R v Hunt[2017] QCA 52

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
2. McMURDO JA:  After a 10 day trial the appellant was convicted of the murder of a woman with whom he had been in a sexual relationship.  At the beginning of the trial he pleaded guilty to interfering with her corpse.  He gave evidence which admitted that he had killed her, intending to do so.  His case was that he had acted in self‑defence so that he was not guilty, or that he had been provoked by her, so that he was guilty only of manslaughter.
3. He appeals against his conviction upon three grounds.  The first is that the verdict was unreasonable.  The second is that there was a miscarriage of justice because the jury should have been instructed to consider a defence under s 267 of the Criminal Code (Qld).  The third is that there was a miscarriage of justice by important evidence, in particular part of a recorded police interview of the appellant, being withheld by the police.  In addition to the stated grounds of appeal, the appellant also challenges his conviction on the basis of evidence from his son, who did not testify at the trial.
4. This court was assisted by submissions from Mr Green of counsel, appearing on a pro bono basis, on the second ground of appeal.  The appellant himself argued the remaining grounds.

The factual background

5. The appellant was born in 1966.  He married in 1995 and the couple and their family moved from the United Kingdom to Australia in 2005.  Another child was born soon afterwards.  The appellant was originally a carpenter and at relevant times worked as a teacher of manual arts and design at a Brisbane high school.
6. The victim was Angelia Moore, who was born in 1976.  She had been a de facto partner of a man who was a member of a so‑called outlaw motorcycle club.  Not long prior to her death, she had agreed with that man to settle their financial affairs, by which she was to receive about $1 million.  The couple had three children the custody of whom they shared.
7. The appellant and Ms Moore met through a website described as a “BDSM” site (Bondage, Deprivation and Sado‑Masochism).  In his evidence the appellant said that he had experienced masochistic sexual urges from an early age.  He began to look for partners through online agencies in 2002 and by that means he met Ms Moore in about September 2010.  Soon the two were in a relationship which, the appellant said, put paid to his marriage.  He moved from the family home in 2011 after which he lived alone, although Ms Moore often stayed with him for a few days.  At some time during 2011, their relationship, as Ms Moore was then telling others, was at an end.  The appellant may not have fully accepted that position.  Her parents gave evidence of an occasion in early November 2011 when the appellant arrived unannounced at their house and had to be told to leave.
8. On 15 November 2011 police were called to the house where the appellant then lived, after neighbours had heard a woman calling out for help.  When police arrived, they could hear a woman crying and as they entered the house they observed blood on tiles and smashed glass.  The woman was screaming “help me”.  In the garage, police found Ms Moore tied up by all four limbs with rope and steel poles.  There was rope and gaffer tape tied around her neck.  The appellant was standing over her and appeared to have something in his hand.  When he saw police he fled but soon returned.  He told police that everything which was occurring was with Ms Moore’s consent.  Police recorded her version of events as follows: she had come to the house because the couple were “fuck buddies” although they had been “separated for about six months”, they had had a minor argument and as she was leaving the house he had dragged her from her car back to the house, where he had tied her arms and legs to the poles and tried to insert a dildo into her mouth.  She said that she had not given him permission in any respect but she declined to make a criminal complaint.
9. Any sexual relationship between the two had ceased by the time Ms Moore was killed.  She had formed a relationship with a man called Ertel, who testified that he had met her in December 2011.  He recalled two incidents involving the appellant.  One was when she went to the appellant’s house to collect money which she had said was due to her.  He said that the appellant blocked the movement of her car which Ertel overcame by removing part of a fence.  The other occasion was when, he said, the appellant arrived uninvited at Ertel’s house, when Ertel punched the appellant until he fell to the ground before Ertel prevented a friend from stabbing the appellant as he lay unconscious.
10. Ertel recalled being with Ms Moore on 14 September 2012, the day on which she was killed.  She was helping clean his house when, at about 5 pm, she received a telephone call, after which she said that she had to go home to meet a friend and would return later that night.  Ertel said that she was then in good health and spirits and had no apparent injuries.  It appears to have been shortly after this call that Ms Moore went to the appellant’s house where she was killed.
11. In about March 2012, the appellant and Ms Moore had themselves photographed in the performance of “BDSM” activities.  The photographer, whose first name was Callum, was a friend of the appellant.
12. In the month preceding Ms Moore’s death, the couple were in frequent contact by acrimonious telephone conversations and text messages.  There were two contentious matters.  One was that the appellant had installed a drop box to which he had uploaded photographs of his “BDSM” activities, including the photographs of Ms Moore which had been taken by Callum, which she was demanding be removed.  The other matter was that he had lent her money which, he was complaining, had not been repaid.  The frequency of these communications and the content of some of the text messages was able to be proved from the police examination of the appellant’s telephone.  Most relevantly, they included the following exchanges.
13. On 8 September 2012 at 7.25 pm, Ms Moore texted the appellant as follows:

“This is a serious instruction, destroy all images of me that u have on ur pc or ad card, remove them from feltlife, or anywhere else, inform ur friend callum to do the same ASAP, the legal repercussions could literally destroy a an but … that’s nothing compared to what will happen if this request is ignored … u know wot I baked bean”.^[1]

14. Between 8 and 10 September 2012, there were several texts and telephone calls but their content was not retrievable.  The exchanges continued between 12 and 14 September 2012.
15. On 14 September at 7.54 am, the appellant texted her, complaining of the outstanding debt and the fact that he was incurring interest on his credit card “as a result of my generosity to you”.  He said that he had hoped that she would have “helped [him] without delay” and asked her to let him know “what the problem [was]”.^[2]  That day was a Friday and Ms Moore texted back as follows: “I say by Mon it ain’t monday”.^[3]
16. The appellant responded at 8.42 am saying:  “U said by Fri this week me ole mate”.^[4]  Ten minutes later she texted him as follows:

“If ya can’t wait till Monday well I spose it’s to bad ey, spoke to u Monday … [I] havnt had an apology from callum, didn’t think its ness ey ol mate”.^[5]

17. At 10 am, the appellant texted back saying:

“Of I can wait.  Cal has no interest in u and thinks u r an idiot take it up with him nothing to do with me.  Look forward to being able to pay my bills and hope u start to remember wot a loyal friend and lover u once had.”^[6]

18. At 4.43 pm and again at 5.11 pm on that day, there were calls by the appellant to Ms Moore, the first lasting only eight seconds and the second about a minute and a half.  The timing of that second call was consistent with Ertel’s evidence of the call received by Ms Moore after which she said that she had had to go meet a friend.
19. In his evidence the appellant said that he telephoned Ms Moore on that afternoon “on the spur of the moment” to ask “if she could come over and let me know what was going on”.  He told her that they “couldn’t speak on the phone” and she responded that she would be over in five minutes.

Detection

20. At about 8.45 pm on 14 September 2013, a Mr Upston noticed the suspicious movements of a man in the locality of an undeveloped housing estate.  Mr Upston approached the man, whilst his wife called police.  That man was the appellant.  He lunged at Mr Upston and a struggle followed before the appellant fled.  Police arrived but they were unable to find him.  But they found a parked car, in the back seat of which was the dead body of Ms Moore.
21. A police check on the car showed that it was registered to a man who was then found and arrested, before it was realised that he had sold the car to Ms Moore some weeks earlier.  Fingerprint examinations revealed the deceased woman to have been Ms Moore and further checks revealed the record of the incident between her and the appellant to which police had been called on 15 November 2011.  Checks on the appellant revealed that he was living at an address less than a kilometre from where this car had been found.  Police went to the appellant’s house the next morning, where they found the appellant to be calm and co‑operative.  The floors in the house had just been washed.  The appellant was arrested.
22. On the following day, a physical examination of the appellant revealed a number of injuries.  There were small bruises on his right forearm, a scratch on the outside of that arm, a shallow laceration over a finger on the right hand, a small graze on the back of his left hand, a bite mark between the bicep and triceps of his left arm with a large amount of resultant bruising, an abrasion and bruise just above the left elbow and a small abrasion the left forearm just below the elbow.  There was evidence by a medical specialist that the bite mark on his left arm was consistent with the impact of human teeth and that the pattern of the injury was consistent with the appellant having pulled away from the bite.
23. On 17 September 2012, the appellant agreed to participate in a police interview and a re‑enactment of his movements at his house.  He was interviewed on that day and on the following day.  In those interviews the appellant said he had acted in self‑defence.  He detailed his relationship with the deceased, giving a lengthy account of what he said were events and circumstances which had made him fearful of the deceased and her friends.  He also described the events at his house leading to her death and what he had then done to conceal his involvement.
24. The appellant told police that Ms Moore had had connections with the mafia and, through her ex‑partner, to an outlaw motorcycle gang.  He said that she had been a user and producer of the drugs ice and cannabis.  He said that she had claimed to have been involved in murders and other acts of violence.  She had told him details of bashings she had inflicted upon men and women and that she had killed a man who had been stalking her.  In another episode, she had told him, she had killed a police officer.  He described an incident in 2011 when she had held scissors to his throat and another incident when she had scratched and bitten him and held a knife against him, apparently in anger that he had been seeing another woman.  He said that she had vandalised the house where his wife was living.
25. Nearly all of those events in Ms Moore’s life were disputed by evidence from members of the deceased’s family.  But there was independent evidence of her drug use, because the autopsy disclosed the presence of methylamphetamine at a level in the toxic range, well above the minimum level considered potentially fatal.

Appellant’s evidence of the killing

26. The appellant’s evidence at the trial is not said to have been substantially different from the version given to police on 17 and 18 September 2012.  In that evidence, he described the sequence of events at his house as follows.
27. From her ready acceptance of his invitation to come to the house, he feared that, either alone or with assistance, Ms Moore might be coming to attack him.  So he armed himself with something like a metal bar which was small enough to be placed in his pocket.  She walked up the front stairs and straight into his house.  He asked for the money owed to him and told her that he just wanted to be “free … to move on with my life”.  He told her that she had nothing to fear from him and that he would not speak to anybody “about all the things that she told me”.  In response, she said: “fuck off, Dave … you’ve already been talking to people, it’s too late for that, you’re a dead man.”^[7]  She said: “I told you if you ever spoke to anyone that we would just come and get you”.^[8]
28. She then grabbed his shirt and tried to strike him with her right fist.  He pulled the metal object from his pocket and “lashed out blindly”, not seeing where he was striking her.  He later thought that he must have struck her on the forehead with the bar because of a mark he saw on her head.  But she walked away, through the kitchen door onto a verandah.^[9]
29. At this point, he said, he panicked and either dropped the bar or put it in his pocket:  he could not remember which.  He “went to escape … to leave the building …”,^[10] but before he could get through the door, she came back towards him and was throwing punches at him.^[11]  He managed to grab hold of her arms and in their struggle the two stumbled down the external stairs.  They were both on their feet until they reached the bottom of the stairs when they fell over on the front lawn, he landing on top of her.  He was holding her down on the grass by holding her wrists.  She then said:  “You’re a fucking dead man, idiot” and reached up and bit him on the inside of his left arm.  He said his pain was intense and that he had to “pull [his] flesh out of her teeth”.  This made him very angry and he struck her in the face with his right fist a number of times.  She continued to curse him, saying that he was a “dead man” and that she was going to kill him.^[12]
30. His evidence continued:

“And in that moment, I believed that my life was in imminent danger.  I was afraid; I was scared, and I believed if I didn’t stop Ange or kill Ange, I believe that I was going to be murdered, and I strangled her.  I didn’t want to do it.  Believe me, I did not want to do it but I did not know what to do or what else to do.  I felt cornered; I felt trapped and I believe that was my only way out. …  I never wanted to kill Ange.  I tried so hard to help her, but she knew that I had information about her that I believe could have put her in jail for very many years.  And that’s what happened.^[13]

So what did you think would happen if you did not strangle her and kill her? ---  I believe that there was a possibility – there were several possibilities.  One, Ange could well have … I believed I was going to be murdered.”

31. He said at that time he did not know whether anyone had accompanied her to the house and whether in particular, there was somebody else in her car.
32. He then gave evidence about why he did not call the police.  He said that he was afraid to do so: he feared that he would be arrested and charged, but the thing which frightened him most was that “Ange’s associates would have known what had happened.  They would have known that I had killed Ange.  They would have known where to find me.  And I believed that my life remained – would remain in imminent danger …”.^[14]  He said that wanting to “buy some time” he put her body in the back seat of her car.  He covered it with sleeping bags and bricks.  As soon as it was dark, he changed his clothes, disposed of her phone by throwing it into a lake and drove away in her car.^[15]  After some time he drove into the housing estate where he encountered Mr Upston.
33. In cross‑examination the appellant accepted that when he was strangling Ms Moore his intention was to kill her.^[16]
34. He was asked about the photographs of which the deceased had complained.  He agreed that by March 2012, when the photographs were taken on his initiative, Ms Moore had told him many of the things which had made him fear her, such as her links with criminals and her acts of violence.^[17]  He knew by then that she was “bad news” and “evil”.^[18]  He was asked why he had then participated in the taking of these photographs that depicted him being whipped by her whilst he was tied up.  He said that he felt safe in that context and that what changed ahead of the killing of Ms Moore was that she had made direct threats to him and by then she had disclosed that she had killed a man who had been stalking her.^[19]  He said that she had only started threatening him “directly” in September 2012.^[20]  But at a later point in his cross‑examination, he conceded that she had threatened him before September 2012.^[21]  He said that after he had moved to the house where she was later killed, Ms Moore had called him asking if she could come over.  She did so and she then told him that she had killed the man who had been stalking her.  He said that at that stage he did not feel “directly frightened of her”.^[22]  Later on that occasion the appellant and Ms Moore had sex.

Findings of the autopsy

35. A forensic pathologist, Dr Milne, gave evidence that the cause of death was neck compression.  The injuries were more consistent with manual strangulation than ligature strangulation, although the latter remained a possibility.  There were other factors found during the examination which may have contributed to death, namely head injuries, methylamphetamine toxicity and emphysema.
36. An internal examination showed areas of bruising, most prominently on the back left region of the scalp, forehead, face and neck.  There were haemorrhages which had occurred on her lower eyelids and on her nose.  Her nose and mouth contained blood.  There were lacerations and abrasions to the head, the face, the neck, the trunk and limbs.
37. Dr Milne said that a metal bar could have caused laceration or bruising to the head or other parts of the body and that the injuries to her cheeks and jaw were consistent with the shape of the metal bar.
38. He identified 13 specific injuries to the head of the deceased and said that they could have resulted from as few as four or as many as 13 blows.  There was at least injury described as a blunt force trauma to the back of the head, which was consistent with the use of the metal bar.

The first ground of appeal

39. The Notice of Appeal as filed stated that as the only ground of appeal was that “the verdict is unreasonable or cannot be supported having regard to the evidence”.  This ground was not addressed by the appellant’s counsel, who argued only the second ground.  Nor was it the subject of any of the written submissions prepared by the appellant himself.  But as the ground has not been formally abandoned, it must be considered.
40. The question under this first ground is whether this Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.^[23]
41. The prosecution proved that the appellant killed Ms Moore, intending to cause death or grievous bodily harm.  Quite apart from any other evidence, in his own statement to police and his testimony at the trial, the appellant admitted that he killed Ms Moore, intending to do so.  His statements to police and his evidence raised issues of whether he had acted in self‑defence or under provocation.  The prosecution had to prove, beyond reasonable doubt, that he had not acted in self‑defence.  If that was proved, the appellant had to prove, on the balance of probabilities, that he had acted under provocation.
42. As to self‑defence, the trial judge directed the jury by reference to s 271(2) of the Criminal Code.^[24]  Her Honour instructed the jury about the potential operation of s 24 of the Code, in relation to facts which were relevant to a reasonable apprehension by the appellant that he would be killed, namely the facts of Ms Moore’s violent past.  The appellant’s statements to police and his evidence raised for consideration whether he had acted in response to an unlawful assault by Ms Moore.  His version did not raise an alternative possibility that he had first unlawfully assaulted her or provoked her assault upon him.
43. If the jury was unable to reject the appellant’s version of the events at the house, it was unable to exclude the possibility that the killing was in self‑defence and therefore lawful.  The jury’s assessment of the appellant’s version was likely to have been affected by hearing and seeing the appellant as he gave his evidence, an advantage not enjoyed by this Court.
44. It was not open to the jury to reject his version, insofar as self‑defence or provocation were concerned, if to do so would be to reason inconsistently with incontrovertible facts.  However that was not the case here:  the appellant’s version in relevant respects had little or no support from the other evidence.  Instead some of the other evidence provided a sufficient basis for rejecting, beyond reasonable doubt, the appellant’s version.
45. The evidence of Dr Milne was that there were some 68 injuries inflicted on Ms Moore.  She had been hit on the head at least four times with the metal object.  In contrast to the injuries to her, there were few injuries to the appellant.  That comparison could well have suggested to the jury that in any struggle which preceded the strangulation, the appellant had done more than defend himself.
46. The appellant claimed that he was in fear of Ms Moore even prior to her arrival at the house.  The jury was entitled to reject that claim in the circumstances that the appellant had invited her to come to the house and at least most of the matters which caused him to fear her were things which he said he had known for a long time.  His evidence was that what had recently changed was her threats against him coupled with the disclosure, he said, that she had killed a man who had stalked her.  The jury was entitled to find that explanation unconvincing but even so, it did not explain why he had invited her to the house whilst being fearful that she would carry out her threats against him.
47. On the appellant’s version, he feared not only Ms Moore but also her associates.  Again the jury was entitled to reject that evidence as being irreconcilable with the fact that this meeting was at his initiative.
48. When the appellant began to strangle her, on his version he was on the lawn in front of his house in a suburban street in daylight.  On his own version he had overpowered her and beaten her many times.  She was unarmed and weighed at least 10 kilograms less than he did.  No other person had arrived to assist her, although the two had struggled in front of the house in full view of anyone who may have gone to the house with her.  The jury was entitled to consider that he had not satisfactorily explained why at the point at which he had finally overpowered her, he did not flee.
49. The jury was also entitled to reason by reference to the episode of 15 November 2011.  They were entitled to consider that on that occasion, the appellant had overpowered Ms Moore and viciously assaulted her.  The jury was entitled to reject his claim that this event had occurred in all relevant respects with her consent.  If so, that view could have fortified the jury’s impression that the appellant was someone who was confident of his personal safety in the event of any physical altercation with her.
50. The jury was entitled to reject the appellant’s evidence that he was fearful of her by September 2012, when, according to his account, he had been told and apparently believed that she was a murderer but yet he had felt safe in engaging in activities under which she would whip and beat him.
51. The jury was also entitled to have regard to the appellant’s conduct after the killing.  It was open to the jury to consider that this conduct was inconsistent with having acted in self‑defence.  In the hours following the killing the appellant set about destroying evidence of anything having occurred at the house.  He disposed of the victim’s phone by throwing it in a lake.  He attempted to dispose of the corpse.
52. At least for these reasons it was open to the jury to reject the relevant parts of the appellant’s version, as he had related to the police and in his evidence at the trial.  Once the appellant’s version was rejected by the jury, there was no other evidence which should have left the jury in doubt as to self‑defence.  It was, of course, open to the jury to reject those parts of his version which claimed that he acted in self‑defence whilst accepting his evidence that he had intentionally killed Ms Moore.
53. The defence of provocation was available only if the appellant discharged the onus upon him by s 304(7) of the Code.  It was for the appellant to prove that he had killed in the heat of passion caused by sudden provocation and before there was time for his passion to cool.  It may be accepted, as the trial judge did, that his evidence raised the possibility of this defence.  But as it was open to the jury to reject his version, it was open to the jury to conclude that he had not discharged the onus under s 304(7).
54. For these reasons it was open to the jury to conclude that the appellant had killed Ms Moore unlawfully, intending to kill her and not under provocation, with the result that he was guilty of murder.

The second ground of appeal: s 267

55. Section 267 of the Code is as follows:

“It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—

1. the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and

2. it is necessary to use that force.”

56. No direction was given to the jury about this provision.  No such direction was sought, but it is argued that there was a miscarriage of justice because the appellant was deprived of a fair chance of acquittal by the jury not considering this defence.
57. As Keane JA explained in R v Cuskelly,^[25] s 267 provides a distinct ground of defence from self‑defence under s 271 or s 272 of the Code.  Depending upon the evidence, one defence might be excluded but not the other.  Discussing the differences between the two, Keane JA said:

“[Section] 267 does not require that the force used by an accused be no more than is reasonably necessary to make an effectual defence of his or her person against a would‑be intruder.  Further, if lethal force is used, the accused need not reasonably apprehend death or grievous bodily harm from the accused’s assault in order to raise a defence under s 267.”^[26]

58. As Keane JA explained, the policy underlying s 267 is the law’s recognition of “the legitimate use of force to defend hearth and home and to prevent the commission of offences by others in one’s home”.^[27]  Consequently, as his Honour observed, “[a]n accused person who is defending his or her home need not retreat from the threat even if retreat is a reasonably available way to make effectual defence against a threatened assault.”^[28]
59. In that case, the Court set aside a conviction of murder and ordered a retrial because a defence under s 267 had not been left to the jury where a man had been fatally stabbed by the appellant as he advanced on the appellant’s home, making threats of violence against him.  The appellant and his wife were inside the home.  The appellant opened the front door and confronted the man, as the appellant described it, “to try and fend him off, to get him away from my premises to protect my property and my wife.”^[29]  The appellant said that he did not believe that he would have avoided the threat by closing the front door because the man “probably would have kicked the door”.^[30]  Keane JA described the possible operation of s 267 in that case as follows:^[31]

“At the very least the evidence gave rise to an arguable case that the appellant believed on reasonable grounds that the deceased was determined to enter the unit with intent to assault the appellant, and that lethal force was necessary to repel the assailant.  There was ‘some evidence fit for [the jury’s] consideration’^[32] that, in using lethal force against the deceased, the appellant was acting to ‘prevent or repel’ the deceased from entering his unit.  As has been noted, the direction which the learned trial judge gave the jury reflected the notion that the appellant was engaged in the defence of his home without adverting to the more liberal defence available in consequence.”

60. The appellant’s argument in the present appeal also refers to R v Bartram,^[33] where this Court set aside a conviction of unlawful wounding and ordered a retrial because a defence under s 267 had not been left to the jury.  The appellant in that case had been the complainant’s carer, the complainant suffering from schizophrenia.  The complainant had been subject to a domestic violence order in favour of the appellant and had been convicted of breaches of that order.  Earlier in the day of the relevant incident, the complainant had gone to the appellant’s house and kicked down a door in breach of that order.  The incident happened when the complainant returned to the house in order to collect some of his possessions which were in an open area underneath the house.  As he was collecting his possessions, the appellant came downstairs and told him to leave, which the complainant refused to do.  There was evidence that some of his possessions were upstairs within the house.  In the course of this confrontation the appellant stabbed the complainant.  This Court held that there was evidence fit for the jury’s consideration that the appellant had believed on reasonable grounds that the complainant intended to assault her unless she repelled the complainant from remaining within her dwelling.  The Court rejected a submission that this area underneath the house was not part of the dwelling.^[34]
61. In the present case, it is argued that on the basis of the appellant’s version of events, the appellant did not unlawfully kill Ms Moore because he had believed, on reasonable grounds, that she was attempting to enter or remain in his dwelling with an intent to commit an indictable offence and that it was necessary to use the force which he did use.  On his version, Ms Moore had made numerous threats against him before coming to his house.  She assaulted the appellant inside the house and then again as he was attempting to go outside.  Although the deceased was killed when the couple were outside the house, it is argued that this was the combination of “a continuous action from moving her out of the residence and down the stairs, where the deceased continued to threaten and assault the appellant.”^[35]  As the appellant’s argument appears to accept, the appellant strangled Ms Moore when the couple were outside the “dwelling”, a term defined by s 1 of the Code as relevantly limited to “any building or structure or part of a building or structure …”.
62. This argument cannot be accepted.  In the terms of s 267, the relevant “force” was that which killed Ms Moore, because it is the use of that force which the appellant must argue was lawful.  On the appellant’s version, the purpose of the use of this force was not to prevent her from entering (or re-entering) his house, because of an apprehension that she meant to commit an offence within the house.  Rather, the purpose was to defend himself there and then. Section 267 does not make lawful the use of any force unless that was a force used for the purpose of defending that person’s dwelling and preventing the commission of an offence within the dwelling.  It may be accepted that, as is argued for the appellant, the strangulation of Ms Moore was the culmination of a continuous fight between the two which began in the house.  But that was not of itself sufficient to engage s 267.

The third ground of appeal

63. The third ground of appeal is expressed by the appellant as follows:

“There was a miscarriage of justice (Anomaly of Trial) in regard to evidence supplied by QPS (Queensland Police Service) deliberately and knowingly ‘perverted the course of justice’ editing and deleting sections of the appellant’s audio statement, contravening [1245.40] of the Criminal Code (Record of Interview) thereby denying the appellant a reasonable prospect of acquittal.”

64. The appellant’s complaint is that some, although not all, of the evidence about a certain telephone call made by him to police was withheld by police from the jury.  At [13] – [16] above I have referred to the exchanges between the appellant and Ms Moore preceding her death, including the text from her to him at 7.25 pm on 8 September 2012.  The evidence also identified a telephone call by the appellant to the Cleveland Police Station at 7.48 pm on the same evening.^[36]  The duration of the call was about 11 minutes.  The appellant testified that he made that call to police to say that he feared for his safety from Ms Moore (although he did not name her) and to explain why that was so.  He gave this evidence‑in‑chief:

“I told [the policeman who took the call] who I was … and that I was a high school teacher in the area.  I said that I was being threatened by somebody that I believed to be a murderer, somebody that had admitted committing murder to me.  Somebody that I knew to be deeply entrenched in organised crime and that I feared for my life. … I didn’t say who that person was, I don’t believe, at that time …

Their response to me was you could place a DVO against that person.  My response to that was that that will not stop them.  I knew that would not stop them.  … so I felt helpless.  I finished the phone conversation and then realised that my six year old son was sat next to me and he said to me who’s going to kill you daddy …”.^[37]

65. There was evidence by an investigating police officer, Detective Senior Constable Gersbach, about her investigation of this call to the Cleveland Station.  Her evidence‑in‑chief was as follows:^[38]

“That phone call: it comes from the accused man and goes to Cleveland Police Station; is that correct?---Yes.

And that shows that the phone call was for some 11 minutes and 41 seconds?---Yes.

All right. Now, can I ask you this question; if someone rings a police station and makes a general complaint, what usually happens?---Depending on the nature of the complaint and what they would like done. If it’s something where somebody’s in trouble or requires police attendance, then it would probably be sent directly to the crew if they’re in the station or police communications would be contacted and a crew would then attend an address.

All right. What sort of records would be kept of calls?---If the duty – like, there’s a shift supervisor at Cleveland Police Station. If they take a call, they have a – like, a – a book that’s beside the phone. They take notes of the call, when it was made and the details of that call. If a job is entered there’s a – a record kept with police communications and also on our police computer systems.

All right. And it probably depends on the nature of the inquiry as to whether or not it’s recorded on the police computer system; is that correct?---Yep. Most things would be recorded.

So, for example, if someone were to ring up and say that there was a break and enter occurring next door, that would be recorded?---Definitely.

All right. So anything of offence nature?---Yes.

Or crime nature. That would be recorded on - - -?---Yes.

All right. And the police invariably field numerous inquiries; is that correct?---Yes, especially Cleveland.

All right. Now, did you happen to make inquiries, firstly, as to who was on shift at the Cleveland Police Station on the 8^th of September 2012?---Yes.

And police, of course, maintain records as to who’s performing their duties?---Yes. I actually got a copy of the roster out.

All right. And you got a list, then, of police officers who were working around about 7.48 in the evening?---Correct. I actually looked at every shift that covered that time.

All right. And did you then make inquiries with the relevant police officers?---I sent an email and spoke to them all individually.

And the purpose of that was to see whether or not anyone recalled a phone call which occurred from the accused to the Cleveland Police Station at 7.48 on the 8^th of September 2012?---Yes.

And your inquiries: did they prove fruitless? That is, no one was able to assist you?---No.

All right. Did you also have calls to – does the police station itself maintain a log?---The shift supervisor keeps a log and I had a look at that as well.

And did you see any record of any call being made by the accused man to the Cleveland Police Station at 7.48?---No.”

66. In cross‑examination the appellant’s counsel asked Ms Gersbach about the call:^[39]

“MR BAGLEY: Do you accept from the records you obtained that my client called the Cleveland Police Station and that call lasted 11 minutes 41 seconds?---Correct.

There’s no record of that either, is there?---No, not that I could find.

And no one in the police station has any memory of him ringing?---No.

But clearly someone spoke to him for that length of time?---Well, obviously, but Cleveland Police Station has the watch-house, so there could be – any police officer can go to any police station, but I checked with everyone working on that shift and couldn’t find anybody who spoke to - - -

But they’re supposed to mark a record, aren’t they?---Yes, that’s right.

And it’s not a one minute call, a two minute call; it’s 11 minutes 41 seconds?---That’s right.

It would ordinarily indicate something of substance, wouldn’t it?---Possibly. It depends on the nature of the call as to whether or not a record is made.”

67. On the appellant’s argument, this telephone call was of critical importance to his defence.  It was important for him to establish, as he testified, that he was so apprehensive about his safety that he went to the police to seek protection.  The jury did have evidence which proved that he called the Cleveland station immediately after receiving a threatening text message from Ms Moore.  But his complaint is that the jury may not have found persuasive his evidence that he then feared for his safety, because it would have appeared that when interviewed by police on 17 and 18 September 2012, he said nothing about this call.  The appellant says that he did mention the call in the course of one of those interviews, and the relevant portion of the recording must have been wrongly deleted by police.
68. At the trial the appellant was cross‑examined about the absence of a reference to this call in the record of interview.  His evidence was as follows:^[40]

“You didn’t tell the police, did you, when they interviewed you, that you’d rung the police station on the 8^th of September?---I thought I had but I couldn’t find it in the transcripts. No.

It’s kind of relevant, isn’t it?---It was right at the end of the interview. If you understand that I was asked what happened on the Friday, initially, then we did three walk throughs and then I had a two year period of time that I needed to convey to the police where I was subsequently interrupted, obviously, and asked what happened during that and told that we only had a certain amount of time. Now, if you bear in mind that I called the police six days before the event by the time I’d got to there there was a lot of things right at the end that I didn’t manage to convey. And, incidentally, there was things on Friday, when I was speaking to the jury and your Honour, that I forgot to say including one complete murder.

Well, why don’t you tell us a little bit about this conversation that you had with the police officer?---Yes, I can. Sure.

What did you tell the police officer?---I told the police that I was in fear of my life. That I was being threatened by somebody that I believed to be a murderer. Somebody that I knew to be deeply entrenched in the criminal underworld. Somebody that I knew was capable of having me murdered and making me disappear. Those are the kinds of things that I said to the police.

And what advice did you get from the police?---I was advised by the police that I could get a DVO against this person.

Did you ever write down the details of the police officer’s name?---No, I didn’t. No.”

69. In his address to the jury, the appellant’s counsel argued that the appellant’s version was supported by the record of this call to the Cleveland station.  Counsel argued that the lack of any police record of that call supported the appellant’s evidence that the conversation concluded upon the basis that it was the appellant who could take action by seeking a domestic violence order.
70. In his address to the jury the prosecutor said this:^[41]

“The defence … also rely upon the call to the Cleveland Police Station, as support of the fear.  Other than knowing that the call was made, it’s my submission to you that it’s really meaningless, because we don’t know from an independent source what that conversation was about.  What we do know is that none of the police remembered the call, and that if it was a serious matter, it would have been documented.  It just accords with common sense.  What the absence of the recollection and record means, is that whatever it was about, [it] was something trivial.”

71. The defence argument in this respect was referred to in the summing up; the prosecutor’s argument was not.
72. In that passage which I have set out from the appellant’s cross‑examination, he said that he had always thought that he had referred to this call when he was interviewed, but conceded that he must not have done so because there was no reference to it in the recording of the interview.  The appellant now says that he should not have made that concession.  He is now adamant that he did refer to the call when he was interviewed by police.  For that claim there is only his evidence in this Court.
73. He sought to obtain support from the evidence of his then solicitor who was present during the interview, Mr Palombo.  When cross‑examined in this Court by the appellant, Mr Palombo agreed that his instructions from the outset were that he had been “subjected to ‘multiple threats’” to his life and had called the Cleveland station on 8 September 2012, fearing for his life and asking for help.  Mr Palombo agreed that during the interview on 18 September 2012, the DVD recording device failed with the result that the interview continued using Ms Gersbach’s digital device to record what was being said.  The cross‑examination of Mr Palombo continued:

“Is it also true that toward the end of this recording, I told all present about the phone correspondence between myself and the deceased, which included my call to the Cleveland Police Station?---I can’t recall.”

74. Mr Palombo agreed that at around the end of 2012 or the beginning of 2013, the appellant instructed him “to investigate … whether Tabitha Gersbach had investigated this phone call”.  Mr Palombo agreed that he or his firm had tried to get from the police a record of the call to the Cleveland station but that the police “didn’t keep recordings of telephone calls to that number, so they couldn’t take it much further.”
75. Mr Palombo was asked about a conversation with the appellant shortly before the trial about the transcripts of his interviews by police.  Mr Palombo agreed that “there was some talk about that; you thought things were missing [from the transcripts]”.  But Mr Palombo did not agree that he had then told the appellant that he, Mr Palombo, recalled the appellant speaking of the call in his interview.
76. On the basis then of only his present evidence, which is inconsistent with that which he gave at the trial, the appellant asks this Court to find that the recording of his interview, as played to the jury, was incomplete.  I am not persuaded to make that finding.
77. The appellant does not suggest that this incompleteness might have resulted from an accidental deletion of a portion of the recording.  His claim is that investigating police officers deliberately deleted this part of the recording, a claim which if it had had any substance, could have been pursued at the trial.  Instead his evidence at the trial agreed that when interviewed he had not referred to the call.  He now wants to revisit his own evidence, by a claim of corrupt police conduct which has no independent support.
78. One thing which makes his claim improbable is that there could have been no perceptible advantage to a prosecution case in deleting what he says was deleted.  The fact that he had called the Cleveland station on 8 September and spoken to someone for 11 minutes was a fact identified by records which police found in his telephone.  Clearly no attempt was made to cover up that piece of evidence or more generally, the fact that he made the call.  His case at the trial might have been improved by a police record of what he had said in that call.  But no such record was available, as his argument appears to accept.
79. The appellant also seems to complain that this deleted section of the recording contained statements by him that he had called a friend on Monday 3 September 2012 for advice as to what he should do in response to the threats against him.  He says that he called this friend because the friend’s brother was a policeman.  He says that the friend told him that he did not want to involve his brother.  Again there is no evidence to support this claim except what is now said by the appellant.  For the same reasons I am not persuaded that there was any deletion from the recording.
80. At one point in his oral submissions, the appellant suggested, as an alternative to a finding by this Court that the recording had been edited by police, that this Court might make orders to the end of having that question investigated.  He submitted that the recordings should be in some way “tested for any impropriety”.  The only order which this Court could make for the investigation of that question would be an order for a retrial.  At a retrial, the only further evidence which the appellant could offer on the point would be, as he says in this Court, that he believes that he referred to the call in his police interview.  This would constitute new or further evidence, rather than fresh evidence.  As I am about to discuss, further but not fresh evidence could not warrant a retrial unless its addition would make the guilty verdict an unreasonable one.  For the reasons which I have just discussed, this evidence could not have that effect.

Arguments beyond the grounds of appeal

81. The appellant tendered in this Court an affidavit made by his son, Joseph Hunt.  The affidavit was sworn on 13 September 2016.  The affidavit relates a few events, in each of which the appellant was a participant.  The first was in late 2011, when the deponent says that his father gave him a letter to read, which contained “a detailed description of the criminal activities his ex‑girlfriend Ange had been a part of, including information about two murders and whom she was working for”.  The deponent says that there were several copies of this letter, which his father had written, and that he was told by his father that a copy would be hidden “in the event that something happened to him”.  He says that shortly after the couple “had gotten back together”, his father decided to dispose of every copy in case she found one.  He adds to that incident evidence that “later on [the appellant] said he had received some threatening texts from her to which he promptly barricaded his door in fear.”
82. The other subject of the affidavit is an event in September 2012, when the deponent says that he was at his father’s place.  His father received a threatening call from Ms Moore and his “dad really thought his life was in danger”.  He says that his father phoned the police “as he feared for the worst” and that “for his own protection he placed a metal bar and a long rod in the kitchen as it was right next to the front door for protection in case of any intrusions.”  He adds that “the last time I saw my Dad was on Sunday the ninth [of] September 2012 when I received a call from him sounding distressed.”
83. The appellant does not say that at the time of the trial he had forgotten about these events with Joseph.  Rather he says that Joseph was not called as a witness because his mother would not permit it and that Joseph, who is now aged 18, is free to give evidence.  The appellant’s explanation is far from persuasive.  The appellant does not explain why the evidence of the son could not have been compelled by a subpoena.  He does not suggest that at his trial less than three years ago, his son would not have been a competent witness.  He does not say that at the trial he was unaware of the likely content of his son’s evidence.  And as the son’s evidence would relate only the statements and actions of the appellant, the appellant should have been able to anticipate the content of evidence from his son.
84. This evidence is not fresh evidence because it is not evidence of which the appellant was unaware at the time of his trial or which he could not have discovered with reasonable diligence.^[42]  Rather it is new or further evidence.  The question is whether, with regard to this new evidence, this Court considers that a miscarriage of justice has occurred so that there should be a new trial.^[43]  The relevance of the availability of this evidence at the trial was explained by Barwick CJ in Ratten v The Queen as follows:^[44]

“[I]f the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial.  It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.  Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence.  But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted.  The accused, nevertheless, will have had a fair trial.  But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair.  Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.”

85. Referring to that judgment, Mason J (as he then was) said in Lawless v The Queen:^[45]

“There the Chief Justice (with whom McTiernan, Stephen, Jacobs JJ concurred) stated the principles which are to be applied.  His Honour observed that when the evidence not called at the trial, whether or not it be fresh evidence in the strict sense of that expression, when taken in conjunction with the other evidence tendered at the trial, shows the accused to be innocent or when it raises a reasonable doubt as to his guilt, the conviction must be set aside outright.  The Chief Justice went on to point out that when the evidence not called at the trial, though it fails to show that the accused is innocent or fails to raise a doubt as to his guilt, none the less shows that it is likely that a verdict of not guilty would have been returned by the jury had it had the benefit of the fresh evidence, the court should set aside the conviction and order a new trial, if and only if the evidence in question is fresh evidence properly so called, that is if it is evidence of which the accused was unaware at the time of his trial and it is evidence which he could not have discovered with reasonable diligence.

…

[T]here must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted.  No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged.  If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.”

86. The relevance of this evidence would have been in its support for the appellant’s evidence that he feared for his life ahead of the encounter in which the killing occurred.  And it might have provided an explanation for the appellant being armed with the iron bar with which he hit Ms Moore many times.  The weight which the jury might have given to this evidence is difficult to assess.  This Court has not seen and heard oral evidence by Joseph Hunt and nor can the Court assess how the evidence might have survived cross‑examination.  But on its face the evidence would have been relevant and supportive of the appellant’s case.
87. However taken at its highest it cannot be considered that this evidence proves the appellant’s innocence or that the addition of this new evidence to that given at the trial would have had the result that the verdict of guilty was not reasonably open to the jury.  The addition of this evidence would not have required the jury to accept the appellant’s version of events.  There would have remained other evidence providing a sufficient basis for rejecting the appellant’s version, as I have discussed.  In particular, there would have been the evidence of the extensive injuries inflicted upon Ms Moore, the evidence of his conduct which was inconsistent with his being in fear of Ms Moore and her associates and the evidence of his conduct after the killing.
88. It should also be noted that evidence according to this affidavit would not have been entirely consistent with the appellant’s evidence at the trial in at least two respects.  The appellant’s evidence was that it was only on the afternoon in question that he was so apprehensive that he found a metal object which he placed in his pocket in case he was attacked.  Yet according to this new evidence, the appellant took the precaution of placing this item next to the front door, apparently immediately after the appellant’s call to the Cleveland police on 8 September and in the son’s presence.  Further, the appellant’s evidence referred to a conversation with his son which occurred immediately after the appellant had made this call to the Cleveland Station.  That evidence was that as he finished that call he “realised that [his] six year old son was sat next to [him] as he said to [him] who’s going to kill you, daddy” and that “it brought it home to me to have my little boy there”.  That son was not identified by name, but it would appear that he was not the appellant’s son Joseph who has sworn this affidavit, because Joseph would have been then aged about 14 years.
89. It follows that the challenge to the conviction upon the basis of this new evidence should be rejected.
90. In the outline of the appellant’s submissions other legal subjects are addressed, at times extensively by reference to authorities, but which cannot be related to a ground of appeal and which suggest no basis for interfering with his conviction.  For example there are submissions as to what is meant by “abnormality of mind” in s 304A of the Code.  The apparent suggestion is that the appellant was not guilty of murder, upon the basis of diminished responsibility because he suffered from an abnormality of mind as the result of “the continual verbal abuse from the deceased”.^[46]  Another is that the appellant was not criminally responsible because of the operation of s 31(1)(d) of the Code, or at least that there was a sufficient case to that effect which was raised by the evidence.  The short answer to that suggestion is that by s 31(2), that provision does not apply to the crime of murder.  And there were submissions to the effect that the appellant was denied procedural fairness and that the trial counsel was incompetent.  But these were variants of the case which I have discussed as ground 3, on which I have concluded that there was no miscarriage of justice.

Conclusion and order

91. In my conclusion none of the arguments against this conviction should be accepted.  I would order that the appeal be dismissed.
92. BODDICE J:  I have read the reasons of McMurdo JA.  I agree with those reasons and the proposed order.