R v Walker-Ely - [2025] QCA 183

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 2023

DIVISION:

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, followed

COUNSEL:

R M O’Gorman KC for the appellant
M A Green for the respondent

SOLICITORS:

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Walker-Ely

Details

AGLC: R v Walker-Ely [2025] QCA 183
Case: [2025] QCA 183
Decision Date: 30 September 2025

CaseChat Overview and Summary

In the matter of R v Walker-Ely, the appellant appealed against his conviction for murder, contending that a miscarriage of justice occurred during his trial. The appellant, who had pleaded not guilty to murder and guilty to manslaughter, was ultimately found guilty of murder by the trial court. The appellant raised three grounds of appeal, focusing on the prosecutor's address, the handling of sexual interest evidence, and the prosecutor's cross-examination of the appellant regarding his honesty. The Court of Appeal was tasked with determining whether these issues amounted to a miscarriage of justice warranting a new trial.

The primary legal issue was whether the appellant's trial was compromised to the extent that a miscarriage of justice occurred. The appellant argued that the Crown prosecutor's address contained significant inaccuracies regarding the partial defence of provocation, which the trial judge did not adequately correct. Additionally, the appellant claimed that the prosecutor's handling of sexual interest evidence and the way he questioned the appellant about his honesty during cross-examination also contributed to a miscarriage of justice. The court needed to evaluate whether these issues were serious enough to undermine the fairness of the trial.

The Court of Appeal found that there was indeed a miscarriage of justice in the appellant's trial. The court concluded that the trial judge's directions to the jury concerning the partial defence of provocation were inadequate because they did not correct significant inaccuracies in the prosecutor's address. This failure created a real risk that the jury would not properly assess the defence, as they might have followed the prosecutor's erroneous statements instead of the judge's correct directions. The court also noted that the trial judge did not sufficiently address the problematic manner in which the prosecutor led and deployed sexual interest evidence and questioned the appellant's honesty during cross-examination. These issues collectively undermined the fairness of the trial.

The Court of Appeal allowed the appeal, set aside the appellant's conviction for murder, and ordered a new trial on the count of murder. This decision was based on the conclusion that the errors identified in the prosecutor's address and the handling of evidence were significant enough to warrant a new trial to ensure the appellant received a fair hearing.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.”

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 2023
DIVISION:	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, followed
COUNSEL:	R M O’Gorman KC for the appellant M A Green for the respondent
SOLICITORS:	Fisher Dore Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent