R v Barallon - [2020] QCA 210

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barallon [2020] QCA 210

PARTIES:

R
v
BARALLON, Terrance Steven Arthur
(appellant)

FILE NO/S:

CA No 344 of 2018
SC No 128 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 3 December 2018 (Henry J)

DELIVERED ON:

25 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2020

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was found guilty of murder by a jury – where the appellant was sentenced to life imprisonment – where the appellant appeals the conviction on the ground that the verdict was unreasonable and cannot be supported having regard to the evidence – where the appellant contends it was unreasonable for the jury to have concluded beyond reasonable doubt that the appellant intended to kill the deceased or to do him grievous bodily harm – where the appellant pleaded not guilty to murder but guilty to manslaughter at trial but the plea was not accepted by the Crown in satisfaction of the indictment – where the deceased died of injuries sustained after having been attacked by the appellant in his home – where it was open to the jury to be satisfied beyond reasonable doubt that some of those injuries had been inflicted by the appellant – where the infliction of those injuries was inconsistent with the appellant’s account – whether the verdict of the jury was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant contends it was unreasonable for the jury to have concluded that the appellant was not, on the balance of probabilities, provoked into killing the deceased – where it was open to the jury to reject the appellant’s evidence as unreliable and lacking credit – where the evidence supported the conclusion that the appellant’s actions were inconsistent with there not having been time for passions to cool – whether the appellant had established on the balance of probabilities that the death was occasioned by provocation – whether the verdict of the jury was unreasonable

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

A Hoare and D Nguyen for the appellant (pro bono)
P J McCarthy QC for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.
McMURDO JA: I agree with Boddice J.
BODDICE J: On 3 December 2018, a jury found the appellant guilty of murder. The appellant was sentenced to life imprisonment.
The appellant appeals his conviction on the ground that the verdict was unreasonable and cannot be supported, having regard to the evidence.
The appellant relies on two aspects to support the ground of unreasonable verdict. First, that it was unreasonable for the jury to have concluded beyond reasonable doubt that the appellant had the intention to kill the deceased or to do him grievous bodily harm. Second, that it was unreasonable for the jury to have concluded that the appellant was not, on the balance of probabilities, provoked into killing the deceased.
Background
The appellant was born on 12 May 1972. He was aged 44 years at the time of the offence and 46 years at sentence.
The deceased’s decomposing body was found in his home on the afternoon of 20 February 2017. An autopsy revealed that the deceased had a number of injuries, with several potential causes of death.
At the time of his death, the deceased, who was an older man with significant health issues, resided in rental accommodation. The tenancy agent permitted an approved carer to reside with him.
The appellant resided with the deceased. In the months prior to deceased’s death, the appellant had become the deceased’s carer, securing government benefits for undertaking that role.
Trial
At the commencement of the trial, the appellant pleaded not guilty to murder but guilty to manslaughter. This plea was not accepted by the Crown in satisfaction of the indictment.
It was never in dispute at trial that the appellant had caused the deceased’s death. The appellant formally admitted to the jury that he had unlawfully killed the deceased.
At issue was whether the appellant had the requisite intention to kill or do grievous bodily harm at the time he caused the deceased’s death and whether the defence of provocation reduced any intentional killing from murder to manslaughter.
Evidence
The deceased owned three vehicles: a Commodore, a BMW and a Mercedes. The deceased had each of those vehicles serviced by Kevin Mohren. The BMW was last serviced on 29 October 2016. The Mercedes was last serviced on 22 November 2016. The Commodore was last serviced on 29 November 2016. When those vehicles were brought in for the service, the deceased was accompanied by his carer, the appellant.
When repairing the deceased’s vehicles, Mohren mainly dealt with the appellant. If he rang to talk to the deceased, the appellant would generally give an excuse as to why the deceased was not available to speak to him. When the deceased came to pick up the vehicle, the appellant was present. The appellant had the deceased’s credit card, gave the PIN number and told the deceased how much he had in his account. Mohren described the deceased as seeming to be low in confidence on the day the Mercedes was serviced by him.
The deceased was not a well man. He lost a lung in 1988. The deceased also suffered from alcoholism and had mental health issues. He could, at times, become verbally abusive. He was outspoken and had a tendency to get people offside.
The deceased and his wife separated in 2004. Toward the end of their marriage, the deceased came out as a gay man. They divorced in 2005.
The deceased’s former wife, who lived in Victoria, remained in contact with the deceased following the divorce. In 2016, their contact increased to the point that it was daily, sometimes two or three times a day. She had never met the appellant. She had had one brief telephone conversation during which the appellant made reference to dogs sniffing each other’s rear ends.
The deceased’s wife last spoke to him on the evening of 16 February 2017. Their conversation involved general chitchat for only a few minutes. She described his mood as happy. He did not appear to be affected by alcohol.
The deceased’s wife tried to contact the deceased over the next two or three days. Numerous telephone calls, to both his landline and his mobile phone, went unanswered, as did text messages.
Brenda Francis, a friend of the deceased since about 2009, who spoke to the deceased nearly every night by telephone, also spoke to the deceased on the evening of 16 February 2017. The deceased seemed upbeat, except for having a whinge about the appellant being too controlling. He referred to passwords being changed on his computer. Francis said the deceased often whinged about trivial things.
Francis did not receive any communication from the deceased on Friday, 17 February 2017 or Saturday, 18 February 2017. Francis did not take much notice as the deceased would have “a bit of a hissy fit about something”[1] and not ring her for a day or two.
[1]AB138/45.
Francis had met the appellant at the deceased’s house. They had a brief conversation before the appellant went out to have a cigarette. There had also been an occasion when the appellant had driven the deceased to Francis’ house for drinks.
Francis described the deceased and the appellant as having a similar build but the deceased was older and frailer, with bad knees and other problems. The deceased could not walk too far without the assistance of a walker or a stick.
Francis said the deceased would drink cheap white wine, on a daily basis. He usually started early in the day. The deceased would regularly attend the local Leagues Club to play the pokies. The deceased was “pretty free and easy” with his credit cards. Everyone “knew his PIN number”.[2]
[2]AB139/34.
On Sunday, 19 February 2017, Francis tried a number of times to contact the deceased on both his landline and his mobile. Each attempt was unsuccessful.
The deceased’s former wife contacted police at around 1 pm on 20 February 2017 and asked them to undertake a welfare check. She described the deceased as quite a vulnerable man. She had sent police around to check on other occasions.
Police attended the deceased’s house at about 3.30 on the afternoon of 20 February 2017. One of the police officers had attended the residence on 2 November 2016 in relation to a complaint by the deceased of a disturbance between the deceased and the appellant, his housemate. Neither wished to make any formal complaint. No further action was taken at that time. The police officer’s understanding was there had been a verbal argument but no physical contact.
When police arrived on the afternoon of 20 February 2017, they found the deceased’s house locked and secured and they were unable to raise anyone. They did not observe any sign of forced entry. An inspection of the outside of the house revealed a large congregation of flies around an ensuite bathroom window.
A police officer gained access by picking a lock to a rear sliding door. Other police were given entry by the officer opening a garage door. The garage contained a blue BMW motor vehicle and a red motorbike. An inspection of the inside of the house revealed no obvious disturbance. However, the door to a bedroom at the end of the hallway had a rolled up doona against the bottom seal. The door to that bedroom was closed and locked at the time.
When police gained access, they immediately detected a strong odour consistent with a decomposing body. Police found the deceased’s body in the ensuite attached to that bedroom. The deceased’s face was covered with a towel. The removal of that towel revealed brown adhesive tape wrapped around his head, covering his eyes, nose and ears. The deceased’s hands and feet appeared to be tied up with yellow rope or string.
The deceased was clothed in black shorts and a white shirt. Police investigations also revealed that the deceased was found wearing the same clothing as in Super Amart CCTV footage on 17 February 2017.
The deceased was found lying on his right side. His legs were bent at the hips and knees. His hands were in front of him. There was quite a bit of blood and bodily fluids. There was a piece of belt directly behind the deceased, on the floor. A piece of electrical cable was located just in front of the deceased’s feet. A pair of reading glasses was located on a mat in front of the deceased’s knees.
The deceased had some electrical cable, like a connector cable from a television or a VCR, around his upper calf area. There was quite a bit of yellow twine wrapped around the deceased’s ankles a number of times, extending up over the left hand side of his body and then wrapped around his wrists as well. A length of electrical cord, with a male plug, was binding the deceased’s wrists. There was blood and bodily fluids covering most of the cord.
A portion of belt was found wrapped around the deceased’s neck. That belt had been looped and pulled through the buckle. An examination of that belt, and of the portion of the belt on the floor, supported a conclusion that the two pieces of belt had, at one stage, been joined together.
An examination of the surrounding area revealed a blue and white doona cover on the floor directly in front of the door to the deceased’s bedroom. That cover had a strong smell of perfume type odour. The doona cover essentially sealed the gap between the door and the floor, when the door was closed.
There did not appear to be any damage or sign of interaction within the ensuite. However, the floor of the adjacent bedroom contained a number of areas with blood stains. Blood stains were also located on a wall section quite low to the ground. A piece of tissue and two pieces of earring were located on the floor of the bedroom.
Analysis of a swab of apparent blood staining on the wall of the main bedroom and of fibres with apparent blood staining on the carpet in the main bedroom found they were consistent with the DNA profile of the deceased.
The staining to the wall was at a maximum height of 60 centimetres, with the majority being no higher than 31 or 30 centimetres. That blood staining was consistent with spatter stains from an external force being applied to either a bleeding person or a bloody item. The height of the blood source was between 18 and 30 centimetres above the floor.
An examination of the staining on the floor supported a conclusion that the source of blood was at or near floor level. It had created a saturation stain which had soaked into the carpet. Blood stains were also located going down the hallway. They were consistent with the blood source being higher at that time.
An examination also revealed blood staining on a bedside table, consistent with the blood source being to the right hand side of the bedside table, at about 30 centimetres above the floor. The highest level of that staining was at 46 centimetres. The examination of the blood staining located at a low level on the wall and on the bedside table did not allow any determination of how many applications of force were involved to the blood source. It was one or more.
The blood staining at the higher level could potentially be part of the one act of force or as a result of a separate incident. A blood source which receives force will go in any direction until there is something that stops it. That includes upwards and sideways and travelling in opposite directions. The soaked blood staining into the carpet was consistent with the blood source remaining there for some time.
An examination of the bedroom and ensuite located behind a shelving unit, just inside the doorway, an Amart furniture receipt, dated 17 February 2017, as well as a bottle of perfume on the top of the shelving unit. The perfume box was located inside the ensuite on the vanity unit.
An examination of the adjacent bedroom revealed the presence of blood on three small areas. The age of that blood staining could not be determined at that time. The doona that had been located on the floor also contained a number of blood stains, as did a pair of board shorts located in another bedroom. Excised fibre from those shorts, when tested for DNA, was consistent with the DNA of the appellant and a mixture of the DNA of the deceased and the appellant.
An examination of the lounge area revealed one area of blood staining, soaked into the rug. Again, it was impossible to determine its recency. There was no other blood trail around it or around the blood staining located in the other bedrooms or on the shorts. No blood staining was detected in the dining room or in the kitchen.
A few positive results for blood were detected in the entry hall. One stain was consistent with somebody who had blood on them touching that surface. An examination of the sitting room adjacent to the hallway revealed no blood. A Terry White Chemist receipt dated 19 February 2017 was located in that room.
An examination of the garage revealed an iron with the majority of its cord missing. The remaining part of its cord was consistent with the piece of cord bound around the deceased’s wrists. An examination of the patio area and the yard located some twine similar to that wrapped around the deceased’s body. Some transfer blood stains were located on the tiled floor of the front patio.
A physical examination of the piece of tissue found in the deceased’s bedroom revealed the presence of a blood stain, whilst an examination of the reading glasses revealed that the right side arm was slightly damaged at the hinge. A forensic examination of the packing tape found wrapped around the deceased’s head revealed it had been wrapped around the deceased’s face at least seven times.
An analysis of tape lifts from the inside of the pocket of the deceased’s shorts and of the power cord from the deceased’s wrists was found to contain a mixture of DNA consistent with the mixture of the DNA of the appellant and the deceased.
Friends and neighbours of the deceased gave evidence of their observations between 16 or 20 February 2017.
Stuart Buchanan lived adjacent to the deceased. He described the deceased as very likeable and amicable. The deceased had a tendency to exaggerate and tell stories. He liked to give the impression he was wealthy. The deceased had others living in his residence. Initially, there was one boarder, then the appellant moved in and there was a third person for a short period of time.
In the period leading up to 16 February 2017, Buchanan tapered off his regular visits to the deceased to about once a week as the deceased was always offering him a glass of wine. The deceased was still quite a chatterbox, who seemed able to handle having a few glasses of wine quite well.
Buchanan had much less interaction with the appellant, who would often leave to have a cigarette on the patio. The appellant generally had his dog at his side. It was well cared for by the appellant. The appellant took pride in training the dog.
Buchanan did not recall any great animosity between the deceased and the appellant. There was mild tension in that the deceased thought the appellant should do as the deceased wished, as the deceased was the primary person renting the property. He did not ever see any sexual interaction between them or hear any conversations between them that may be interpreted in that way. He did not ever see the deceased try to touch the appellant.
On the morning of 17 February 2017, Buchanan had a brief conversation with the appellant over the fence. He did not have any interaction with the deceased that day. Buchanan did not recall hearing anything unusual on the evening of 17 February 2017 or on 18 February 2017. Outside conversations were generally heard over the fence, because of the proximity of the houses. However, you would not hear anything from inside the house, unless it was a very loud conversation.
On the afternoon of 19 February 2017, Buchanan observed the deceased’s Commodore was parked in a different position to where it had previously been parked on the nature strip. Buchanan had seen the appellant driving the deceased’s Mercedes but did not recall him ever driving the Commodore. The Mercedes was parked on the driveway. It was generally parked on the grass.
Emma Demal also lived adjacent to the deceased. She rarely saw him and did not ever speak to him. Two cars were often parked out the front of the deceased’s residence; a Commodore and an SUV. One was parked in the driveway, the other on the side of the lawn. The cars changed position.
On 17 February 2017, Demal spent the day at TAFE, returning home at about 4 o’clock in the afternoon. She did not hear anything unusual from the house next door that evening, or on the following evening. She recalled the air conditioning unit just outside bedroom four of the deceased’s residence being turned on between 7 and 8 o’clock in the evening on Sunday, 19 February 2017. She did not notice any vehicles in the street and did not hear anything unusual from next door during that evening into the morning of 20 February 2017.
Leszek Majchrzak lived in the same street as the deceased. He had seen the deceased stumble to a car on several occasions but had never actually met him. He looked ill. Majchrzak recalled seeing the deceased at the ATM machine at a local shopping centre about a month before his death. The deceased was with the appellant.[3]
[3]AB154/30.

Majchrzak had seen two cars parked on the street; an old Mercedes and an old sedan. The Mercedes was parked mainly in the driveway. The old sedan was parked on the footpath or sometimes on the road. He saw people driving them a few times.
Majchrzak did not see any cars parked outside the deceased’s residence when he went out on Friday, 17 February 2017. A car door slammed early that morning. When he looked out he saw a tall, bald person and a dog in the car.
Majchrzak did not hear or see anything unusual or any form of disturbance in the street on the evening of 17 February 2017, or 18 February 2017 or 19 February 2017. When Majchrzak went out on the morning of 20 February 2017, he did not see any cars parked outside the deceased’s residence.
John Farrelly met the deceased about two years before his death, when the deceased asked if Farrelly could mow his lawn. The deceased was very unsteady on his feet, with a bad heart, who was no good without his walking frame. Farrelly had asked the deceased if he was gay. The deceased said “Definitely not”; he had a wife that he was hoping to get back with; that he was “filthy rich”; and that his brother was rich.[4]
[4]AB156/45.
The deceased had carers, who were usually younger men. Farrelly estimated the deceased had five or six carers over that time. The deceased complained to Farrelly about the carers. He said he was being threatened by them and he was frightened.
Gregory Chester first met the deceased at a local hotel. The deceased was an openly gay man. Chester and the deceased had been in a sexual relationship. The sexual relationship ended about six months after he met the deceased. They remained good friends.
Chester said the deceased liked to drink cheap Chardonnay. He used to have one or two bottles a day, maybe a third one. The deceased would, on occasions, drink until he passed out and then get up and drink again. Chester was aware the deceased received assistance with showering and the changing of sheets. The deceased had difficulties, on occasions, with his leg giving way. He used a walking frame with wheels. The deceased used men as his carers. These people lived with him.
To Chester’s knowledge, there was never a sexual relationship with the deceased and his male carers. These men would get alcohol for the deceased, and take him shopping. They would drive the deceased in his motor vehicle to play the pokies. Some were given the deceased’s credit card. Those people knew the deceased’s PIN number. The deceased had disagreements with some of these people.
In May 2016, Chester and the deceased went on a trip, paid for by the deceased. They spent 10 days in Darwin. Chester went on the trip to look after the deceased, to help him if he fell or got weak in his legs.[5] On the return flight home, the deceased became very drunk. The deceased accused Chester of stealing his wallet. When the deceased returned home, he called the police. Chester handed over the wallet to police. The deceased later apologised to Chester. They laughed about it.
[5]AB158/30.
Chester met the appellant twice at the deceased’s residence. On the first occasion in November 2016, the appellant came out of the patio area into the dining room and helped in the kitchen. He then went back outside whilst Chester had a drink with the deceased in the lounge room. They spoke about Darwin, his old flat mates, his ex-wife and about going on a boat cruise.
At one point in the conversation, either Chester or the deceased made a comment about another friend, Tony, having a “sexy arse”.[6] The appellant came inside and said “Don’t talk about me like that”. The deceased said “We were not talking about you”.[7] As the appellant walked away, Chester said something like “I wonder if he is hung or cut”. Chester said he was still talking about Tony. The appellant said he did not like Chester’s attitude. Chester thought he was joking and laughed. The appellant said “I want you fucking out of here. You’re an idiot”.[8] Chester thought it best to go. He finished his drink and left. The deceased rang the next morning to apologise.
[6]AB170/45.
[7]AB171/10.
[8]AB162/45.
Chester accepted that, on that occasion, he and the deceased were talking about some of the deceased’s ex-flatmates, one of whom was a man named Lyle. Chester could not recall whether, on that occasion or some other occasion, they had discussed the fact that Lyle had been imprisoned for the rape of another man. That incident had occurred at one of the deceased’s previous addresses. Chester also accepted that, in that conversation, the deceased was talking about wanting to sleep with Chester again.
Chester last saw the deceased on 16 February 2017.[9] He arrived just after 11 o’clock and stayed for a couple of hours. Chester did not interact with the appellant at all on that occasion. Chester and the deceased spoke about an ex-flatmate of the deceased, who was dying of cancer. Chester described the deceased as being in a stupid mood, laughing, being his normal self. The deceased was drinking but did not appear to be affected by the alcohol. Chester did not see the deceased again.
[9]AB164/25.
Colleen Church was working at Amart on 17 February 2017. She noticed two men sitting in the recliner area. One was called Robert. He purchased two recliners. She was not introduced to the other man but Robert told her the other man was his carer. Church obtained Robert’s details for the purchase. She described Robert as very chatty. When she asked Robert if he would like to pay a deposit or the balance, he asked the other man what he should do. That man said “just pay a deposit today”. Robert proceeded to pay a deposit for the purchase.
Church described Robert as using a cane and seeming to be very dependent upon it. He was happy within himself. When she offered an extended warranty of five years, he laughed and said “I’m already on borrowed time. I don’t think I’ll be here in five years”.[10] CCTV footage identified that Robert was the deceased and the other person was the appellant.
[10]AB185/30.
Sebastian Di Bella, a friend of the appellant for about four years, had arranged for the appellant to help Di Bella plant pumpkins at eight in the morning on 18 February 2017. The appellant arrived at about 10 o’clock, in the deceased’s Commodore. Di Bella described the appellant as the same as usual. He remained for approximately an hour. Di Bella’s wife also said the appellant seemed normal that morning. As he left, he said something to her about having to check on his dog.
Di Bella was aware that the appellant was living with the deceased as a carer. The appellant had, on occasions, spoken to Di Bella about his relationship with the deceased. In about December 2016, the appellant wanted to move out because they were not getting on. There had been instances of finding the deceased watching gay porn, which the appellant found disgusting. The appellant had come home one day to find the deceased in the lounge room watching porn and his dog in the lounge room, licking its chops. The appellant told the deceased that, if he wanted to do this, he should leave the dog outside. He did not want the dog inside the house. The appellant said the deceased back pedalled and said “Yeah. No worries. That’s fine and that’ll be the end of it”.[11]
[11]AB180/5.
The appellant told Di Bella, a couple of weeks before 18 February 2017, that he had come back to the house to find the deceased watching gay porn in the lounge room. The deceased was masturbating with the dog next to him. The appellant thought the deceased had involved his dog in some way. The appellant was distraught because his dog was his everything. Di Bella said that some people do not have children and their dogs become their children and that was how the appellant was with his dog.
Di Bella did not accept that the appellant had ever said that he was uncomfortable around gay men. The appellant had said he did not like gay porn. To his knowledge, the appellant was not gay.
Scott McGrath was the chief investigating officer in relation to the deceased’s death. As part of his investigation, he made enquiries with a number of financial institutions. Those enquiries revealed that the deceased’s bank account balance had decreased from $48,870 as at 1 June 2016 to a balance of $12,019 at the end of 2016.
There were a series of transactions with the deceased’s credit card between 17 February 2017 and 20 February 2017. There was a transaction at a tobacco station at 11.33 on the morning of 17 February 2017; at a liquor store at 4.23 in the afternoon on 17 February 2017; and at a pharmacist at 12.46 on the afternoon of 19 February 2017. There was a cash transaction at Coles Express on the morning of 20 February 2017. Video footage relevant to such transactions, as well as receipts for the liquor store, pharmacist and Coles Express transactions, were obtained by police.
There were also cash withdrawals for $1,000 from the deceased’s bank account on 18 and 20 February 2017. The first ATM withdrawal of $1,000 occurred at 8.45 in the morning on 18 February 2017. The second ATM withdrawal of $1,000 occurred at 6.46 on the morning of 20 February 2017. Video footage of such transactions was obtained by police.
Financial records from the local football club revealed that both the deceased and the appellant were members. The appellant’s account recorded accruals on 15, 18 and 19 February 2017. The last accrual in the deceased’s account appeared to be 13 February 2017.
McGrath’s investigations also identified that the deceased had telephoned triple 0 on 30 August 2016 and 10 September 2016. The deceased made two calls to triple 0 in a row on 1 October 2016. He made other calls on 30 October 2016, and 2 and 3 November 2016. The last call was on 1 January 2017.
Relevantly, in the call on 30 October 2016, the deceased claimed he had locked himself in his bedroom as his carer, who he named as the appellant, had taken his car and threatened him. Further, in the call on 2 November 2016, the deceased claimed his housemate “Tenant” was threatening to kill him.
McGrath said the deceased’s Mercedes was located on 22 February 2017 by a member of the public. It was found locked and undamaged, parked in a Cairns street near the TAFE college. Police found its keys at the deceased’s residence.
On 23 February 2017, Mr McGrath became aware of a transaction taking place in Port Douglas on the appellant’s account. He contacted pet friendly accommodation providers in Port Douglas. He located the appellant at the Dreamcatcher Apartments.
John Wladysiuk, who operated the Dreamcatcher Apartments in February 2017, said a man arrived with a dog at about 2 pm on 20 February 2017. The man did not tell him his name. He indicated he was going to stay for two days. The man paid in cash. Wladysiuk described the man as appearing normal, like any other customer. After the two initial days, the man extended his stay. He again paid in cash.
On 23 February 2017, Wladysiuk received a telephone call from police. He passed on the policeman’s telephone number to the man with the dog. The man reacted normally and said “Okay. Thank you”.[12]
[12]AB175/15.
McGrath subsequently received a telephone call from the appellant. In that conversation, the appellant said he lived with the deceased as his carer. He described the deceased as “an old boy and I’ve got to look after him, drive him around and I have been doing that for six months and he said, take a holiday for a week, and I’m like, yeah, cool, wicked. Haven’t, you know, I’ve been working seven days a week”.[13]
[13]AB518/40.
Bradley McLeish, a detective involved in the investigation, drove to Port Douglas, looking for the deceased’s Commodore, as well as the appellant. They attended the Dreamcatcher Apartments, where they located the appellant and his dog. The appellant expressed surprise when told the deceased had been found dead. The appellant said he had left on Monday to go on a holiday for six months. When he left, the deceased “was all happy”.[14]
[14]AB513/35.
The appellant later underwent a formal interview. The appellant said he moved into the deceased’s house in about September 2016. He paid the deceased $180 a week. That sum included one meal a day, as well as electricity and internet. The deceased later suggested he become his carer. His role as carer involved cleaning the house, taking the deceased shopping and out, and otherwise looking after the deceased. The government paid the apellant an allowance as carer. The deceased paid the appellant’s expenses. The appellant said the deceased drank alcohol constantly, 24/7. He needed assistance walking.
The appellant said he left the deceased’s residence on 20 February 2017 at around 5 or 6 in the morning. He took the dog for a walk before driving the deceased’s Commodore straight to Port Douglas. The appellant said he stopped at a Caltex fuel station in Cairns. At Port Douglas he “hit the piss pretty hard”.[15] He walked the dog, went to the pub, just relaxed to get away from all the stress as “you are living and breathing someone else’s life” 24 hours a day, seven days a week.
[15]AB538/30.
The appellant said he last saw the deceased at about 7 o’clock on Sunday evening. He said goodnight and said he might go on Monday morning to have a little break. The deceased replied “yeah, cool, you know, just ah just be back Monday”.[16] The deceased was in the lounge room. When the appellant got up on the Monday, the deceased was not on the couch watching television.
[16]AB540/10.
The appellant said he and the deceased went to a hotel on Friday, 17 February 2017, arriving about 11 or 12 o’clock in the morning. They stayed for about an hour. When they returned, the deceased was “crook” so he went to bed.[17] The appellant went to bed around 8 o’clock on the Friday evening.
[17]AB541/13.
On Saturday, 18 February 2017, the appellant said he took his dog for a walk but basically stayed at home all day. On that morning, he purchased some wine from Dan Murphy’s and some food from Coles, using the deceased’s credit card. He was by himself as the deceased “was pretty crook all weekend”.[18] He took one of the deceased’s vehicles to purchase the wine and food. The deceased provided the appellant with his PIN number.
[18]AB543/55.
The appellant said on the last occasion he had been asked by the deceased to withdraw cash from the deceased’s account, the deceased had wanted “a grand”.[19] He withdrew it from the ATM of the Commonwealth Bank in Cairns. It had to be the Thursday or Friday, because they went and purchased a recliner couch on the Wednesday. They had a two for one deal. He did not know if the deceased paid for it straight up. They drove the Mercedes on that day. After that purchase, they went to the local football club. They had a bet on the pokies before returning home, where they remained for the rest of the day.
[19]AB546/40.
The appellant said that on Sunday, 19 February 2017, he walked the dog. He purchased some alcohol from Dan Murphy’s before grabbing some food and returning home. They drank alcohol together for the rest of the day. The last thing the appellant recalled was pouring the deceased a glass of wine, before telling the deceased he was going to go to bed and that the next morning he was going to have a week off.[20] When he left home on Monday, 20 February 2017, the deceased’s credit cards should have been in the deceased’s wallet. The appellant thought he last used them on Saturday at Dan Murphy’s and then to buy food.
[20]AB552/10.
The appellant said that, when he spoke to the deceased on Sunday, 19 February 2017, about having a week away, the deceased told him he was going to have “Greg come over”.[21] The appellant described Greg as some “weird person” and “an old prostitute”.[22] The appellant said the deceased “likes the boys” and that was “another reason I was getting out of the place ‘cause he was gonna you know he had his weekend of rumpus and some shit, you know”.[23] The appellant said he was not gay.
[21]AB554/10.
[22]AB554/15.
[23]AB554/20.
The appellant was asked about his knowledge of the deceased’s previous carers. He replied “… he didn’t really tell me much, you know… he said one dude raped him. Like a couple of years ago or some shit, when we were talking, and I was like, you know, ‘cause I was abused when I was young so we started talking and he said yeah, he was raped a few years ago or something by I don’t know his name. You know? Yeah. Oh, he should, he should have it organised you know… I don’t, I’m homophobic. You know what I mean? I don’t want that”.[24]
[24]AB556/1-5.
The appellant said he did not know the deceased was homosexual until a few months after he had moved into the deceased’s residence. The appellant said the deceased just kept looking at his dick and it grossed him out. The appellant had no interest in men and when he first moved in, the deceased told him he was straight. The appellant said his heterosexuality created friction between them: “… he’s always talked foul, you know, he talked about some dude who was living with him, he was a paedophile. I’m just like, what, and ah then he’s always talked about paedophiles, I said, look, I’m not speaking about that, you know. I don’t even know that, you know, and ah, you know, he always can’t stop looking at my dick. I notice this. You know? ‘Cause I notice people looking at me, but they’re you know, when you’re always talking to someone looking down, it’s like that’s … A bit thick that, you know, like I told him many times to stop looking at my dick. You know … Come on, up here, you know.”[25]
[25]AB556/32-42.
The appellant said the deceased had made sexual advances towards him. He told police “[Stuart] was over, next door, we were having a few beers and he tried to grab me, me junk, you know, I said hey no, you know, I said I’ll knock you out if you touch me junk like and ah [Stuart’s] like oh don’t, don’t [indistinct]. Okay. And ah he just pissing on, sniffles and just different things like, you know what I’d like? I said what, what do you feel like doing? He goes, oh, you know what I’d like. And I’m like, I just really don’t want to think about that. You know what I mean? It’s just I don’t want to know what you like. Mm. But other than that, it’s been all right.”[26]
[26]AB557/1-10.
The appellant said when he left on Monday, the deceased’s BMW was in the garage and the Mercedes was parked out at the front. The appellant last used the Mercedes on Saturday, 18 February 2017. The appellant usually used the Commodore. It was the carer’s car. When the appellant was told by police that the deceased’s Mercedes Benz had been found near the TAFE college, he denied he had been near that college.
The appellant said he called out when he left but did not hear anything from the deceased’s room. The deceased kept his bedroom door closed and locked. The appellant said he and the deceased “always fucking had a lot of biffos. You know, like he’ll kick me out and then the next morning he’ll check the [indistinct] or something and then you know like drunk and shit and we’ve been all right”.[27] The appellant said the deceased would go off at something stupid and then a couple of minutes later the deceased would text him saying sorry or apologise in the morning.
[27]AB573/25.
The appellant denied physically assaulting the deceased in any way between 17 and 20 February 2017. The appellant denied the deceased had ever sexually assaulted him in any way, other than the incident when he tried to grab his “junk” and when he would look at his “dick”. He denied knowing anything about the deceased being bound, gagged and tied up. He denied knowing anything about an electrical cord being cut and used to tie up the deceased.

The appellant denied knowing anything about the cash withdrawals of $1,000 from a Commonwealth Bank ATM at 6.46 am on 20 February 2017, and at 8.45 am on 18 February 2017; or the cash purchase of goods from Terry White Chemist on Sunday, 19 February 2017. The appellant denied being in the areas where those cash withdrawals had taken place. When told CCTV and other images depicted the appellant going to the ATM on both occasions, the appellant replied “couldn’t be”.[28] The appellant accepted the person in those images was wearing shoes, shorts and a shirt that looked like his items but denied recognising the person, saying “it doesn’t look like me”.[29] The appellant said he had more hair on top and it was not him.
[28]AB578/45.
[29]AB580/45.
The appellant also said he did not know anything about the deceased’s Commodore being captured at the base of the Kuranda Range at 7.43 on the morning of 20 February 2017 and at the top of the Kuranda Range at 7.54 that morning. The appellant said he drove directly to Port Douglas. The appellant said he had left his mobile telephone back at the deceased’s house as he just wanted to disconnect. He denied deliberately switching it off so police were not able to track him.
The appellant accepted there had been an incident in which he had walked in on the deceased masturbating in the lounge room. The appellant said that had occurred “Fucking ages ago”[30] and the deceased “uses the kitchen table to pull his, you know, he likes porn and to pull his dick”.[31] There had been an occasion when he came home when the deceased was watching porn and his dog took its time to greet him. The appellant told the deceased to leave the dog outside if he was going to do that kind of thing. The appellant denied ever seeing the dog actually licking the deceased’s genitals or anything like that.
[30]AB584/55.
[31]AB584/55.
When police told the appellant their investigations revealed the body of the deceased had been dead for longer than 24 hours when it was discovered, the appellant replied that could not be as he had been there at the house. The appellant said he did not know anything about a piece of linen being pushed up against the bottom of the deceased’s bedroom door. The appellant denied noticing any bad smell in the house before he left on 20 February 2017. The appellant told police everything he had told them had been the truth “definitely”[32] and that he did not kill the deceased.
[32]AB593/50.
A bag containing $877 was located at the appellant’s apartment in Port Douglas. The appellant had $164 in his wallet. Police were unable to locate the deceased’s Commonwealth Bank card or the appellant’s mobile telephone.
Amanda Milligan undertook a scientific examination of a pair of ASICS shoes located in the apartment the appellant was occupying in Port Douglas. That examination revealed the presence of around 20 small spatter blood stains on one shoe. The blood stains could have been caused by the shoe coming into contact with a blood source. Given they were small blood stains, it would be expected the source of blood was in close proximity to the shoe. Swabs of that apparent blood staining were consistent with the DNA profile of the deceased.
A medical examination of the appellant conducted on 23 February 2017 revealed he did not have any signs of recent injury, including on his hands or feet at that time.
Dr Paul Botterill undertook a forensic autopsy of the deceased’s body on 22 February 2017. The deceased’s body exhibited after death decay related change. Maggots were present and there was significant odour associated with that process. That degree of decompositional change would require a number of days between death and examination. The fact the body was located in a locked house on 20 February 2017 would impact on the rate of decomposition. Dr Botterill’s best estimate was that it had been a number of days between the time of death and autopsy.
His examination revealed there was a buckled up belt surrounding the neck, beneath which was a narrow cord. There was plastic tape present around the head, covering the deceased’s eyes and nose; a black plastic cord around both legs; yellow cord around the legs, wrists and neck and there was part of an electrical cord around and between the wrists. Tissue paper was present in the deceased’s oral cavity.
An examination of the outside of the deceased’s body revealed four areas of injury. First, a pressure mark or furrow, which was deep, where a buckled up belt, beneath which was a narrow cord, were around the neck. Second, an area of discolouration over the left side of the chin on the under surface of the jaw. Third, some bruising over the right temple region heading towards the right cheek region. Fourth, bruising over the front left side of the chest.
The furrow around the neck corresponded with the width of the belt. Whilst that groove would suggest the belt was very tightly applied, bloating after death may make it appear tighter, rendering it difficult to assess the tightness of the belt at the time of death. An internal examination of the deceased’s head did not identify any blotchy haemorrhages sometimes associated with a neck compression. That may be because they were not present or be a reflection of the after death decay change.
Bruising is an injury usually requiring the application of force, usually blunt force. There were no changes that suggested healing with these bruises. They could have occurred immediately at the time of death, or up to a day before. Bruising can occur after death in somebody who has heart failure, but generally speaking you need a pumping heart to result in bruising. The deceased’s injuries had been occasioned at about the time of death or in about a day or so beforehand. Bruising would result from the body coming into contact with something, either by the body falling or something being used to strike the person, or a combination of both. In most people, it would require moderate force.
Dr Botterill said a single piece of tissue located in the deceased’s mouth may have had an impact on the deceased’s death. The deceased had tape over his nose, which could have resulted in a critical inability to get air into his lungs. Dr Botterill could not say with certainty that the deceased had obstruction of his airway. It was possible the tissue was only partially obstructing the oral cavity, but there was a potential for complete airway obstruction which would be fatal.
In addition to the bruising in the head area, there was a fracture to the vault of the skull. That fracture was not associated with distinct bleeding, but it was possible there had been localised bruising deep to that fracture that could not be seen due to the decompositional change. Moderate to severe force would be required to fracture the skull. It was possible for a punch to result in that skull fracture. A fall onto a surface which is not giving, like wood, rather than a carpeted surface, would be more likely to result in a fracture. If the force from the fall is concentrated in a smaller area, it is more likely to result in deformity that leads to fracture.
The deceased’s skull fracture was consistent with the same force being applied at the time that the bruising to the deceased’s upper facial area took place, although it is possible that the application of force resulted in the fracture and the bruising occurred as a consequence of the deceased’s falling to the ground. Whilst one fall could result in injury to two areas of the head, it is more likely there were two separate applied forces. An elderly person who falls is more likely to have the brain damaged in addition to the fracture of the skull, with more severe consequences.
Long-term significant alcohol use causes brain shrinkage, as well as liver damage which results in easier bruising, increasing the chance of getting bleeding on the inside of the skull should you have a blunt force injury to the head. There were no features consistent with healing of that skull fracture. Dr Botterill opined that the skull fracture occurred either at the time of death or within the preceding weeks, but noted it would be extraordinary for the deceased not to have symptoms had it occurred in the preceding week.
The injuries to the chest area included a break to the breast bone, where the second and third ribs joined that bone, and fractures to the front side aspects of the right third through to the seventh ribs in a line, and to the back of the left fifth to ninth ribs. These fractures showed no signs of healing, so they either occurred at about the time of death or potentially in weeks beforehand. Those injuries would have manifested as distinct pain and difficulty breathing, so it would be extraordinary that the deceased would not have had symptoms should they have been many days old. These injuries were also associated with haemorrhage, which showed no changes, consistent with them being more likely to be about the time of death or a day or so beforehand.
Moderate to severe force would be required to cause the rib fractures. The fact the fractures were in a line, makes it more likely they occurred with the one contact. The fact they were located on the right front and the left back made it extremely unlikely they were as a result of a fall, unless there were two separate falls. It was much more likely they related to an application of force, such as a crush. They could be from a punch or from stomping or from kneeing. They could also be as a result of a blow from an implement. Dr Botterill did not think the two together could reasonably be explained by a simple fall, although it was theoretically possible.
If the fracture was as a result of a punch, the punch would have to be big enough to contact all four ribs, such that it was more likely to be a forearm or an elbow or something larger. It was consistent with the application of a foot. The fracture to the sternum was unlikely to be explained by one force fracturing the right front ribs, the left back ribs and the breastbone. It was likely to be a separate application of force. If a fracture was sustained by pressure on the breastbone, you may get some fractures of one side of the rib but you would not get fractures to the back of the other side.
An examination of the deceased’s throat area revealed a separation of the bones of the spine between the head and chest. That was likely to be a decay-related process. An examination of the neck tissues did not reveal evidence of bruising that might occur if there had been an application of fingers to the neck. The structures surrounding the voice box were also intact and there was no additional foreign material within the voice box or the windpipe leading to the lungs. The fact there was no discernible bruising within the soft tissues of the neck is more in keeping with a conclusion that the pressure applied to the neck was not so tight that that alone stopped air getting through to the lungs, but it does not negate the possibility of preventing blood getting through to the head as a consequence of neck compression. Four minutes of such restriction will, as a rough principle, result in irreversible brain damage. A restriction in breathing can also result in a heart attack, causing death.
The fact there was no bruising around the neck was not unusual in a case of an application of force where a belt is pulled tight. In a suicidal hanging, it is very uncommon to see any bruising at all within the tissues of the neck. One continued application of force is much less likely to result in bruising than if it is applied then slightly released, then applied then slightly released. The fact there were no fractures or damage to the structures of the neck also did not exclude that the belt was pulled tight and was the mechanism of death. In most cases where people die from hanging, injuries are not found to those structures.
An examination of the deceased’s lungs showed fluid within them, which was of no consequence as it is a universal finding. There was evidence of previous scarring to the lungs that had occurred many months, if not years, before. That scarring would not have caused death, but it may impair the ability to breathe normally if you are strained in other ways.
An examination of the deceased’s heart revealed it contained severe narrowing to one of the arteries of the heart, increasing the chances of a sudden, unexpected death. It also meant the deceased’s heart was more prone to damage from lack of oxygen and from pressure on the neck resulting in electrical discharges to the heart. However, there were no heart attack features seen on autopsy.
Dr Botterill also observed bruising on various parts of the deceased’s extremities. Those bruises were likely to have occurred about the time of death or within a day or so of death. Moderate force would generally be required to cause such bruising. Some of the bruising was located under the areas where there was bindings to the hands. Such bruising did not mean the binding caused it, but it was consistent with the binding being present and with the deceased being alive or having a heartbeat at the time of the application of that force. Pulling that binding tight could cause damage to the underlying blood vessels and result in bleeding of the tissues under the skin. Another possibility is that there was coincidentally another force being applied prior to the binding. There was no way to exclude those two possibilities.
The bruising to the hands was consistent with blunt force contacts up to a day or so before the time of death. The bruising over the knuckles was typical of somebody who had either placed the hands up defensively or, alternatively, offensively struck trying to punch. There was no way to say definitely how that bruising had occurred in the case of the deceased’s bruising.
As to the cause of death, Dr Botterill said:
“There were basically four potential causes of death that were present: there was obstruction of the airway, related to the material over the nose and material in the mouth; there was neck compression, related to the belt and the other cord around the neck; there was blunt-force injury to the head, with the fracture and the areas of bruising over the face; and there was also blunt-force chest injury, with the rib fractures and the breastbone fracture. Well, any one of those could have potentially been the cause of death but unfortunately – and this is mostly because I think of the decay process that had occurred – I was unable to say any one of those was necessarily the most likely explanation. So I’ve given the cause of death as the combined effect of each of those, that is, the combined effect of airway obstruction, neck compression, blunt-force head injury and blunt-force chest injury, because I think that’s probably the most likely explanation, that a number of these particular injuries together have resulted in his death. I also included coronary artery atheroma, or hardening of the artery of the heart, as a significant contributing condition. Although I don’t think it caused his death, it was significant in that any of those other conditions were more likely to result in death because of his underlying heart problem.”[33]
[33]AB286/40 – AB287/10.
It was the cumulative effect of those injuries. It was not possible to give an order in which those injuries had occurred and any order would be sufficient to result in death. None of the injuries identified by him would necessarily explain the presence of blood. If there was blood located at the scene, it is likely to have come from the deceased’s nose or mouth.
Dr Botterill accepted in cross-examination that the groove created by the belt and cord around the neck was much more accentuated as a consequence of the deterioration of the body. He could not exclude as a possibility that the belt and cord were applied after death. There was no underlying bruising, no damage to the cartilages or small bones in the deceased’s neck, no haemorrhaging to the whites of his eyes, no tears to the blood vessels going to and from the head and neck, and no scratches or abrasions to the neck indicating a struggle, or other bruising associated with the application of the belt to the surface of the skin. Dr Botterill did not accept those were five commonly found signs. In most hangings, none were present.
Dr Botterill accepted the absence of those five signs was consistent with the belt and cord being applied to the deceased after death, saying “That’s certainly possible”.[34] He had no way of knowing when the tissue in the mouth, and packing tape found around the deceased’s head had been applied to the deceased. If the belt and cord were applied after death and the tissue and tape were applied after death, death could have been caused by the blunt force injury to the head or to the chest or a combination of those two, with a significant contributor in those circumstances being the deceased’s significant heart disease.
[34]AB290/35.
Dr Botterill opined that the injuries were more significant. The heart disease made it more likely those injuries would result in death, rather than that the heart disease was the cause of death. If there were no other signs observed at autopsy apart from the diseased heart, that heart disease would have been an entirely reasonable cause of death in the circumstances.
At the conclusion of the Crown case, the defendant made admissions:
(i)that there was video footage from security cameras at a street in Mooroobool on 17 and 19 February 2017;
(ii)that there was video footage from traffic cameras at locations in Cairns on 17 February 2017;
(iii)that there was video footage from security cameras at a BP service station at Earville on 17 February 2017, together with a receipt for a transaction conducted at that station on that date;
(iv)that there was video footage from security cameras at a DFO shopping centre on 18, 19 and 20 February 2017;
(v)that there was video footage from security cameras at a high school at Mununda on 19 February 2017;
(vi)that there was video footage from security cameras at a Caltex service station at Mununda on 19 February 2017;
(vii)that there was video footage from security cameras in the Cairns CBD on 20 February 2017.
The appellant gave evidence that he had regularly suffered physical abuse as a child. When he was about five years of age, a boyfriend of one of his uncles tried to rape him. He described having a bit of brain damage that took him a while to get back to normal and that he did not like physical touching by other people. The appellant said he left school at year 10 as a result of constant physical fights. He lived with street kids and started using drugs and alcohol to excess. The appellant had tried to kill himself in the past. Eventually, he finished his trade certificate to become a qualified boilermaker. The appellant had not had any long term relationships. He had a puppy that was like his daughter and best friend.
The appellant said he met the deceased when he answered an advertisement for roommates. The appellant described the deceased as looking “a bit poncey to me”. He thought the deceased was gay but the deceased said “no I am not gay”. The appellant said the deceased used a walking stick and was very wealthy. The appellant said the deceased loved his dog and they got on well together. The appellant agreed to move in with the deceased.
When the appellant first moved in, the deceased discussed a lad who had stayed with the deceased before who had been brought to Court for raping a child in a wheelchair. The appellant told the deceased he did not like talking about those sorts of things because he had been raped when he was five. The deceased said he was sorry. This conversation made the appellant think about his childhood and freaked him out a bit. It occurred in August or September 2016.

The appellant said the deceased would begin drinking straight away in the morning, and drink the rest of the day. They would go to a local hotel or sports club where the deceased would play the pokies for hours. The deceased would then return home and go to sleep. He would often get really grumpy and either kick the appellant out or get up and start drinking again. The deceased would become sleazy when drunk.
On one occasion, when he asked the deceased if he wanted dinner, the deceased replied “you know what I want”. When the appellant asked what he wanted, the deceased said he wanted to be inside the appellant. The appellant told the deceased to stop being a “dirty prick”.[35] By that time, the appellant thought that the deceased was homosexual. The deceased was always looking at the appellant’s pants, not his eyes. It made him feel disgusted.
[35]AB314/25.
At some point, the appellant became the deceased’s carer. It was 24/7. It was good for the first two or three weeks, but it soon went back to the deceased looking at the appellant’s “dick”. On one occasion, when a neighbour came across to talk to the deceased, the deceased put his hand out to grab the appellant’s “junk”. The appellant told the deceased not to touch him or he would “tap” the deceased.[36] The appellant said the deceased treated him like he was his servant or his slave.
[36]AB316/15.
On another occasion, when the deceased had a friend over, Gregory, the deceased said something about “sexy arse”. Later, Gregory said “I wonder if he’s cut or hung”. The appellant told Gregory to get out. The appellant said he had heard them talking about someone who had raped another person and then when he walked in, he heard the comment about if he was “cut or hung” which repulsed him.
The appellant said he also caught the deceased masturbating while watching homosexual porn. The appellant was concerned because his dog was in the room. He told the deceased to put the dog outside. The deceased giggled like “you know, because he owned the place, you know”.[37] The appellant said his dog was like his daughter and it was like violating his daughter. On another occasion, after Christmas, the deceased was masturbating at the computer at the kitchen table. A couple of days later, the appellant snuck into the house to find his dog licking his “chops”. The deceased was at the table with a sheet over him and tissues everywhere. There was something sticky on the dog. He told the deceased not to let the dog inside.
[37]AB318/10.
The appellant said that, at the end of January, early February, he was getting less along with the deceased. Once a week, the deceased would be telling the appellant to get out and then he would be saying “I love you… you’re a mate”. The deceased was becoming aggressive. Things the appellant did annoyed and upset the deceased. As a consequence, the appellant was looking for another place, but said it was difficult to find a place where you could have a dog.
The appellant said on 17 February 2017, he had a joint as soon as he woke up and before starting to drink alcohol with the deceased. He said he was wearing Quicksilver pants, a tee shirt and blue ASICS runners. He went to Super Amart with the deceased to purchase chairs. He drove the deceased’s Mercedes Benz. After Amart they went to a tavern for a meal. The appellant drank three schooners. They also played the pokies. They argued in the vehicle on the way home. When they arrived home, they argued about whether the appellant would go on a holiday with the deceased. The deceased told the appellant he wanted him to move out.
The deceased then asked the appellant to give him a hand to walk to his room. When they walked down the hallway, the deceased threw his wallet on the ground. As the appellant went to pick it up, the deceased grabbed the appellant’s backside. The deceased “had a handful and, as I come up, his finger hits my bum hole and I jumped, turned around. I just felt violated and I couldn’t get out because I was caged in, and so I defended myself. … I lost the plot”.[38] The appellant said he could not remember how many punches he unloaded and said he may have kicked him once before running out and closing the door. The deceased’s head might have hit the table located next to his bed. The appellant said he reacted because he was thinking the deceased was trying to rape him. He just wanted to get away from the deceased.
[38]AB321/15.
The appellant said he put his dog outside, locked the door, and drove to the shops. He purchased some alcohol and tobacco. When he arrived home, the deceased was dead on the floor, in the corner of the bedroom facing the ensuite. He had blood in his mouth. The deceased was cold all over and had no breath. The appellant did not contact police or emergency services. He said he was freaking out and did not know what to do. The appellant said he started drinking alcohol. He then cooked dinner, before falling asleep.
The appellant said on Saturday, 18 February 2017, he woke up and walked his dog. He still could not believe what had happened. He was scared and did not know what to do. He described himself as a religious man. He had done the worst thing he could, which was to kill a person. The appellant said he went to a shopping centre and withdrew $1,000 from the deceased’s account. He was thinking of escaping and getting away. He went to Di Bella’s house before returning back to the deceased’s residence, where he started drinking and smoking weed.
The appellant said he went into the deceased’s bedroom that night. The deceased was cold, on the floor, between the bedside table and the door. The appellant dragged him into the ensuite. He tried to put him up kneeling. He put a belt around his neck to pull him up and hold him there. The belt snapped on the way up. At some point, the appellant cut off a cord and grabbed some twine and sticky tape. He tied the deceased’s legs together, so he could kneel, and his hands together so that he could get him in the praying position.
The appellant said he prayed with the deceased for a couple of hours. The deceased had died by his hands, so he had to give him last rites. The appellant got up because the smell was starting to putrefy. He put a towel over the deceased’s face and closed the door. The appellant started drinking again and smoking drugs. He fell asleep before crawling into his bedroom.
The appellant said on Sunday, 19 February 2017, a bad smell was coming from the deceased’s room. The appellant put a doona against the door, spraying it with cologne. He did not go back into the deceased’s room. The door was shut to stop the smell coming out at that time. On that Sunday, the appellant walked the dog, had a few drinks and when drunk, jumped into the deceased’s Mercedes. Near the TAFE college he saw a police car. He parked the vehicle and left it there and started walking home. He went past Terry White’s Chemist before going to the local sports club for a beer. He described his state of mind as not in a good place. When he walked home, he drank himself silly before sleeping in his bedroom. He decided to get away.
The appellant said he arose on Monday morning, packed his bags, put the dog in the car and left the residence. The appellant took his dog for a walk, as he did every morning, before driving to an ATM to withdraw $1,000. He drove to the Kuranda Range in order to see his mother one last time. His mother was asleep, so he left without seeing her. He then drove to Port Douglas. He obtained the apartment, for which he paid two or three days in advance in cash.
The appellant agreed he told police he did not know what had happened to the deceased. At that time he still did not believe what he had done. It was not until a couple of months later that he started to have flashback nightmares. The appellant said “I’ve killed him… I’m going to hell for this. It doesn’t matter what time I get. I’m, I’m buggered … I should have kept my hands in my pocket and left, you know.”[39]
[39]AB329/20.
In cross-examination, the appellant said he was seeking forgiveness for what he had done and taking any sins from the deceased that would prevent him from going to heaven. He agreed that, on his version, it was all the deceased’s fault. It happened because the deceased touched him and he was defending himself against the deceased to get away from him. The appellant said he went overboard.
The appellant agreed that moving in with the deceased had a number of advantages, especially once he became the deceased’s carer. He agreed the carer’s payment came with responsibilities. It was his job to look after the deceased and he was paid by the government for that work. The appellant accepted that, by February 2017, he was reliant upon the deceased’s vehicles for mobility. The deceased was a very generous man, paying for a lot of things. The deceased would often pick up the bill at the local tavern. The appellant said the deceased changed with alcohol.
The appellant accepted that, on 17 February 2017, there were transactions on the deceased’s accounts, consistent with the appellant playing games that night at the deceased’s residence. He accepted his money had run out on 14 February 2017. He had to wait until his next payment on 23 February 2017 to have money in his account. At the time of the deceased’s death, he was totally reliant upon the deceased for his living expenses to survive.
The appellant did not recall whether he had told police or Di Bella about any sticky substance on his dog at any stage. He treated the dog like his own child. At the time, he put up with whatever was happening. The appellant did not accept the deceased had made no secret of his sexuality. For a period of time before 17 February 2017, he was aware of the deceased’s sexual orientation.
The appellant accepted the deceased was old and struggled physically. The appellant was much stronger and more able than the deceased who represented no physical threat to the appellant. The appellant did not accept that the deceased was unhappy with the appellant taking his cars. The appellant asked the deceased all the time. The deceased made telephone calls to triple 0 when he was drunk. The appellant denied threatening the deceased.
The appellant accepted that police attended the residence after the deceased made a triple zero call on 2 November 2016. The appellant denied that call was as a consequence of the appellant leaving and taking the deceased’s car. The appellant believed police attended because of what had been said to Greg.
The appellant accepted that police had specifically asked him about his accessing the deceased’s account. If he told police he had taken the money out at the deceased’s request on 18 and 20 February 2017, that was a lie. At the time he spoke to the police, the appellant was in “my psychosis”. He thought he was on a holiday and did not think the deceased had passed away. The appellant accepted that he drove the Mercedes to a street where he left it abandoned. He denied doing it so the Mercedes would not be at the house. He denied that it was so people would not go looking for the deceased. The appellant was unsure what he did with the deceased’s bank card. He thought he threw it in the bin after he used that card on the morning of 20 February 2017. He denied throwing it away to distance himself from the deceased.
The appellant denied he disposed of his mobile telephone so that he could not be tracked by it. He did not want anyone to ring him. He accepted he was distancing himself from his own actions.
The appellant accepted that the deceased had only momentary contact with his buttocks on 17 February 2017. The appellant accepted he had previously felt uncomfortable in the house, including in the conversation with Greg, but had not lashed out and hit anybody, even though he thought they were talking about him very directly and very personally. There was also an occasion when he said the deceased had tried to actually physically touch his penis. He did not react on that occasion. He did not react when he came home and found the deceased masturbating to gay porn.
The appellant said the difference on this occasion was that it felt like the deceased’s finger touched his rectum. The appellant thought something further was going to happen, so he had to stop the deceased. He did not know how many times he struck the deceased. At some stage, he struck the deceased in the head. He did not know if he hit the deceased as hard as he could and did not know what happened when he first struck the deceased.
The appellant thought the deceased hit the bedside table. That table was in the corner of the bedroom, not where he first struck the deceased. The appellant said he blacked out at that time. He was hyperventilating and woke up on the couch. He could not say whether he stomped on the deceased. He did not know if he had kicked the deceased in the head. He agreed the deceased was no match for him physically. He denied he attacked the deceased because he had had enough of him. At the time he thought he had to defend himself against the deceased.
The appellant accepted he knew the deceased was in the bedroom. He did not call for help. On his account, the deceased lay on the bedroom floor next to the bedside table for at least 24 hours. The appellant accepted he had said the deceased was bleeding from his mouth. He checked on the deceased a couple of hours later. The deceased was cold, lying down, with no breath and no vitals. That was when he saw the deceased had blood on his mouth.
The appellant accepted there was some distance between when he said he first struck the deceased and the bedside table. The appellant did not strike the deceased in any way that would project blood onto the walls or onto the bedside table. He did not pick him up and drop the deceased. He was dead. The appellant accepted he was affected by alcohol and cannabis but said he was confident the deceased was dead. The appellant said he did not bind the deceased on 17 February 2017.
The appellant accepted that, on his evidence, he placed a belt around the deceased’s neck after he had dragged the body to the ensuite. He could not explain why. He denied he placed the belt around the deceased’s neck to kill him. The deceased was already dead. He denied pulling the belt so hard that it snapped. He denied binding the deceased while he was still alive. The appellant said he tightly bound the deceased’s legs together because his legs spread apart and he would not stay in the kneeling position. He could not explain why he moved the deceased to the ensuite to put him in the kneeling position.
The appellant accepted that he went into the garage and cut the cord of the iron, which he used to tie the deceased’s hands. He denied tying the deceased up whilst he was alive, to stop him struggling and to enable him to kill him. He could not explain how using the yellow string fitted in with trying to keep the deceased in a kneeling position. The appellant wound the twine up around the neck to keep the deceased’s back upright, because the belt had not worked.
The appellant accepted that despite being a religious man, he left the deceased in the house, locked up, with a doona under the door because of the smell. The appellant accepted he continued to live in the deceased’s house between 17 February 2017 and 20 February 2017. He had gone about his normal routine like nothing had happened, taking his dog for a walk, visiting friends and using the deceased’s car.
The appellant accepted that, during the police interview, he deliberately lied about a number of things. The appellant said he thought he was on holidays at the time. He was in his own psychosis. The appellant accepted that during the police interview, he was shown a photograph of him making a withdrawal and yet he told police it was not him. He also told police he had not gone up to Kuranda. That was a deliberate lie. It was a conscious decision, at the time of being interviewed, to lie about something he had done. He denied he was deliberately lying to police because he had no explanation for his involvement in killing the deceased.
The appellant did not recall changing his clothes on 17 February 2017. His shorts had spots of the deceased’s blood on them. The appellant did not know whether he had to change his shirt because it had the deceased’s blood on it.
The appellant accepted that he had either kicked or punched the deceased in the head at some stage on 17 February 2017, but denied he had strangled the deceased to death with a belt. He denied putting bindings on the deceased while he was still alive. The deceased was dead before he put any bindings on him, the next day. The appellant denied he intended to kill the deceased or to cause him serious life threatening injury.
The appellant’s submissions
The appellant submits there was no direct evidence of any specific intention on the part of the appellant at the time he assaulted the deceased and the evidence did not demonstrate that the fatal assault was of significant duration. Further, the forensic evidence did not exclude that the fatal assault was inflicted without an intention to cause grievous bodily harm. The deceased’s underlying heart condition made it more likely that the other injuries the deceased suffered would result in death. The post offence conduct also could not resolve the issue of intent. That conduct was equally consistent with behaviour designed to distance the appellant from involvement in an unlawful killing. The forensic evidence could not exclude the deceased having been bound after death.
The appellant further submits that there was evidence that the appellant had been provoked by the deceased in sexually assaulting the appellant. Such acts were gravely provocative where the appellant had informed the deceased he had been the victim of a rape as a child; had told the deceased he was not homosexual; and had expressed a desire to leave the deceased’s employment. That provocation was sufficient to cause the appellant to lose control and would cause a reasonable person to lose control in the circumstances. Accordingly, the jury it was not open to find that the defence of provocation was not established on the balance of probabilities.
The respondent’s submissions
The respondent submits it was open to the jury, on the whole of the evidence, to be satisfied both as to the deceased having the requisite intention and that the appellant was not provoked into intentionally killing the deceased.
The deceased suffered a constellation of severe injuries which, of themselves, bespoke of an intention to at the very least cause the deceased grievous bodily harm. Those injuries were inconsistent with the appellant’s version of events. The deceased was found to have not only a buckled belt around the neck, beneath it was a narrow cord. The absence of injury to underlying structures did not exclude an application of force to the neck area causing the deceased’s death. It was, in the circumstances, a logical and reasonable conclusion to be drawn by the jury. Those injuries supported a conclusion that the deceased had suffered a forceful, protracted attack consistent with the appellant intending to cause the deceased’s death or grievous bodily harm.
The appellant’s evidence as to binding the deceased after death was illogical. Whilst the medical evidence did not exclude that possibility, it was a theoretical possibility, not a rational, reasonable possibility available on the evidence. This was particularly so having regard to the fracture of the skull and extensive fractures through the chest region. Both required the application of significant force. The application of significant force was supported by the distribution of blood through the bedroom, consistent with the deceased having been kicked/stomped upon whilst proximate to the floor. The appellant’s version of events was unable to be reconciled with that objective evidence.

Further, the appellant’s account of moving the deceased’s body 24 hours later into the ensuite before binding it was open to be rejected as lacking credibility. The bruising under the hands where there was binding was consistent with binding whilst the deceased was alive. The medical acceptance of a possible coincidental force in that area prior to binding was but a scientific possibility which was rejected by the jury as improbable. The appellant’s version offered no ante mortem explanation for that injury or for the deceased’s damaged glasses being found on a mat on the floor of the ensuite. The deceased’s injuries supported a conclusion that the deceased had been disabled by violence, tied and transferred to that area before the belt being forcefully and intentionally applied to his neck, to cause his death or cause him grievous bodily harm.
The respondent further submits an acceptance of the appellant’s description of the deceased’s conduct supported a conclusion that that conduct was not objectively of such a provocative nature as to have caused an ordinary person to have lost self-control. The appellant’s actions were consistent with calculated violence, not a sudden loss of control. The appellant’s post offence conduct also supported a conclusion that the deceased’s death was a deliberate and organised killing, such that the only reasonable conclusion was that the appellant was not, on the balance of probabilities, provoked into killing the deceased.
Consideration
Legal principles
In determining whether a verdict of guilty is unreasonable and cannot be supported by the evidence, an appellate court must undertake its own independent assessment of both the sufficiency and quality of the evidence and determine whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, it would be dangerous in the circumstances to permit the verdict to stand.[40]
[40]SKA v The Queen (2011) 243 CLR 400 at [14].
In weighing the whole of the evidence, the appellate court must give due regard to the verdict of the jury and the benefit it had of having seen and heard the witnesses. If, however, the record reveals that the evidence contained discrepancies, inadequacies, was tainted or otherwise lacked probative force in such a way as to lead the Appellate Court to conclude that, even allowing for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the verdict of guilty is to be set aside as unreasonable.[41]
[41]Pell v The Queen [2020] HCA 12.
Ground one
A consideration of the evidence as a whole supported a conclusion that the deceased died of injuries sustained after having been attacked by the appellant in his own home. That attack involved the infliction of more than one blow, delivered with at least moderate force. There were fractures to the skull, both the front and the back of the rib cage and the sternum. The existence of fractures to both the front and back of different sides of the rib cage was consistent with the application of force by a foot. It was unlikely the same application of force fractured the sternum.
Whilst the medical evidence could not determine whether those fractures were inflicted by a fist, foot or other object, it was open to the jury, on the evidence as a whole, to be satisfied beyond reasonable doubt that some of those injuries had been inflicted by the appellant when the deceased was inside his bedroom, adjacent to the bedside table. The infliction of those injuries was inconsistent with the deceased’s account of an altercation taking place in the hall adjacent to the doorway, after being sexually assaulted by the deceased. That inconsistency alone was sufficient to allow a jury to reject of the appellant’s account as unreliable.
It was also open to the jury to reject the appellant’s account as lacking credibility. Whilst the medical evidence accepted the possibility that the bindings found on the deceased were affixed after the deceased’s death, as asserted by the appellant, a consideration of the medical evidence as a whole supported a conclusion that there was only a theoretical possibility that the belt had been affixed around the deceased’s neck after death, as had the binding to his hands.
It was open to the jury to reject that possibility as both implausible and improbable. Not only was the appellant’s evidence as to his reasons for affixing the binding after death illogical, neither the location of a cord under the belt around the neck or the bruising under the binding to the deceased’s hands were explained by that evidence.
When regard was had to the presence of the cord around the neck, in the context of a buckled up belt which had broken, causing part of it to be found on the floor behind the deceased, it was open to a jury to reject the appellant’s account of the belt and other bindings being affixed to the deceased many hours after his death. The evidence as a whole supported a conclusion that the deceased was bound by the appellant prior to death.
Once a conclusion is reached that it was open to a jury to be satisfied beyond reasonable doubt that the deceased was bound prior to death, that circumstance, together with the multiple fractures, supported a conclusion that at the time the appellant unlawfully caused the death of the deceased, he intended to at least cause him grievous bodily harm. The only rational and reasonable inference, on the whole of the evidence, was that the belt was buckled and drawn tightly around his neck, prior to death, consistent with a deliberate application of force to restrict his airways. The absence of damage to the underlying structures was unsurprising as such damage is rarely found in hanging deaths.
The verdict, insofar as the jury concluded that the appellant killed the deceased intending to kill or do grievous bodily harm, was not unreasonable.
Ground two
Once it was open to the jury to be satisfied beyond reasonable doubt that the deceased was murdered by the appellant, a consideration of the evidence as a whole also supported a conclusion that it was open to the jury to be satisfied that the appellant had not established, on the balance of probabilities, that that intentional killing was caused by sudden provocation, namely, the deceased’s sexual assault of the appellant.
First, the only evidence of that sexual assault was in the appellant’s evidence, which it was open to the jury to reject as both unreliable and lacking credit. Second, even if the jury was satisfied that the deceased had grabbed the appellant’s backside in a sexual way, the only rational and reasonable inference, on the evidence as a whole, was that the killing of the deceased with the requisite intention was not done in the heat of passion, before there was time for the passions to cool.
The deceased’s actions involved a momentary touch on the outside of the appellant’s clothing. The appellant’s response did not involve momentary retaliation. The appellant inflicted forceful injuries to multiple areas of the deceased. The appellant also bound him with various items located in different parts of the house. The cord around his wrists was cut from an iron located in the garage. The twine around his legs, neck and arms was located in the patio area. There was also an extensive amount of tape wound around the deceased’s head, covering his face, eyes and nose. Each of these items would have taken time to obtain and to attach to the deceased.
The appellant also transported the deceased from the bedroom area, where at least some of the injuries were inflicted (having regard to the blood stains), to the ensuite, where the belt affixed around the deceased’s neck prior to death was pulled to the point where the belt snapped in pieces. The only rational and reasonable inference was that these events occurred over a not insignificant period of time, prior to the deceased’s death.
The preponderance of evidence supported the conclusion that the appellant’s actions were inconsistent with there not having been time for passions to cool. Nothing in those actions was consistent with a sudden loss of control. The only rational and reasonable inference from the appellant’s conduct was that his killing of the deceased, with the requisite intention, was deliberate, considered and occurred over a protracted period of time.
Further, it was open to the jury to conclude that the deceased’s momentary action of touching could not have caused an ordinary person to lose control and act as the appellant did by killing the deceased with the requisite intention. The appellant’s actions constituted extraordinary aggressiveness and want of self-control, inconsistent with the actions of ordinary persons with ordinary powers of self-control.
The verdict of the jury, in finding that the appellant had not established, on the balance of probabilities, that any intentional killing of the deceased was provoked by the deceased’s sexual assault, was not unreasonable.
Conclusions
It was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt, that the appellant killed the deceased intending to kill him or do him grievous bodily harm and, further, that the appellant had not established on the balance of probabilities that that death was occasioned by provocation, reducing the intentional killing to manslaughter.
Nothing in the consideration of the record as a whole raises discrepancies, inadequacies or a lack of probative force, such as to lead to a conclusion that there is a significant possibility that an innocent person has been convicted of the offence of murder.
Orders
I would order that the appeal be dismissed.

CITATION:	R v Barallon [2020] QCA 210
PARTIES:	R v BARALLON, Terrance Steven Arthur (appellant)
FILE NO/S:	CA No 344 of 2018 SC No 128 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns – Date of Conviction: 3 December 2018 (Henry J)
DELIVERED ON:	25 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2020
JUDGES:	Morrison and McMurdo JJA and Boddice J
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was found guilty of murder by a jury – where the appellant was sentenced to life imprisonment – where the appellant appeals the conviction on the ground that the verdict was unreasonable and cannot be supported having regard to the evidence – where the appellant contends it was unreasonable for the jury to have concluded beyond reasonable doubt that the appellant intended to kill the deceased or to do him grievous bodily harm – where the appellant pleaded not guilty to murder but guilty to manslaughter at trial but the plea was not accepted by the Crown in satisfaction of the indictment – where the deceased died of injuries sustained after having been attacked by the appellant in his home – where it was open to the jury to be satisfied beyond reasonable doubt that some of those injuries had been inflicted by the appellant – where the infliction of those injuries was inconsistent with the appellant’s account – whether the verdict of the jury was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant contends it was unreasonable for the jury to have concluded that the appellant was not, on the balance of probabilities, provoked into killing the deceased – where it was open to the jury to reject the appellant’s evidence as unreliable and lacking credit – where the evidence supported the conclusion that the appellant’s actions were inconsistent with there not having been time for passions to cool – whether the appellant had established on the balance of probabilities that the death was occasioned by provocation – whether the verdict of the jury was unreasonable Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	A Hoare and D Nguyen for the appellant (pro bono) P J McCarthy QC for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for the respondent