R v Walker-Ely
[2025] QCA 183
•30 September 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v Walker-Ely [2025] QCA 183
PARTIES:
R
v
WALKER-ELY, Steven Dean Michael
(appellant)FILE NO/S:
CA No 149 of 2024
SC No 45 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Mackay – Date of Conviction: 7 June 2024 (Crow J)
DELIVERED ON:
30 September 2025
DELIVERED AT:
Brisbane
HEARING DATE:
26 August 2025
JUDGES:
Bradley and Doyle JJA and Martin SJA
ORDERS:
1. Appeal allowed.
2. Verdict of guilty on the count of murder set aside.
3. There be a new trial in respect of the count of murder on the indictment.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant pleaded not guilty to murder and guilty to manslaughter at the outset of his trial – where the appellant was found guilty of the murder of the deceased – where the appellant raises three grounds of appeal – where the appellant contends a miscarriage of justice occurred because the Crown prosecutor’s address created a real risk that the jury would not have approached their assessment of the partial defence of provocation in accordance with law, and the primary judge’s directions were inadequate, in all the circumstances, to mitigate that risk – where the appellant contends there was a miscarriage of justice because of the way the prosecutor led and deployed sexual interest evidence – where the appellant contends there was a miscarriage of justice because, in cross-examination, the prosecutor invited the appellant to make an assessment of his own general honesty or dishonesty, not limited to the appellant’s account of the events of the night in issue – whether a miscarriage of justice occurred
Hooper v Gorman [1976] 2 NSWLR 431, cited
Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, cited
Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67, considered
Pollock v The Queen (2010) 242 CLR 233; [2010] HCA 35, followedCOUNSEL:
R M O’Gorman KC for the appellant
M A Green for the respondentSOLICITORS:
Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
BRADLEY JA: The appellant appeals his conviction for murder.
In the early hours of 14 December 2021, the appellant unlawfully killed Birdsall Fueina Fa’apepele (the deceased), stabbing him at least 42 times, on the side of the Bruce Highway, outside a caravan park at Paget, in Central Queensland.
On 3 June 2024, at the outset of a trial, the appellant pleaded not guilty to murder and guilty to the manslaughter of the deceased. In opening the Crown case, the Crown prosecutor told the jury “the real issue in the case” was whether the appellant could prove, “on balance, that he has the benefit of the defence of provocation.” Defence counsel agreed, telling the jury that the case was “only” about whether the appellant could prove, on the balance of probabilities, that what “would otherwise be murder” could “be reduced to manslaughter because of the legal defence of provocation.”
As the learned trial judge told the jury:
“provocation has a particular legal meaning. It consists of conduct which causes a loss of the power of self-control on the part of the [appellant] and which might have caused an ordinary person to lose the power of self-control, and to act in a manner which encompasses the [appellant’s] actions … [and] that when he killed [the deceased] he was still deprived of his self-control by the provocative conduct.”
The appellant gave evidence at the trial. He had lived at the caravan park for about nine months before the unlawful killing. He had moved there with his then partner to work in the nearby mines. The two worked at different mines. Their 16-year relationship had ended about a week and a half before the night in question. The appellant had met another woman a few days before, and they had formed a “pretty sexually driven” relationship. They were together until about 11.00 pm on 13 December 2021, having had, as he said, a good day or, as she said, a great day. The appellant said he started drinking a six-pack of beer about lunchtime, and the two of them went to a bar for a few more beers. He brought home a four-pack of pre-mixed drinks, which he consumed while they were back at his caravan.
After his new partner departed, the appellant said he was sitting on his own, at a table just outside his caravan, having a few more drinks, listening to music, and minding his own business. The deceased walked by. The appellant did not know the deceased and did not recognise him as someone living in the caravan park. The appellant questioned him, and the deceased sat down. They spoke about some personal issues the deceased was having.
It was mid-December in Central Queensland. The appellant and the deceased were just in shorts. After some time, a few arguments, and a visit to the amenities block, the appellant said he told the deceased to leave and went into his caravan. He said the deceased followed him in. The appellant said he told the deceased to leave. He said the deceased told him he was going to have sex with him, dropped his shorts and, in a physical altercation, attempted to rape him in the caravan. The appellant said he escaped from being pinned down by the deceased, drew a knife from near the caravan door and stabbed the deceased in the chest. He said he then stepped backwards out of the caravan and told the deceased to get out. The appellant said, at that point, the deceased made threats to come back and to kill him.
The appellant said the deceased walked away, but not towards the caravan park exit. He said he thought the deceased was withdrawing only to come back and kill or hurt him. He followed the deceased across the caravan park to the fence. He said, at the fence, the deceased turned and again threatened to come back and kill him. He followed the deceased over the fence, across the highway, and up the verge. He said the deceased turned, tackled him, and wrestled with him. He said he was terrified. He said he did not remember stabbing the deceased, but accepted that he did, as he had the knife in his right hand.
He tried to wave down a few cars on the highway, but none stopped. He walked back to the caravan park. From inside his caravan, he called his mother, then his new partner, then the emergency number 000 and asked to speak with the police.
Other evidence
In addition to the appellant’s testimony at the trial, the jury heard a recording of the appellant’s 000 call to police, in which he said the deceased “tried to rape me, and … I chased him. …I chased him down” and “I stabbed him …a whole heap of times.” They also saw and heard recordings from police body-worn cameras a little later in the morning, in which the appellant said the deceased attempted to rape him in his caravan and the appellant had chased the deceased and killed him. The jury were shown a recording from a CCTV camera showing the appellant and the deceased moving outside the caravan, as the appellant had described, and the movement of shadows inside the appellant’s caravan shortly before the deceased left the caravan. Defence counsel told the jury some of this recording “shows a clear physical fight” between the appellant and the deceased.
The appellant’s new partner, other caravan park residents, nearby residents, and drivers on the highway gave evidence generally consistent with the appellant’s testimony. Of course, there was only the appellant’s evidence of what was said or done by the deceased inside the caravan.
The appellant raised three grounds of appeal.
The first ground of appeal
The appellant contended there was a miscarriage of justice because the Crown prosecutor’s address created a real risk that the jury would not have approached their assessment of the partial defence of provocation in accordance with the law, and the trial judge’s directions were inadequate, in all the circumstances, to mitigate that risk.
It was common ground at the appeal hearing that the trial judge correctly identified the four questions for the jury on the partial defence of provocation. His Honour said:
“The four questions are firstly that the conduct that he relies upon as provocation by [the deceased] did occur. A question of fact for you. The second is that the conduct on which he relies could – and the word is “could”; you may use the word “might” – could or might have caused an ordinary person to lose their self-control and act in a manner which encompasses the [appellant’s] actions with an intent to cause death or grievous bodily harm. The third question is that the conduct on which he relies actually caused him to lose his self-control and fourth that when he killed [the deceased] he was still deprived of his self-control by the provocative conduct.” (emphasis added)
For the Crown at the appeal, Mr Green accepted that there were significant inaccuracies in the Crown prosecutor’s address to the jury, at least in respect of the second question his Honour posed: whether the relevant conduct could or might cause an ordinary person to lose their self-control and act in a manner which encompasses the appellant’s actions.
Mr Green raised, but ultimately did not press, a submission that no miscarriage of justice occurred because no properly instructed jury, acting reasonably, could have found, on the balance of probabilities, that the conduct of the deceased of which the appellant gave evidence caused the appellant to lose his self-control (the third question) or, that when he killed the deceased, the appellant was still deprived of his self-control by that provocative conduct (the fourth question).
Mr Green was right not to press that submission.
It is necessary to deal briefly with the conduct of the Crown prosecutor.
The Crown prosecutor’s address
In his address, the prosecutor referred to the second question for the jury about the provocation defence as the “ordinary person” test. He told the jury:
“It’s hardly controversial to say that it would enable a lot of murderers to get away with murder by saying ‘I killed because I was provoked by this thing that happened in private, and I’ve killed the only other witness to the event, so you only have my say so’. So the law says that, if this defence is going to relieve you of a conviction for murder you otherwise have coming, that it’s not every claim to a provoked murder that is going to be acceptable to us as a community. It’s the handbrake on that sort of risk that there are these unmeritorious claims when there’s only one witness left that I was actually provoked by the person I just killed.
So the law says ‘Hang on, we’ve got to put a check on that. We’ve got to put a handbrake on that’. And I think that was sort of the sentiment that [defence counsel] offered to you this morning. Could an ordinary person be provoked by those acts to form a murderous intent and act on that in a way that encompasses the [appellant’s] actions, not just to kill but to retaliate in a way that encompasses those acts?”
The prosecutor contemplated the “ordinary person” test being applied to the appellant’s conduct in this way:
“You have to look at all of the evidence and make a decision yourself about what an ordinary person could be provoked about and to do.
You would think, though, about the ferocity of the attack; the extent of the brutal attack, having stalked and run him down like game over a six foot fence, four lane of highway, 660 metres, and that all of that precludes you from being satisfied on balance that an ordinary person could have been provoked by these things to act in a way that encompasses what the [appellant] did. And that’s the critical part. It’s this handbrake that needs to be pulled. It’s just too much.”
Finally, the prosecutor ended the part of his address dealing with the provocation defence by asserting:
“the ordinary person requirement, the handbrake on unmeritorious claims of provocation gets pulled here. The ferocity of the attack, its nature, is just too much to excuse by reference to the defence of provocation.”
The law as to the objective element of the provocation defence
The relevant part of the Criminal Code is in these terms:
“304 Killing on provocation
(1)When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.
…
(9)On a charge of murder, it is for the defence to prove that the person charged is, under this section, liable to be convicted of manslaughter only.”
It has long been settled that s 304(1) does not express the conditions on which the partial defence of provocation is given legal effect.[1] In Pollock v The Queen, the High Court explained:[2]
“The use of the expression ‘sudden provocation’ was intended to import well-established principles of the common law concerning the partial defence in the law of homicide. Thus, the provision is to be understood as requiring that the provocation both involve conduct of the deceased and have the capacity to provoke an ordinary person (to form the intention to kill or to do grievous bodily harm and to act in the way the accused acted), although neither requirement is stated in terms.”[3]
[1]Kaporonovski v The Queen (1973) 133 CLR 209, 219 (McTiernan ACJ and Menzies J).
[2](2010) 242 CLR 233.
[3]Pollock v The Queen (2010) 242 CLR 233, 245-246 [47] (French CJ, Hayne, Crennan, Kiefel and Bell J).
In Johnson v The Queen,[4] the High Court dealt with a trial in which the presiding judge had “placed an onus on the accused to satisfy the jury as to proportionate nature of the acts of the accused causing death.” In joining with the other three members of the Court who found the jury had been misdirected,[5] Barwick CJ expressed the view that:
“To take into account the mode and extent of retaliation when determining whether an ordinary man, subjected to the like acts of provocation in all the circumstances in which the accused then stood, would have lost self-control to the point of doing something akin to what the accused has done is one thing. To require that it be established positively and, as a separate issue or element, whether the act of the accused was in fact proportionate to the provocation, is quite another; ... This is particularly so if it be assumed that it has already been concluded that the accused had relevantly lost self-control. In considering whether an ordinary man would have lost self-control so as to form an intent to kill and to kill in the manner in which the accused did so, the jury may think the provocation was such that an ordinary man might react in the way in which the accused reacted. After all, it is the induced intent to kill rather than the induced fatal act which is the critical consideration. As I have stressed, the provocation is irrelevant unless there was an intent to kill or to do grievous bodily harm: and the provocation to be operative must have caused that intent. No doubt the question is difficult, namely: would the actual provocation, which has caused the accused so far to have lost self-control as to have formed an intent to kill, have caused an ordinary man to have lost his self-control and to have formed that intent? To express the objective test as whether the provocation would have caused an ordinary man to have so far lost self-control as to have done an act of the kind or degree done by the accused, tends somewhat to obscure the necessity of there being an intent to kill or do grievous bodily harm. Emphasis on the essential causation of the requisite intent may, on the other hand, lessen perhaps the importance in the mind of a tribunal of the particular way in which the intent to kill or to do grievous bodily harm was effectuated.”
[4](1976) 136 CLR 619.
[5]Gibbs, Mason and Jacobs JJ.
In Masciantonio v The Queen,[6] the plurality approved the above reasons of Barwick CJ in Johnson, and held that:
“… That is to say, the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it. … It is the nature and extent - the kind and degree - of the reaction which could be caused in an ordinary person by the provocation which is significant, rather than the duration of the reaction or the precise physical form which that reaction might take. And in considering that matter, the question whether an ordinary person could form an intention to kill or do grievous bodily harm is of greater significance than the question whether an ordinary person could adopt the means adopted by the accused to carry out the intention.”[7]
[6](1995) 183 CLR 58.
[7](1995) 183 CLR 58, 67, 69-70 (Brennan, Deane, Dawson and Gaudron JJ).
In Pollock v The Queen,[8] the High Court referred to the above passages, and explained:
“The point being emphasised in the joint reasons in Masciantonio was that the objective test concerns the nature and extent of the reaction which might be caused in an ordinary person rather than its duration or precise physical form.”[9]
[8](2010) 242 CLR 233.
[9](2010) 242 CLR 233, 250 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
The summing up
The trial judge gave the jury the usual directions about provocation. They were not challenged in the appeal. With respect, they were entirely correct. The four questions his Honour posed are at [14] above.
As to the second question, his Honour said:
“With the understanding of the conduct of [the deceased] towards the [appellant], you have to ask whether that conduct could have caused an ordinary person to lose his self-control and act in a manner which encompasses the [appellant’s] actions.
An ordinary person is simply a person who has the minimum powers of self-control expected of an ordinary citizen. An ordinary person has the ordinary human weaknesses and emotions which are common in the community. Particular conduct when considered in isolation might not amount to provocation, but might in combination with other conduct by the person who was killed be enough to cause a loss of self-control. The question is not whether an ordinary person having lost self-control would have regained his composure sooner than the accused, nor is it whether he would have inflicted a lesser number of wounds. It is whether an ordinary person could have lost self-control and acted to the extent that the accused did.”
Towards the end of the summing up, the trial judge summarised the addresses of defence counsel and the prosecutor. In dealing with the prosecutor’s address, his Honour reminded the jury:
“It’s submitted on behalf of the Crown [here], you will recall this, the prosecutor speaking about the hand brake on the ordinary person test. And it’s submitted on behalf of … the prosecution, that the [appellant] hasn’t satisfied on the balance of probability of the ordinary person test. And the submission on behalf of the Crown is that the ferocity and the brutality of the attack must be taken into account in assessing that, the submission on behalf of the prosecution is not that. In fact, [the appellant] was acting as he was, but rather, the act was a deliberate stalking and a deliberate running down. That is a case of a hunter hunting down prey.”
The trial judge gave no other direction to the jury about the second question concerning the provocation defence.
Consideration of ground 1
As counsel for the appellant submitted, the directions by the trial judge were faithful to language used by the plurality in Masciantonio and the Court in Pollock. However, the trial judge did not identify for the jury that a significant part of the prosecutor’s address, including the part his Honour had summarised, was wrong as a matter of law.
Specifically, his Honour did not tell the jury to disregard the prosecutor’s statements that the “ordinary person test” had a special role to play as a “handbrake” when proof of the first element – whether the relevant conduct occurred – depended on the uncorroborated evidence of the accused. Nor did his Honour direct the jury that the prosecutor’s statement that the jury must consider the proportionality of an accused’s response to provoking conduct, that the appellant’s response “precludes” the jury “from being satisfied” that an ordinary person could have been provoked by the alleged conduct to act as the appellant did, as there were “bounds” to the response within the ordinary person test, and that the appellant’s response was “just too much”, were wrong as a matter of law.
It was necessary for the trial judge to identify those misstatements of the “ordinary person test” to avoid the risk that the jury would not perform their own analysis of the erroneous portions of the prosecutor’s address by contrasting them with his Honour’s correct directions about the second question, and in that way disregard the prosecutor’s wrong statements.
His Honour also failed to direct the jury that they were not to act as the prosecutor stated in their consideration of the second part of the provocation defence. Such a direction was necessary because, without it, there was a risk that his Honour’s summary of the prosecutor’s address may have led the jury to assume they could do as the prosecutor had urged.
In the circumstances, there was a real risk that the jury would have engaged in an inquiry as to the proportionality or acceptability of the appellant’s actions that was inconsistent with the ‘ordinary person test’, properly conceived. For these reasons, there was a miscarriage of justice.
It follows that the appeal should be allowed, the appellant’s conviction for murder should be set aside and a new trial directed. The appellant’s other grounds of appeal are dealt with below in case this conclusion on the first ground is erroneous.
The second ground of appeal
The appellant contended there was a miscarriage of justice because of the way the prosecutor led and deployed sexual interest evidence.
Calling a witness to give evidence about the appellant’s sexual interests
Early in his opening address, the prosecutor told the jury:
“Let me pause here in the description of the events of that night to talk to you about [a particular female witness]. [The witness] and the [appellant] had just met a few days earlier, but they wasted little time. They hit it off, and like new lovers do, kept company and had sex. Part of their developing relationship was a discussion about sexual boundaries, and that’s where you’ll discover the [appellant’s] interest in giving a man a blowjob.”
From an affidavit by the appellant’s defence counsel, Mr Holt, we know that the prosecutor’s intention to call this witness to give this evidence was contested, with Mr Holt querying the basis on which the prosecutor contended it was admissible. Mr Holt’s evidence was not contested at the appeal hearing. He deposed that the prosecutor told him:
“that a key issue in the trial would be whether it was the Appellant or the deceased who initiated some form of sexual interaction between them and whether – contrary to the Appellant’s statement to the police – there had been consensual sexual activity between them. In other words, [the prosecutor] made clear that the prosecution case would be that the Appellant had initiated or sought out (or at least wanted), and then had, some form of sexual contact with the deceased.
On that basis, [the prosecutor] explained to me that [the witness’s proposed evidence] was relevant because it was relevant to that issue in that if the Appellant had expressed a recent interest in having a sexual experience with a man then that made it more likely that he would have initiated or participated in a sexual encounter with the deceased.”
The prosecutor specifically referred to other proposed evidence. This was evidence that the DNA in the samples taken from the deceased’s penis and thighs were likely to be matches for the appellant’s DNA, and a video recording from a CCTV camera, “showing the Appellant and the deceased walking to and from a toilet block during the evening.”
Mr Holt decided not to object to the witness’s proposed evidence, accepting what the prosecutor had told him about the Crown case, making an assessment that he would be highly unlikely to succeed in an application to exclude the evidence. He also thought, mistakenly, that there was other potential evidence that could be used to “counteract” this part of the Crown’s case, as the prosecutor had explained it. In cross-examination of Crown witnesses, Mr Holt used some other evidence to suggest the deceased had an interest in a sexual encounter with his then partner and another man.
Later in the opening, the prosecutor told the jury:
“What won’t have escaped your attention is the [appellant’s] claim that [the deceased] tried to rape him. He gave police a little more detail, but not much. [The deceased] had pinned him down. [The deceased] had touched his bum. [The deceased] had not penetrated him. The evidence will reveal that the two men didn’t know each other before meeting by chance that night or early that morning on the 14th of December. That both men were sitting amicably enough outside the [appellant’s] caravan, no shirts, just shorts. That the [appellant’s] pants don’t ever seem to have been removed. That the [appellant] told a woman he’d just started seeing a day or so earlier that, although he was not a gay man, he’d like to give a man a blowjob. That there is some forensic evidence to suggest the [appellant’s] DNA was on [the deceased’s] penis, his foreskin and shaft of his penis, his left thigh and his right thigh. That the deceased, while being chased by the [appellant] and his knife, called out to his pursuer ‘you faggot’.”
The prosecutor called the witness he had referred to in his opening. She was the third witness, following a friend of the deceased (who lived in the caravan park) and the deceased’s former partner. The witness was the person with whom the appellant had commenced a relationship a few days before the critical events. The prosecutor asked the witness about discussions with the appellant.
“Can you tell the jury, please, what was discussed in terms of the [appellant’s] sexual boundaries. What did he say to you about them?‑‑‑So, like, getting to know anyone who’s brand new to you, you go and discuss what’s acceptable and what’s not acceptable to yourself. There was discussions of, like, I guess, threesomes and, in particular, … like, both male and females was discussed.
Yes. And what did the [appellant] say about the limits of his sexual boundaries or what he was prepared to do?‑‑‑He did say that he was interested in going – like, giving oral to another gentleman, but basically in no way was he gay or identified anything like that.
Just to be clear, that wasn’t a discussion, was it, about a particular person he wanted to – – –?‑‑‑It’s – – –
– – – give oral sex to?‑‑‑Just the idea – in fact, it was just discussion. It wasn’t to anyone in particular.”
The conduct of the Crown case
The prosecutor did not conduct the Crown case in the way he had explained to Mr Holt. He did not use the witness’s evidence about the appellant’s “sexual boundaries” in the way he had explained to Mr Holt. He disclaimed as irrelevant whether the appellant held the view the witness had recalled. When the appellant gave evidence, the prosecutor did not suggest to him in cross-examination that he had initiated any sexual contact with the deceased or performed oral sex.
In chief and in cross-examination, the appellant denied that he had told the witness he was interested in giving a man oral sex; saying, “I don’t think I said anything like that.” And “I’m sure I wouldn’t say that.”
The prosecutor’s address
The prosecutor turned to the topic of this evidence in his closing address:
“I’ve already mentioned … the denials by the [appellant] of ever saying anything about sexual activity and the preparedness to give a man a blowjob. That evidence came from [the witness]. It’s probably not really important whether that reflects a true state of mind on his part; that he actually did. But its value comes into the second point, bad witness, because it gives you a metric by which to assess his honesty and reliability, and his forthrightness or lack of it with you when he’s talking about what these provocative acts were and what happened to him.
You would have no difficulty, I suggest to you, accepting [the witness] heard what she says she heard, and that it was not a misunderstanding. Of all the things to misunderstand, you might misunderstand in a new relationship some peripheral detail. ‘You missed the 1 o’clock; we were going to get lunch’. ‘Oh, sorry, that was a misunderstanding’; you know, something that doesn’t matter. You pay attention to discussions about the boundaries of sexual activity with a new partner. That’s an important sort of discussion. That’s the sort of discussion you don’t allow to involve any misunderstandings because of the quality of it. It’s an important sort of thing.
And then, when he denies that against the reliable, straightforward evidence of [the witness], which you’d accept without much hesitation at all, it is another reason to put his evidence to one side. Bearing in mind, again, because it is absolutely critical that the Crown does not have to prove the nature of the activity in the van. There is no obligation for the Crown to prove his sexual interest in one thing or another; no obligation at all because, as is absolutely critical, he’s got that job. He needs to prove there was an attempted rape and/or the threat. That’s what he needs to establish, and he’s not done that. The evidence is just too poor. It’s just not good quality for an important decision.”
In this way, the prosecutor used the witness’s evidence only to attack the credit of the appellant.
Consideration of ground 2
On Mr Holt’s unchallenged evidence, it ought to be accepted that, if the prosecutor informed defence counsel before the trial that the Crown was not pursuing the part of the Crown case, which he had previously used to justify the relevance of the witness’s evidence, then defence counsel would have objected to the evidence.
It does not appear that the prosecutor took a decision to conduct the case differently from the way he had foreshadowed to the defence counsel before the now challenged evidence was led. Mr Green speculated that the prosecutor’s instructions may not have permitted him to proceed as he had told Mr Holt he would do.
On the second day of the trial, the prosecutor led evidence from the expert witness called to explain the DNA test results. The prosecutor asked the witness about a trace DNA sample taken by a forensic police officer of the deceased’s penis, his shaft, and foreskin. The expert witness said the sample did test positive for the possible presence of saliva and the mixed DNA profile obtained was approximately 12,000 times more likely to have occurred if the appellant had contributed DNA along with the deceased rather than if he had not.
Defence counsel cross-examined the witness between about 3.37 pm and 3.57 pm on the second day. By the last question, he adduced the expert’s opinion that if two people were wrestling or fighting closely in a confined space, one wholly naked and the other wearing only shorts, it was quite possible there would be a very significant amount of DNA transfer between those two people. This evidence left open the possibility that, in struggling to resist a naked deceased, the appellant would have left traces of his DNA on the deceased’s body, including on his penis and thighs. This is the most likely explanation for the abandonment of the foreshadowed part of the Crown case.
The prosecutor must have taken the decision before the appellant was cross-examined. He did not question the appellant in the way required if the Crown were proceeding with the foreshadowed case. The cross-examination began at 12.27 pm on the third day of the trial. Nothing has been identified in the appellant’s evidence in chief that could have affected the prosecutor’s decision to change course. It seems likely the prosecutor took the decision before he closed the Crown case early on the third day of the trial.
Mr Holt did not appreciate that the Crown case had changed in this way until he reviewed it to advise on an appeal. This explains the absence of a late objection to the evidence and its use. It also explains the absence of any request for a specific direction to the jury, after the prosecutor’s address.
Had the prosecutor communicated this change in a timely way, it is possible that the defence counsel could have asked the trial judge to exclude the evidence about the appellant’s “sexual boundaries”, refrained from adducing the appellant’s denials, and objected to any cross-examination on the topic.
The prosecutor’s failure to inform defence counsel of this change seems inconsistent with the expectation that a prosecutor will always act with fairness and detachment to help ensure the trial of the accused is fair.[10]
[10]Whitehorn v The Queen (1983) 152 CLR 657, 664 (Deane J).
For the appellant, it was submitted that the Crown should never have led the evidence about his sexual boundaries. By leading it, it was submitted, the Crown denied the appellant a fair trial.
A remark to his partner that he had an interest in oral sex, in the context of discussing a consensual “threesome” with his partner and another man, is not a proper basis on which the Crown could ask a jury to infer that the appellant “was interested in – and had – a sexual encounter with the deceased”. The evidence was not relevant. The prosecutor’s explanation of its relevance was wrong-headed.
Defence counsel’s decision not to press an objection to the evidence before or at the trial is not explained in a way that excludes a forensic choice, based on a view of the “counteracting” evidence. That view turned out to be erroneous, as did defence counsel’s view that the evidence was unlikely to be excluded if the prosecutor pursued the foreshadowed Crown case.
In the circumstances, while it is not material to the outcome of the appeal, I am not persuaded that the appellant lost a chance of being acquitted of murder, which was fairly open to him, due to the leading of the evidence or the manner in which it was used. It is not established that the prosecutor’s conduct in this respect resulted in a miscarriage of justice.
The third ground of appeal
The appellant contended there was a miscarriage of justice because, in cross-examination, the prosecutor invited the appellant to make an assessment of his own general honesty or dishonesty, not limited to the appellant’s account of the events of the night in issue.
The prosecutor’s cross-examination
The prosecutor began his cross-examination of the appellant in this way:
“…on a scale of one to 10, 10 being perfectly honest and one being perfectly dishonest, where do you sit?---Taking into account time that it happened, I sit at 10 unless my memory fails me in something.
Is your answer that you have a – you have a perfectly honest account of what happened in the wee hours of 14 December 2021?---Yes, that’s correct.
No dishonesty of any kind there?---As I said, unless my memory has slipped me somewhere, being two and a-half years or – or thereabouts, yes. That’s correct.
What about as a general matter? Do you regard yourself as a perfectly honest man, 10 out of 10?---Yes, I do.
Generally?---Yes.
No white lies in your life about anything?”
At this point defence counsel objected, submitting to the trial judge that:
“…A cross-examination about a [appellant] on the general reputation – general view as to dishonesty that he holds himself is just, can I say, not something I’ve ever seen and not admissible.”
The trial judge expressed the view that the cross-examination was “getting dangerous”. His Honour sent the jury out, despite the prosecutor’s view that it was not necessary.
His Honour, the prosecutor, and defence counsel then had the following exchanges:
“HIS HONOUR: So, Mr Phillips, I understand that you will necessarily need to attack the accused’s evidence. There’s no difficulty in that regard in suggesting what he said was dishonest as far as your instructions allow you to do so, but I was just a bit concerned about if the accused had given evidence of his own good character, you’d be entitled to cross-examine him and bring evidence of his bad character. It seems to me you’ve gone close to asking him to give evidence of his own good character, that is, he’s an extremely honest man. Where does it lead us? Does it now allow you to – having gained that answer, to cross-examine him about aspects of his character that aren’t good?”
MR PHILLIPS: He has given evidence that he is, as his own assessment, 10 out of 10 honest in every respect. That is the answer he’s given about the standard of his – standard of his own honesty. What I had intended to do before the objection was raised was explore the reasons behind his own answer that he is 10 out of 10 honest, because his honesty and credibility are obviously chief matters for the jury’s consideration.
HIS HONOUR: But - - -
MR PHILLIPS: I accepted the – I accepted your Honour’s cautionary sounding about that. What I was about to do then was to put to [the appellant] that he’s – that that is not accepted, that I’m suggesting to him that he is being dishonest about the events of the evening.
HIS HONOUR: You want to put to him that you don’t – you want to put to him that he’s being dishonest about the version of events he’s given?
MR PHILLIPS: Yes. Which is obviously a critical point in the case, and his credibility on that point is also central, so I’m happy to not put that proposition to him or put that challenge to him on the basis that when I tell the jury later that they shouldn’t accept him as an - - -
HIS HONOUR: Yes.
MR PHILLIPS: - - - honest witness, there’s no criticism from my learned friend that, “Mr Phillips didn’t put that directly to [the appellant].”
HIS HONOUR: I’ll just check: I don’t think he would say that, would you?
MR HOLT: No. But there’s no difficulty, of course, with my friend putting to the witness that he was dishonest about the events of this night….
HIS HONOUR: Yes.
MR HOLT: That’s fine.
HIS HONOUR: Yes. Yes.
MR HOLT: The difficulty is then it went straight into general assessments of honesty … or dishonesty which (a) can only be done by leave, and (b) one can hardly imagine leave ever being granted in a case of this kind. But if all my friend wishes to do is now say that – now put to the witness that he has been dishonest about the events of this night, that’s entirely unobjectionable and should be done.
HIS HONOUR: Yes, I do – I do - - -
MR HOLT: Thank you, your Honour.
HIS HONOUR: - - - understand that. That’s what we’ll do then, Mr Phillips. We’re happy with that outcome?
MR PHILLIPS: Yes. I should say it’s – I’m happy to move on. I just didn’t want the record to reflect that I accept that a question as - - -
HIS HONOUR: No. No. No.
MR PHILLIPS: - - - to his general honesty and the – and the telling of white lies amounts to bad conduct for the purposes of the Evidence Act.
HIS HONOUR: No. Very well. So it’s a matter for you, but if you wish to put to him – to make it plain to the jury that you don’t accept that he gave an honest account of what occurred to him, you can put that to him now and – or whenever you like.
MR PHILLIPS: Yes. Thank you.”
The cross-examination then resumed. The prosecutor did not pursue the topic of the appellant’s honesty.
The prosecutor’s address
In his closing address, the prosecutor relied on the assessment the appellant provided of his general honesty in support of his argument that the appellant was a “bad witness”. The prosecutor framed his argument in this way:
“The third point is his honesty. Ten out of ten honest about this and generally. Obviously, no one is 10 out of 10 honest, and that is a red flag in itself. Mother Teresa ain’t 10 out of 10 honest.”
There was no objection to the prosecutor’s address. The defence did not seek any direction about it.
The summing up
The trial judge referred to this argument in a summary of the Crown case:
“As to the submission that the second major feature, that the accused man was a bad or unreliable witness, the prosecution points to many, many things. The submission is that, and it’s a matter for you to assess, the submission that’s made on behalf of the Crown is, it was difficult to get a straight answer from him. He was re-casting questions. He was giving long answers when short answers could have been given. That he professed to be 10 out of 10 honest and no person could.”
The defence did not seek any redirection about this topic.
Consideration of ground three
In cross-examination, a witness may be asked questions which tend to impeach his credit, although they deal with matters not relevant to the issue before the court.[11] A question seeming to go to credit is not permitted if acceptance of the truth of the proposition suggested would not affect credibility of the witness.[12] The prosecutor’s questions about the appellant’s general honesty were of that nature. With respect, the trial judge was right to be concerned about them.
[11]Of course, a court may refuse to compel an answer to a question that, in the opinion of the court, would not affect the credibility of the witness as to the matters about which the witness is required to testify: Hally v Starkey [1962] Qd R 474, 478 (Gibbs J, as his Honour then was; Hanger and Stable JJ agreeing).
[12]Hooper v Gorman [1976] 2 NSWLR 431, 440 (Mahoney JA).
The three questions invited the appellant to give his opinion on his honesty (or dishonesty), in respect of his conduct generally over his life. The appellant had not put his good character in issue. The questions were improper. The appellant’s opinion was inadmissible. The answers to two of the questions, given before an objection was raised, were not relevant to the matters the jury had to decide.[13] As a matter of common sense and experience, the fact that the appellant considered himself “as a general matter” to be “perfectly honest”, says nothing about the credibility or reliability of his evidence of the events the jury had to consider.
[13]cf Norfolk v The Queen (2002) 129 A Crim R 288 at [26] (Parker J; Wallwork and Anderson JJ agreeing).
It is surprising the prosecutor was not chastened by his Honour’s concern, when the objection was taken. Having asked the improper questions, adduced the irrelevant answers, the prosecutor did not revisit the proper range of questioning, as his Honour had flagged. The prosecutor ought to have considered himself bound by the appellant’s answers on these collateral questions, going only and expressly to his credit generally. Instead, the prosecutor encouraged the jury to find the appellant’s answers weighed against a conclusion that he was an honest witness. This was unfair.
The prosecutor’s argument that the appellant was a “bad witness” was one of the three reasons he told the jury they should reject the partial defence of provocation and find the appellant guilty of murder. As the trial judge’s summary indicates, the “bad witness” part of the prosecutor’s address was based on many matters. It featured, but was not focussed on, the appellant’s answers about his general honesty. Nonetheless, considering the whole of the prosecutor’s address, a real chance remained that the jury might have reasoned that the appellant’s answers to the improper questions supported a conclusion that the appellant was a “bad witness”. The prosecutor had invited the jury to do so. The trial judge’s short reference to the “10 out of 10 honest” answer in the summing up did not mitigate that risk. In the circumstances, it cannot be said that no substantial miscarriage of justice occurred.
It follows that, even if the conclusion about the first ground of appeal is erroneous, the appeal should be allowed on ground three. The appellant’s conviction for murder should be set aside and a new trial directed.
Final Disposition
The Court should order that:
1.Appeal allowed.
2.Verdict of guilty on the count of murder set aside.
3.There be a new trial in respect of the count of murder on the indictment.
DOYLE JA: I have read and agree with the reasons for judgment of Bradley JA and with the orders proposed by his Honour.
MARTIN SJA: I agree with Bradley JA.
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