R v Cobby - [2025] QCA 54

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cobby [2025] QCA 54

PARTIES:

R
v
COBBY, Andrew John
(appellant)

FILE NO/S:

CA No 306 of 2021
SC No 445 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction:
15 November 2021 (Callaghan J)

DELIVERED ON:

17 April 2025

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2024

JUDGES:

Mullins P, Flanagan JA and Bradley J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of murder – where the case against the appellant was circumstantial – where the issue at trial was whether it was the appellant who murdered his wife – where the defence contention at trial was that both the appellant and his wife were attacked by an unknown assailant – where the appellant raised two alternative hypotheses consistent with his innocence which were not advanced by his counsel at trial – where the defence and prosecution would have been bound to conduct the cross-examination and examination of witnesses differently if these alternative hypotheses had been raised at trial – where the appellant’s hypotheses were based on evidence adduced at the trial that had to be considered in the context of all the evidence adduced at the trial – whether the verdict was unreasonable or insupportable having regard to the evidence adduced at the trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant claims the prosecution failed to impartially present all credible evidence of witnesses – where there were inconsistencies in one witness’ evidence – where the prosecution did not pursue these inconsistencies at trial – where the inconsistencies were a small part of the evidence of the witness – whether the prosecution failed to present impartially all available credible evidence of witnesses – whether the appellant was denied a fair trial – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the trial judge directed the jury on the process of drawing inferences – where the trial judge gave an example in respect of whether the inference could be drawn that the appellant had brought the hammer with him that was used to injure his wife and whether it was the hammer belonging to another resident of the home where the appellant resided – where it was clear from the trial judge’s directions that it was open to the jury to draw the inference sought by the prosecution or not – whether the trial judge erred in using the hammer as an example to explain the process of drawing inferences

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cobby

Details

AGLC: R v Cobby [2025] QCA 54
Case: [2025] QCA 54
Decision Date: 17 April 2025

CaseChat Overview and Summary

The case of R v Cobby involved the appellant, who was found guilty of one count of murder. The appellant appealed against his conviction and sentence, raising several grounds, including the submission that the verdict was unreasonable or insupportable having regard to the evidence, that the prosecution failed to impartially present all credible evidence, that there was a miscarriage of justice due to misdirection or non-direction by the trial judge, that there was an improper admission or rejection of evidence, and that fresh DNA evidence was available that had not been presented at trial. The central issue for the court was whether the verdict was unreasonable or insupportable in light of the evidence presented at trial.

The court considered the appellant's arguments that the verdict was unreasonable or insupportable, noting that the case against the appellant was circumstantial and that the defence hypothesis of an unknown assailant was not advanced at trial. The court held that the appellant's hypotheses were based on evidence adduced at trial and needed to be considered in the context of all the evidence. The court concluded that the jury's verdict was open to them and was not unreasonable or insupportable. Regarding the prosecution's conduct, the court found that the inconsistencies in the witness's evidence were minor and did not affect the overall reliability of the evidence. The court also found that the trial judge's direction to the jury on drawing inferences was appropriate and did not misdirect the jury. The court held that the exclusion of the witness's identification of the hammer from a photograph did not prejudice the appellant as the evidence had probative value and any error would not have made a difference to the verdict.

The court further considered the fresh DNA evidence adduced on the hearing of the appeal. The court found that while some of the DNA evidence was favourable to the appellant, other evidence was not, and the DNA evidence before the jury remained relevantly intact. The court concluded that there was not a significant possibility that if the fresh evidence had been before the jury, the appellant would have been acquitted.

Finally, the court dismissed the appeal and affirmed the conviction and sentence of the appellant. The court found that none of the grounds of appeal established a miscarriage of justice and that the verdict was properly open to the jury. The appeal was dismissed, and the conviction and sentence of the appellant were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Each of grounds 2-6 asserts a miscarriage of justice. The appellant’s written outline that included his oral address for the hearing of the appeal is 130 pages long and contains 708 paragraphs. Apart from addressing the six grounds in the notice of appeal, these submissions assert other irregularities in the trial which will be addressed as appropriate in these reasons. The appellant relies on each of the grounds but also the combination of more than one ground to establish a miscarriage of justice.Summary of the evidence The appellant and Mrs Cobby were married but had lived separately for many years. Mrs Cobby lived at 20 Arthur Payne Court with her mother and the two sons and daughter of her marriage to the appellant (who will be referred to as the elder son, the younger son and the daughter and were respectively aged 23 years, 17 years and 13 years). Mrs Cobby together with the three children and her mother lived at one end of the home. Mr Eden who was Mrs Cobby’s former brother-in-law lived at the other end of the home with a flatmate. Mr Eden had been married to Mrs Cobby’s sister. As at 12 November 2017, the appellant had been living at Southport for two weeks with Mr Popa and his partner Ms Hernandez and also Mr Lamude for whom Ms Hernandez was the carer. Mr Lamude had a red Chrysler vehicle. Previously they all had resided together at Carrara for about eight months. The appellant had responded to Mr Popa’s advertisement for a flatmate. At an earlier time, the appellant had lived in accommodation with Mr Joshua Roberts and Mr Hector Bonelli. On the evening of 12 November 2017 after 8.30 pm (and it could have been as late as 10.30 pm according to Mr Lamude’s statement), the appellant borrowed the Chrysler vehicle as he said to Mr Popa and Ms Hernandez he had to visit the daughter who was sick. The appellant left with a black backpack. The table summarising Mrs Cobby’s telephone calls on 11 and 12 November 2017 (exhibit 180) was the subject of admissions and showed frequent contact between Mrs Cobby and the appellant. That showed that Mrs Cobby had called the appellant at 8.54 pm on 12 November 2017 and the call lasted two minutes 32 seconds. There were text exchanges between Mrs Cobby and the appellant on 12 November 2017 that were the subject of admissions (exhibit 179) that then followed: In November 2017, the younger son was at high school. In the last few months before his mother died, when he would visit his father, about every fortnight, his mother would come with him or sometimes she would already be at the appellant’s place or she would pop in while he was there. His parents seemed to be getting along the same as always. About four weeks before his mother died, she said to the younger son that she was thinking of leaving the appellant but was not sure. On the night his mother died, the younger son had dinner with his mother, siblings and grandmother and nothing seemed unusual. He was about to go to bed, when his mother passed him and said that she was going to take the bin out and would be back in a minute. She was dressed in her pyjamas. He was in his bedroom when he heard his grandmother’s telephone ringing and answered it. It was Mr Eden who asked him to check whether his mother was home. He ran down to Mr Eden. He called the elder son who drove down from their home in his car.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cobby [2025] QCA 54
PARTIES:	R v COBBY, Andrew John (appellant)
FILE NO/S:	CA No 306 of 2021 SC No 445 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 15 November 2021 (Callaghan J)
DELIVERED ON:	17 April 2025
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2024
JUDGES:	Mullins P, Flanagan JA and Bradley J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of murder – where the case against the appellant was circumstantial – where the issue at trial was whether it was the appellant who murdered his wife – where the defence contention at trial was that both the appellant and his wife were attacked by an unknown assailant – where the appellant raised two alternative hypotheses consistent with his innocence which were not advanced by his counsel at trial – where the defence and prosecution would have been bound to conduct the cross-examination and examination of witnesses differently if these alternative hypotheses had been raised at trial – where the appellant’s hypotheses were based on evidence adduced at the trial that had to be considered in the context of all the evidence adduced at the trial – whether the verdict was unreasonable or insupportable having regard to the evidence adduced at the trial CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant claims the prosecution failed to impartially present all credible evidence of witnesses – where there were inconsistencies in one witness’ evidence – where the prosecution did not pursue these inconsistencies at trial – where the inconsistencies were a small part of the evidence of the witness – whether the prosecution failed to present impartially all available credible evidence of witnesses – whether the appellant was denied a fair trial – whether a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the trial judge directed the jury on the process of drawing inferences – where the trial judge gave an example in respect of whether the inference could be drawn that the appellant had brought the hammer with him that was used to injure his wife and whether it was the hammer belonging to another resident of the home where the appellant resided – where it was clear from the trial judge’s directions that it was open to the jury to draw the inference sought by the prosecution or not – whether the trial judge erred in using the hammer as an example to explain the process of drawing inferences CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE –…