R v Wegener

Case [2024] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wegener [2024] QCA 100

PARTIES:

R
v
WEGENER, Harley David
(appellant)

FILE NO/S:

CA No 254 of 2022
SC No 1405 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 14 November 2022 (Hindman J)

DELIVERED ON:

Date of Orders: 14 May 2024
Date of Publication of Reasons: 31 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2024

JUDGES:

Morrison and Boddice JJA and Davis J

ORDERS:

Date of Orders: 14 May 2024

1.   The appeal be allowed.

2.   The verdict below be set aside.

3.   There be a re-trial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of murder – where in cross-examination at trial the prosecutor’s line of questioning went towards, amongst other things, the appellant’s relationship with a known drug user and the appellant’s willingness to leave his children in the care of a known drug user – whether the questions were directed to bad character – whether the questioning breached s 15(2) of the Evidence Act 1977 (Qld) – whether a miscarriage of justice occurred

Evidence Act 1977 (Qld), s 15

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, applied
R v Wands[2021] QCA 238, cited
Zhou v The Queen [2021] NSWCCA 278, cited

COUNSEL:

A M Hoare KC, with J P Benjamin, for the appellant
M A Green for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with Boddice JA.

  2. BODDICE JA:  On 14 November 2022, a jury found the appellant guilty of the offence of murder.

  3. On 17 November 2022, the appellant was sentenced to life imprisonment.  A period of 1,424 days in pre-sentence custody was declared to be time served in respect of that sentence.

  4. The appellant appeals his conviction, on two grounds. First, that a miscarriage of justice occurred, given the introduction of character evidence during the cross-examination of the appellant, without seeking leave under s 15 of the Evidence Act 1977 (Qld) (“the Act”). Second, that the prosecutor’s conduct during the trial occasioned a miscarriage of justice, by making unfair submissions in closing address that did not reflect the evidence given at trial; and by denigrating the appellant’s case and the appellant in his closing address.

    Indictment

  5. The indictment alleged that on 21 August 2018, at Brisbane in the State of Queensland, the appellant murdered Benjamin Alexander Suttie (“the deceased”).

  6. The Crown particularised the appellant’s criminal conduct as unlawfully causing the death, by inflicting a wound to the deceased’s neck.

  7. The Crown alleged that at the time the appellant did this act, he intended to cause either death or grievous bodily harm to the deceased.

  8. At trial, it was admitted that the appellant was present when the deceased was cut; that…

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CaseChat Overview and Summary

The case of R v Wegener involved the appellant being convicted of murder, with the central issue being whether the questioning during the cross-examination of the appellant by the prosecutor amounted to a miscarriage of justice. The appellant was convicted following a physical altercation that resulted in the death of the deceased, who suffered a fatal wound to his neck. The trial judge was challenged on the relevance of the prosecutor’s line of questioning, which touched upon the appellant’s relationship with a known drug user and his willingness to leave his children in the care of such a person. The appellant argued that this line of questioning was improperly directed to his bad character without proper leave, thereby breaching section 15(2) of the Evidence Act 1977 (Qld).

The court had to decide whether the prosecutor's cross-examination breached the statutory provision that prohibits evidence of bad character unless specific conditions are met. The prosecutor initially argued that the questions were relevant to the appellant's credibility and did not pertain to bad character. However, the defence maintained that the questions were improperly aimed at establishing the appellant's bad character without the necessary leave from the court. The trial judge allowed the questioning despite objections, overruling the defence's objections based on the prosecutor's assurances. The court of appeal scrutinised the reasoning behind the trial judge's decision, considering whether the prosecutor’s line of questioning indeed constituted a misdirection or non-direction that led to a miscarriage of justice.

The court found that the prosecutor’s cross-examination did indeed breach the statutory provisions by improperly delving into the appellant’s bad character without the required leave. This misdirection amounted to a miscarriage of justice, leading to the quashing of the conviction and ordering a re-trial. The appeal was allowed, the verdict set aside, and a re-trial was ordered to ensure that the trial was conducted fairly and in accordance with the law.

The final orders of the court were that the appeal be allowed, the conviction set aside, and a re-trial be conducted. This decision underscores the importance of adhering to statutory provisions regarding the admissibility of evidence of bad character and the necessity for proper legal direction during trials to prevent miscarriages of justice.

Orders

Orders of the court

Date of Orders: 14 May 2024

1. The appeal be allowed.

2. The verdict below be set aside.

3. There be a re-trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Crown relied on five matters as post-offence conduct evidencing a consciousness of guilt on the appellant’s part of the offence of murder. First, the appellant ran from the scene. Second, the appellant disposed of the knife at or around this time. Third, he actively avoided police. Fourth, he told his daughter not to speak to police. Fifth, he texted another male in his group in the days following, wishing to speak to him, having obtained his details from a family member.Evidence Late on the evening of 18 August 2018, the deceased was in a park at Woodridge, he was in the company of his son, Zac, another male, Rory and a female, Emma. Prior to entering the park, the deceased had consumed a large quantity of alcohol. At around the same time, the appellant entered the park with his 8-year-old daughter, D, his brother David, David’s 4-year-old daughter, B (“B”) and another male, Ben. The two groups were travelling in opposite directions. As they traversed the park, the groups crossed paths. A verbal altercation between the appellant and the deceased deteriorated into a physical altercation. There was another physical altercation between Zac and David. The relevant altercations lasted only minutes. Members of the respective groups gave evidence at the trial. There were variances in their accounts of the circumstances of the altercations. What was not in dispute, was that at the conclusion of the physical altercations, the deceased had a wound to his neck, which bled profusely. Medical evidence was led that the deceased sustained two cuts from a knife. One was a superficial cut, 35 millimetres in length and one millimetre in depth, on his right cheek. The second, to the right front side of the neck, was four to six centimetres long, 3.6 centimetres deep and severed his carotid artery. The blood loss caused the deceased to experience hypoxia and would almost inevitably have resulted in death without near immediate surgical intervention. As a consequence of the hypoxia, the deceased’s life support was turned off and he died on 21 August 2018.Deceased’s group Zac gave evidence that they entered the park walking in single file. The lighting was very poor. Zac described the deceased, when they entered the park, as showing signs that he was affected by alcohol, “Just happy, active, having a laugh”.[1][1]AB 232/43. As they approached Ewing Road, they observed a group still on Ewing Road. There were three males and two children, heading towards the park. One male was wearing a side satchel slung from his left shoulder. A second male wearing a high-vis tee. A third male wore clothing he could not recall. They were walking essentially beside each other. As the groups passed, the deceased said in a friendly, non-aggressive way, “How’s it going guys?”. The appellant, who was the male wearing the side satchel, aggressively replied, “Have a go, cunt – you’re getting cheeky?”. The deceased responded, “It’s nothing like that, man. We’re just saying g’day”. At that point, the male wearing the high-vis (it was not in dispute it was Ben) said to the deceased, “What are you doing Benny?” in an aggressive tone. The deceased responded, “Nothing, cunt”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant denied that he had taken the knife from the satchel that was over his shoulder. He denied that he struck the deceased with two swinging blows with the knife, aiming at his head and neck region. He denied that his intention was to kill or to at least do the deceased grievous bodily harm. The appellant did not mean to hurt the deceased in any way. The appellant said he did not see the deceased fall over. He did not see any blood. He denied running away because he knew he had done serious harm to the deceased. He denied telling his daughter not to tell the police what had happened. He denied telling her to say he had been hit in the back of the head.ConsiderationGround 1 The prosecutor commenced the cross-examination of the appellant as follows:“Sir, are you glad or sad that Ben is dead?---I’m not glad. I’m sad, yep.Why are you sad?---Because he’s one of my best friend’s mates brother’s – my best friend is his older brother or half-brother.And when did you become sad?---After I’d seen on the news.Right. Now, sir, you love your daughter, D?---Yes.And you love your niece B?---Yes.And at that time there was – that is, the 18th of August, there was a shared parenting arrangement with B’s mother – sorry, D’s mother?---Yes. YepAnd you would see her some weekends?---Yes.When was the last time prior to this weekend that you had D over?---It would’ve been the second – like, the – every second weekend I see her, so would’ve been - - -Every second weekend?---Yep.You hadn’t missed any weekends before that?---No.All right. Now, how long had you been in a relationship with E?---At least a week and a-half.All right?---I’d known her for at least a month or so, but - - -Okay, but become intimate?---Yep, within a week and a-half. Yep.All right. Now, she was a fairly heavy drug user, wasn’t she?---Yes. Yep.And, in fact, she dealt in drugs?---Yes.And you knew that on the 18th?---Yes.” The cross-examination was then interrupted by an objection from defence counsel, on the grounds of relevance. In the absence of the jury, the prosecutor declined to state the relevance of the line of questioning at that point, as it would give the defence “an unfair advantage and the witness and opportunity to counteract the very effective tool of cross-examination the prosecution is possessed of”.[13] The prosecutor asked for a degree of latitude, which the trial judge was initially prepared to allow.[13]AB 718/35. Defence counsel maintained an objection, on the basis that the questioning breached s 15(2) of the Act, in that it allowed questions that tended to show that the appellant was of bad character, in circumstances where no application for leave to adduce such evidence had been made by the prosecution. The prosecutor’s response was that none of the questions asked and answered had run contrary to s 15(2), as the line of questioning was not directed to bad character. On the basis of that assurance, the trial judge overruled the objection. Later, the prosecutor contended that the line of questioning was relevant to credit and not directed to bad character, as it showed that the appellant “behaved inconsistently with the care for his daughter on that particular night”.[14][14]AB 870/41–45.