street at 10.24 pm on 21 May 2021. The CCTV footage[61] does not reveal the presence of Mr McAuliffe and the Crown accepted[62] that he was not present.
[96] The only other submission by the Crown about the events of the evening is that Ms McConnell and her daughter left the Nathan Street residence in a taxi apparently called by Mr McAuliffe in the early hours of 22 May 2021. That evidence relies on text messages contained within Annexure I to the Admissions[63]. Ms McConnell did not give any evidence about how or when she and her daughter left Nathan Street. In addition, the text messages relied on both seem to suggest that two taxis arrived at the address, the first at 1:19.03 am and the second at 1:32.28 am. If in reliance on these admitted text messages, the Crown intends to invite the jury to infer that one of these related to Ms McConnell's departure, that leaves open the question as to for whom the other arriving taxi was intended to be. There are a number of possibilities equally available namely that it was for either for Mr McAuliffe, for Ms White, for Ms White's daughter, or a combination of the above. It also cannot be excluded that one was sent away empty. Given the obligation of the jury to draw the inference most favourable to the accused where there are two or more reasonable inferences available, it follows that the jury could not rely on these admissions to conclude that the only rational inference available was that Mr McAuliffe remained in the company of Ms White for the evening with Ms White and her daughter.
[97] The same is true for the conclusion which the Crown wishes the jury to make being that "[b]etween leaving the unit complex and requesting a drive-by of the units, the defendant had a conversation with White as to the circumstances of the killing". There is no direct evidence of any such conversation. The Crown made the following submissions in support of this allegation[64]:
(a) White had no injuries to her person upon leaving 771 Riverway Drive (Exhibit 23, Exhibits 72-75);
(b) The defendant received a text message from Golding at 7.15.43pm simply with the word "Kayla". (Annexure I) The text message was received shortly prior to the wound being inflicted to Golding, at a time when the defendant knew Golding was in Unit 12 with the defendant;
(c) The defendant had knowledge of McConnell's new SIM card that she activated at 8.32pm on 21 May 2021 (Admission 41). He drove her in the Mazda to the service station where that SIM card was purchased. White was in the front passenger seat;
(d) The defendant used the mobile phone number that was subscribed to him (Admission 36);
(e) The defendant requested Stockham to drive past the Riverway Drive units for a purpose, unrelated to moving-in or obtaining a script;
(f) The defendant arranged for McConnell's taxi at 1.18am on 22 May 2021 to take her away from his unit, leaving he, White and MacKenzie at the unit. (Admissions, Annexure I, 65 & 66);
(g) The defendant communicated with McConnell using the new SIM card which she purchased. (Admissions, Annexure I and J);
(h) The defendant was with White when he exchanged a series of messages with McConnell between 6.39am-6.55am on 22 May 2022;
(i) At the time the defendant was exchanging messages, he was aware that police were seeking to obtain a statement from McConnell about "Chsnge" ("Chante");
(j) The defendant knew of the unlawful conduct of White stating "we trust u like u trust use be careful".
[98] Three of the facts referred to require further explanation. The first is that the reference to "scripts" in the text message in subparagraph [97](e) above is a reference to the fact that in his interview with police, Mr McA[65]iffe said65 that on 21 May 2021, he had left the apartment complex in the afternoon to obtain some prescriptions for Ms White.
[99] The second and third are that text messages in subparagraphs [97](i) and [97](j) above were sent following a text message sent by Ms McConnell at 6:49.13 am in which she said she was being taken to the "town station for a statement". The complete version of the last text message to which the Crown refers said "As long as your alright u where pretty out of it yesterday we trust u like u trust us be careful". Objectively there is nothing in these text messages from which the only rational inference the jury would draw is that Mr McAuliffe had "a conversation with Ms White about the circumstances of the killing." But more importantly, whilst the jury might rationally and reasonably infer that Mr McAuliffe and Ms White are likely to have had a conversation after leaving the apartment complex, the jury could not be invited to speculate as to what that conversation was.
[100] For this reason, the inference which the Crown would seek to have the jury draw as set out in [97](j) above could not reasonably be drawn from the evidence led.
[101] This leaves the remaining two allegations[66] identified by the Crown being:
(a) The defendant understood the significance of White not interacting with others on 22 and 23 May 2021; and
(b) When the defendant attended the Townsville Police Station at 12.51 pm on 23 May 2021, he continued to conceal White's location from police.
[102] The Crown called evidence from seven lay witnesses as to the events that occurred over the course of Saturday 22 March 2021.
[103] The evidence of Mr Justin Burrows[67] was that he lived in a residence in Echlin Street, West End with Ms Jessica Newby. Mr Burrows gave evidence that Mr McAuliffe and Ms White attended at this residence early that day. He gave evidence[68] that Mr McAuliffe said "we need somewhere to crash". He said[69] that Mr McAuliffe was "a mate" and that Mr McAuliffe has slept at his place "many times". He also said[70] that when Mr McAuliffe stayed over, he would sleep upstairs, and Mr Burrows would sleep downstairs in his partner's room.
[104] Mr Burrows could not give any meaningful evidence as to when Mr McAuliffe or Ms White left his residence that day.
[105] Ms Newby gave evidence[71] that she did not know Chante White on 22 May 2021 but otherwise could not give any material evidence about that morning.
[106] The evidence of Mr Jaymz Smith and Ms Emily Brooks both gave evidence that on 22 May 2021 they lived in a house with their three children then aged 12, 10 and 4 at the Townsville Showgrounds. They gave evidence that Mr McAuliffe, Ms White and Ms White's daughter arrived at their house at about 8.00 am in Mr McAuliffe's car.
[107] Mr Smith gave evidence[72] that Mr McAuliffe was one of his workers and that he had known him for a couple of months. Mr Smith also had known Ms White since high school and that he considered her a mutual friend. Mr Smith said they arrived in Mr McAuliffe's blue Peugeot which was parked near his work shed.
[108] The effect of the evidence of Mr Smith was that the four adults sat at a table under the house and drank coffee. He said that "round maybe 15/20 minutes" he and Mr McAuliffe went to McDonald's in his car. He said that they were away for about 20 minutes. Later in the day Mr Smith went to the First Choice Liquor by himself and that when he went there his car battery became flat. This meant that by his estimation he was away from his house for a couple of hours before he could find someone to give him a jumpstart.
[109] When he returned, Mr McAuliffe and Ms White and her daughter were still there.
[110] Mr Smith also gave evidence that he and Mr McAuliffe at some stage worked on Mr McAuliffe's car. He recalled a discussion about the gearbox failing and that they decided they would fix it on Monday morning when they resumed work after the weekend. At some stage later, Mr Smith took the battery out of the Peugeot to see if he could use it in his vehicle.
[111] Mr Smith gave evidence[73] that he cannot remember any of the conversations he had that day. He did say that Mr McAuliffe's mood was "fine" and that Ms White was "quite upset" however he did not know why and did not inquire.
[112] Mr Smith also gave evidence that in the afternoon, Ms White asked him to drive her daughter to her brother's house. The entirety of the evidence[74] about this is set out below:
And where was that?‑‑‑To drop Mackenzie off at her brother's house.
How long after coming back from the bottle shop did you leave a third time to go to drop Mackenzie off?‑‑‑Ah - after I had a - ah - maybe an hour and a-half.
And ‑ ‑ ‑?‑‑‑To - I can't be. It's only approximate.
Sure. I want to focus, firstly, on the time period - sorry, the conversations that led to that occurring. Why did you drop Mackenzie off?‑‑‑'Cause I got asked to ‑ ‑ ‑
Who did you did you ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ drop Mackenzie off.
Who did you get asked to drop Mackenzie off by?‑‑‑Ah - Chante.
And what - where was Mr McAuliffe when Chante was asking you that?‑‑‑Ah - with us under the house.
And what, as best you can remember, was Chante doing - or - I beg your pardon. What did Chante say in asking for Mackenzie to be dropped off?‑‑‑If she could be dropped off to Joel's house.
Did - was there any - did you make any telephone calls prior to Mackenzie being dropped off?‑‑‑Yeah, there was.
What phone did you use, do you know?‑‑‑I didn't use my phone. I didn't make the phone call.
You didn't make the phone call? Who made the phone call?‑‑‑Um - either Chante or Jamie. I'm not too sure. It wasn't my phone.
Okay. Were you present when either Jamie or Chante was making that telephone call?‑‑‑Ah - I was present, but I wasn't present in making the phone call. It was more halfway into it.
Do you know by anything that Jamie said ‑ ‑ ‑?‑‑‑I can't remember.
That's near Castletown?‑‑‑Um - yeah. Currajong, near Castletown, yeah.
And was there any reason given as to why you needed to drop her off at that address?‑‑‑No.
Whose address was that?‑‑‑It was - ah - Chante's brother's house.
Did anyone go with you when you were dropping ‑ ‑ ‑?‑‑‑My two children.
Was there any discussion about Chante going with you to drop Mackenzie off?‑‑‑No. Not that I remember.
As the person driving, who put Mackenzie in the car?‑‑‑Um - my partner - ex-partner.
And where was Chante when Mackenzie got in the car?‑‑‑Ah - with Emily and - at the property.
How was Mackenzie when she was getting into the car?‑‑‑She was fine.
Did she saying that you remember?‑‑‑Beg your pardon?
Did Chante say anything at the car ‑ ‑ ‑?‑‑‑Nah. I don't remember.
‑ ‑ ‑ when Mackenzie's getting in? Where was Jamie when Mackenzie was getting in the car?‑‑‑Underneath the house.
And how far away from the car is underneath the house?‑‑‑Couple of metres. Ten metres.
Could you see him from where you were?‑‑‑No, 'cause I've got shade cloth on the outside of my property.
You've dropped Mackenzie off at Kitchener Road?‑‑‑That's correct.
Do you - did you know that person?‑‑‑Ah - it was Joel's - ah - partner.
I don't want to know the content of the conversation, but was there a conversation between you and that person?‑‑‑Yes.
Mackenzie is put in the care of this female; is that right?‑‑‑Yes, that's correct.
Okay?‑‑‑But I know it was prior organised, so ‑ ‑ ‑
You've got back into your vehicle?‑‑‑That's correct.
And, I take it, gone back to your house?‑‑‑Put me and my two daughters - we jumped in our vehicle and went back to the property, yes.
All right. When you got back, was Mr McAuliffe still at your house?‑‑‑Yes.
In the house?‑‑‑In the house, or underneath the property. I can't remember.
Okay. And do you remember having any conversation with Jamie when you got back?‑‑‑I can't remember.
Has Mr McAuliffe stayed at your property?‑‑‑Ah - he used to work for me. He knows the property. But he hasn't stayed at my property, no.
Okay. And did he, at some point, leave your property?‑‑‑Yes.
What about Ms White? Did she, at some point, leave your property?‑‑‑Yes.
At what time, roughly, did Mr McAuliffe leave your property?‑‑‑I can't really say. Round 3 o'clock.
And where was Ms White when Jamie left?‑‑‑With Jamie.
Do you remember having a conversation, prior to Jamie and Chante leaving your property, with either of them?‑‑‑Yes.
Can you tell us, as best you can, what that conversation was? What they - what did you talk about?‑‑‑I asked if they could leave the property, and then he stayed that's - he said they could leave.
Was there anything else said by you in that conversation?‑‑‑No.
Mr McAuliffe has responded in the way that you've indicated. Did Ms White say anything?‑‑‑No.
How did they leave?‑‑‑They left by - by just leavin'.
Did you see what direction they went?‑‑‑No, I didn't.
[113] Mr Stockham also attended at Mr Smith's residence on 22 May 2021. He gave evidence that at some point in that day Mr smith called him.
[115] Ms Brooks gave evidence that she did not know Mr McAuliffe prior to 22 May 2021 but she did know Ms White.[77] She was unable to give any evidence about conversations involving Mr McAuliffe and Mr Smith because they did not involve her. Otherwise her evidence was broadly consistent with the evidence of Mr Smith as to the events of the day save for her version of the events in the afternoon. I set out her evidence[78] below:
The child Mackenzie - did she stay at your address?‑‑‑No. Like, she ended up getting taken to another address.
How was that arranged?‑‑‑Um - Jamie - ah - Chante had asked Jamie to get Mackenzie to another address which I had no idea who these people are. But Jaymz was asked from Jamie and Chante to take Mackenzie to - I think it was her brother's house or some family member's house in Kitchener Street - um - to get her to there. And Jaymz had taken her to that address with my two kids in the back of the car so that they could keep her company.
So to be clear, who initiated this discussion?‑‑‑It was between Chante, Jamie and Jaymz.
And what do you remember Mr McAuliffe doing or saying in this conversation?‑‑‑Um - he was being asked from Chante to contact the family members, and he was getting quite distressed about the whole situation. So he's, like, trying to get information from Chante to get Mackenzie away from the address, which they had then figured out the best option was to take her to her brother's house. And that's all I know. That's what I'm aware of. I don't even know if it's the brother or ‑ ‑ ‑
Just - just - just ‑ ‑ ‑?‑‑‑I don't even know [indistinct]
‑ ‑ ‑ stop, sorry, Ms Brooks. I'll ask the question?‑‑‑Sorry.
The - you mentioned that Mr McAuliffe was distressed in this exchange or arrangement concerning. What do you mean by that?‑‑‑Um - just, like, confused about, like, who to talk to or who to bring or what Chante was trying to say to him. And because he was the one initana - nn - that big word - um - trying to ‑ ‑ ‑
HIS HONOUR: Is the word you're looking for "initiating"?‑‑‑Yes, that's the word.
Keep going?‑‑‑Um - conversation with her to try and get Mackenzie to a safe address because I couldn't have her at my address.
Why couldn't you have her at your address?‑‑‑Because I had been asked by Chante to have her for quite some period of time, and I had explained to her that that was not gonna happen unless I was to be told what's going on.
And when Chante asked you that, where was Mr McAuliffe?‑‑‑He was sitting over in the chair talking to Jaymz, maybe organising what - where Mackenzie's going.
Did you see Mackenzie leave your address?‑‑‑Yes, I did.
How did she leave your address?‑‑‑She left with Jaymz and - um - my two kids in the back of a Mitsubishi Triton, which is my partner's car at the time.
And how was Mackenzie as she's getting into your partner's car?‑‑‑Very, very upset and distraught and confused.
And what about Chante? How was she?‑‑‑Um - very pushing away. Like, "You have to go. Like, you have to do this." And, like, trying to let it - this happen quickly.
And where was Mr McAuliffe when that was happening?‑‑‑He was standing with Chante at that point.
Do - was there was a discussion about why Mackenzie had to leave your address?‑‑‑There - I did not hear anythink on why Mackenzie had to leave. Um - I had no idea what was going on, so ‑ ‑ ‑
MR MARLEY: Your Honour, I object. The witness has answered the question. The further part of her answer is not permissible.
HIS HONOUR: Yes. I know you're doing your best to control the witness, Ms Sheppard.
The - your partner Jaymz, he left with Mackenzie and your two kids; is that right?‑‑‑That's correct.
Ms McAuliffe and Chante White remained at your home?‑‑‑Yes. Correct.
And when your partner returned, Mackenzie wasn't there?‑‑‑That's - that is correct.
When Jaymz has returned, Chante and Mr McAuliffe were still at your house?‑‑‑Yes. That's correct.
And after returning from dropping off Mackenzie, has there been a discussion between the four adults, there being you, Jaymz, McAuliffe, and White?‑‑‑About what?
Was there a discussion between the four of you?‑‑‑Um - yes. That - um - the only discussion that we had said is that they had to leave the address.
Okay. Who said that?‑‑‑Well, my ex-partner Jaymz had said that.
And as being as accurate as you can be, Ms Brooks, what exactly was it that your partner said?‑‑‑He just said, "Look, you're going to have to go. Um - his mum's gonna turn up to pick the kids up for a sleepover which was already organised," which is Michelle Brooks.
How long after returning from dropping off Mackenzie has Jaymz had that discussion with Ms White and Mr McAuliffe?‑‑‑About two hours later.
And in that two-hour period, do you remember anything else that Mr McAuliffe discussed with your husband, or your partner ‑ ‑ ‑?‑‑‑No.
[116] Both Mr Smith and Ms Brooks gave evidence that when Mr McAuliffe and Ms White left their property that they left on foot. Ms Brooks estimated that they left at about 5:00 pm because her children were picked up at 5:30 pm for the sleep over.[79]
[117] After his arrest at 3:15 pm on 23 May 2021, Mr McAuliffe had a conversation with Detective Kite as a result of which police attended at that address and located Ms White in the upstairs bedroom in a cupboard.
[118] Whilst the effect of the evidence of Mr Burrows[80] and the fact that Ms White was located at Echlin Street makes the conclusion in escapable that at some stage Mr McAuliffe and Ms White returned to Echlin Street, there is no evidence when they arrived.
[119] I have set out the relevant evidence of Mr Smith and Ms Brooks in detail because the Crown submit[81] that the fact that Mr McAuliffe and Ms White attended first the house in Echlin Street and then the residence of Mr Smith before returning to Echlin Street meant that the only reasonable inference that the jury could draw is that the Mr McAuliffe understood the significance of Ms White not interacting with others.
[120] That understanding, the Crown submits, meant that it was reasonably open to the jury to conclude that Mr McAuliffe knew Ms White had killed Ms Golding, and had done so unlawfully.
[121] In my view that was not the only rational inference that the jury could draw from this evidence.
[122] Most obviously, the willingness of Ms White herself to interact with Mr Burrows, Ms Smith and Ms Brooks, and for the length of time she did particularly at the Townsville Showgrounds means that it was reasonably open to the jury to infer that she did not think it was significant that she was interacting with others. Mr McAuliffe's conduct equally did not suggest he had the understanding the Crown suggests, particularly given his willingness to leave the house at the Showgrounds with Mr Smith, and also to take no steps to prevent interactions between Ms White and Ms Brooks about which Ms Brooks gave evidence. From Mr Stockham's evidence, the jury could also have reasonably inferred that Mr McAuliffe did attempt to prevent Mr Stockham learning of Ms White's presence at the house in the Showgrounds.
[123] Secondly, even if the jury were to draw the inference as to Mr McAuliffe's understanding that the Crown says it could, such an understanding would not be inconsistent with the knowledge Mr McAuliffe had from his presence at the apartment block in the evening of 21 May 2021 and driving by later that evening; namely that Ms White had caused a significant injury to Ms Golding. There is no evidence of Mr McAuliffe ever knowing of the particular circumstances in which Ms White inflicted the wound on Ms Golding including as to whether he was told of matters which might have lawfully excused Ms White's conduct. For these reasons, there are other reasonable hypotheses that the Crown could not exclude.
[124] As to the Crown's final submission as to Mr McAuliffe's alleged knowledge, this evidence may be summarised briefly.
[125] Mr McAuliffe attended at the Townsville Police Station voluntarily at 12.51 pm. He was interviewed by Detectives Flanders and Carter. Mr McAuliffe was arrested at 3:15 pm. At no point in the interview, did Mr McAuliffe offer assistance as to his knowledge of the possible whereabouts of Ms Smith. He did so after the interview in a conversation with Detective Kite.[82]
[126] The Crown referred to nine matters it says support its submission that the only rational inference available to the jury was that Mr McAuliffe was continuing to conceal Ms White during his interview with police, and that this demonstrates his knowledge of Ms White's offence.
[127] It is correct that Mr McAuliffe told a number of lies in his interview with police. The summary by the Crown in its submissions[83] is set out below:
(a) The defendant lied to police that he last saw or communicated with the deceased at 7.00pm on 21 May 2021 and she was "fine".[84]
(b) The defendant lied when he stated that he last saw Chante White at 6.00am or 6.30am on Saturday, 22 May 2021 leaving his unit, on foot, to get her mobile phone, leaving him with MacKenzie Miller.[85]
(c) The defendant lied when he stated it was not unusual that White was not in contact with him, despite him having the care of MacKenzie Miller.[86]
(d) The defendant lied when he stated he learnt of the death of Kayla Golding by reading about it in a Sunday newspaper at a fish and chip shop. Seeing the paper, he used a nearby payphone to call a taxi and be picked up from 111 Ingham Road. He immediately took a taxi to the station.[87]
(e) Exhibit 111 shows that the defendant does not walk along Echlin Street to the service station at 111 Ingham Road to use the payphone or be collected by a taxi, immediately prior to his attendance at the police station at 12.51pm.
(f) The article in the Sunday Mail (exhibit 113) was on page 12. It referred to "four people are on the run". The article however made no mention of Chante White.
(g) Detective Flanders and Carter recorded their conversations with the defendant between his first attendance at 12.51pm and his arrest at 3.15pm. During that interview, the defendant continued to deny he knew the location of Ms White.
(h) At some time after 3.15pm and White's ultimate arrest at 4.40pm, the defendant provided police information about White's location.
(i) The defendant only volunteered White's location after being coerced by police.
[128] As to these submissions, the submissions in subparagraphs (a), (b), (g) and (h) may be accepted as correct however only (a), and (b) can properly be characterised objectively as lies. Strictly, once Mr McAuliffe had left Echlin Street, he did not have knowledge of Ms White's location. He merely had knowledge of the last location at which he had seen her. The submission in (h) does not advance the Crown case at all.
[129] There was no evidence led at all to support the allegation in subparagraph (c).
[130] Subparagraphs (d), (e) and (f) ought be considered together. Mr McAuliffe told police[88] that he went to buy fish and chips "passed that servo on, off Ingham Road, United". He said[89] that it was at the time "Um, I seen the paper, Kayland that, Sunday pa[per], ah post". He said that he then walked to a payphone near the service station at 111 Ingham Road and telephoned a taxi to take him to the police station. He also said[90] "I walked down to see if me mate, mate was home too, and he wasn't...". That was why he called a taxi.
[131] The Crown tendered[91] CCTV footage from the service station at 111 Ingham Road for a period of 2.10 minutes between 20:18:23pm and 20:28:23pm. The CCTV footage depicts the service station and part of Ingham Road and Echlin Street but not any payphone. The evidence of Senior Constable Stanborough [92] was that he believed there was a pay phone out of view to the left of screen, that is, further away from the Echlin Street residence meaning that if Mr McAuliffe walked in the direction that he said he did to get fish and chips which he said was past the service station, and within the time the CCTV capture, he would have been captured by the recording. Senior Constable Stanborough also gave evidence[93] that the police did not make any inquiries for the purposes of obtaining phone records from that pay phone or from taxi companies as to whether one was called to 111 Ingham Road at about the time Mr McAuliffe indicated.
[132] Given the absence of any time frame offered in his interview, and the fact that Mr McAuliffe also visited a friend's house (though there is no evidence as to where this house was), an alternative and reasonable hypothesis is that he approached the payphone from the far left of the screen having walked past earlier than the footage captured.
[133] There is also no rational basis by which a jury could conclude that Mr McAuliffe lied about reading about the police investigation in the Sunday newspaper which he says alerted him to the death of Ms Golding. The relevant extract from the The Sunday Mail was tendered[94]. Whilst the article does not name Ms White, it does identify that the deceased is Ms Golding (including a photograph of her), the apartment complex is also identified. It does refer to four people "on the run" which may have been the information the journalist had at the time, but the jury would be entitled to conclude that the accurate information in the article was sufficient to alert Mr McAuliffe to the fact that he was one of the people alleged to be "on the run" to whom police would like to speak. There would be no reasonable bass for the jury to conclude that Mr McAuliffe lied about reading this article based on the contents of the article.
[134] The final submission set out in subparagraph (i) is odd. There was no evidence of coercion by police. In fact that evidence[95] was that Detective Kite assured Mr McAuliffe that his identity as the source of information would be kept confidential.
[135] For these reasons, in my view the jury could not rationally and reasonably infer that on the basis of the limited number of actual identifiable lies told by Mr McAuliffe to the police, he knew on 21 May 2021 that Ms White had unlawfully killed Ms Golding.
[136] Apart from relying on the lies told by Mr McAuliffe to prove his knowledge that Ms Golding committed the principal offence, the Crown also submitted that the lies told by Mr McAuliffe in his interview could also be taken into account by the jury to demonstrate his consciousness of guilt of the offence for which he is charged.
[137] The Crown also made submissions that that the jury could reasonably form an adverse view of Mr McAuliffe's credit based on lies told in his interview. I accept that submission as correct.
[138] The Court of Appeal recently considered the use of lies in R v Smart [2023] QCA 222. Boddice J (with whom Dalton and Flanagan JJA agreed) said:
[84] As was observed by the majority in Edwards v The Queen, the telling of a lie would ordinarily merely affect the credit of a witness who tells it. However, a lie told by an accused may go further. In limited circumstances, the telling of a lie by an accused may constitute evidence, as it amounts to conduct which is inconsistent with innocence and an implied admission of guilt. The majority cautioned:
"But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie."
[85] The requirement that the lie relates to a material issue necessitates that the lie be precisely identified, as should the circumstances and events relied upon to constitute an admission against interest. Further, a jury must be instructed that they may take the lie "into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence ... because of 'a realization of guilt and a fear of the truth'".
[86] As McMurdo JA explained in R v SCL [2016] QCA 107; [2017] 2 Qd R 401 at 417 [61]:
"It was what (if anything) the lie itself revealed about the appellant's mind which was critical. Did the lie reveal a consciousness by the appellant of his guilt? It could do so only if it revealed a knowledge of the offence or some aspect of it and a fear that the truth of the matter would implicate him. As Callaway JA (with the agreement of the other members of the Court) said in R v Kondstandopoulos, "'It is the combination of knowledge and fear that evinces guilt".
[139] A jury may only use an accused's lie as evidence of consciousness of guilt if it is satisfied that the lie was told because the accused knew that the truth of the matter would implicate him or her in the commission of the offence, and not of some lesser offence: R v Box & Martin [2001] QCA 272 at [7] and [8]; R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267.
[140] In R v WBS [2022] QCA 180, Dalton JA said at [20], citing R v Wildy (2011) 111 SASR 189, 195 [20]:
It is not all inculpatory post-offence conduct which will attract the need for an Edwards-type direction. When the concern is with statements, it is only deliberately untrue statements which will attract an Edwards direction, and then, only statements which are capable of being probative of guilt because they might show that the accused lied because he "knew that the truth of the matter would implicate him in the offence". In a similar vein it is "deceitful acts" or conduct "designed to paint a false picture" or perhaps conduct which is "inherently discreditable" which is conduct capable of attracting an Edwards-type direction. In the extract from R v Watt [(1905) 20 Cox CC 852] [in para [19] of her Honour's judgment] the conduct was characterised as conduct "such as to lead to the reasonable inference that [the defendant] disbelieves his own case.
[141] In this case, the particular of the 'assistance' (being the relevant element of a charge of accessorial liability) is that Mr McAuliffe "assisted Chante Lee White in order to enable her to escape punishment by assisting Chante Lee White to conceal her location until her arrest by police on 23 May 2021".
[142] Both counsel accepted in argument that the charge particularised in this manner required the Crown to prove:
(a) that Ms White did conceal her location;
(b) that Mr McAuliffe assisted her in that endeavour;
(c) that Ms White concealed her location for the entire time from the time of the offence until her arrest on 23 May 2021.
[143] In argument, the Crown submitted that in fact the particular as properly understood, should be read as if the words "from the police" were included after "location" though no application was made to amend the particulars in this respect. In my view, no matter which way the particular is read, its does not make a material difference.
[144] The particular lies on which the Crown intend to rely are[96]:
(a) Jamie McAuliffe did not know where Chante White was at the time of the interview.
(b) Jamie McAuliffe last saw or communicated with Chante White at approximately 6.00am-6.30am on Saturday, 22 May 2021 when she was returned to her unit at 771 Riverway Drive, Condon to get her mobile phone.
(c) The last time that Jamie McAuliffe saw Kayla Golding was at approximately 7.00pm on Friday, 21 May 2021 at Unit 12, 771 Riverway Drive. When he saw Kayla Golding, she was 'fine'.
(d) Jamie McAuliffe did not enter Unit 12, 771 Riverway Drive, Condon after the fatal wound to Kayla Golding was inflicted. After returning from the Parkside Shopping centre, Jamie McAuliffe waited in the car with MacKenzie Miller in the carpark at 771 Riverway Drive. Chante White, Ericka McConnell and Sophia entered his vehicle and he did not return to unit 12.
(e) Jamie McAuliffe left 771 Riverway Drive, Condon with Chante White, Ericka McConnell, MacKenzie and Sophia as passengers at approximately 7.00pm, because he needed to fill scripts for Chante White.
(f) On Sunday, 23 May 2021 Jamie McAuliffe telephoned a taxi using a payphone near 111 Ingham Road, West End before attending the Townsville Police Station at 12.51pm. Jamie McAuliffe saw in a newspaper at a fish and chip shop on Ingham Road, West End that there was an investigation into the death of Kayla Golding. Prior to seeing the paper he was unaware of the death of Kayla Golding.
[145] I have already explained why there were reasonable alternative hypotheses available to the jury to conclude that (f) was not a lie. I have also explained with respect to (d) why the absence of evidence meant that Ms McConnell's evidence, if accepted byt the jury, would permit it to conclude that Mr McAuliffe did not remain in his car on the evening of 21 May 2021, the evidence was not sufficient to enable the jury to conclude that Mr McAuliffe in fact entered the apartment after Ms Golding had been wounded.
[146] It is also the case that objectively, (a) was not a lie. As I have already explained, by the time Mr McAuliffe was interviewed, he had been absent from the Echlin Street address for a significant period of time. As such he could not know with certainty where Ms Golding was at that point in time. All he could have offered is an opinion where she might be located, based on when he last saw her.
[147] It is therefore the case that it is only the allegations of lies in (b), (c) and (e) which remain.
[148] The characterisation of Mr McAuliffe's interview in (b) is not accurate. He said[97] only that on Saturday morning "Chante took off to go get her phone and stuff" and that this would have been "yeah 6:00, 6:30".
[149] Whilst from the analysis of the evidence set out above, it may be accepted that each of the statements of Mr McAuliffe referred to in (c) and (e) (and (b) as corrected by me said, ultimately, in answer to the question of when he had last seen Ms White) are objectively false, in my view they cannot be relied on statements made "because he knew that the truth of the matter... would implicate him in the offence".
[150] The offence charge is assisting Ms White to conceal her location knowing that she had committed the principal offence of which she was eventually convicted.
[151] At the time the lies were told, the unequivocal evidence is that Ms White had not concealed her location. The verb to "conceal" means to hide or not allow to be seen. By 23 May 2021, it was the Crown's evidence that Ms White had, in the company of Ms McConnell, gone to a McDonald's store late on 21 May 2021. In the morning of 22 May 2021, she had gone first to the Echlin Street address where she was seen by Mr Burrows. She then travelled to the residence of Mr Smith and Ms Burrows accompanied by her daughter where she remained between about 8:00 am and 5:00 pm. It will also be recalled that Mr Stockham also was told that Ms White was present at the residence at the Townsville Showgrounds.
[152] None of this evidence is consistent with Ms White having concealed her location. Nor is it consistent with Mr McAuliffe assisting her so to do.
[153] This raises an additional problem with the charges as particularised which formed a second basis on which the no-case submission was put, however given the manner in which the Crown maintained its case in respect of the lies, it is convenient to deal with that argument here. The elements of the offence as particularised required the Crown to prove that Ms White took positive steps to conceal her location from the time of the offence until her arrest, and that Mr McAuliffe assisted her in this endeavour.
[154] As I have said, the Crown sought to limit the scope of this particular by the addition of the words "from the police" after location, but the Crown could not identify any evidence on which the jury could conclude that Ms White concealed her location from anyone. Whilst Ms White of course left her residence with McAuliffe after she wounded Ms Golding, that fact is markedly different to the particularised case. And whilst leaving her residence would conceivably have been a step in undertaking a process of concealment, the Crown could not prove that the process of concealment ever commenced. This is so even though the police, when they arrested Ms White located her in a cupboard. The decision by Ms White to secrete herself in a cupboard was, obviously enough, the last thing she decided to do prior to her arrest on 23 May 2021, and the only evidence consistent with the allegation of concealment. However, the Crown led no evidence, nor did it make any submissions that Mr McAuliffe had any involvement in Ms White's decision to secrete herself in a cupboard.
[155] Finally, and in any event the lies identified in (c) and (e) are in respect of the time before Mr McAuliffe is alleged to have commenced to commit the offence (by providing the assistance) and do not relate at all to Ms White concealing her location at all. Whilst the lie in (b) is different in that it does fall within the time at which the offence was committed, at its highest it may have been open to the jury to infer that the lie was told because Mr McAuliffe he did not want to reveal that he knew more about the more recent locations of Ms White, but this is different to conscious of guilt of the offence.
[156] As I have said, at the time of the lies, he knew that Ms White had not been concealing her location. In addition, there is still the difficulty that there was no evidence that Mr McAuliffe knew of the principal offence Ms White had committed when engaging in the conduct with Ms White which he knew he had. Finally, this lie in fact reveals that Mr McAuliffe knew of Ms White's location on the morning of Saturday 22 May 2021. Such a lie would be inconsistent with McAuliffe's knowledge that the truth would implicate him in the offence because, as I have said the Crown's case is that Mr McAuliffe assisted Ms White on and from the time of the offence to conceal her location. Revealing that he saw Ms White on the Saturday morning was consistent with that case as framed.
[157] For these reasons, even without the jury being directed that any of the lies may have been told out of panic, or confusion, or to avoid a consequence extraneous to the offence, it would not have been reasonably open to the jury to rely on the identified lies because he knew the truth of the matter would implicate him in the offence.
[158] Further, there was no evidence led from which the jury could, acting, reasonably conclude beyond reasonable doubt, that the Crown had proved each element of the charge, or the natural alternative, as particularised.
[159] It follows that Mr McAuliffe has no case to answer on the indictment.
[160] Accordingly, the jury will be directed to return verdicts of not guilty to the charge and the natural alternative.
[3] Written Submissions of the Crown, 8.
[6] Written Submissions of the Crown, 10(a) to (e).
[20] Written Submissions of the Crown, 10(a)(vii).
[24] Written Submissions of the Crown, 10(a)(ii).
[37] Written Submissions of the Crown, 10(e)(i)-(ix).
[47] Written Submissions of the Crown, 10(f)(iv)-(v).
[53] Exhibit 114, Admission 39, Annexure I.
[54] Written submissions of the Crown, 10(g).
[62] Written Submissions of the Crown, paragraph 10(f)(vi).
[64] Written Submissions of the Crown, 10(h).
[66] Written Submissions of the Crown, 10(i)-(j).
[81] Written Submissions, paragraph 10(i).
[83] Written Submissions of the Crown, 10(j).
[87] Exhibit 110; MFI E, p26, L26 - p28, L1.
[89] Exhibit 110, MFI E, p26, L27-29; p27, 46-47.
[96] Written Submissions, paragraph 15.
[97] Exhibit 110, MFI E, p19, L8-7, L25-26.
R
McAuliffe [2026] QSC 12
(1993) 61 SASR 1
(1990) 171 CLR 207
(1955) 92 CLR 654
(1993) 10 WAR 355
(2011) 111 SASR 189