R v Wagner
[2025] QCA 29
•18 March 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v Wagner [2025] QCA 29
PARTIES:
R
v
WAGNER, Robert James
(appellant)FILE NO/S:
CA No 185 of 2019
CA No 189 of 2019
SC No 1157 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Conviction: 1 July 2019 (Applegarth J)
DELIVERED ON:
18 March 2025
DELIVERED AT:
Brisbane
HEARING DATE:
25 July 2024
JUDGES:
Dalton JA and Wilson and Crowley JJ
ORDER:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of murder following a trial by jury – where the deceased disappeared in 1999 – where the deceased’s body has never been recovered – where the prosecution case against the appellant consisted of circumstantial evidence – where the appellant was the nephew of the deceased – where the prosecution alleged the appellant had a financial motive to murder the deceased – where the appellant confessed to the murder to a fellow prisoner in custody while on remand – where the appellant submits the verdict was unreasonable and unsupported by the evidence – whether the verdict was unreasonable or insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant raises various grounds of appeal about mis-directions by the trial judge during summing-up – where the appellant submits the trial judge erred in directing the jury in relation to identification evidence – where the appellant submits the trial judge erred by directing the jury that the appellant was the only person with a financial motive to murder the deceased – where the appellant submits the trial judge failed to direct the jury that a witness was giving a s 13A or s 13B statement pursuant to the Penalties and Sentences Act 1992 – where the appellant submits the trial judge erred in directing the jury about a witness’s alleged sighting of the deceased after the deceased’s disappearance – where the appellant submits the trial judge erred in directing the jury about a witness’s notebook entry – whether the trial judge misdirected the jury during summing-up
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant submits the trial judge erred by admitting various pieces of evidence, including a diary entry and a facsimile – whether the trial judge erred in admitting certain evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant makes various claims about the conduct of the prosecutor at the trial – where appellant submits the prosecution failed to disclose evidence relevant to the defence case – whether the prosecution failed to comply with disclosure obligations – whether there was a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant submits the trial judge erred in denying the appellant’s application for a Basha hearing – whether the trial judge erred in denying the application for a Basha hearing
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was previously subject to coercive hearings before the Queensland Crime and Corruption Commission (‘CCC’) – where the appellant submits he was denied the choice to give, or not give, evidence because of the CCC investigation – where the appellant submits the CCC investigation constituted an impermissible interference with the administration of justice – whether the appellant’s involvement in the CCC investigation occasioned a miscarriage of justice
Criminal Code (Qld), s 644(1), s 644(2)
Evidence Act 1977 (Qld), s 93B, s 93C, s 101
Justices Act 1886 (Qld), s 111
Penalties and Sentences Act 1992 (Qld), s 13A, s 13BAlford v Magee (1952) 85 CLR 437; [1952] HCA 3, cited
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, considered
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v ABD[2019] QCA 72, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, considered
R v Basha (1989) 39 A Crim R 337, cited
R v Hannaford[2017] QCA 36, cited
R v MBV (2013) 227 A Crim R 49; [2013] QCA 17, cited
R v Miller (2021) 8 QR 221; [2021] QCA 126, considered
R v Nash[2020] QCA 127, cited
R v PBH (2021) 7 QR 414; [2021] QCA 38, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered
Wojcic v Incorporated Nominal Defendant [1969] VR 323; [1969] VicRp 40, citedCOUNSEL: The appellant appeared on his own behalf
M A Green for the respondentSOLICITORS: The appellant appeared on his own behalf
The Director of Public Prosecutions (Queensland) for the respondent
DALTON JA: The factual matters that are necessary to understand the issues in this appeal are stated in Wilson J’s judgment.
At the beginning of the oral hearing of this appeal, the appellant sought leave to place psychiatric opinion before the Court as to conditions from which he suffers. This was an unusual course, but the Court granted leave on the basis that it would assist in understanding the appellant’s personality and the way in which he presented his case.
The appellant sought leave to amend his notice of appeal. The Crown did not oppose this and the Court gave that leave. The outlines filed on behalf of the appellant at times departed from the grounds in the original and amended notices of appeal. The appeal was conducted on the basis that the Crown was prepared to meet the substance of the arguments in the two outlines. I proceed on this basis.
The appellant’s case was presented in a more detailed, prolix and confusing manner than most self‑represented cases. The appellant’s original outline of argument was extremely lengthy (outline 20 June 2024). He was ordered to file a second summary outline of no more than 10 pages, which he did (16 July 2024). He made extensive oral submissions at the hearing. In dealing with the appeal I have tried to identify the real points raised by the appellant and overlook the prolixity and confusion in his arguments.
Grounds 1, 5, 6 and 7
The appellant relied upon the decision in M v The Queen to say that the verdict below was unreasonable.[1] He made three main points. The first concerned the evidence of Mr ABC. So far as it concerns Mr ABC’s evidence, the unreasonableness ground overlaps with grounds of appeal 5 and 7 (using the numbering in the summary written argument). Ground 5 was that the trial judge failed to give the jury an explanation of the operation of ss 13A and 13B of the Penalties and Sentences Act 1992 (Qld) when warning the jury about whether Mr ABC’s evidence should be accepted. Ground 7 was that Mr ABC’s notebook ought not to have been before the jury. For convenience those grounds are dealt with in conjunction with the part of ground 1 concerning Mr ABC’s evidence.
[1](1994) 181 CLR 487, 493.
The second main point on the unreasonableness ground concerned the evidence of Messrs Snow and Doyle. The third main point concerned the evidence of Ms Teodorescu. This part of the argument in relation to unreasonableness substantially overlapped with ground of appeal 6. Again I deal with ground 6 in the course of discussing the unreasonableness arguments. There were also some submissions about the circumstantial nature of the case made in support of the unreasonableness ground.
Mr ABC’s Evidence
The appellant said that Mr ABC’s evidence was unreliable given his history of dishonesty and the advantages Mr ABC had to gain for himself in giving evidence against the appellant. He attacked the link made by the prosecution between Brooke Wagner’s evidence and Mr ABC’s evidence. He submitted that Mr ABC’s evidence should not have been placed before the jury. Independently, he submitted that the notes Mr ABC made of his conversation with the appellant, in which the appellant confessed, should not have been before the jury.
Mr ABC was a fraudster. The trial judge gave the jury “a particular warning about the danger of acting on the evidence of Mr ABC without first scrutinising his evidence carefully” – t 43. He told the jury that evidence of a fellow prisoner of an alleged confession might easily be concocted, and that such evidence was hard to refute. The trial judge reminded the jury of the defence submission that Mr ABC was a dishonest man and a practised liar. He reminded the jury of what the defence said about Mr ABC’s motivation to gain an advantage in his own sentencing by giving information to the police about the appellant. He said:
“I warn you that it would be dangerous to act on the evidence of Mr ABC unless there is independent evidence substantially confirming it. You should scrutinise his evidence with great care. You should consider whether certain evidence substantially confirms what Mr ABC says about the defendant having admitted the offence to him.” – t 43.
He discussed what that direction meant at some length, assisting the jury with the reasoning process they would need to undertake to decide whether or not there was independent evidence substantially confirming what Mr ABC said. He discussed the defence contention that Mr ABC’s evidence was based on the Courier-Mail article dealing with the first trial, and invited the jury to consider whether or not there were other sources of information Mr ABC might have had. At the conclusion of this part of the summing-up the trial judge reminded the jury to scrutinise the evidence of Mr ABC with great care. That seems to have been the fourth express warning given on the topic.
There is no legal basis for the appellant’s submission that the entirety of Mr ABC’s evidence should have been excluded. It was relevant and highly probative. Matters relevant to Mr ABC’s credibility were explored in cross-examination and in addresses. The judge gave sufficient warning to the jury about these potential difficulties. It was a matter for the jury whether they accepted Mr ABC’s evidence.
There were two matters which might have strongly inclined the jury to accept Mr ABC’s evidence. Both of them are particularly challenged by the appellant in relation to this ground. The first is that Mr ABC knew that the appellant’s niece or cousin visited him during the time he was killing his uncle and that she heard activity in the house, including a muffled voice at that time. The jury was entitled to conclude that Mr ABC could not have known this detail unless the appellant had told him of it. Further, they were entitled to conclude that the appellant could not have known of the visit, and the timing of the visit, unless (contrary to what he told police) he had been at home at the time Brooke Wagner came to his house. This was strong evidence against the appellant and nothing he raised on appeal diminished its strength. To the contrary, the appellant made long and detailed submissions comparing his statements to police about his whereabouts at the time Brooke Wagner said she visited his home with Brooke Wagner’s evidence. These submissions were tangential to the real point of significance for the jury, which was the comparison between Brooke Wagner’s evidence and what Mr ABC said the appellant told him.
At times in his submissions the appellant submitted that ABC’s notebook was inadmissible because it was irrelevant. It clearly was not irrelevant. Similarly, there are indications in the appellant’s outline of argument that he contended the notebook ought to have been excluded because it was more prejudicial than probative. Again, there can be nothing in this contention where objection is taken to a confession to the crime charged. At another part of his submissions the appellant submitted that the judge’s directions in relation to the notebook were inadequate. At other times the appellant appears to assert that the tender of the notebook offended the rule against self-corroboration.
There might have been something in this last point except that the tender of the notes came about in a way described by Wilson J. The opportunity for tender came about because defence counsel challenged the contemporaneity of the notes. That decision on the part of defence counsel could not be challenged as incompetent; it was clearly a decision taken in the interests of the appellant in an attempt to destroy the impact of very strong evidence led against the appellant. However, once the challenge to the evidence of Mr ABC was made, s 101 of the Evidence Act 1977 (Qld) applied and the notes became admissible. Once the document was admitted, s 101(1)(b) applied, and Mr ABC’s notes became admissible as evidence of their contents.
The appellant has not raised any basis on which Mr ABC’s notes ought to have been excluded from evidence. Nor having reviewed relevant matters can I see any other basis for their exclusion. There was no need for the trial judge to give any specific warning in relation to the notes. This part of the unreasonable verdict argument must fail, as must ground 7 of the appeal.
There is no requirement at either s 13A or s 13B of the Penalties and Sentences Act for any specific direction to be given if a witness gives evidence after having given an undertaking pursuant to these sections. The appellant contended that nonetheless the judge ought to have explained the effect of these sections pursuant to his general duty to instruct the jury as to the law applicable to the case and the evidence – s 620(1) Criminal Code 1899.
There was no evidence in the trial that ABC had given an undertaking pursuant to s 13A or s 13B. The matter was not put to Mr ABC by either counsel. The appellant asserts that the trial judge ought to have intervened and questioned Mr ABC so as to elicit evidence that undertakings had been given pursuant to ss 13A and 13B. That suggestion must be rejected. There is no reason to think the trial judge would have been aware of any evidence that had not been led before him, and the appellant was represented by competent defence counsel who did not ask Mr ABC about the matter, or ask the prosecutor to tender any such undertakings as existed. Indeed, there is no evidence before this Court that Mr ABC gave any undertaking pursuant to ss 13A or 13B.
The judge addressed the jury on this point in accordance with the evidence in the trial:
“You should have regard to Mr ABC’s admitted commission of dishonesty offences in 2011 and between 2013 and 2016. You should have regard to what he stood to gain or thought he stood to gain by giving evidence against the defendant. Would he have known that co‑operation with police would be taken into account in sentencing? You may think that if he thought about it, he would have known that co‑operation with police in relation to the defendant might be taken into account in mitigation of sentence.
You should therefore take into account the possibility that Mr ABC may have been motivated to fabricate his evidence, thinking that he’d derive some benefit in terms of sentence, treatment in prison or an earlier parole eligibility date.
Consider the evidence that he gave about his motivation in speaking to police.” – t 43.
I cannot see that anything further was required from the trial judge. This argument in support of the unreasonableness ground must fail.
Mr Snow and Mr Doyle
The second main point made in support of the unreasonableness ground related to the evidence of Mr Snow and Mr Doyle. Again, it was submitted that their evidence should not have been placed before the jury, or it was of a type which required a warning in accordance with Robinson v The Queen.[2]
[2](1999) 197 CLR 162.
These submissions were based on credibility and reliability problems with the evidence. By the time of trial Mr Snow was dead and although a statement was tendered, the jury had no ability to assess his credit in the witness box. As well, there had been collusion between Mr Snow and Mr Doyle as to their evidence. Both Mr Snow and Mr Doyle had discreditable and dishonest conduct in their past, and Mr Doyle said that Mr Snow was a habitual liar. There were differences between their accounts and there were differences between the accounts Mr Doyle gave at various different times. When attending to serve a summons on Mr Doyle a particular police officer said to him, “The only thing we want is something to convict Robert Wagner”, although even the appellant acknowledges that the police officer’s evidence was that statement was made in the context of explaining to Mr Doyle that the police wanted formal evidence of the information he had been asserting he had.[3]
[3]Paragraph 106 of the appellant’s original submissions on this appeal.
The argument that the evidence of Mr Snow and Mr Doyle should not have been before the jury must be rejected. Their evidence was highly relevant and admissible, in the case of Mr Snow, pursuant to s 93B of the Evidence Act 1977 (Qld).
There were certainly problems with their credit and reliability and in my view the judge gave the jury sufficient warnings as to this.
In relation to three witnesses whose evidence was admitted under s 93B of the Evidence Act, the judge explained the evidence was hearsay and was admitted under a particular provision of the Evidence Act. He told the jury that hearsay evidence may be unreliable, so that there was a need for caution in relation to that evidence, firstly as to whether or not it should be accepted at all, but if it was accepted, as to the weight that should be given to it – t 14. The judge repeated that warning specifically in relation to Mr Snow a little later in the summing-up – t 17. Mr Snow had been examined on oath before the Crime and Corruption Commission and had been cross-examined by the appellant’s lawyers at a committal. The judge instructed the jury that they had not had the advantage of seeing and hearing him, so that there was a need for caution in deciding to accept thing he said on those different occasions.
The trial judge took some time summarising the substance of Mr Snow’s evidence. He pointed out to the jury that his evidence included non-contentious matters and matters which were exculpatory of the appellant. He explained to the jury that there was a threshold issue as to whether or not they regarded the contentious parts of Mr Snow’s evidence as credible and reliable. He reminded them again that they had not heard or seen Mr Snow – t 26. The trial judge directed the jury that in assessing Mr Snow’s credibility they were to have regard to the circumstances under which the statements were made and whether “there was an imperative to tell the truth” – t 27. They were to consider any motivation Mr Snow had in speaking to the police and whether he had any reason to falsely accuse the appellant. They were to have regard to Mr Doyle’s assessment of Mr Snow, which in turn required them to consider the reliability of Mr Doyle’s evidence.
The trial judge told the jury they needed to carefully assess the reliability and credibility of Mr Snow’s evidence and told them, “You should scrutinise the evidence of Mr Snow with care before acting on it where he may have had, depending on your view, a financial incentive in the form of the publically-offered reward to implicate the defendant” – t 28. In that regard the trial judge drew to the jury’s attention that the police contacted Mr Snow; Mr Snow did not contact the police. Nor did Mr Snow apply for the reward, or indeed give evidence which was to the effect that the appellant had made an express confession.
In my view the trial judge appropriately warned the jury about Mr Snow’s credibility and reliability. His directions to the jury in relation to Mr Snow were detailed, fair and balanced.
Having dealt with Mr Snow’s evidence, the trial judge said to the jury that he would speak to them about Mr Doyle’s evidence. He directed the jury that, “The same care should be applied in assessing the credibility and reliability of his evidence” – t 34. Again he pointed out to the jury that Mr Doyle had not applied for a reward, and had not contacted police; police contacted him. Nonetheless he warned the jury that they should scrutinise his evidence with care because of the possible existence of a financial incentive to implicate the defendant.
The trial judge discussed the detail of Mr Doyle’s evidence and appropriately discussed whether or not the jury could regard that as being evidence of confessions by the appellant.
He reminded the jury that in cross-examination Mr Doyle’s credibility and reliability were tested in a number of respects. He reminded the jury that Mr Snow and Mr Doyle had spoken to each other about their evidence and reminded them of cross‑examination on behalf of the appellant designed to use that fact to discredit both Mr Doyle and Mr Snow – t 37. The trial judge reminded the jury of cross-examination of Mr Doyle about the police offer for reward. He again warned the jury to scrutinise Mr Doyle’s evidence because of this potential for a financial incentive to implicate the appellant – t 37.
He reminded the jury of inconsistencies between Mr Doyle’s evidence and the evidence of a Mr Duncan – t 38. He reminded the jury of Mr Doyle’s poor view of Mr Snow’s creditworthiness and personality. The trial judge raised other things as to Mr Doyle’s evidence with the jury. He concluded by saying, “So just by way of summary or conclusion in relation to Mr Doyle’s evidence, I repeat my earlier direction that you should exercise great care in assessing the credibility and reliability of the evidence of Mr Doyle. It’s a matter for you as to whether you rely upon it and, if so, what weight you give to his evidence.” – t 40.
Again, I cannot see any legitimate criticism in the way the trial judge instructed the jury as to Mr Doyle’s evidence. This argument in support of the unreasonableness ground must fail.
Ms Teodorescu
The third main argument advanced in support of the unreasonableness ground was the evidence of Ms Teodorescu having seen someone who she identified as the deceased driving in a car after his reported disappearance must have created a reasonable doubt as to the prosecution case that the appellant murdered his uncle on 7 January 1999.
The trial judge correctly told the jury that they should treat this evidence with caution for the reason that it is quite possible for an honest witness to make a mistake about identification. He also told the jury that the observation was fleeting, of someone in a moving car, and only for a few seconds. I would add that it was from a distance. The trial judge told the jury that it was a matter for them what they made of Ms Teodorescu’s evidence. That was correct. There was no compelling reason that the jury should rely upon that evidence rather than the other overwhelming evidence all pointing in the direction that the deceased had died on or about 7 January 1999.[4]
[4]Pell v The Queen (2020) 268 CLR 123, 147, [44].
By ground 6 of his appeal the appellant contended that the direction set out above diminished Ms Teodorescu’s evidence. It was submitted that in fact her evidence raised a reasonable doubt. As explained, her evidence stood at variance to an otherwise impressive body of evidence strongly supporting the idea that the deceased died in January 1999. Her evidence was not, of itself, compelling. The direction the trial judge gave was fair to the appellant.
Circumstantial Case
Lastly in his original outline of argument, the appellant made reference to the circumstantial nature of the Crown case and complained about the judge telling the jury that his statement to police contained deliberate lies showing consciousness of guilt. That the Crown case was circumstantial, except for the evidence of Messrs ABC, Snow, Doyle and Ms Wagner, may be accepted. Having reviewed all the evidence, it was a strong circumstantial case.
The trial judge did not tell the jury that the appellant had deliberately lied in his statement to police, or that these deliberate lies showed a consciousness of guilt. The trial judge gave an Edwards direction, explaining to the jury how careful they had to be in reasoning about the prosecution’s submission to this effect. There is no proper basis for complaint in this regard.
Grounds 1, 5, 6 and 7 of the appeal must be dismissed.
Ground 2
By this ground the appellant contends that his 1 May 2000 diary entry, “Is there anything in my statement which is suspicious?” ought not to have been admitted, and alternatively that directions given about it caused the trial to miscarry.
The appellant had lost a pre‑trial application under s 590AA of the Criminal Code as to the admissibility of this diary entry. The appellant’s counsel sought to revisit this ruling at trial and the trial judge refused to revisit the issue; he found no special reason shown to do so within the meaning of s 590AA(3). It is clear from his original outline of argument that the appellant seeks to challenge both the original ruling as to admissibility and the trial judge’s refusal to revisit it. It is only necessary to consider the first of those arguments.
The appellant argues that the diary entry was more prejudicial than probative and should therefore have been excluded by the trial judge in order to ensure a fair trial.[5] The appellant relied upon his counsel’s submissions below that the diary entry, “has absolutely no probative value whatsoever given that he was in the midst of another criminal matter”.[6] It was said to be prejudicial because to put the diary in context the appellant would be forced to elicit evidence that he had faced other criminal charges, and because any implication that the appellant made the entry because he was anxious that his police statement would incite suspicion that he had killed his uncle was just speculative.
[5]See the rule discussed in R v BCU [2014] QCA 292.
[6]See paragraph 5 of this part of the appellant’s original written submissions on appeal.
The difficulty with the point relating to the statement’s probative value, and the first of the two points about prejudice, was that the evidence was that the appellant had only ever given one police statement, and that was in relation to the murder of the deceased; he had never given any police statement in relation to the other charges he faced.
The only real question then was whether or not the diary entry could support an inference that the appellant had a guilty mind and was worried that he had betrayed himself in the police statement he gave about his uncle’s disappearance. In my view the evidence was capable of supporting such an inference on a rational, not speculative, basis.
The Crown relied upon the diary entry as an implied admission and a perfectly adequate Edwards-type direction was given in relation to it – see the extracts from this part of the summing-up in Wilson J’s judgment.
Ground 3
At the beginning of his summing-up the trial judge gave a very broad overview of the Crown case. He made the distinction between direct and circumstantial evidence. He referred to the confessional evidence as direct evidence and then told the jury that even if they were not satisfied that there had been a confession by the appellant, they would need to consider a circumstantial case made by the Crown. He then said:
“Some disputed facts which form part of the prosecution’s circumstantial case are more important than others. For example, the prosecution contends, in reliance upon the evidence of Brooke Wagner and other evidence, such as the defendant’s inconsistent accounts of where he was when Brooke Wagner visited his home, that (a) he was present on the evening of 7 January 1999 at the Waterworks Road unit when she visited and (b) the noises which Brooke Wagner reports hearing were of him and possibly her uncle moaning after being attacked in the garage.
The prosecution relies upon the alleged confession to Mr ABC as supporting the conclusion that when Brooke Wagner came round that evening, she heard her uncle moan.
The prosecution case largely depends upon your accepting that the defendant and Gerhard Wagner were present on the evening of 7 January 1999 at that unit when Brooke Wagner made an unexpected visit to her cousin’s home at around 5.20 pm.
Therefore, a key issue is whether you are satisfied beyond reasonable doubt, based upon the whole of the evidence, both circumstantial and direct, that the defendant and Gerhard Wagner were at the Waterworks Road unit at that time.” – t 5.
It can be seen that this part of the summing-up was in the appellant’s favour, directing the jury to apply the standard of beyond reasonable doubt to an intermediate factual finding. Nonetheless, the third ground of appeal complains about the underlined sentence in the passage above. The sentence contains an error by the trial judge – Ms Wagner never gave evidence of hearing a moan; her evidence was that she heard “a muffled voice”, which made her believe that the appellant “was coming to the door” – t 5-45. This error was drawn to the trial judge’s attention as soon as possible, and the error was corrected as soon as the jury returned to the courtroom:
“Well, thank you. Ladies and gentlemen, I should just correct and clarify something that I said towards the start of my summing up, and it dealt with the prosecution case, the circumstantial case, and in that context, I was outlining what the prosecution contended should be drawn on the basis of Brooke Wagner’s evidence and other evidence. I said that the prosecution contends that her evidence and other evidence and the defendant’s inconsistent accounts of where he was when Brooke Wagner visited his home leads to the conclusion that (a) he was present on the evening of 7 January 1999 at the Waterworks Road unit, and, secondly, the noises which Brooke Wagner reports hearing were of him and possibly her uncle moaning after being attacked in the garage. Just to be clear, that is the prosecution’s contention about what Ms Wagner heard. Her actual evidence was that she heard what she thought was a muffled sound. So I just want to make clear she did not say that she heard a moan. So I would like to clarify that.” – t 34.
The appellant’s point was that the trial judge ought not to have told the jury that Ms Wagner heard her uncle’s voice when she visited his unit on 7 January 1999. However, the trial judge did not tell the jury this. The trial judge summarised the prosecution contention that Brooke Wagner heard her uncle during that visit. That was an accurate summary of the Crown case.
In his summary outline of argument the appellant added that Mr ABC never used the word “moan” in his oral evidence. That was true, but he used the word in his diary which, as explained above, became evidence of the truth of its contents. In fact ABC’s oral evidence was that the appellant said to him “… he could [hear] somebody outside knocking and his uncle made a noise, so he muffled him” – t 2-88. That is, the similarity between Mr ABC’s oral version and Brooke Wagner’s version was marked. I cannot see anything in this argument.
The remark in the summing-up which contained error was the very beginning of the summing-up as part of a general outline. The trial judge gave a detailed summing-up and discussed the evidence of Mr ABC and Ms Brooke Wagner accurately and in a detailed way later in the summing-up. In summarising what Mr ABC said the appellant confessed, the trial judge said:
“He says that the argument was about money, the world and the Gerni, and that Mr Wagner invited his uncle to come over to see the alleged Gerni the following day to his house, that he put a plastic sheet down in the garage, preparing for his uncle to come. When his uncle arrived, he hit him over the head with a hammer in the garage. He says that Mr Wagner said not long after that, he could hear someone outside knocking, and his uncle made a noise, so he muffled him with his hand. He said that the person left a note. He thought it was a niece or a cousin …” – t 41.
Further, the trial judge said this about Ms Brooke Wagner’s evidence:
“… And you’ve got, then, the body of circumstantial evidence starting with Brooke Wagner’s evidence. She wasn’t being asked to recall these things for the first time five years after the event or 20 years after the event. Her uncle’s disappearance was obviously an important matter in the family once Gerhard Wagner [had] disappeared. And you have to assess the accuracy of her recollection and when she was first asked to recall these matters. She was very specific about the time that she was there by virtue of when she left work, how long it would take there, and that when she wrote the note she wrote 5.20 on it.
So that is evidence that gives you an impression, on the basis of her evidence, when she was there. There are the inconsistent stories from Robert Wagner about where he was at the time. He tells her that he must have been at Woolworths. In his witness statement he mentions possibly being in the shower. I mentioned the evidence from Brooke Wagner about going around and she hears sounds from inside and thinking that she hears a muffled voice. Could it have been something else? So those are matters that you need to consider as part of the circumstantial evidence case.” – t 32.
There is nothing in ground 3; it is misconceived.
Ground 4
This ground of appeal is also misconceived.
The trial judge gave the jury conventional instruction that four elements were necessary to be established before the offence of murder could be proved at the beginning of the trial. At the beginning of the summing-up he returned to those four elements and gave the jury a short summary of some of the important factual issues for their consideration, including whether or not the deceased died on 7 January 1999; whether the evidence persuaded them that he did not die of natural causes but was killed; whether he was killed by the appellant; whether the killing was unlawful, and if he was unlawfully killed, whether or not the appellant killed him with an intent either to kill him or cause him grievous bodily harm – tt 3-4.
After that introduction the trial judge discussed the evidence in some detail and returned to the four elements which must be proved to secure a murder conviction much later in the summing-up, t 48. It appears to be this latter part of the summing-up about which complaint is made. Again the trial judge told the jury that they needed to be satisfied that the deceased man was in fact dead; that the appellant had killed him, that is, caused his death; thirdly, that the killing was unlawful, and fourthly, that the appellant had an intention to cause death or at least grievous bodily harm. The judge spent a little time explaining the offence of manslaughter; that is where a killing occurs, but there is no intention to kill or do grievous bodily harm, and went on to say:
“In this case, neither party contends that this is a case in which a verdict of manslaughter is open on the evidence. The position of both parties is that this is not like the example of the punching case that I gave you a minute ago where manslaughter is an alternative offence that is open on the evidence, the prosecution case is that this was an intentional killing. The Defence position is equally simple; the prosecution has not proven beyond reasonable doubt that the defendant killed his uncle. The defendant does not advance as a fall‑back position in the event that you find that he killed his uncle, that he did not have the requisite intent to prove murder.
It does not advance as some fall-back alternative argument that there was some defence – self-defence – some other excuse that would make any killing not unlawful, in other words, excused. Still, you have to be satisfied of that third element that it was an unlawful killing and you need to be satisfied of the fourth element, which is intent in order to return a verdict of guilty to murder.” – t 49.
The trial judge explained that it was for the prosecution to prove an intention to kill and then went on to explain that intention should not be confused with motive – t 50. The trial judge recorded that the prosecution’s submission was that the appellant may have had a financial motivation to kill, but went on to say,
“… but motive is not a fifth element. It’s not an element of the offence of murder. I direct you that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility. If, in fact, you decide that there’s no reliable evidence of such a motive and that such a motive did not exist, that does not necessarily mean the prosecution has failed to prove guilt because of the lack of motive. In that event, you would have to base your verdict on the evidence that you do accept. However, the existence of a motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks you to infer guilt and to infer that a person did the act intentionally. If there is a motive, then what might otherwise be inexplicable becomes explicable. So, in summary; although it’s unnecessary for the prosecution to prove a motive – as motive [is not] an element of either murder or manslaughter – nonetheless, the presence or absence of motive may be taken into account when considering whether the prosecution has proved guilt.” – t 50.
I can see no error in any of these directions. They were legally correct and fair to the appellant.
The appellant complains that the judge’s directions were wrongly confined to a deliberate killing, which expressly conditioned the jury to find that it was the appellant, who had a financial motive to kill, who had killed his uncle.[7] In fact it can be seen that the judge’s directions were not confined to a deliberate killing. The question of whether or not the killing was intentional was expressly given to the jury for their consideration. However, the judge’s job was to describe the evidence in this case, and the issues in this case, and as the judge described to the jury, it was not a case where the defence (or indeed the prosecution) contended there was a sensible basis for a verdict of manslaughter based on lack of intention.
[7]Paragraph 1, page 7 of the appellant’s summary argument.
There is nothing in this ground of appeal.
Ground 8
In respect of this ground I agree with the reasons given by Wilson J.
Ground 9
This ground concerns exhibit 44, the fax which is set out at [402]-[413] in the reasons of Wilson J. The appellant correctly identifies that it was relevant to the Crown case about him having a financial motive to murder the deceased man. He makes two points.
First he says that the document did not exist in 1999 and that it is a forgery. This point was never raised below. The document was witnessed by Messrs Aaron and Peter Mulholland. Both those men gave evidence. Mr Aaron Mulholland was cross-examined, but not about his witnessing the document which was exhibit 44. Mr Peter Mulholland was not cross-examined at all. In their evidence-in-chief both witnesses described in detail their journey with the appellant for the express purpose of witnessing the deceased signing a document; the place where they saw the deceased sign the document, and the demeanour of the deceased when he signed it.
The appellant puts no evidence before this Court which would support his contention that the document which is exhibit 44 is a forgery. His argument must fail.
Further, I cannot see any fault in the judge’s remarks about the document to the jury; see the judgment of Wilson J as to this point. This ground of appeal must fail.
Ground 10
The appellant complains that he was interrogated at the Crime and Corruption Commission before the trial. His point seems to be that because he had no claim of privilege against answering questions during that interrogation, he gave a version of events in his evidence to the CCC which prevented him giving evidence at his trial. Thus, he complains he was not able to answer evidence given by Messrs ABC, Doyle and Snow (in particular) at his trial. Perhaps because the appellant (understandably) does not wish to speak about the evidence he gave at the CCC, his submissions about this point are particularly obscure. They seem to rest on an assumption either that evidence he gave to the CCC was not true, or that he desired to give evidence at his trial which was not true. That is, if the appellant was innocent as he continues to maintain; had given truthful evidence to the CCC, and wished to give truthful evidence at his trial, I cannot understand that there would be any point to make. As it is, I cannot see that the appellant raises any legitimate point by this ground of appeal.
Disposition
I agree with the order proposed by Wilson J.
WILSON J: On 1 July 2019, the appellant was found guilty of murdering his uncle, Gerhard Wagner, on 7 January 1999. He appeals his conviction on 10 grounds of appeal that can be summarised as:
(a)the verdict being unreasonable (ground 1);
(b)the learned trial judge making various errors (grounds 2–7);
(c)the prosecution failing to disclose evidence (ground 8);
(d)a facsimile dated 24 November 1998 being wrongly admitted into evidence (ground 9); and
(e)the appellant being denied the choice to give, or not give, evidence because of a coercive investigation by the Queensland Crime and Corruption Commission (CCC) (ground 10).
The prosecution case
The prosecution case is that the deceased was last seen at about 3.00 pm on 7 January 1999 by his friend, Kelvin Woodward, when they were both at Mr Woodward’s workshop at Hemmant. The deceased gave the impression that he was driving to his home at Kalinga. The prosecution case is that he never went home. Rather, the deceased went to visit his nephew, the appellant, who lived in a unit at Ashgrove which was owned by the deceased. It is here that the prosecution contends the appellant murdered his uncle. No body has ever been recovered.
The prosecution’s precision as to when, and how, the appellant killed his uncle comes from two sources:
(a)the content of the appellant’s confession to Mr ABC whilst they were both in custody; and
(b)Brooke Wagner, the appellant’s cousin, whose evidence dovetails with an aspect of Mr ABC’s evidence.
The evidence of Mr ABC and Ms Wagner forms the backbone of the prosecution case, such that the jury were directed that the prosecution must prove beyond reasonable doubt that the appellant and the deceased were present at the appellant’s home when Ms Wagner made an unexpected visit there at around 5.20 pm on 7 January 1999.
The prosecution case also included evidence of other statements against interest made by the appellant:
(a)telling a Peter Snow that the police had accused him of dismembering the deceased’s body and putting it in bags which he disposed of in the Glass House Mountains when police had not made any such allegation; and
(b)telling a Milton Doyle that he had “knocked his uncle off”.
Further, the prosecution case consisted of a body of circumstantial evidence, including the deceased changing his will to nominate the appellant as sole beneficiary and executor, the appellant owing money to the deceased, the appellant’s poor financial position, and the appellant’s conduct after the deceased went missing.
Relationships between the deceased and others
The deceased was born in Germany and moved to Australia in 1949 with his family. He was the oldest of four siblings, with two brothers, Peter and Paul Wagner, and one sister, Erika Palmisano. The appellant is Erika’s son. He was close to his family and family members often lent money to each other “on a handshake”.
Whilst the deceased had a limited education, he could read and write but struggled with some of the words used in financial documents. Accordingly, he relied on others, in particular his brother, Paul Wagner, and the appellant, in relation to legal and financial matters. For example, John Cicchiello, the real estate agent who dealt with the attempted sale of the deceased’s Kalinga property, described the appellant being heavily involved in the process. He stated that, in relation to legal matters, the deceased had complete faith in the appellant and that the deceased repeatedly told him that he trusted the appellant to look after his legal affairs in relation to the property contract.
For a time, the deceased’s girlfriend, Menchie Clune, and her son, Sam Villegas, as well as the deceased’s father, lived at Kalinga with him. By the time the deceased went missing, his father had moved to live with Erika Palmisano. The deceased signed a contract for the sale of the Kalinga property on 27 November 1998. Settlement for the property was scheduled for 24 February 1999. The deceased intended to move back to the Ashgrove unit and told Paul that the appellant knew that this was going to occur and, when it did, the appellant would move in with his mother, Erika, at Blyth Road, Murrumba Downs.
There was evidence from the deceased’s friends and family about the importance of the deceased’s boat to him. It was described as “his pride and joy”. The boat was called the Memel, named after the deceased’s birthplace in Germany. It was moored in the water at Scarborough Marina from 1 May 1998.
The deceased told his brother, Paul, that he had broken up with Ms Clune, and he thought that she might pursue his assets. As the deceased did not want to lose any part of the boat, he put the boat in the appellant’s name. The deceased also put the Kalinga property up for sale.
There was evidence at the trial that the deceased had a very close relationship with the appellant, with the relationship being described like a father-son relationship. Aaron Mulholland, a friend of the appellant, described the appellant as being very upset when the appellant told him that the deceased was missing. The deceased lent money to the appellant. As of 7 January 1999, it is unknown how much money the appellant owed the deceased. It could have been somewhere between $85,000 and $300,000.
However, there was also evidence that, around the time of the disappearance, the relationship between the appellant and the deceased was fracturing. Robert Eggleton,[8] a friend of the deceased, described the deceased and the appellant’s relationship in this way:
“Gerry was very fond of Robert though. He spoke highly of Robert but later became concerned about Robert’s use of Gerry’s money. I remember Gerry being upset about him loaning Robert a high pressure water blaster. Gerry told me that Robert had traded that water blaster in for a bigger one and paid for it with Gerry’s money. Gerry was ropeable about it. He was getting quite worked up when telling me about it. I cannot remember when this was. It was just before Gerry went missing, maybe a month before he went missing.
Well before Gerry went missing I noticed his attitude about Robert changing significantly. When we became close and he started to trust me he opened up and discussed his concerns openly. Gerry would tell me that Robert ‘was not playing the game’. That’s how he used to describe it, Robert ‘was not playing the game’.
In the early times, as I have said, Gerry spoke very fondly of Robert then it changed and Robert turned it sour. All I started to hear were gripes about Robert. Gerry would tell me that Robert had done this and Robert had done that. It was all about money and Robert taking Gerry for granted and doing the wrong thing with his money. Even though he griped about Robert, I know that Gerry still had a soft spot for him.” – t 1-42.
[8]Mr Eggleton died prior to the trial, and his statement was read to the jury pursuant to s 93B of the Evidence Act 1977 (Qld) and also s 111 of the Justices Act 1886 (Qld).
Circumstances in which the deceased went missing
Friends and family of the deceased gave evidence as to the last time they saw him, all of which painted a picture of a content man who had plans for the future. There was evidence from the deceased’s friends and family that, if he was going to be away, he would always call them, and it was out of character for him to not contact anyone.
His brother, Peter, last saw the deceased on 5 January 1999 at the deceased’s house in Kalinga, when he helped him with a storage container. The deceased and his brother took the storage container to Mr Woodward’s workshop to be repaired. The deceased spoke of moving to the Ashgrove unit, where the appellant lived, and using the storage container at the Ashgrove unit.
The deceased had a telephone call with a friend, Mr Eggleton, on 6 January 1999 when he rang the deceased about a proposed trip on the Memel. The deceased did not seem worried, or concerned, about anything. The deceased proposed to go sailing on Sunday, 10 January 1999. However, Mr Eggleton could not go sailing on Sunday, and the conversation was left with them planning to go sailing sometime down the track.
Ms Clune gave evidence that the deceased was going to pick her up from her home to go to the Breakfast Creek Hotel for dinner on the night of 7 January 1999. However, he never came. On 13 January 1999, she alerted the deceased’s brothers and the appellant that she could not find him, and, on 18 January 1999, the appellant reported the deceased missing to the police.
The deceased’s bank accounts have not been touched since 2 January 1999.
His sister, Erika, last saw the deceased at his house in Kalinga on 4 January 1999. Around this time, the deceased told his sister that he was dizzy and not feeling well. On 3 August 1998, the deceased went to his doctor as he had a dizzy spell on his boat. The deceased’s doctor gave evidence at the trial and was taken through the deceased’s medical history. Ultimately, the doctor’s opinion was that the deceased was in reasonably good health.
The appellant confessed to ABC
The appellant, whilst on remand, confessed to Mr ABC that he killed the deceased.
Mr ABC, by his own admission, is a fraudster and a liar. He met the appellant when they were both on remand sometime around 15 December 2017.
Mr ABC and the appellant worked in the print shop for six or seven months, Monday to Friday from 7.30 am to 1.30 pm. About a month after Mr ABC began working in the print shop, the appellant began discussing his case with Mr ABC. The main theme of these conversations was that everyone was against him. In particular, the appellant told Mr ABC an incident involving a boat at Hemmant and Mr Snow and Mr Doyle. The appellant often spoke about Mr Snow and Mr Doyle. The appellant said that one was a corrupt informant, and the other was a corrupt ex‑policeman.
Mr ABC stated that the appellant had documents, that he had written and would read from, about his case.
In the week before Christmas of 2018 Mr ABC told the appellant that he was making a statement and confessing to the police about his own fraud charges. Mr ABC told the appellant that making this confession was a relief for him and he felt that a weight had been lifted from his shoulders. The appellant’s response to this was to confess, in some detail, to Mr ABC that he had killed his uncle:
“Did Mr Wagner respond to you after you told him that you felt a weight had been lifted off your shoulders?---Yeah. He went, sort of, quiet for about 30 seconds. And then he just looked at me and said “I killed my uncle.”
All right. What did you do when he said that he killed his uncle?---Well, I didn’t know what to say. I said “why?” I just didn’t - yeah. My reaction was “why?”
And when you asked Mr Wagner why, did he respond to that question?---He did. He said that he owed his uncle quite a bit of money and that he’d been asking about it. That his uncle was changing his will back to his ex-girlfriend’s or wife’s name and cutting Robert out as well as - I’ve drawn a blank. It was basically around money. Oh, [Gerni].[9] An argument over a [Gerni], of all things.
[9]The transcript transcribes the word “gurney”, but Mr ABC was referring to “Gerni”, a brand of pressure washer.
Now, so you say Mr Wagner responded and was talking to you about it being over money?---Yes.
And you indicated he also said it was about a change of a will?---Yes.
Did he talk to you about what had happened?---That he’d been the day before or two days before he’d had an argument with his uncle, and I think there was another uncle present, I’m not 100 per cent sure, I can’t recall it. But it was definitely Gerry, his uncle, he’d had an argument with.
And did he say what they had an argument about?---About money, the world and the [Gerni].
And [Gerni?]---Yeah.
And did Mr Wagner tell you what happened after that argument?---He invited his uncle to come over to see the alleged [Gerni] the following day.
Did Mr Wagner say where?---He said out to his apartment or house.
And did he say anything about - so he told you that he had arranged for his uncle to attend his apartment or flat?---Yes.
Do you say anything about his apartment or flat at that time?---He said that he’d put a plastic sheet down in the garage. Prepared for his uncle to come.
And did he tell you what happened when his uncle arrived?---He did.
And what did he say?---He said he hit over the head with a hammer.
Did he say where he was when he did that?---In the garage.
Did Mr Wagner tell you what happened after he his uncle in the head with a hammer?---He said that not long after, he could here [sic] somebody outside knocking and his uncle made a noise, so he muffled him.
Did he say how he muffled him?---With his hand.
Did he say anything about who was knocking on the door?---After - he said that the person had left a note and it was his - I think it was niece, but it could have been cousin. His niece or cousin.
Did Mr Wagner tell you what happened after he muffled his uncle?---He just more or less then said over the next two to three days he proceeded to cut pieces off and chop up the body with a knife.
I was going to ask you that. Did he tell you how he cut up the body? ---Yeah. He was using a knife. He had a knife, a hammer and an axe.
And did he tell you anything else about how he was cutting up his uncle’s body?---No. But it was - the way he was telling me, it was like he was enjoying telling me what he had done. It was quite horrible.
Did he tell you anything about what happened to his uncle’s body?---He said he took a lot of the skin and meat and guts and put them - I’m not sure if he said “the Brisbane river” or “a Brisbane river”.
And did he say how he got them to the Brisbane river? Or a Brisbane river?---I didn’t - I assumed - he didn’t actually say how he got them there.
Did he tell you anything else about what happened to his uncle’s body?---I know that he moved the motorbike. I think his uncle had arrived on a motorbike, I just missed that. He put the motorbike in the garage. He chemically - he got chemicals and tried to chemically clean parts of the body. And what he couldn’t clean he smashed with the hammer and the axe and distributed at the Glass House Mountains.
Did he tell you where at the Glass House Mountains at all?---It was like the gorilla mountain or the gorilla face.
Did he say anything else about where those parts of his uncle had been disposed?---He mentioned the mouth a lot. The gorilla mouth at the gorilla mountain. But it was two locations. There was another location that he didn’t go into as much as the gorilla.
Now you mentioned to us he had referred to using chemicals on the body?---Yeah, he tried to dissolve as much as he could. He disposed of those chemicals and he chemical washed the garage and the whole area, he said.
Did he say how he did that?---Just with chemicals and the [Gerni].
Did he say anything about how he got the body parts to the Glass House Mountains?---No, he didn’t say how he got there.
Did Mr Wagner talk to you at all about where his uncle had been before he arrived?---He’d been at Hemmant I’m not sure if it’s the boat, or a boat but he’d been working on a boat at Hemmant.
And what did he tell you about that? That his uncle was working there?---That he’d been working on the boat and was coming over to the house.
And did Mr Wagner indicate anything else about his uncle having worked over at Hemmant before coming to the house?---No. Just that he was working on the boat.” – tt 2-87-89.
The appellant told Mr ABC that, for his mother’s sake, he would not be pleading guilty.
When Mr ABC returned to his cell, he made some notes about his conversation with the appellant. After exhausting his recollection in evidence, he was allowed to refresh his memory from these notes. He then gave evidence that the appellant told him that:
(a)he had been to the Glass House Mountains two to three times to dispose of things;
(b)he owed $300,000 in a loan;
(c)there was an argument with two uncles about a generator or Gerni;
(d)he disposed of the hammer and the axe, but he wanted to keep the knife;
(e)“after one week, chemical clean garage”, and
(f)three or four years later, he had gone back to check to see if some of the bones were visible and re-scattered some.
Prior to making these statements to Mr ABC, the appellant staunchly and consistently maintained his innocence every single day for the six months that Mr ABC had known him.
In cross-examination, it was asserted that:
(a)Mr ABC obtained details about the appellant’s case by looking at the appellant’s notes where the appellant detailed the allegations made against him, and
(b)the notes made by Mr ABC had been made on several occasions – every time he learned something new about the appellant’s case after having spoken to him in the print shop, or from media reports about the appellant’s previous aborted trial.
Mr ABC denied such suggestions, and, in re-examination, his notebook was tendered.
Mr ABC contacted his own lawyer to say he was prepared to speak to police about his conversation with the appellant. He said that at the time he spoke to police about the appellant he did not know that this assistance might result in his receiving a lower sentence. By the time he gave evidence he did know this.
Mr ABC was cross-examined at length about his credibility. Mr ABC was pleading guilty, the week after giving his evidence at the appellant’s trial, to frauds in excess of $1,000,000. He accepted that he was a fraudster, a professional liar, and that he fled Australia for New Zealand prior to being charged to avoid being caught.
Ultimately, the following propositions were put to Mr ABC by the appellant’s counsel:
“All right. Look, I suggest that Mr Wagner never confessed to you. You agree or disagree with that?---Disagree.
Right. I suggest that everything that you have learned and every aspect of the story that you have told this court and this jury has come from a combination of reading Mr Wagner’s notes about the evidence in his trial, talking to Mr Wagner about his trial, news reports, either television or newspaper, and you’ve just then filled in the gaps. Agree or disagree with that?---Disagree.” – t 3-10.
A media report of the appellant’s previous trial
This appeal is from a second trial. There had been an article published in the Courier Mail on 21 February 2018 about the first trial:
“FINAL WILL AND ‘DISMEMBERMENT’
Accused had ‘peculiar knowledge’ in death of wealthy uncle, court told
A BRISBANE man murdered his wealthy uncle in a plan to benefit from his will and later admitted he ‘knocked him off’, a court has been told.
Robert James Wagner also allegedly told a friend in graphic detail that police accused him of dismembering Gerhard Wagner and disposing of the body parts in the Glasshouse Mountains, but a jury has heard investigators never made such a claim.
Wagner, 56, yesterday pleaded not guilty in the Supreme Court in Brisbane to the cold-case murder of his uncle, 61, who has not been seen since January 7, 1999.
Prosecutor Phil McCarthy said Robert Wagner orchestrated an amendment to his uncle’s will in late-1998 that gave him ‘complete control’ in the event of the other man’s death.
Gerhard Wagner had $195,000 in the bank and was preparing to retire and sail the world on his large yacht, which he owned along with property in sought-after suburbs Wooloowin and The Gap. He signed the amendment to the will, but Mr McCarthy said his brothers would give evidence that he often relied on the ‘trust of others to explain documents to him’.
Mr McCarthy said Gerhard Wagner was last seen at his friend’s workshop at Hemmant on January 7, 1999, and had promised his former partner Menchie Clune that he would meet her at the Breakfast Creek Hotel that night. He never showed.
Mr McCarthy said that on January 15, 1999, a man alleged to be Robert Wagner purchased gloves, a mask and protective boots at a local shop, with an employee recalling a conversation that he ‘was working with acids’ to clean a garage floor.
It was also alleged that Robert Wagner confirmed to an acquaintance – an ex-police officer – that he ‘had knocked his uncle off’.
The court was told he gave a detailed account to another friend of what he said was the police case against him, but no such allegations were ever made as there was no body.
‘(Robert Wagner said) the accusation made of him by the police service was that he’d been accused of dismembering his uncle’s body, of putting it in plastic bags, placing those plastic bags in hessian bags then disposing of the body in the Glasshouse Mountains,’ Mr McCarthy said. ‘That simply has never been an accusation made by the Queensland Police Service.
‘The crown invites you to conclude that the detail of that allegation … reveals that Robert Wagner has peculiar knowledge of the circumstances of his uncle’s death.’
When the friend asked if it was true, Robert Wagner told him it was not.
Mr McCarthy said police searched the accused man’s home in 2014 and found a 1999 diary, but did not initially seize it as evidence. When they returned weeks later, it was nowhere to be found. But Mr McCarthy said officers discovered a diary from 2000 which included the notation: ‘Is there anything in my statement which is suspicious?’
The court was told there would be evidence Robert Wagner was in a dire financial position when his uncle vanished. The amended will forgave debts he owed to his uncle which he told police was about $80,000, but Mr McCarthy said it could have been as high as $300,000.
He sold his uncle’s yacht for $95,000 in 2001 after advertising it under his mother’s name. ‘The defendant disposed of that money within months,’ Mr McCarthy said.
The proceeds of the sale of the house in Wooloowin were put into a trust account.
The trial continues with more than 40 witnesses expected to give evidence.” – t 3-11, exhibit 20.
No suggestion was made at the trial that this document was false. The fax was witnessed by Mr Aaron Mulholland and Mr Peter Mulholland. No such suggestion was put to them about such fraud.
The appellant submits that the trial judge “wrongly influenced the jury” by his summing up in relation to that document. The trial judge fairly drew the jury’s attention to this document:
“It’s a document that was witnessed by Peter and [Aaron][40] Mulholland and that document – which revoked the previous wills – was an informal will. Or I could just say a will or a codicil that not simply placed Mr Robert Wagner as executor but appointed him, effectively, as trustee where he could decide who got what including if he chose to exercise his discretion as trustee in favour of himself that he could benefit from the estate. So that document placed all of Mr Gerhard Wagner’s estate under the control of Robert Wagner. Again, the prosecution says that’s suspicious. It’s the defendant positioning himself. But the competing possible explanation is similar to the one mentioned by me a minute ago in relation to the Nelson Street Property that he was content to trust Robert Wagner with those financial affairs. At least, until he sorted out a new will.” – t 62-63.
[40]The transcript erroneously transcribes “Erin”.
The trial judge referred to counsel’s submissions as to the appellant’s financial state including the changing of the deceased’s will in this way by the contents of the fax. The appellant takes umbrage as to how the trial judge summarised his counsel’s submissions as to this point:
“As to the financial motivation upon which the prosecution relies, Mr Funch submitted that Mr Wagner was not in dire financial straits. He submitted there is no evidence that Gerhard Wagner was going to call in the loan and, even if he did, Mr Funch submitted that Mr Wagner had sufficient assets accumulated by prudent investment over the years. He submitted that the defendant did not position himself to financially benefit. He said there was nothing unusual about the way the Nelson Street sale went ahead without lawyers turning up with the title deed and so on. There is nothing remarkable about that special condition.
He submitted there was no asset grab by his client and that Gerhard Wagner trusted Robert Wagner. That explains the terms of the Nelson Street authority and the one page will. Mr Funch submitted that changing the will was consistent with Gerhard Wagner’s wishes of protecting his assets from a possible claim by Ms Clune and he submitted the Gerni was not a reason to change the one page will which had put Robert Wagner in effective control of Gerhard Wagner’s estate. As to the circumstantial case, Mr Funch submitted that each piece of it is open to an innocent explanation.” – t 23.
From this benign summary, the appellant submits that the trial judge misdirected the jury by:
“…misstating the effect of the defence case, and by that process, implicated Mr Wagner in the charge of murder by identifying a motive to act with intent in the way misdirection supported ABC’s evidence and notebook.”
Such a submission has no basis.
The appellant has laid no foundation as to why the fax was not properly admissible.
There was no misdirection regarding the fax, and it was properly identified as a relevant matter for the jury to consider in the context of the prosecution’s allegations and related evidence going to the deceased’s level of literacy.
Ground 10 – CCC hearings
The appellant has submitted that he was prevented from giving evidence as a result of having been subject to coercive hearings before the CCC. The appellant continues by alleging that that evidence from Mr ABC, Mr Snow and Mr Doyle should not have been admitted and the CCC process somehow constituted an impermissible interference with the administration of criminal justice.
With respect to the three witnesses, as noted above, appropriate directions were given to the jury. It was for the jury to make a determination of credit, bearing in mind the directions they were given, to consider the evidence as a whole and whether such evidence was consistent and capable of being accepted beyond reasonable doubt.
As regards the appellant himself, his argument seems to be that he could not give evidence at his trial for risk of prosecution if it “diverged in a material way” from the evidence he had given at the CCC.
The appellant states in his submissions that the CCC examination hindered the strategic management of his case:
“[29] The examination by the CCC hindered the strategic management of my case in two ways; first, challenging at trial, or putting to test any part of the prosecution case on a misuse of Exhibit 44 relative to my evidence given before the CCC on the “Deed of Action” consistent with my uncle’s forensic purpose to protect his assets from Menchie Clune and her son, Sammy Villegas @ [R 758.23 – 758.46].
[30]Secondly, the parties did not appreciate my inviolable right of election in s 618 of the Code and Rule s 50 of the Criminal Practice Rules 1999 (Qld) which that alteration of the accusatorial process denied me my fundamental right to put to test the prosecution case on the jury’s use of an unlawful document [Exhibit 44] at my trial. Rule 50 of the Criminal Practice Rules is expressed.”
The appellant has already raised Exhibit 44 in Ground 9 of his appeal.
It is difficult to understand the appellant’s complaint in relation to the CCC hindering the strategic management of his case.
There was no suggestion that the trial prosecutor had the transcript of the coercive hearings and the fact that the appellant had been subject to a coercive hearing is no bar to him giving evidence at his own trial, or challenging evidence.
This ground of appeal has no basis.
Conclusion
None of the grounds raised by the appellant have any basis. The appeal should be dismissed.
CROWLEY J: For the reasons stated by Wilson J and Dalton JA, I agree this appeal should be dismissed.
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