R v Cox

[2016] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cox [2016] QCA 165

PARTIES:

R
v
COX, Matthew Scott Anthony
(appellant)

FILE NO/S:

CA No 324 of 2014
SC No 27 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 3 December 2014

DELIVERED ON:

21 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2016

JUDGES:

Gotterson JA and Applegarth and Flanagan JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of murder, having pleaded guilty to manslaughter – where, at trial, the appellant relied on the defences of self-defence and, in the alternative, provocation – where it is alleged that a miscarriage of justice resulted from the admission into evidence of six Arunta calls made by the appellant, all containing highly prejudicial evidence which was of limited probative value – where it is alleged that three of the Arunta calls were an irrelevant and inadmissible expression of opinion by a witness with respect to the truth of the factual account given by the appellant which was central to the provocation defence – where, as to the remaining calls to another witness, it is alleged that prejudice arose from observations made about the nature of the evidence against the appellant, and the information provided to the jury that this witness was the support person in court for the other witness to which Arunta calls were made – where the admission of the Arunta calls assisted in the jury’s assessment of the appellant’s credit, and in the prosecution’s discharge of its onus of excluding self-defence beyond reasonable doubt, the substance of which included a witness’ observations of the disparity between the injuries inflicted on the deceased and those sustained by the appellant – where some aspects of the Arunta calls assisted the appellant and were employed by defence counsel for that purpose – whether the prejudicial effect of the Arunta calls so outweighed any probative value they might have had, that no directions that might have been given as to the permissible use of the calls, could have meaningfully addressed the prejudice, and therefore a miscarriage of justice ensued from their admission

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant was convicted of murder, having pleaded guilty to manslaughter – where, during the learned trial judge’s summing up on the defence of provocation, an alert tone sounded, continuing for a further five minutes and two seconds, coupled with two loudspeaker announcements – where it is alleged that, as a result of this, coupled with heightened tensions during the Brisbane G20 Summit, the jury was distracted during directions on provocation, resulting in a miscarriage of justice – where the learned trial judge gave directions for three minutes and 49 seconds of this time – where, for the majority of the period, the alert tone emanated from a source exterior to the court room – where the jury were in possession of 49 projection slides used by the learned trial judge as speaking notes for directions, five of which dealt with the defence of provocation – whether a miscarriage of justice occurred on account of an inability on the part of the jury to comprehend the provocation directions

R v Hasler; Ex-parte Attorney-General [1987] 1 Qd R 239, cited

COUNSEL:

C W Heaton QC for the appellant
M Cowen QC for the respondent

SOLICITORS:

Mulcahy Ryan for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. GOTTERSON JA:  At the conclusion of a trial over 10 days in the Supreme Court at Brisbane, the appellant was found guilty of murder.  The single count on which he had been tried was that on 23 December 2011 at the Gold Coast, he had murdered Tony Lee Williams.

2. The appellant was convicted and sentenced to life imprisonment on 3 December 2014.  Some 988 days of pre-sentence custody were declared to be time served under the sentence.

3. On 10 December 2014, the appellant filed a Notice of Appeal to this Court against his conviction.[1]

   [1]AB960-961.

The circumstances of the killing

1. At the commencement of his trial, the appellant made a formal admission that he had killed the deceased but did not admit that the killing was murder or otherwise unlawful.[2]  This admission was made notwithstanding that the appellant had told police in a statement made to them on 30 January 2012[3] and in a recorded interview with them on 20 March 2012[4] that he denied knowing or having met the deceased and any knowledge of, or involvement in, his death.

   [2]AB59; Tr1-8 ll1-4.

   [3]Exhibit 22; AB531-532 p2.

   [4]Exhibit 24; Transcript AB629-716 at 698, 709-712.

2. The killing occurred at a unit occupied by the deceased in Sunshine Boulevard, Mermaid Waters.  The defence contended that the killing was done in self-defence and that the appellant had been provoked.

3. The deceased was the former partner of Sarah Davis who, at the time of the killing, was the partner of the appellant.  The deceased and Ms Davis had met in 2008.  They had a casual sexual relationship for about six months.  Ms Davis maintained that, at a party on 14 November 2008, they took ecstasy together and that the deceased then raped her.  At that point, she moved back to her home town of Port Macquarie.

4. Ms Davis later discovered that she was pregnant to the deceased.  Her son, T, was born eight months after the claimed rape.  She informed the deceased of the birth but did not make any demands of him in respect of the child.  They ended their relationship and parted company on good terms.

5. At Port Macquarie, Ms Davis resumed a friendship with the appellant.  By October 2011, it had developed to a romantic relationship.  Soon after she told him that the deceased was the father of T.  First, she told him that it had been a one-night stand.  Later, she admitted to him that that was a lie and that T “was basically the result of a sexual assault”.[5]  In a later discussion she said that it “wasn’t pleasant” and was “quite messy”.[6]  However, she never told the appellant that her relationship with the deceased was of a longer duration.[7]

   [5]AB92; Tr2-25 ll43-45.

   [6]AB93; Tr2-26 l31.

   [7]Ibid l1.

6. Ms Davis had kept a shirt that she had worn on the night of the incident.  It was blood stained.  The appellant found it in her cupboard.  That had prompted him to seek further information from her.[8]

   [8]Ibid ll33-47.

7. In the time leading up to Christmas 2011, the appellant had been working for an irrigation company on the Gold Coast.  He would regularly travel there for work and return home to Port Macquarie for the weekend.  The appellant told police on 30 January 2012 that he had resigned in mid-December, gone to Port Macquarie and then returned on, he thought, Thursday 22nd, in order to fulfil a bail condition at the Southport Police Station on the following day.[9]

   [9]Exhibit 22; AB532 p2.

8. The appellant went to the deceased’s unit on 23 December 2011.  The interaction between them on that occasion culminated in the deceased’s death as a result of multiple injuries to his head.[10]  Forensic pathology evidence at trial indicated that there were 27 blunt force injuries to the deceased’s head and neck[11] as part of some 79 identifiable injuries to his body overall.  The injuries to his head included lacerations and skull fractures.[12]  Several of the fractures were described as having been inflicted by “a heavy impact”[13] and were probably the result of more than one blow.[14]  Many of the injuries were consistent with their having been inflicted by use of a hammer.

   [10]AB390; Tr6-63 ll34-36.

   [11]AB384; Tr6-57 ll42-44.

   [12]AB385; Tr6-58 l1 – AB387; Tr6-60 l36.

   [13]AB387; Tr6-60 ll38-47.

   [14]AB385; Tr6-58 ll23-27.

9. The forensic pathologist also described injuries to the deceased’s arms and hands as “defensive injuries”.  Her explanation of that expression was given in the following terms:

   “ … He’s also got a constellation of injuries predominantly on his upper back and some on the backs of his arms.  That sort of pattern of injuries would suggest that [he was] face down, probably in a foetal-type position, so that the back of his head and the back – upper part of his back are most exposed, possibly with his arms thrown over the top of his head to protect them.

   Were there any injuries on the back of the hands and the back – on the outer aspects of the left and right arms - - -?---Yes, there were.

   - - - consistent with being defensive injuries just as you’ve just indicated, putting your hands over your heads, crossing over, like so?---There were a number. …”[15]

   [15]AB388; Tr6-61 ll25-35.

10. On the evening of 23 December 2011, the deceased failed to attend a scheduled commitment to perform with his band.  The following day a fellow band member went to his unit and found him.

The evidence of Joshua Middleton

1. The appellant had met Joshua Middleton during military service.  They had kept in contact thereafter.  Mr Middleton gave evidence that the appellant telephoned him on 15 December 2011 and said that he had “something that any man worth his weight would want to help out on”.[16]   They met later that day.

   [16]AB147; Tr3-14 l25.  Telephone records indicated that the appellant attempted to make four calls to the deceased’s mobile that day before he called Mr Middleton.  One of the four calls was successful: Exhibit 45: AB540-543.

2. According to Mr Middleton, the appellant told him that a man had “beat the crap out of” his girlfriend; assaulted and raped her; and “split her open, more or less”.  The appellant asked aloud whether he should “bash him, kill him” or “put him in a wheelchair”.  He was “pretty mad”.  He insisted “something’s got to happen”.[17]

   [17]AB148; Tr3-15 ll1-12.

3. Later that day, they went to the deceased’s Sunshine Boulevard address.  The appellant told Mr Middleton that he had found it out by a phone call in which he had pretended to be a postal worker wanting to redirect a parcel.  The purpose of the trip, as described by the appellant to Mr Middleton, was to be like a “reccie” to find out where the man lived and to get a feel for the area if anything did happen.[18]  When asked in evidence-in-chief whether the appellant mentioned anything about how he would do what he planned or might do, Mr Middleton answered:

   “… Yeah.  I guess whether he should – if anything did happen, whether he’d bash him or put him in a wheelchair – stuff like that.  But – or possibly attack him with a hammer, I guess.”[19]

   [18]AB150; Tr3-17 ll34-39.

   [19]Ibid ll41-44.  He later said that the appellant asked him if he had a hammer: AB153; Tr3-20 ll28-29.  However, in cross-examination, Mr Middleton accepted that the appellant had never said anything to him about using a hammer: AB170; Tr3-37 ll1-2.

4. They returned to Mr Middleton’s home at Capalaba.  He heard nothing more about the matter until he was called by the appellant on 23 December 2011.  The appellant told him that he had killed the deceased and was travelling to Mr Middleton’s home.[20]

   [20]AB154; Tr3-21 ll3-10.

5. Upon his arrival, the appellant said that he had “bashed [the deceased] with a hammer” in a “pretty brutal fight”.[21]  The appellant appeared not to have any noticeable injuries, other than a cut on an eyebrow and, possibly, a bruise here and there.[22]  He asked Mr Middleton to get rid of clothes he was wearing, a hammer he had with him and a wallet with the deceased’s driver’s licence in it.  Mr Middleton later burned the clothes and disposed of the wallet.[23]  The hammer was a “regular carpenter’s hammer” with a blue grip.  There was “a little bit of blood stain” on it.  Mr Middleton washed the hammer and disposed of it in a bin.[24]

   [21]AB155; Tr3-22 ll4-5; AB154; Tr3-21 ll29-30.

   [22]AB157; Tr3-24 ll18-25.

   [23]AB155; Tr3-22 l25.

   [24]AB158; Tr3-25 ll10-23.

6. The appellant told Mr Middleton that he had gained entry into the unit claiming to be delivering a parcel.  He confronted the deceased.  He “jumped him and fought him”.  The deceased fought back.  The fighting went on “for ages”.  He said that he did hear the appellant say something about a screwdriver being used.[25]

   [25]AB154; Tr3-21 l34 – AB155; Tr3-22 l9.

The arrest of the deceased

1. The attention of investigators was drawn to Ms Davis and her associates by the discovery of a receipt from a Port Macquarie store with her name on it.  It was adhered to the underside of a shoe found on the floor of the lounge room in the unit.  Police conducted covert recordings of telephone communications between Ms Davis, the appellant and others.

2. The appellant received two phone calls from Mr Middleton on 16 March 2012.[26]  Mr Middleton told the appellant that the police had just been to interview him and they discussed what had been said.  In substance, they agreed that Mr Middleton would maintain the position that he knew nothing about the events of 23 December 2011.

   [26]Exhibits 14, 15; Transcripts Exhibits “MFI3”: AB610-614; “MFI4”: AB615-622.

3. In a lengthy telephone conversation on 20 March 2012, the appellant warned Ms Davis that police would ask her about him.[27]  The only thing they had, they said, was the receipt.  The appellant and Ms Davis discussed whether she should go back on a version she had given to police before she learned that they had the receipt, about correspondence between her and the deceased.[28]  He assured her that he was not going to admit anything.[29]  He urged her to keep up the “you know nothing”.[30]  Then he said to her:

   “…I did intend to kill him, but only once he engaged me with a deadly weapon and threatened your life … and the lives of your children”.[31]

   At that point he ventured that he probably would not “get done” because police would hear from others[32] that he had acted in self-defence.[33]

   [27]Exhibit 11; Transcript Exhibit “MFI1”: AB559-597.

   [28]Ibid pp4-5.

   [29]Ibid p9.

   [30]Ibid p11.

   [31]Ibid p12.

   [32]Presumably Ms Davis, her brother and Mr Middleton.

   [33]Exhibit 11; Transcript Exhibit “MFI1”: AB559-597 p12.

4. The appellant was arrested at Port Macquarie on the following day, 21 March 2012.  In an interview that day at the Port Macquarie Police Station, he was taken to a number of text messages and information obtained as a result of analysis of his phone.  He was given the opportunity to explain them.  He continued to deny any knowledge of the circumstances leading to the deceased’s death.[34]

   [34]Exhibit 25; Transcript Exhibit “MFI10”: AB752-772.

The accounts given by the appellant to Ms Davis

1. Ms Davis testified that she and the appellant attended the engagement party of a colleague on 28 January 2012.  The topic of the deceased’s death came up during the event when the colleague and her partner both expressed sadness about what had happened to him.  The appellant became upset.  At a point when Ms Davis was sitting on one side of the appellant and her brother, Shaun, on the other, and they all had had “a fair bit to drink”, the appellant said that he “fucking did it”.  She was shocked and quizzed him.  He then “basically denied it straight away” and said he was “sick of hearing about [the deceased]”.[35]  Ms Davis attended a pre-arranged meeting with police on the following day but did not tell them what the appellant had said on the previous evening.[36]

   [35]AB104; Tr2-37 l31 – AB105; Tr2-38 l33.  Ms Davis’s brother gave evidence that, after his sister had told him something at the party, he spoke to the appellant who admitted to him that he “did it”: AB246; Tr4-36 l16.

   [36]AB105; Tr2-38 l35.

2. Ms Davis had a number of conversations with the appellant after the engagement party.  Over time, he revealed more detail.  He admitted his responsibility for the death.  According to Ms Davis, he gave a “pretty consistent story” to explain the events and his conduct.  The story is contained in the following summary she provided of what the appellant told her in their conversation on 20 March 2012:

   “…He told me that it was in the middle of the day.  That he drove over to Tony’s address.  That he had boardshorts and a singlet top on, no shoes on.  Didn’t have anything with him.  He knocked on the screen door, and Tony was inside.  From what I remember, I think he said that – he said that he was someone from Australia Post or – I can’t quite remember, but Tony got up and opened the door and they shook hands, and Matt headbutted him.  Tony went back a bit – fell back a bit, and they kind of started fighting, Matt said – I can’t remember in what order, but I know who you are, I know what you did, you raped my missus, and Tony’s response was are you Nicole’s brother, and Matt said that he asked who – who was Nicole and asked if that was another girl that he’d raped.

   So who’s saying it was another girl he raped?  Is that - - -?---I think Matt asked Tony.  Matt was wondering who Nicole was – and then he said things got heated, and they began fighting, scuffling, punching each other, and that Tony threw a hammer at Matt, and it missed, and somewhere a screwdriver come (sic) into it.  Tony had a screwdriver, and they ended up on the floor, and Matt was on his back, and he said he had Tony on top of him, kind of trying to hold the screwdriver from stabbing himself, and he remembered that the hammer was - - -

   Who’s holding the screwdriver?---Tony’s holding the screwdriver, and Matt said he was basically fighting for his own life, to stop the screwdriver from stabbing him, and he said he remembered that the hammer was behind him, and he just kind of reached for it and just swung up once, maybe twice.

   Now, is – did it ever change from that?---No, not really.  I’ve probed Matt on more details even since he’s been arrested, but it’s always been a pretty consistent story.”[37]

   The appellant said that it all happened over about 10 or 15 minutes.[38]  He never mentioned any other injuries to the deceased apart from the two hammer blows.[39]

   [37]AB107; Tr2-40 l27 – AB108; Tr2-41 l5.

   [38]AB108; Tr2-41 l36.

   [39]AB109; Tr2-42 ll1-2.

3. This account of the conversation is corroborated by the recording of it.  As the latter reveals, the appellant also told Ms Davis at that time that the deceased “skitzed” when he found out that the appellant knew about the rape and that it was then that the deceased came at him with the screwdriver.[40]

   [40]Exhibit “MFI1” p14: AB572.

The appellant’s conversation with Shaun Davis

1. The appellant and Shaun Davis conversed by telephone on 18 March 2012.  The call was recorded.[41]  The appellant admitted to hitting the deceased but said that the deceased had raped his “missus” and “bashed the fuck out of [her]”.  The deceased came at him with “a blade”.  He “couldn’t have run off” – he would have had to have opened the door; the deceased would have got him with a knife; and he would have been lying in a pool of blood while the deceased would have driven straight to Port Macquarie to see Ms Davis.[42]

   [41]Exhibit 23; Transcript Exhibit “MFI5”: AB623-628.

   [42]Ibid p2.

2. Mr Davis gave evidence in the prosecution case.  In cross-examination, he agreed that he had told police that the appellant had suggested that he obviously did not go there to kill the deceased because he had not taken “a gun or something”.  He also agreed that he had given police the following summaries of what the appellant had told him in the conversation:

   “And then, he just went there to talk, and he said it just got out of hand.  Old mate came at him, and he said he was a big fellow so there was not much he could do.  He said old mate said he was going to kill the two little cunts and burn the two little cunts and burn the house down or something.”[43]

   And later,

   “Matt has also said that he went there to talk to the bloke, and they were talking at the start, and they started yelling at each other or something.  He said that old mate came at him with a screwdriver or hammer or something.  Matt said that a hammer was thrown at him, and then he said he just came at him.  Matt said that old mate had a screwdriver, and Matt just defended himself, kind of thing.  Matt said he bashed him.”[44]

   [43]AB250; Tr4-40 ll29-32.

   [44]Ibid ll38-43.

The appellant’s trial

1. The appellant’s trial began on 20 November 2014.  Based on evidence of what the appellant had said to Ms Davis, her brother, and Mr Middleton, the defence contended that the deceased attacked the appellant at the unit.  During the confrontation, the deceased threatened to go to Port Macquarie and kill or seriously harm Ms Davis and T.  The deceased threw a hammer at the appellant.  It missed.  The deceased then attacked him with a screwdriver.  In order to prevent himself from being seriously injured or killed, the appellant reached for the hammer which had landed nearby.  He struck the deceased with it.

2. The principal defence on which the appellant relied was self-defence.[45]  In the event that the jury might not have been satisfied that the force used by the appellant, especially the repeated blows to the deceased’s head, was reasonably necessary to preserve the appellant from death or grievous bodily harm, reliance was placed on the secondary defence of provocation.[46]  Had that defence succeeded, the appellant would have been convicted of manslaughter, and not of murder.

   [45]Criminal Code s 272(1).

   [46]Criminal Code s 304(1).

3. There are two aspects to the appellant’s trial which are relevant to the grounds of appeal.  It is convenient to mention them at this point.  The first aspect concerns six telephone calls made by the appellant from the Arthur Gorrie Correctional Centre on the afternoon of 19 November 2014, the day before his trial.  All of the calls were monitored and recorded on the Arunta system.  They are conveniently referred to as the “Arunta calls”.  They were tendered in evidence towards the close of the prosecution case.

4. Ms Davis had conferred with the prosecutor on the afternoon of 19 November 2014.  The first call made was to a mutual friend of the appellant and Ms Davis, Marcus Stone.[47]  It was evident from that call that the appellant was trying to contact Ms Davis.  Shortly thereafter, he successfully contacted her on three occasions and in three emotionally-charged conversations, the impending trial; matters she had learned in the conference that afternoon especially with respect to the extent of the deceased’s injuries; her opinions concerning the injuries, the appellant’s character and credibility; and her view of the strength of the case against the appellant, were all traversed.[48]

   [47]Exhibit 46; Transcript Exhibit “MFI11”: AB773-775.

   [48]Exhibit 47; Transcript Exhibit “MFI12”: AB776-788; Exhibit 48; Transcript Exhibit “MFI13”: AB789-798; Exhibit 49; Transcript Exhibit “MFI14”: AB799-809.

5. The other two calls were made afterwards by the appellant to Mr Stone.[49]  The appellant outlined the substance of his conversations with Ms Davis to Mr Stone.  He expressed his concerns about her and the evidence she might give at his trial.

   [49]Exhibit 50; Transcript Exhibit “MFI15”: AB810-811; Exhibit 51; Transcript Exhibit “MFI16”: AB812-818.

6. The recordings of the conversations heard by the jury and associated transcripts supplied to them, had been subjected to some editing as agreed between the prosecutor and the very experienced defence counsel who represented the appellant at trial.  Whilst the tender of the edited material was not the subject of objection, defence counsel did object to the use by the prosecutor of lies told by the appellant in the conversations as evidence of consciousness of guilt.  The learned trial judge heard argument on that issue.[50]  He ruled that the prosecution might not present to the jury a consciousness of guilt submission based on the lies.[51]

   [50]AB422; Tr7-18 l1 – AB439; Tr7-35 l15.

   [51]AB439; Tr7-35 ll24-37.

7. The other aspect is that during the course of directions given by the learned trial judge with respect to provocation, an alert tone sounded loudly in the court room.  After six seconds, the alarm was turned off in the court room.  However, the sound of the alert tone emanating from a source exterior to the court room, could still be heard in it but at a much lower volume.

8. His Honour paused for some 33 seconds once the alert tone sounded.  He then resumed.  Twice he was interrupted by brief loudspeaker announcements concerning the alert tone.  The second interruption immediately followed the cessation of the alert tone.  He paused for each interruption.  In all some five minutes and two seconds elapsed between the commencement of the alert tone and the ending of the second announcement.  His Honour was speaking for three minutes and 49 seconds of that period.

The grounds of appeal

1. The appellant relies on the following two grounds of appeal:

   “1.A miscarriage of justice resulted from the admission into evidence of the Arunta calls of 19 November, 2014 in that they contained highly prejudicial evidence which was of limited probative value; and

   2.the jury’s capacity to comprehend the directions as to the application of the defence of provocation was impaired by the sounding of the alert tone and consequent activity in the court room such that a miscarriage of justice has resulted from the failure of the jury to be [properly] directed in relation to provocation.”[52]

   It is submitted by the appellant that these two irregularities either individually, or in combination, resulted in a miscarriage of justice such that the verdict should be set aside and a retrial ordered.

   [52]Amended Notice of Appeal filed 11 April 2016.  Leave to amend granted 3 May 2016.

Ground One

1. The appellant’s Outline of Submissions lists numerous extracts from the three Arunta calls with Ms Davis.  I do not propose to set out all of them.  The following are sufficient to convey the tenor of what was said and to inform the appellant’s submissions based on the extracts.

2. In the first call, Ms Davis said:

   ·“You can’t really lie about what you’ve done to him … I just looked at photos, I just looked at photos of what you did, this morning.  It’s fucking horrific”;[53]

   ·“Fucking animal”;[54]

   ·“Fucking horrific well, that’s not just one hit to the head”;[55]

   ·“[indistinct] lie; he had fucking puncture wounds all over his fucking body.  More than 30, I had to look at them”;[56]

   ·“what you’ve told me is totally different”;[57]

   ·“Because you made it sound like it was 1 lethal blow; you fucking mutilated him.  I saw it.”[58]

   At one point, the appellant was saying, “[w]hen he said what he said he was going to do to you, I just.”  Ms Davis interrupted and said, “Lie”.[59]  This, the appellant submits, was an irrelevant and inadmissible expression of opinion by Ms Davis with respect to the truth of the factual account given by the appellant which was central to the provocation defence.

   [53]Exhibit 47; AB776 p2: AB777.

   [54]Ibid p3: AB778.

   [55]Ibid.

   [56]Ibid.

   [57]Ibid.

   [58]Exhibit 47; AB776 p4: AB779.  The learned trial judge read out this statement to the jury in his summing up: AB502: p32 ll27-29.

   [59]Exhibit 47; AB776 p12: AB787.

3. The second telephone call contained similarly graphic language.  Particular reference was made by counsel for the appellant to the following exchanges between his client and Ms Davis:

   “THE APPELLANT:  It was a horrible, horrible fight Sarah, it was horrible, it was verb-, it was like I said –

   MS DAVIS:  Well why don’t, why didn’t you look like that?

   THE APPELLANT:  Because I won, okay it sounds horrible to say it but I, I did, okay?

   MS DAVIS:  You didn’t even half look like that.

   MS DAVIS:  He had more then(sic) 30 blows to his body, you never told me that.

   THE APPELLANT:  Yeah but I was trying, look Sarah I did tell you-, I had- , I did tell you but I was—

   MS DAVIS:  you lied—

   THE APPELLANT:  Trying not to hit him in the head—

   MS DAVIS:  Doesn’t make up, you’ve made up a lie.

   THE APPELLANT:  That’s not true, I, I can’t, I can’t believe I’m having this conversation with you Sarah.

   MS DAVIS:  Yeah well fucking look at the photos tomorrow—

   THE APPELLANT:  I did, I’ve seen them—

   MS DAVIS:  It’s everywhere.”[60]

   The appellant submits that these exchanges amounted to impermissible cross-examination by Ms Davis of the appellant concerning the disparity between the injuries inflicted on the deceased and those sustained by him.

   [60]Exhibit 48; AB789 pp6-7: AB794-795.  The learned trial judge read out these exchanges in the course of his summing up: AB503 p33 ll13-24.

4. The appellant also refers to an occasion in the second conversation when Ms Davis says “You’re not going to get, you’re not going to kill-, you can’t convince me” in response to a question by the appellant asking how did she think he felt that when he was thinking that once the deceased had killed him, he would then go and kill her.[61]  The appellant submits that the response by Ms Davis was irrelevant and inadmissible comment by her.

   [61]Ibid p7.  The appellant’s question, but not Ms Davis’s response to it, was read out to the jury during the summing up: AB503 p33 ll25-28.

5. The third call contained further references to lying by the appellant and an expression of concern on Ms Davis’s part that she could be manipulated by the appellant.

6. In the Outline of Submissions, the prejudice contained within the calls with Ms Davis of which the appellant complains as arising from these calls, is described as follows:

   ·“the repeated inadmissible expressions of Ms Davis (sic) opinion of the appellant’s untruthfulness which goes to the issue of the appellant’s credit;

   ·her expressed conclusions or opinion as to the merits of his actions on the day of the killing, such as “You can’t justify what you did”;

   ·her use of abusive and highly inflammatory terms such as “Fucking animal”, “you mutilated him”, “savage fucking animal”, “there’s something mentally wrong with you”, “You’re going to rot in your cell”, and, “Its(sic) fucking horrendous … I haven’t seen anything like it, I can’t believe you, I let you sleep in my house”;

   ·the expression of opinions by [Ms Davis] which go to the heart of the defence of provocation, particularly where she expresses her opinion as to the truth of his claims which led to his loss of control; and

   ·her cross-examination of him about aspects of the evidence such as the Crown’s theory of a plan evidenced by the earlier trip to the deceased’s house on 15 December, 2011 and the disparity in the number and severity of injuries suffered by the appellant as compared with the deceased and the relevance of that to his claims of self-defence.”[62]

   [62]At [44].

7. As to the two subsequent calls with Mr Stone, the appellant submits that prejudice arose from observations he made about the nature of the evidence against him and the significance that Ms Davis’s evidence would have.  The prejudice was heightened, it was argued, by the fact that, to the jury’s knowledge,[63] Mr Stone had been the support person present in court when Ms Davis gave her evidence.

   [63]AB407; Tr7-3 ll15-17.

8. In summary, the appellant submits that the prejudicial effect of the Arunta calls so outweighed any probative value they might have had, that no directions that might have been given as to permissible use of the calls, could have meaningfully addressed the prejudice.  The appellant did not mean, by this submission, to concede that adequate directions as to permissible use had been given.

9. The submissions for the respondent on this ground are incorporated in the discussion of the ground which follows.  It is unnecessary to set them out separately.

10. Statements made by the appellant in the course of the conversations assisted the prosecution in the discharge of its onus of excluding self-defence beyond reasonable doubt.  They were also relevant to the jury’s assessment of his credit generally.

11. The appellant made concessions that he had downplayed to Ms Davis the extent of the injuries to the deceased; that he had lied to her about that issue; and that, in effect, his only injury was a cut near his eye. Furthermore, he made certain claims that were open to be found to be untrue by the jury, which also were relevant to self-defence and to his credit. They were that he had not had a plan in relation to the deceased; that he did not do a reconnaissance of the deceased’s unit with Mr Middleton; and, to Mr Stone, that he did not have a clear recollection of events because he was concussed and had been pummelled by the deceased,[64] and that he had not been as clear as he should have been with Ms Davis because he did not want to tell her how close he had come to being “destroyed” by a screwdriver through the head.[65]

    [64]Exhibit 51; AB812 p 6: AB817.

    [65]Ibid.

12. The conversations therefore had a broadly-based and significant probative value for the prosecution case.  They were not liable to be excluded as being of relatively slight probative value.[66]  So much was tacitly acknowledged in defence counsel’s agreement to their being tendered, subject to editing.

    [66]Cf: R v Hasler; Ex-parte Attorney-General [1987] 1 Qd R 239.

13. It may be acknowledged that features of the telephone calls identified by the appellant were capable of giving rise to prejudice against him.  The epithets “liar” and “animal” cast his character in a poor light.  In my view, however, an assessment of the degree of prejudice involved needs to be tempered by the following considerations.

14. Ms Davis repeatedly accused the appellant of being a liar, including in respect of his claims which led to his loss of control.  But, by the time the Arunta calls were played to the jury, they had already heard the forensic pathology evidence, seen photographs of the deceased’s body, and heard that the appellant had consistently told Ms Davis, including during their conversation on 20 March 2012, that he hit the deceased once, maybe twice, with the hammer.  The jury would already have had an impression from that evidence that the appellant had lied to Ms Davis about that most significant aspect of the encounter.  Moreover, Ms Davis’s insistence in the Arunta calls that the appellant was a liar gave context to his concession that he had lied about it, and was relevant to the jury’s assessment of his credit generally.

15. Further, the expressions of opinion by Ms Davis about the violence of the appellant’s attack on the deceased were heard by the jury after they had heard the forensic pathology evidence and seen the photographs.  The extent of the violence would have been apparent to the jury from that evidence.  It is quite unlikely that the adverse impact conveyed by that evidence would have been materially worsened in the jury’s mind by the opinion expressed by Ms Davis.

16. Similarly, the observations made by the appellant to Mr Stone did not add an insight or dimension to the nature of the evidence against him or the potential significance of Ms Davis’s evidence which might have led the jury to view them in a worse light than they would have had they not heard the two conversations.  Their knowledge that Mr Stone had been the appellant’s support person, too, is unlikely to have had any significant impact on the way they took the Arunta calls into account.

17. Aside from these considerations, a highly significant factor in determining whether the admission of the Arunta calls caused a miscarriage of justice is that the content of the calls was mixed.  That is to say, there were aspects to them which assisted the defence case and were employed by defence counsel for that purpose.  No doubt defence counsel was conscious of their potential utility when the agreement about editing was made.

18. Defence counsel addressed the jury with the assistance of a power point presentation.[67]  In the Arunta calls, the appellant gave a graphic description of how the deceased threatened him with the screwdriver and that he was very scared.[68]  The description was referred to in defence counsel’s power point presentation.[69]  Until the Arunta calls were adduced, some of the evidence of accounts that the appellant had given about the screwdriver to his associates was rather vague.  Mr Middleton spoke of hearing “something about a screwdriver” being used and Mr Davis of the appellant saying that “old mate had a screwdriver”.  Ms Davis’s account of what she was told by the appellant about the screwdriver on 20 March 2012 was more detailed.  The description given later in the Arunta calls was consistent with the appellant’s description recounted by Ms Davis.  Further, it, and the appellant’s assertion that he was fighting for his life, had the additional impact of being given in the appellant’s own words.[70]

    [67]AB833-871.

    [68]Exhibit 47; AB776 p8:AB783.

    [69]AB860.

    [70]The appellant did not testify at trial.

19. In the power point presentation, defence counsel also advanced, as “an unarguable proposition”, that the appellant loved Ms Davis a great deal.[71] The Arunta calls contained numerous instances where the appellant professed his love for Ms Davis,[72] and called her “darling”. This evidence was significant for the provocation defence. The thesis underlying it was that the appellant loved Ms Davis a great deal; that he was outraged by the story that the deceased had raped her; and that he reacted accordingly.

    [71]AB840.

    [72]Exhibit 47; AB776 p12: AB787; Exhibit 48: AB789 p4: AB792, p7: AB795, p10: AB798; Exhibit 49; 799 p11: AB809.

20. A third aspect to the Arunta calls, which it was in the appellant’s interests to pursue, was that in the course of them, the appellant repeatedly explained why he had lied to Ms Davis.  He had not wanted to own up to his own fear.  This, too, was referred to in the defence presentation.[73]

    [73]AB860.

21. Having regard to the nature of the prejudice involved, the factors which tempered its degree of impact and the forensic advantages in the calls availed of by the defence, I am unpersuaded that a miscarriage of justice occurred on account of the admission of the Arunta calls into evidence.  This ground of appeal cannot succeed.

Ground Two

1. In developing this ground of appeal, counsel explained that it was not contended that the jury did not hear the directions given by the learned trial judge with respect to provocation.  The appellant’s complaint is that the jury was distracted by the sounding of the alert tone and the loud speaker announcements with the result that their comprehension of that part of the directions on provocation as was given during the period of five minutes and two seconds to which I have referred, was impaired.

2. The appellant sought to rely on the opinion of Associate Professor P E Dux of the School of Psychology at the University of Queensland, expressed in his report dated 30 March 2016.  In his conclusion, Associate Professor Dux states:

   “… It must be noted that with the exception of the first few seconds of its sounding the alarm was not a volume where it would have significantly impaired the jurors’ ability to hear his Honour’s instructions.  In short, the physical/sensory information from the instructions would have been represented in the brain.  What the presence of the alarm would have led to is interference in the analysis and application of this information to decision making.  This is the case as capacity limited attention would have been shifted away from the central task of comprehending the judicial explanation, which would have drawn heavily on cognitive resources, to supressing the alarm – also an operation that requires attention.  Indeed, talking on a hands free mobile phone when driving does not lead one to being unable to see the street, but rather limits one’s driving ability to the extent that it is like having a blood alcohol level of 0.08 (Strayer et al., 2006).  This occurs as attention cannot be devoted to both conversing on the phone and driving simultaneously (despite both being well practised tasks).  Along with the capacity limited nature of attention and the salient nature of the alarm, the fact that the trial took place only four days after the conclusion of the G20 Brisbane summit and that the jurors were not given details about the alarm meant that this was a behaviourally relevant stimulus that would have drawn sustained attention and been difficult to suppress.  In short, the jurors’ attention and ability to focus their attention on his Honour was impaired during his summing up regarding the provocation defence.”

1. Associate Professor Dux apparently was provided with an audio recording of the summing up by the learned trial judge and a copy of the transcript of it.  He was, it seems, not told about, or provided with, 49 projection slides used by his Honour as speaking notes for his directions.[74]  The jury were given a copy of the slides for their deliberations.

   [74]AB902-950.

2. It is common ground that the slides were projected in relevant sequence as his Honour spoke to the jury.  Some five of them dealt with the defence of provocation.  Three concerned the constituent elements of it and the onus of proof.  The other two were more specific to the circumstances of the case.  One of them told the jury they were to “consider whether [the deceased’s] conduct, that is, the things you find that he did or said, or both, caused the defendant to lose his self control and to beat him repeatedly with a hammer”.[75]  I have read the directions given by the learned trial judge during the three minutes and 25 seconds that he spoke while the alert tone was sounding.  They follow closely what appeared on the slides.

   [75]AB940.

3. In these circumstances, Associate Professor Dux’s opinion must be regarded with some circumspection.  One does not know whether, and if so, to what extent, his conclusion might have varied had he known of the benefit of the slides that the jury had.  Having regard to that and to the fact that neither the prosecutor, defence counsel nor the jury themselves asked for the directions to be repeated, and to the absence of any evidence that the jury were actually distracted, I am also unpersuaded that a miscarriage of justice occurred on account of an inability on the part of the jury to comprehend the provocation directions.  This ground of appeal is not made out.

Disposition

1. Neither alleged miscarriage of justice has been established.  I would add that, in my view, the circumstances that underlie each ground of appeal did not, in combination, give rise to a miscarriage of justice.  The appeal must therefore be dismissed.

Order

1. I would propose the following order:

   1.Appeal dismissed.

2. APPLEGARTH J:  I agree with the reasons of Gotterson JA and with the order proposed by his Honour.

3. FLANAGAN J:  I have read the reasons of Gotterson JA.  I agree with those reasons and the order proposed.