R v Trebeck - [2018] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION:

R v Trebeck [2018] QCA 183

PARTIES:

R
v
TREBECK, Robert Ian
(appellant)

FILE NO/S:

CA No 331 of 2016
SC No 8 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Toowoomba – Date of Conviction: 9 November 2016 (Martin J)

DELIVERED ON:

7 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2018

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDER:

The conviction to be set aside and a retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of murder after a 13 day trial – where the case against the appellant was circumstantial, with no evidence of motive, and relied upon post-offence conduct of the appellant – where manslaughter was properly left for the jury as an alternative verdict despite not being a feature of the defence case – where the Crown retained the onus of proving intention and the jury retained the obligation to exclude any inference consistent only with manslaughter – where it was submitted by counsel for the appellant that the directions given by the learned primary judge allowed the jury to rely on the post-offence conduct as evidence of consciousness of guilt of murder, without considering whether that conduct could only point to consciousness of guilty of manslaughter – where the Crown submitted that the Edwards direction given by the learned primary judge had been effective, in the context of the summing up as a whole, and that R v Mitchell could be distinguished – whether the appellant was denied a proper consideration of conviction for manslaughter, rather than murder

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where the Crown case against the appellant relied upon alleged lies relating to the extent of his contact with the deceased, his whereabouts at the time of the killing, what boots he was wearing at the time and how he sustained particular injuries to his wrist – where the appellant gave five different versions of the night in question to different people – where the identification of these lies and other related conduct occurred during the Crown’s closing address – where the learned primary judge decided not to refer to those facts during his summing up as it would be “repetitive and over emphasising” – whether the failure to specifically identify the lies and other post-offence conduct was in error and likely to confuse the jury

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited
R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, followed
R v Murray[2016] QCA 342, followed
Weiss v The Queen

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 Trebeck

Details

AGLC: R v Trebeck [2018] QCA 183
Case: [2018] QCA 183
Decision Date: 7 August 2018

CaseChat Overview and Summary

In the matter of R v Trebeck, the appellant was convicted of murder following a lengthy trial. The prosecution’s case against the appellant was circumstantial, lacking any direct evidence of motive, and instead relied heavily on the appellant's post-offence conduct. The appeal centred on whether the trial judge adequately directed the jury on the use of evidence regarding the appellant's lies and other post-offence conduct. Specifically, the court needed to determine if the judge's directions allowed the jury to appropriately consider the possibility of manslaughter as an alternative to murder.

The primary legal issue was whether the trial judge's directions to the jury were sufficient to ensure that they could properly assess the evidence of the appellant's lies and post-offence conduct. The appellant's counsel argued that the judge's directions allowed the jury to consider these lies and conduct as evidence of guilt of murder, without properly considering whether they could only indicate a consciousness of guilt of manslaughter. The Crown, however, contended that the judge's directions, particularly the Edwards direction, were adequate in context and that the case of R v Mitchell could be distinguished. The court had to examine whether the judge's failure to properly direct the jury on the use of lies and post-offence conduct constituted a miscarriage of justice.

The Court of Appeal held that the appellant's conviction should be set aside and a retrial ordered. The court found that the trial judge did not properly direct the jury on how they should assess the evidence of the appellant's lies and other post-offence conduct. The judge failed to instruct the jury that they could only consider such evidence as proof of murder after excluding the possibility that it indicated a consciousness of guilt of manslaughter. This omission potentially allowed the jury to convict the appellant of murder without adequately considering the lesser charge of manslaughter. Consequently, the court concluded that this error likely influenced the jury's decision, amounting to a miscarriage of justice.

The final orders of the court were to set aside the conviction and order a retrial, reflecting the need for the jury to be properly directed on the assessment of post-offence conduct as evidence in the context of a murder trial.

Orders

Orders of the court

The conviction to be set aside and a retrial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have had the opportunity to read the additional reasons given by McMurdo JA and agree with those reasons.Conclusion and disposition of the appeal For the reasons given above the conviction should be set aside and a retrial ordered. McMURDO JA: This appeal should be allowed, and a re-trial ordered, substantially for the reasons given by Morrison JA. In essence, the three grounds of appeal involve a complaint that the trial judge failed to properly direct the jury as to how they might use evidence of lies and other post-offence conduct. In Osland v The Queen,[55] Gaudron and Gummow JJ said that where a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what the prosecution contends may be made of the evidence in question, before instructing the jury, as required by Edwards v The Queen,[56] if the evidence (in the judge’s view) may be left to the jury as evidence of guilt. In cases such as this one, where there is an issue of whether the defendant killed with the requisite intent, the preferable course is for the trial judge to ascertain whether the prosecution contends that any, and if so what, lies or other conduct amounts to evidence of the defendant’s guilt of murder, rather than merely manslaughter. Unfortunately, that did not occur in the present case.[55](1998) 197 CLR 316 at 334 [44]; [1998] HCA 75.[56](1993) 178 CLR 193 at 210 – 211 per Deane, Dawson and Gaudron JJ; [1993] HCA 63. In summarising his argument to the jury, the prosecutor said that the appellant had lied about the extent of his contact with the victim, his whereabouts at the time within which the killing took place, the boots that he was wearing and how he suffered the injuries to his wrist, before saying that the appellant knew that if he was to tell the truth about those things, “that would implicate him in the commission of the offence.” It was likely that the jury understood the “offence” to be that of murder. Earlier in his address, he had identified further lies told by the appellant, such as in his first conversation with the police when he denied knowing who the victim was. At that earlier point of his address, the prosecutor did not expressly rely upon lies and post-offence conduct as evidence of the appellant’s guilt. After the addresses and before the summing up, the judge requested and was given by counsel summaries of their arguments, so that the jury could be directed about them. The prosecutor’s summary contained this statement, which the judge used in summarising his argument:“Intent for murder can be inferred from the nature of the murder, as well as Mr Trebeck’s post-offence conduct in attempting to dispose of her body, hiding her jeans, destroying the shoes and attempting to distance himself from the crime scene by telling lies.” Consequently, the prosecution argument as it was ultimately conveyed to the jury, was that all of the appellant’s lies and that post-offence conduct was evidence of an intention to kill or do grievous bodily harm. Nevertheless, as Morrison JA has explained, the jury was not duly directed as to how they should assess that argument. They were not told that they could use a lie or some other post-offence conduct as evidence of murder, only after they had considered whether it was explicable as showing a consciousness of guilt of an unintentional killing of the deceased, but not necessarily murder.[57][57]R v Mitchell [2008] Qd R 142; [2007] QCA 267 at [41] per Keane JA.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Trebeck [2018] QCA 183
PARTIES:	R v TREBECK, Robert Ian (appellant)
FILE NO/S:	CA No 331 of 2016 SC No 8 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Toowoomba – Date of Conviction: 9 November 2016 (Martin J)
DELIVERED ON:	7 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2018
JUDGES:	Morrison and McMurdo JJA and Boddice J
ORDER:	The conviction to be set aside and a retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of murder after a 13 day trial – where the case against the appellant was circumstantial, with no evidence of motive, and relied upon post-offence conduct of the appellant – where manslaughter was properly left for the jury as an alternative verdict despite not being a feature of the defence case – where the Crown retained the onus of proving intention and the jury retained the obligation to exclude any inference consistent only with manslaughter – where it was submitted by counsel for the appellant that the directions given by the learned primary judge allowed the jury to rely on the post-offence conduct as evidence of consciousness of guilt of murder, without considering whether that conduct could only point to consciousness of guilty of manslaughter – where the Crown submitted that the Edwards direction given by the learned primary judge had been effective, in the context of the summing up as a whole, and that R v Mitchell could be distinguished – whether the appellant was denied a proper consideration of conviction for manslaughter, rather than murder CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where the Crown case against the appellant relied upon alleged lies relating to the extent of his contact with the deceased, his whereabouts at the time of the killing, what boots he was wearing at the time and how he sustained particular injuries to his wrist – where the appellant gave five different versions of the night in question to different people – where the identification of these lies and other related conduct occurred during the Crown’s closing address – where the learned primary judge decided not to refer to those facts during his summing up as it would be “repetitive and over emphasising” – whether the failure to specifically identify the lies and other post-offence conduct was in error and likely to confuse the jury Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, followed R v Murray[2016] QCA 342, followed Weiss v The Queen