R v Khan[2020] QCA 242

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with Morrison JA.
2. [2]
   MORRISON JA:  On 16 April 2016 the body of Syeid Alam was discovered next to a stream that entered the north side of the Fitzroy River in Rockhampton.  The body had been decapitated, and was naked.
3. [3]
   The next day the deceased’s head was found nearby.  Two days later again the deceased’s phone was found near a boat ramp on the north bank of the Fitzroy River.  A search of that general area four days later resulted in the deceased’s wallet being found.
4. [4]
   Police located the deceased’s motor vehicle parked outside 1 Thompson Street, Park Avenue in Rockhampton.  As will become apparent it had been there from somewhere between 6.30 pm and 7.30 pm on 5 April 2016.
5. [5]
   The deceased had not been seen since 5 April 2016 when he told his wife^[1] that he was going fishing with the appellant.  He left their house between 6.30 pm and 7.00 pm and did not return.
6. [6]
   The appellant was convicted of his murder at a trial where the only issue was whether the evidence was sufficient to satisfy the jury, beyond reasonable doubt, that it was the appellant who caused the death.
7. [7]
   The appellant seeks to challenge his conviction on two grounds:

   1. (a)
      Ground 1: a miscarriage of justice occurred because the jury was erroneously directed about the availability to the defence of evidence connected with motive; and
   2. (b)
      Ground 2: the verdict was unreasonable and cannot be supported having regard to the evidence.

Evidence at the trial

8. [8]
   What follows is a synopsis of the evidence at the trial.  Some is not referred to largely because it concerned mechanical aspects of the investigation, such as finding the deceased’s phone, wallet and key ring, or steps in the police investigation.^[2]
9. [9]
   The appellant’s phone was seized on 19 April 2016.  It revealed that on 5 April the deceased had called the appellant at 5.47 pm.  That call lasted 24 seconds.  Then, at 6.53 pm the appellant called the deceased.  That call lasted 26 seconds.  Examination of the phone also revealed that those two calls had been deleted from the phone, as had four calls between the deceased and the appellant on other days leading up to 5 April.  The appellant had also deleted six other calls, though they were not with the deceased.  Police were unable to determine when all the calls had been deleted.
10. [10]
    Nor Alam, an acquaintance of both the appellant and the deceased telephoned the deceased at 6.59 pm on 5 April 2016.  That call went for five minutes and 48 seconds.  In the course of their conversation:

    1. (a)
       the deceased asked if Nor Alam knew where the appellant was;
    2. (b)
       Nor Alam said the appellant had gone out;
    3. (c)
       the deceased asked where the appellant had gone, and Nor Alam replied that he did not know;
    4. (d)
       the deceased asked if the appellant had gone fishing, but Nor Alam said he did not know; and
    5. (e)
       at some point of the conversation the deceased asked if he could catch up with Nor Alam, but Nor Alam said he was not available.
11. [11]
    Nor Alam’s evidence otherwise was that he had been at the appellant’s house for about two hours from about 5.00 pm on 5 April 2016, and that he and the appellant had left separately from that house, each in their own car and at the same time.  However, they drove in different directions.
12. [12]
    Police seized the appellant’s vehicle on 4 May 2016 but forensic examinations conducted the following day, examining for blood, blood traces or other biological material connected with the deceased, did not produce any results.  Similarly, forensic examination of the appellant’s house produced no results.
13. [13]
    The police assembled CCTV footage recorded on 5 April 2016 at two locations.  The first was at an intersection at the end of the street in which the appellant lived (Dean Street) where that street intersected with Lakes Creek Road.  The footage was of cars moving through the intersection at 6.54 pm and 8.06 pm.
14. [14]
    The second intersection was between Queen Elizabeth Drive and Bridge Street.  The timing of that footage was 8.03 pm.  The prosecution case at trial was that the CCTV footage showed the appellant’s vehicle (a black Jeep Cherokee) driving through both intersections.  The prosecution also contended that a re-enactment performed by the police, when they later drove the appellant’s vehicle through the same intersections at the same times, enabled the jury to conclude that the footage on the night of 5 April 2016 was, indeed, that of the appellant.
15. [15]
    The prosecution also relied upon evidence of the telecommunications cell towers with which the appellant’s phone connected on the night of 5 April 2016.  I shall return to this in greater detail later, but for present purposes it is sufficient to note that the prosecution case was that the phone connected with the towers in a way which showed that the appellant was present in the area where the deceased’s body was found, and at about the time that the deceased must have died.
16. [16]
    The appellant’s wife had engaged in a sexual relationship with the deceased’s brother, Sha Alam.  In the course of that relationship photographs of her, either naked or partly naked, were sent to or taken by Sha Alam.  Evidence to which I will refer in greater detail later established that by 12 or 14 February 2016 the appellant had become aware that at least one such photograph was in the possession of the deceased.  By then the appellant’s wife had already deleted (from the appellant’s iPad and phone) an email and phone message containing pictures of her naked.  When the appellant questioned his wife about who she had shown the photographs to, she named the deceased’s brother, Sha Alam.  The appellant questioned her as to why the deceased had such a photo.  She said she did not know.
17. [17]
    The evidence of Sha Alam was that he had such a photograph or photographs and that because he and his brother (the deceased) shared a common Apple ID, whatever was on Sha Alam’s phone was also on the deceased’s phone.
18. [18]
    The deceased’s wife (Ferdous) said the deceased showed her a photo about a month before he went missing.^[3]  The photograph was of the appellant’s wife, naked.  The deceased told her he had the photo as a result of he and his brother (Sha Alam) having the same Apple ID.^[4]  The deceased told her that he was a “very close friend” to the appellant, and was going to show that photo to the appellant.

Ferdous - events on 5 April 2016

19. [19]
    Ferdous said that the deceased worked in the same meat factory as the appellant and was a friend of the appellant.^[5]  She said that the deceased went fishing, but not by himself and only with the appellant.^[6]
20. [20]
    After the deceased finished work on 5 April he came home and he and Ferdous took their children to a shop to buy some chocolates.^[7]  They were driving to buy the chocolates for the children when the deceased told her that he was going fishing.^[8]
21. [21]
    They then went home and the deceased was on the phone discussing a plan to go fishing with the appellant.^[9]  He left the house to go fishing with the appellant at some point between 6.30 pm and 7.00 pm.^[10]
22. [22]
    Because the children got upset whenever the deceased left the home, Ferdous took them into a bedroom to watch TV.  She did not actually see the deceased leave the home.^[11]
23. [23]
    The following day Ferdous called the police because the deceased was missing.  That was after the appellant had visited their house.^[12]
24. [24]
    In cross-examination Ferdous agreed that the deceased and the appellant were “very close friends”, and had been fishing together on 2 April 2016.^[13]  The deceased did not own his own fishing equipment.^[14]
25. [25]
    On 5 April Ferdous and the deceased went to the house of an acquaintance (Sadek).  While they were there Sadek was on the phone.  It was on the way home from Sadek’s house that the deceased mentioned his plan to go fishing with the appellant.^[15]
26. [26]
    Ferdous said that when the deceased told her that he was going to take the photo of the appellant’s wife to the appellant that was about a month, or one and a-half months prior to him going missing.^[16]
27. [27]
    Ferdous said that the deceased had a second phone (apart from the one which was found in the Fitzroy River) and that was an older phone which used to stay at the home so that she could use it.^[17]  She gave that phone to the police on 20 April 2016.^[18]  She said she used that phone after the deceased went missing to call a person called Mohammed Noor because she was looking for help.^[19]  She said she was asking where her husband was.^[20]

Evidence by the appellant’s wife

28. [28]
    The appellant’s wife gave evidence that the appellant would go fishing, but never alone and always with a friend.^[21]
29. [29]
    In her evidence in chief she initially denied having a sexual relationship with Sha Alam.^[22]  As to being photographed without her clothes, she said that Sha Alam took a photo without her permission.^[23]  Annexure A of exhibit 15^[24] contained the photos taken without her consent when she was talking with Sha Alam on Skype.^[25]  The first time she saw a photo like them was when “someone sent to my husband mobile”.^[26]  The appellant was in the shower when the message came through on the appellant’s phone, with a photo.  She looked at it and deleted it.^[27]  She also checked emails on the appellant’s iPad and deleted an email which contained the same photo.^[28]
30. [30]
    The appellant asked her about the photos after a police detective had interviewed him and had shown him the photos.^[29]
31. [31]
    She identified two Skype conversations between herself and Sha Alam.^[30]  The first was on 12 February 2016 and the second on 14 February 2016.^[31]  Exhibit 16 records her responding to Sha Alam’s question about what had happened to her and why she would not forgive someone who had broken her life:^[32]

“What I asked her, she told to ur bro.., n ur bro called to my h.., After like fews mnt he got my picture from ur bro

My naughty pictures talked on Skype.”

32. [32]
    In context the jury could accept that as recording the appellant’s wife telling Sha Alam that the appellant got her photo from the deceased.
33. [33]
    Exhibit 17 records a conversation two days later.  It contains only what was said by her to Sha Alam:^[33]

“Yesterday evening my h talked with me.., The problem not finished just like that…He started with With who I’m show my body on Skype the time, I don’t have any idea, he said telling truely.  I said I show with Syah Alam

N then he asked me again, How can Syed alam have that picture, I said I don’t know.”

34. [34]
    That evidence could be accepted by the jury as showing that on 15 February 2016 the appellant spoke to his wife, asking who she had shown her body to on Skype and after he questioned more closely urging her to tell the truth, she named Sha Alam.  In response the appellant asked her how it was that the deceased had that picture.  Her response was to say that she did not know.
35. [35]
    The appellant’s wife also said that the email and text message that she deleted whilst the appellant was in the shower had been sent by the deceased.^[34]
36. [36]
    She said that on 5 April the appellant had gone to Sadek’s house to print out some immigration papers.^[35]  The appellant went there with Mohammed Jubair in the evening.  They returned after about half an hour.^[36]
37. [37]
    In cross-examination she confirmed that the appellant and the deceased were friends.  On Saturday 2 April the appellant went fishing with Abu Shama, returning at about seven or eight at night.^[37]  On the Sunday a number of families gathered to share the meat from a butchered cow.  On that occasion the deceased and the appellant were laughing together.^[38]
38. [38]
    On the following Tuesday the appellant went to Sadek’s house to print documents,^[39] and on the following day (Wednesday) she and the appellant drove to Brisbane to see a lawyer.^[40]
39. [39]
    Referring to exhibit 16, she said, answering whether she had been made aware by the appellant that he knew about the photos, that she was “confused because some of the conversation I had with Sha Alam is that, yes, I make up story.”^[41]
40. [40]
    She said that before the appellant spoke to her about her naked photograph he had not shown her any photographs, but asked who she had shown her body to, and she named Sha Alam.^[42]  She said the appellant was disappointed with her rather than angry, and said that if Sha Alam wanted to marry her, he would give her freedom to do so.  She understood that to mean that he would grant her a divorce if she asked for it.^[43]
41. [41]
    Her evidence was that after that conversation the appellant remained a friend of the deceased.^[44]  That included meeting at the deceased’s house and playing cards.^[45]
42. [42]
    She said she broke off the relationship with Sha Alam around 12 or 14 February.^[46]
43. [43]
    She also said that she had previously sent Sha Alam a photograph taken by herself, partially unclothed, but that it was merely of her top half with a shirt off but with a bra still on.^[47]

Evidence of Sha Alam

44. [44]
    The deceased was Sha Alam’s elder brother and lived in Rockhampton, whereas Sha Alam lived in Sydney.  Sha Alam had met the appellant’s wife when they were each doing classes at TAFE, and that progressed into a sexual relationship.  They used Facebook and Skype to maintain contact.
45. [45]
    The appellant’s wife showed him her bare body and he kept an image of it on his phone.  Because his Apple ID and the deceased’s Apple ID were the same the image would have come up on the deceased’s phone.^[48]  When the deceased found out about it he “actually told me not to do that and then after that actually I left from there”.^[49]  That was a conversation face to face in Rockhampton.
46. [46]
    After his brother went missing Sha Alam came to Rockhampton and met the appellant who he knew was a friend of his brother.  On one occasion the appellant came to the deceased’s house and on another occasion Sha Alam met the appellant at a mosque.  The meeting at the mosque was some weeks after he arrived in Rockhampton, and around the time of the deceased’s funeral.  He spoke to the appellant at the mosque:

    1. (a)
       the appellant approached him and asked him “Where is the video?”, and then “Where is the photo?”; Sha Alam told him that it had been deleted and was not available;^[50] that was modified slightly: the appellant asked did he have the video available and did he have the photo;^[51]
    2. (b)
       the appellant specifically asked whether a video had been taken during the course of sex with his wife;^[52]
    3. (c)
       Sha Alam told him that he had not taken any video and that he had deleted the photo;^[53]
    4. (d)
       the appellant then said to him: “Do you know how actually I attack the peoples?”, also put as: “do you know actually how I actually hit and then beat the peoples”;^[54] and
    5. (e)
       Sha Alam said he was not there to argue or fight and they separated.
47. [47]
    In cross-examination Sha Alam accepted that the deceased told him to stop seeing the appellant’s wife in either January or February 2016.^[55]  That was in the context of having said that he was good friends with the appellant and what Sha Alam was doing might affect the deceased’s relationship with the appellant.^[56]
48. [48]
    Sha Alam then accepted that in the middle of February she ended the relationship with him.^[57]
49. [49]
    In relation to the threat that he had referred to, in cross-examination Sha Alam said that “The threat means, actually, he told me that he beat the peoples, not actually directly he told me that he’s going to beat me … Meaning that threat to me – if I do anything with the photo, he’s going to beat me”.^[58]  When referred to a statement made to police where he said that he had never been threatened by the appellant, Sha Alam clarified it by saying:  “He didn’t actually threaten me.  Actually, he actually told me that, actually, about showing the photo to anyone.  If I continue to do so – show photo to someone, he is going to beat me”.^[59]

Sadek’s evidence

50. [50]
    Sadek knew both the deceased and the appellant.  He had been fishing with both of them on one occasion.  On 5 April 2016 he saw both the deceased and the appellant, at different times.  The sequence was as follows:

    1. (a)
       in the afternoon the deceased and his family were going past at about 5.00 pm and came in to visit for up to 15 minutes;^[60]
    2. (b)
       at the time the deceased arrived Sadek was on the phone to the appellant, discussing a huge bill which the appellant had received and in respect of which he was seeking advice;^[61]
    3. (c)
       at about 9.00 pm the appellant and Jubair arrived without notice;^[62] normally when the appellant came around at night he contacted Sadek first, but on this occasion did not do so;^[63] and
    4. (d)
       the appellant and Jubair said they needed to use Sadek’s printer, and they did so; that took from between 9.00 pm to 9.30 pm, when they left.^[64]
51. [51]
    Sadek also referred to the occasion on Sunday 3 April when several families shared in the slaughter of a cow.  He said everyone who was together at that event was laughing and talking, including the appellant and the deceased.^[65]

Evidence of Jubair

52. [52]
    Jubair lived in the appellant’s house.  He could recall visiting Sadek’s house in company with the appellant in order to print some documents, that occurring around 8.00 pm or 9.00 pm.^[66]
53. [53]
    Jubair also recalled the occasion when a cow was slaughtered and the meat divided.  The slaughtered cow was taken to the appellant’s house where other families gathered.  The deceased arrived, but towards the end when they were ready with the cow.  He did not see the interaction between the people at the appellant’s house that day.
54. [54]
    He went with the appellant to Sadek’s house to print some documents which he understood was for a lawyer.  The next day the appellant and his family left to see the lawyer, returning a day later.

Evidence of Rahman

55. [55]
    Rahman knew both the deceased and the appellant and would see them mostly on weekends.  He knew them to be friends and they were friendly towards each other right up to the point when the deceased went missing.^[67]
56. [56]
    Rahman was at the mosque on the day Sha Alam spoke to the appellant.  He said that there was a meeting for coffee which involved himself, Sha Alam, some other people and the appellant.  At that time everyone was speaking in friendly terms, including as between Sha Alam and the appellant.^[68]
57. [57]
    In 2016 he hosted gambling nights at his house in Rockhampton.  On Saturday 2 April 2016 he hosted a gambling night^[69] at which the deceased and Nor Alam were present.  He could not recall the appellant being present.^[70]  The deceased stayed playing until the early morning of the next day.

Evidence of Mr Edwards – mobile telephone cell towers

58. [58]
    Edwards was a technical specialist working for Optus.  He gave evidence as to the location and characteristics of mobile telephone network cell towers in Rockhampton.  I shall return to his evidence in more detail later but for present purposes the following synopsis is sufficient.
59. [59]
    Generally speaking when a mobile phone is switched on it registers to a network such as Optus, effectively informing the network of its general location in an area where it can connect and receive incoming calls.  Edwards produced exhibit 62^[71] which consisted of seven pages showing the location and coverage of cell phone towers as at April 2016.  Each of those maps depicts sections of the road network in Rockhampton (including those abutting the Fitzroy River), different cell towers and blue shading to indicate particular aspects of the coverage from each cell tower.
60. [60]
    The blue shading was a computer simulation done to plan the network.  Its purpose was to predict for a particular area what the strongest signal would be of those antennae pointing in that direction.^[72]  The computer simulation would therefore predict the sector that a mobile phone was most likely to connect to.
61. [61]
    A mobile phone mast will have three sectors, of which (in every case) the ones depicted in exhibit 62 were just one of the three.  Since the blocky blue shading was simply the strongest signal for a particular area, it did not define the limits of the relevant arc.  Thus each cell tower depicted in exhibit 62 would have two other sectors pointing in other directions.^[73]
62. [62]
    Edwards listed factors that might affect the strength of the signal emanating from a cell tower.  They included:

    1. (a)
       the lay of the land and height of buildings;
    2. (b)
       how close the mobile phone was to the tower, ie physical proximity to that particular sector; and
    3. (c)
       whether there were obstructions in the way, such that if there were a large loss in signal through an intervening building the phone would connect to another tower which might be further away.^[74]
63. [63]
    In general, a mobile phone is always searching for the strongest signal and will tend to connect to another antenna in the area if the signal is stronger.^[75]
64. [64]
    As for the blue shading, the blocky appearance of it was because the modelling used a 50 metre resolution to model the type of buildings in the area.^[76]  Where white blocks appeared within the blue shading in exhibit 62 that meant that in that area a signal from another tower was predicted to be stronger.^[77]
65. [65]
    Edwards said that an accuracy of 90 to 95 per cent was what was aimed for, and assuming that there were no hilltops or high rise buildings involved then there was a 90 per cent likelihood that a handset within the blue shaded areas would connect to that particular tower.^[78]
66. [66]
    In cross-examination Edwards added that an urban cell tower had a range of up to 10 to 15 kilometres.  Unless there was a loss of signal from other towers, it was not very likely that a cell tower would pick up a signal in the opposite direction to which the antenna was pointing.^[79]

Consideration

67. [67]
    It is convenient to consider ground 2 first.

The competing contentions

68. [68]
    For the appellant Mr Copley QC submitted it was not open to the jury to be satisfied beyond reasonable doubt that it was the appellant who did the killing.  To find the appellant guilty the jury had to be satisfied beyond reasonable doubt that the appellant was present at the gully where the deceased’s body was found at some point within the time period identified by the Crown.  Although it was open to the jury to be satisfied that the appellant was not at home throughout all of that period, all of the other evidence considered together did not prove relevant presence beyond reasonable doubt.
69. [69]
    More specifically, even if it could be accepted that it was the appellant’s vehicle that passed through the intersections at the times nominated that evidence did not even tend to show that the appellant drove to the gully area.  The intersections were in a city and the roads concerned gave access to many different places.  Further, the evidence from cell towers showed that it was highly probable the appellant was within or very close to the areas shaded blue on the maps.  But even if he was in the shaded area at the relevant time, his actual position in that area could not be determined at all.
70. [70]
    The threat at the mosque was not of having done violence, but of prospective violence if the photos were disseminated.  In addition, there was evidence that cast doubt on the existence of any arrangement between the deceased and the appellant to meet that evening: (i) the deceased asked if he could meet with Nor Alam; (ii) when interviewed by police Nor Alam had not said anything to the police about the deceased having asked whether the appellant was going fishing; and (iii) the deceased's assertion that he was meeting the appellant for fishing was unreliable given that he had previously used the excuse of fishing to cover outings for gambling.
71. [71]
    For the Crown, Ms Balic submitted that the connection between the appellant and the deceased lay in the proposition that the two were to meet to go fishing together.  The deceased’s wife gave evidence that her husband would only go fishing with the appellant.  He had been preparing to do that with the appellant that evening.  He had indeed told her that he was going fishing whilst driving.
72. [72]
    There was strong circumstantial evidence to demonstrate that the appellant was not at his home at the time of the murder.  Most compelling within that category was the evidence of Nor Alam, who left the appellant’s house at the same time and saw the appellant leave.  Nor Alam’s evidence also established that the deceased and the appellant were to meet that night, which was consistent with the evidence of the deceased’s wife.  Further the telephone tower evidence showed that there was a high probability that the appellant’s telephone was within or very close to the blue shaded areas of the maps.  These areas indicated movement towards the relevant part of Rockhampton where the body was recovered and back the other way.
73. [73]
    The evidence as to the planned meeting to go fishing, combined with: (i) the CCTV evidence; (ii) the evidence from Nor Alam of the appellant’s departure from his house; (iii) the telephone evidence; (iv) the deletion of call records from the appellant’s phone; and (v) the appellant’s continuing concern about the photographic proof of his wife’s infidelity, was sufficient for the jury to be satisfied of guilt.

Legal principles

74. [74]
    In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[80] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
75. [75]
    This Court has often repeated the principles derived from M v The Queen,^[81] which govern the role of an intermediate appellate court when the ground of appeal is that the verdict is unreasonable.  The plurality said:^[82]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

It was with those considerations in mind that some members of this Court have thought it necessary to qualify the statement by Barwick CJ in Ratten v. The Queen that: “It is the reasonable doubt in the mind of the court which is the operative factor.” Barwick CJ went on to say:

“It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court’s mind upon its review and assessment of the evidence which is the operative consideration.”

The qualification was that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.

But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

76. [76]
    The High Court restated the pre-eminence of the jury in R v Baden-Clay.^[83]  As summarised by this Court recently in R v Sun,^[84] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,^[85] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”^[86]
77. [77]
    Further, as was said by this court in R v PBA,^[87] in the course of elucidating the applicable principles:

“The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”

78. [78]
    With that in mind I turn to the evidence and whether it could satisfy the jury beyond reasonable doubt that it was the appellant who killed the deceased.
79. [79]
    Exhibit 48 shows that all relevant events occurred within a 4km radius of the appellant’s house.
80. [80]
    The evidence about the antennae and towers was:

1. (a)
   each tower has a range of between 10 to 15 kilometres;^[88]
2. (b)
   each tower has three antennae pointing in different directions; they each cover a different arc and together make up the full circle;^[89]
3. (c)
   once switched on a mobile phone registers with a network then goes into standby mode, informing the network of its general location;^[90]
4. (d)
   mobile phones seek the strongest signal for where they are; as one moves away from a tower the signal decreases and once the phone detects a stronger signal, such as a tower the phone is heading towards, the phone connects to the different tower;^[91]
5. (e)
   it is possible for a person to connect to a tower outside the blue areas;^[92]
6. (f)
   the blue shading on exhibit 62 is a computer simulation used to predict the strongest server in an area with the antenna pointing in that direction;^[93]
7. (g)
   the blocky nature of the blue shading is a by-product of the limitations of the modelling; each square represents a 50 metre area; the white areas within blue areas indicate that a signal from another tower is predicted to be stronger there;^[94]
8. (h)
   factors that influence which tower a phone connects to include: signal strength; building types and heights, and height of the tower; physical proximity to the particular sector; and absence of obstructions; ^[95]
9. (i)
   loss of signal strength can lead to the phone connecting to another tower which may be further away and in a different direction;^[96]
10. (j)
    the likelihood of a phone being within the blue shading has an accuracy of 90 to 95 per cent;^[97] assuming no high rise buildings or hilltops it is highly probable that the handset is within or very close to the blue shaded area;^[98]
11. (k)
    it is not very likely that a phone will pick up a signal from a tower on the opposite side of where the antenna is facing;^[99]
12. (l)
    the computer modelling is not a forensic tool, nor designed to track the users of mobile phones;^[100] and
13. (m)
    the admissions revealed that each tower that was connected by the appellant’s phone on 5 April 2016 had an identifying number for the “cell” or antenna that was connected by that phone.^[101]

Timeline - Wednesday 5 April 2016

81. [81]
    The following timeline of events was established by evidence that the jury could accept.  The exceptions to that are the three entries for the CCTV footage which showed a car like the appellant’s Jeep Cherokee.  I will return to those entries later.
82. [82]
    After 5.00 pm the deceased took his family to buy chocolates and they dropped in at Sadek’s house.^[102]  Sadek’s house is south of the river, on Fitzroy Street.^[103]
83. [83]
    On the way home from Sadek’s house the deceased told Ferdous he was going fishing with the appellant.^[104]
84. [84]
    At home the deceased was on the phone discussing a plan to go fishing.^[105]  Given the call at 5.47 pm from the deceased to the appellant,^[106] the discussion of fishing plans on the phone was with the appellant.  There is no evidence that the deceased called anyone else.
85. [85]
    Nor Alam visited the appellant’s house from about 5.00 pm until about 7.00 pm.^[107]  The appellant left when Nor Alam left.^[108]  Nor Alam headed in the direction of his house and the appellant went the opposite way.^[109]  Nor Alam lived near the next cross street away from Lakes Creek Road.^[110]  From the appellant’s house on Dean Street Nor Alam turned right onto Dean Street, heading away from Lakes Creek Road.^[111]  From this evidence the only inference is that the appellant was at home between about 5.00 pm and 7.00 pm, and that when he drove away it was in the direction of Lakes Creek Road.
86. [86]
    At 5.35 pm the appellant called Sadek.  The call lasted nine minutes 40 seconds.  Nor Alam was at the appellant’s house then.
87. [87]
    At 5.47 pm the deceased called the appellant.  The call lasted 24 seconds.^[112]  Nor Alam was at the appellant’s house then.
88. [88]
    Between 6.18 pm and 6.54 pm the appellant’s phone connected to Kalka tower (antenna No. 21606).^[113]  This was at a time when the appellant was at home.
89. [89]
    At 6.53 pm the appellant called the deceased.  The call lasted 26 seconds.^[114]  The deceased was still at his home then.^[115]
90. [90]
    6.54 pm - CCTV – turn right out of Dean Street into Lakes Creek Road.
91. [91]
    At 6.59 pm Nor Alam called the deceased who was at home (Nor Alam heard children in the background).^[116]  The call lasted 5 minutes 48 seconds.^[117]  By then Nor Alam was probably at home.  The deceased asked if Nor Alam had been to the appellant’s house and where did the appellant go?^[118]  He asked did the appellant go fishing?^[119]
92. [92]
    Between 7.04 pm and 7.05 pm the appellant’s phone connected to Rocky Shopping Centre tower (No. 24116).^[120]  That tower is west of where the appellant lived, and the relevant antenna does not face towards where the appellant lived.^[121]  As phones seek the strongest signal, the inference is that the appellant had left his house by then, and was in the coverage area of tower antenna No. 24116, west of where he lived.
93. [93]
    At 7.04 pm the appellant called Jubair.  The call lasted zero seconds.^[122]  Jubair lived in the appellant’s house, and there was no evidence he left it that afternoon or night.  Given that evidence, and Nor Alam’s evidence that the appellant drove away, the only inference is that the appellant was then away from his house.
94. [94]
    At about 7.05 pm the deceased left to go fishing.^[123]
95. [95]
    Between 7.05 pm and 7.30 pm the deceased’s car was left at 1 Thompson Street.  There is no evidence to suggest anyone else drove the car, so the only inference is that it was left there by the deceased.
96. [96]
    Between 7.08 pm and 7.51 pm the appellant’s phone connected to Rockhampton 2V tower (antenna No. 5638).^[124]  The relevant antenna faces northwest, away from where the appellant lived.
97. [97]
    8.03 pm - CCTV - Bridge Street to Lakes Creek Road.
98. [98]
    At 8.04 pm the appellant’s phone connected to Rockhampton 2V tower (antenna No. 5639).^[125]  The relevant antenna faces in the opposite direction to 2V tower antenna No. 5638, and covers an arc south of the river.
99. [99]
    Between 8.05 pm and 8.10 pm the appellant’s phone connected to Kalka tower (antenna No. 21606).^[126]  That is the same antenna as the one to which the phone connected when the appellant was at his house.
100. [100]
     8.06 pm - CCTV – turn left from Lakes Creek Road into Dean Street.
101. [101]
     Between 8.12 pm and 8.13 pm the appellant’s phone connected to Kalka tower (antenna No. 21604).^[127]  That antenna faces away from the one to which the phone connected when the appellant was at his house.
102. [102]
     Between 8.28 pm and 8.39 pm the appellant’s phone connected to Kalka tower (antenna No. 21606).^[128]  This is the same antenna as the one to which the phone connected when the appellant was at his house.
103. [103]
     At 8.55 pm the appellant’s phone connected to Rockhampton 2V tower (antenna No. 5639).^[129]
104. [104]
     At 9.03 pm the appellant’s phone connected to Rockhampton CBD tower (antenna No. 20436).^[130]  That antenna covers an arc facing roughly west, and west of Sadek’s house.^[131]
105. [105]
     At 9.06 pm the appellant’s phone connected to The Range tower (antenna No. 43151) and Rockhampton CBD tower (antenna No. 20436).^[132]  The Range tower is a couple of streets south of Sadek’s house and the relevant antenna covers an arc facing roughly northeast and away from Sadek’s house.^[133]
106. [106]
     At some time prior to about 9.00 pm Nor Alam visited the appellant’s house.^[134]
107. [107]
     At about 9.00 pm the appellant and Nor Alam visited Sadek’s house (south of the river) to print some immigration documents.^[135]  Jubair went as well.^[136]  They stayed about 30 minutes, from 9.00 pm to 9.30 pm.^[137]  Sadek was not expecting the visit.^[138]
108. [108]
     At 11.01 pm the appellant’s phone connected to Kalka tower (antenna No. 21606).^[139]

Significance of the cell tower evidence

109. [109]
     Once the evidence of Edwards is properly understood the conclusions the jury could draw from it become easier to understand.
110. [110]
     The range of each of the towers, each with three antennae, is well in excess of the four kilometres which reflects the distance from the appellant’s house to where the deceased’s body was found, and from the appellant’s house to Sadek’s house.^[140]  What that means is that the signal from the Kalka tower which registered the appellant’s phone up until 6.54 pm, would have extended to cover the location where the deceased’s body was found.  The same can be said of the Rockhampton 2V tower (antenna No. 5638), as well as the tower Rocky Shopping Centre tower (antenna No 24116).  The blue shading on the plans produced by Edwards simply reveals the predicted locations where the signal from a particular tower antenna would be stronger than the signal from any other tower covering the same area.  The significance is that a mobile phone seeks the strongest signal for a particular area and, absent obstruction such as buildings or hilltops, will usually lock on to the strongest signal.  Edwards’ evidence was that conclusion could be established to a high degree of assurance, put initially in excess of 90 per cent, and then as a high degree of probability.
111. [111]
     There is no reason why the jury could not accept that evidence.  The consequence is that the jury could infer that between 7.08 pm and 7.51 pm on 5 April 2016 the appellant’s phone was very likely located in the blue shading apparent on the map at AB 640.  That blue shading includes the location where the deceased’s body was found.  Exhibit 49 reveals that location to be just to the east of Waterview Street, and close to the river.  The jury could accept that the location of where the deceased’s body was found was within the blue shading on the map at AB 640.
112. [112]
     However, the fact that the appellant’s telephone connected to the Rockhampton 2V tower (antenna No. 5638) simply means that the appellant was somewhere within the blue shading revealed on the map at AB 640.  It does not, of itself, offer proof that the appellant was at the place where the deceased’s body was found.

Significance of the plan to go fishing

113. [113]
     The evidence referred to above could be accepted by the jury as establishing that the deceased and the appellant planned to go fishing together on the night of 5 April 2016, and left their respective houses to do so.  From that the jury could infer that they each carried out the plan and met to go fishing.  The jury could rightly reject any doubt based on the possibility of the deceased using the excuse of fishing as a blind for going gambling.  There was simply no evidence that anyone was gambling that night.  Rahman was the only witness who hosted those nights and he did not suggest there was any gambling planned for that night.
114. [114]
     The difficulty with extrapolating from the fishing plan evidence to any conclusion that the appellant was involved in the deceased’s killing, is that there is no time established by any reliable evidence as to when it was on 5 April (if it were that night at all) that the deceased was killed.  It is certainly the case that between 7.06 pm and 7.30 pm the deceased left his car at 1 Thompson Street.  Events after that can only be established by inference.  One hypothesis is that the deceased and the appellant did, in fact, meet to go fishing but the appellant left to meet Nor Alam and go to Sadek’s place to print out the immigration documents needed for the meeting with the solicitor the next day.

Significance of the absence of forensic evidence

115. [115]
     The evidence of forensic testing was given by Sergeant Skerke and Sergeant Padget.  A summary of the relevant aspects of their evidence follows:

     1. (a)
        forensic examination of the appellant’s house was carried out on 4 and 5 May 2016;^[141]
     2. (b)
        testing was carried out on stained areas of the front timber door, the lounge room, an esky box in the kitchen, the linen cupboard in the hallway and the vanity cabinet in the bathroom; in all cases the testing was done because of apparent staining or blood stains and presumptive tests showing the possibility of blood;^[142]
     3. (c)
        none of the samples collected revealed a DNA profile connected with the deceased;^[143]
     4. (d)
        on 5 May possession was taken of the appellant’s Jeep and various areas in it were tested by way of presumptive chemical screening for blood; the interior of the Jeep was subjected to a Luminol examination, which is where the chemical is sprayed and if diluted blood was present it would glow bright blue;^[144] testing of the Jeep included the rubber floor mat and a section of carpet;^[145] some of the faint stains in the Jeep gave a weak result that was positive, as a consequence of which some trace DNA tape lifts were done on surfaces likely to have been touched inside the vehicle; this included door handles, steering wheel, gear stick, seat belts and other items, as well as areas of the foot well and boot;^[146]
     5. (e)
        no positive reactions were obtained from inside the car and no positive results to biological material;^[147]
     6. (f)
        testing was also done on items of clothing, and knives from the appellant’s kitchen, but none returned any positive result;^[148] and
     7. (g)
        none of those samples returned evidence of a biological link with the deceased.^[149]
116. [116]
     Scientific officer McNamara gave evidence concerning tests done on the deceased’s jeans and shirt, and on an axe found nearby to the deceased’s body.  The tests on the axe were unproductive because the axe was rusty and as a consequence could give false positive reactions to the tests applied.^[150]  As for the other items, there was a positive result for blood and trace DNA samples were taken.  That included areas of blood spatter near to where the body was found.
117. [117]
     The admitted facts were that the DNA results on the samples collected where the deceased’s body was found returned a DNA profile match for the deceased only.^[151]
118. [118]
     The jury were thus confronted with the fact that the time when the deceased was killed was not established beyond the fact that it was after 7.30 pm on 5 April 2016, and there was no forensic evidence that linked the appellant, his car or his house to the death of the deceased.  Given that the deceased was beheaded and his head was wrapped in his jeans, the natural point of submissions at the trial was that the jury could have expected the killer to have had the deceased’s blood on him or on his clothes or in his car.

Significance of the CCTV and re-enactment

119. [119]
     The CCTV images were said to suggest, first, that the appellant’s car turned right out of Dean Street into Lakes Creek Road at 6.54 pm, thereby heading from the appellant’s home to the area where the deceased’s body was found.  Secondly, that at 8.03 pm the appellant’s car crossed the intersection from Bridge Street into Lakes Creek Road, heading back towards his house.  Thirdly, that at 8.06 pm the appellant’s vehicle turned left from Lakes Creek Road into Dean Street.  In each case the police re-enacted those turns using the appellant’s vehicle at a similar time of night.
120. [120]
     There are several problems with the utility of that evidence.  Firstly, the CCTV footage itself is quite indistinct insofar as it might enable identification of the particular vehicle or, indeed, its features.  All one could draw from that evidence is that it was a vehicle of a similar profile to the appellant’s Jeep, and with a spare wheel attached to the rear door.  But identification with more specificity than that was impossible.
121. [121]
     Secondly, the re-enactment of the events was done only with the appellant’s Jeep.  There was no re-enactment with any other vehicle that might be of a similar profile or colour.
122. [122]
     Thirdly, the re-enactment suggested the result of the comparison, in that the jury were told that the re-enactment vehicle was the appellant’s Jeep.  Even so, the CCTV footage of the re-enactment did not enable, independently of that suggestion, identification with the appellant’s Jeep.  Again, all that one could tell was that it was a vehicle of the same general profile, with a wheel that attached to the rear door.
123. [123]
     Thus, while I have included those three times in the timeline above^[152] the jury could not safely draw the conclusion that the vehicle depicted in the original CCTV footage was that of the appellant.

Significance of the contended motive

124. [124]
     The motive suggested by the Crown was connected with the fact that the appellant’s wife was either photographed by Sha Alam, or provided photographs to Sha Alam, of herself, naked.  In addition, she had a sexual relationship with Sha Alam.
125. [125]
     The Crown put the motive in a confusing series of alternatives, one of which was that because Sha Alam lived in Sydney and could not be easily reached by the appellant, revenge for Sha Alam having an affair with the his wife was achieved by killing the deceased.
126. [126]
     The difficulties with the motive evidence, connected with the evidence of the threat at the mosque, are many.
127. [127]
     Firstly, on the evidence the appellant and the deceased were close friends.  It was out of that friendship that the deceased decided to reveal the existence of the photographs^[153] of the appellant’s wife to the appellant, and to warn his brother to stop.  He told his wife he would do so and the Skype conversation between the appellant’s wife and Sha Alam supports that he did so.  In that conversation the appellant confronted her, asking who had seen the photograph.  She named Sha Alam, but the appellant then asked how it could be that the deceased had the photograph.  There is no evidence that the appellant’s wife had a sexual relationship with the deceased, so whatever the deceased revealed to the appellant, it was not that he was involved.  Whilst the exchange between the deceased and the appellant is not known, the likelihood is that the deceased revealed that Sha Alam was involved.
128. [128]
     Secondly, by all outward appearances that friendship continued after the appellant was told about his wife and Sha Alam in February 2016, at least two months before the deceased was killed.  During that time, according to the evidence of others, the deceased and the appellant remained friends, and acted in a friendly way to one another.
129. [129]
     Thirdly, the questioning of Sha Alam by the appellant at the mosque was consistent with the appellant having been told that Sha Alam had been involved with his wife, not the deceased.  He asked Sha Alam about whether there was a video, and the photo.  In response Sha Alam told the appellant that he (Sha Alam) did not take a video and that he had deleted the photos.
130. [130]
     Fourthly, the threat of violence was in vague terms, but understood by Sha Alam to mean that if there were further dissemination of the photos then he might be subjected to violence.  It is a long bow to draw to tie those threats to an inference that the appellant killed the deceased.

Conclusion

131. [131]
     The central issue at the trial was that of identification, namely could the jury be satisfied beyond reasonable doubt that it was the appellant who killed the deceased.  The case was entirely circumstantial and ultimately depended upon what might be inferred from the fact that the deceased and the appellant planned to go fishing on the night of 5 April.
132. [132]
     The imprecision of the phone tower evidence could not permit the jury to conclude beyond reasonable doubt that the appellant was with the deceased or in the same area as the deceased on 5 April 2016.  It simply puts the appellant somewhere in the blue shaded part of the map at AB 640.
133. [133]
     There is no evidence as to when the deceased was killed, with the consequence that even if the deceased and the appellant had met to go fishing, the jury could not have been satisfied beyond reasonable doubt that at the time the deceased was killed the appellant was still with him.  Nor Alam knew the appellant intended to visit Sadek in order to print documents, as he went to the appellant’s house for that purpose.  One possibility that could not be excluded is that the deceased and the appellant met to fish, but the appellant left to fulfil the printing job that had to be done for the solicitor’s meeting the next day.
134. [134]
     The CCTV footage and re-enactment could not logically assist in that process, given the unreliability of identification of the car.
135. [135]
     The lack of any forensic evidence that would link the appellant to the death of the deceased meant that there was nothing to overcome any other doubts as to his involvement.  The manner in which the deceased died was decapitation, which was likely to have produced a substantial amount of blood.  The Crown’s case was that the appellant was the person who decapitated the deceased.  Yet there was no forensic evidence from any of the samples taken in the appellant’s house or car that would lend support to his being present at the time.
136. [136]
     In the circumstances the jury should have had a doubt that prevented them from being satisfied beyond reasonable doubt of the identification of the deceased’s killer as the appellant.
137. [137]
     Therefore, in my view, the verdict must be set aside and a verdict of acquittal entered.
138. [138]
     It is unnecessary to deal with ground 1.
139. [139]
     I propose the following orders:

1. Appeal allowed.
2. The conviction be quashed and a verdict of acquittal be entered in its place.

140. [140]
     MULLINS JA:  I agree with Morrison JA.