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R v Stephens[2021] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stephens [2021] QCA 127

PARTIES:

R

v

STEPHENS, John Jesse

(applicant)

FILE NO/S:

CA No 19 of 2020

SC No 310 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 10 March 2017 (Lyons J)

DELIVERED ON:

8 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2020

JUDGES:

Fraser and McMurdo JJA and Brown J

ORDERS:

  1. The application for leave to adduce evidence is dismissed.
  2. The application for an extension of time within which to appeal against conviction is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant was found guilty by a jury of attempting unlawfully to kill his wife, with the circumstance of aggravation that the offence was a domestic violence offence – where the applicant filed an application for an extension of time to appeal against conviction and an application to adduce evidence – where the applicant would require an extension of about two years and nine months – whether there was a satisfactory explanation for the delay – whether refusing the applicant’s application would result in a miscarriage of justice and require the exercise of the discretion to extend time

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where the applicant made an application to adduce “fresh” evidence on appeal – where the applicant argued the “fresh” evidence was relevant to the complainant’s credibility – whether that evidence was fresh evidence

Criminal Code (Qld), s 23(1)(a)

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited

Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, cited

Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied

R v Katsidis; Ex parte Attorney-General (Qld) [2005] QCA 229, cited

R v Spina [2012] QCA 179, cited

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

R v VI [2013] QCA 218, cited

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited

Van Beelen v The Queen (2017) 262 CLR 565; [2017] HCA 48, cited

COUNSEL:

The applicant appeared on his own behalf

D Kovac for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  On 10 March 2017 the applicant was found guilty by a jury of attempting unlawfully to kill his wife, with the circumstance of aggravation that the offence was a domestic violence offence.  On the same day the applicant was sentenced by the trial judge to imprisonment for 15 years.  937 days of pre-sentence custody were declared to be imprisonment already served under the sentence.  An application for leave to appeal against sentence was refused on 15 August 2017.[1]
  2. [2]
    In January 2020 the applicant filed an application for an extension of time to appeal against conviction and an application to adduce evidence.  He requires an extension of about two years and nine months.  In R v Tait,[2] the Court discussed considerations relevant to the exercise of the discretion whether to grant an extension of time within which to appeal against conviction:

“… the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  That may involve some assessment of whether the appeal seems to be a viable one.  It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension.  Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue.  Another factor is the length of the delay, it being much easier to excuse a short than a long delay.”

  1. [3]
    Notwithstanding the absence of a satisfactory explanation for the lengthy delay, the Court retains the discretion to extend time where refusal of the extension would result in a miscarriage of justice.[3]
  2. [4]
    The application for an extension of time asserts that the applicant was not in a position financially or logistically to gather the necessary information for an appeal until 2020, he had no money to fund a lawyer, fresh evidence could not be produced until the Australian Financial Security Authority and Worrells Forensic Accountants were involved, additional fresh evidence had been nearly impossible to obtain because the applicant was in jail and without support, Queensland Corrective Services have strict policies making it almost impossible for him to get the information he needs, he made many freedom of information requests to perform and they took months or years, or his requests were ignored, and he still required an order of the Court to produce documents “they” had refused to supply.
  3. [5]
    The applicant has filed an application for leave to adduce evidence in the appeal.  The form requires a description of the “Details of the evidence”.  Instead of describing the effect of the evidence to be given, the application attaches a list of proposed witnesses and nearly three pages of argument about the topics upon which evidence should be permitted.  The list of witnesses includes the complainant and two other members of her family.  Otherwise, most of the named witnesses appear to be persons who might be able to give evidence about financial transactions in which the complainant was involved.
  4. [6]
    The applicant has filed an affidavit which exhibits documents he has obtained since his conviction.  The affidavit does not explain why the applicant applied for leave to appeal against sentence in August 2017 without also appealing against his conviction or otherwise explain his delay in appealing.
  5. [7]
    The applicant’s application for leave to appeal asks to adduce fresh evidence of the unreliability of the complainant as a Crown witness.  The main thesis of the applicant’s arguments is that the evidence in the exhibits to his affidavit supports his own evidence at trial that he set out to ensure that his ex-wife witnessed him committing suicide in front of her by shooting himself and the shooting which eventuated was an “accidental discharge”.  In addition, the applicant argues that evidence that Detective Paddock was not permitted to give at the trial supported his own evidence upon this topic.  As I will explain, however, the Crown case did not depend upon the evidence of the complainant, the applicant did not give any evidence at the trial in support of the proposition that his shooting of the complainant was an accident, Detective Paddock was not able to give any admissible evidence upon that topic, and none of the evidence which the applicant seeks to adduce is “fresh” evidence in support of such a proposition.
  6. [8]
    The indictment included the charge of attempted murder and the alternative charge of doing grievous bodily harm with intent to cause grievous bodily harm.  The applicant pleaded not guilty to those charges.  During the trial the applicant pleaded guilty to causing grievous bodily harm.  The trial judge directed the jury about the intent requirement for each offence in the indictment.  As appears from the trial judge’s summing up, the real issue upon the charge of attempted murder was whether the prosecution proved beyond reasonable doubt that the applicant intended to kill the complainant when he shot the complainant.
  7. [9]
    The Crown case as to the background of the offence charged against the applicant was succinctly summarised by the trial judge when sentencing the applicant:

“After 15 years of marriage and three children you and your wife split up in May 2014. That marriage had been marked in recent years by increasing drug taking and alcohol abuse by you, and concerning incidents of domestic violence which included not only verbal abuse but incidents of slapping, spitting and attempts to choke [the complainant].

... After your separation you bombarded [the complainant] with abusive and menacing texts and phone calls.  In those phone calls you told her you would kill her.  You told her, “watch out for blunt objects in car parks,” and she wouldn’t see it coming.  One of your abusive phone calls on the 9th of June was recorded by police when your wife sought their assistance.  That phone call was played in court, … it revealed a furiously angry man who was yelling in an intimidating, controlling, menacing and threatening way.  The fury that was displayed in that phone call was chilling.”

  1. [10]
    The trial judge summarised the circumstances of the offence:

“On Saturday the 16th of August on a rainy Saturday morning, you drove into a busy shopping centre car park at Helensvale, having followed your wife’s car into that car park.  As she went shopping with your three children and another child, you reversed your car into a parking bay in front of her car and waited for her return.  After she put all the children in the car and was closing her door, you approached her with a .22 calibre self loading rifle, which you had loaded with 13 rounds of ammunition.  You were wearing dark glasses and had a hoody pulled over your head.  You forced open the car door, pointed the gun at her and pulled the trigger … A bullet entered through the right temple, ricocheted off her skull with enough force to splinter her skull, and exited through another laceration higher up in her temple.

The evidence of the eye witnesses indicates that you were clearly seen with the gun.  You were seen pointing the gun at your wife’s head, and that you pulled the trigger whilst aiming at her.  You were then seen pulling her out of the car.  You then proceeded to punch her, and attempted to strangle her.  You were then seen to aim at her again … the gun jammed and three men in complete disregard of their own safety came to [the complainant’s] assistance and disarmed you after a vigorous struggle.

… When disarmed, you [said] … “you don’t know what she’s done,”

… within hours of the incident, your young children aged four, six, and eight at the time, and a friend who was also aged eight, gave very clear evidence of what they saw.  Amazingly, they saw you with a gun.  Your children saw you point the gun at their mother, and they saw you pull the trigger.  They saw her covered in blood.  They saw you drag her out of the car bleeding, and then you proceeded to punch and try and strangle her.  They saw you take aim.  On the video, they demonstrated in very clear terms what they saw.  They showed the actions of your cocking the gun and pointing it at their mother …

It’s significant that after you were subdued by the men and you finally released the gun, you were dragged away only after a very intense struggle.  You then left the car park and drove to the Coomera Police Station.  The foresight of the Constable who turned on his video recorder as you walked into the police station is also to be commended, as it gave very graphic evidence in this trial.”

  1. [11]
    The trial judge’s summary accords with the transcript of the evidence of Ms Gage-Napia, Mr Kete-Anderson, and other witnesses.  Ms Gage-Nepia gave evidence[4] that, after she and Mr Kete-Anderson had driven into the car park, she saw a lady in a vehicle with a man holding a gun at the lady’s head.  She gave evidence that Mr Kete-Anderson left their vehicle, crept through the car park, and wrapped his hands around the man holding a gun.  Mr Kete-Anderson gave evidence that he saw the man hit the lady in the head a few times with a gun and then shoot her in the head.  He was pretty sure she was standing with the car door open yelling when the man “capped her and she fell into the car”.  When the lady fell into the car, the man started whacking her in the head and then he shot her in the car.  The gun was pointed directly at her head.  He heard the shot.  In cross-examination, Mr Kete-Anderson said he had seen the man shoot his wife in the head in clear view.  In the course of the hearing of the application for an extension of time, the applicant acknowledged that a witness gave evidence of seeing the applicant pointing a gun at his wife’s head and pulling the trigger whilst aiming at her.
  2. [12]
    Video recordings of conversations between each of the four children and police at a police station on the afternoon of the day on which the offence was committed in the morning were admitted in evidence and played to the jury.  In summing up the trial judge summarised a submission by the prosecutor that the evidence of the children had a fundamental unity, there being a reference to the gun, the pointing of the gun, the word “gotcha”, and then seeing the blood.  The applicant’s affidavit and arguments do not suggest that this submission was inaccurate.
  3. [13]
    The trial judge’s reference to the evidence of bystanders seeing the applicant assaulting the complainant and, after some of them had come to her rescue, the applicant saying that they did not know what he had been through, accurately summarises the overall effect of evidence given by seven witnesses.[5]
  4. [14]
    The trial judge directed the jury that, in ascertaining the applicant’s intention, the jury could consider the lead up to the event, the relationship and the breakup, the applicant’s use of drugs and alcohol, evidence about his depression, text messages and telephone calls to the complainant as well as letters the applicant wrote which were to be opened after his death.  The trial judge directed the jury they could look at the whole of the background and examine the evidence about what the applicant was alleged to have done in the days immediately beforehand and his evidence of using drugs on the morning and night before.  The jury could take into account “the fact that he armed himself with a shortened rifle and had a quantity of ammunition with him”.  The trial judge reminded the jury that the applicant said he wanted to kill himself the night before but couldn’t.  The trial judge directed that it was known that on the morning the applicant was able to get himself to the carpark and wait for the complainant to get to the car.  The jury also could consider what actually happened at the time of the shooting:[6]

“In terms of what happened at the time, you need to consider clearly the evidence of [the complainant], the children, and the witnesses in the car park.  You heard [the complainant’s] evidence about the man going past the door, the door being pulled open, and then a vibration in her head.  You heard the evidence of the four children who were all present in the car and you heard the evidence of the witnesses who were in the [shopping centre] car park.

They clearly all saw a gun.  So you can take into account the fact that we know there was a gun used.  We know that [the applicant] admits he was driving around with a loaded gun in his car.  He says he heard a voice or voices telling him to kill himself in front of his wife, so he accepts he took a loaded gun towards [the complainant] … Do you think the evidence establishes that [the applicant] aimed the gun?  If so, you can take into account where you consider the gun was aimed.  How many times do you think it was aimed?  Was it aimed more than once?  Was [the complainant] punched and strangled, and, if so, at what point?

It would seem clear that many of the children and [the complainant] say that [the applicant] said words to the effect of “Gotcha.” Or “Now, I’ve gotcha.”

[I]t’s also said that he said to his attackers, who subdued him, words to the effect, “You don’t know what she’s done.”  Something along those lines … [w]e also know he walked into the police station about 15 minutes later and said, “I think I shot my wife”.”

  1. [15]
    The Crown case, as it was put to the jury in the trial judge’s summing up, included reference to the acceptance by defence counsel that there was no doubt the applicant fired the rifle, evidence that the pressure required to depress the trigger was greater than the pressure normally required, evidence that a bullet entered through the complainant’s right temple, ricocheted off her skull with enough force to splinter her skull, and exited through another laceration higher up and evidence that the projectile caused a depressed fracture of the skull and a haemorrhage.
  2. [16]
    The evidence of the many eye witnesses adverted to in the trial judge’s summing up was to the effect that the applicant aimed the rifle at the complainant, he shot her, he said words to the effect of “gotcha”, he continued to assault the complainant after he had shot her, and he then sought to justify shooting the complainant by what he said she had done to him.  Upon any reasonable view of the evidence there was a powerful Crown case that the applicant intended to kill the complainant when he shot her.
  3. [17]
    Section 23(1)(a) of the Criminal Code provides, subject to an exception which is not presently relevant, that a person is not criminally responsible for an act or omission that occurs independently of the exercise of the person’s will.  At the trial, defence counsel accepted that there was nothing in the evidence of the applicant to support the view that the rifle was discharged by an unwilled act of the applicant.[7]  Defence counsel did not express disagreement with the trial judge’s summary that the applicant’s evidence would be that he remembered approaching a car with the purpose of killing himself in front of the complainant, he remembered a scuffle, the gun going off, walking up to the car, hearing a bang, smelling gun powder, falling to the ground, holding the complainant, and being on the ground.  Defence counsel agreed with the trial judge’s statement that the applicant did not put a version that the rifle went off without the applicant knowing anything about it.  The applicant has not identified any evidence he gave at the trial, or sought to adduce any new evidence, that might justify a different conclusion.
  4. [18]
    The trial judge rejected an argument by defence counsel that accident under s 23(1)(a) was raised by the evidence of Mr Kete-Anderson.  Defence counsel submitted that, “the highest I can take it that he is the only witness that sees the actual initial confrontation and that he acknowledged that there was a physical interaction between the two of them before the gunshot … [there] is an inconsistent position with the Crown’s opening that [the complainant] was seated in the front of the car and was shot in the front of the car, and that was the first interaction between the two.”[8]  Whether or not there was any material discrepancy between a statement made by the prosecutor in opening the Crown case and any evidence given at the trial, defence counsel did not refer to any evidence that might have raised a question whether a relevant act or omission by the applicant occurred independently of the exercise of his will.  Nor does the applicant advert to any evidence to that effect having been given at the trial.  Upon the material supplied to the Court in this application, the trial judge’s ruling that s 23(1)(a) was not raised by the evidence of Mr Kete-Anderson is unexceptionable.
  5. [19]
    The applicant refers to evidence given by the complainant and an investigating police officer at the trial about a suggestion by the applicant that the gun might have accidently discharged.  In cross-examination the complainant confirmed that, in a statement she had given to police nine days after she was shot at the shopping centre car park, she said the applicant put “the gun firmly against the centre of my chest and said, ‘Gotcha’”, and she recognised the voice being that of the applicant.[9]  The complainant denied suggestions by defence counsel that those statements were not true. She said she did recognise the applicant’s voice.  She agreed with defence counsel’s suggestion that she had told the police almost immediately after the event that she did not know who it was.
  6. [20]
    After a recording of the complainant’s statements to the police officer immediately after the event was played to the jury, she accepted that on at least four occasions she indicated to the police officer that the person involved in the assault was not her ex-husband.  She disagreed with the suggestion that she did not recognise his voice.  She was asked why she told an untruth to a police officer.  The complainant denied that and said “the whole thing was just happening so quick and that was – that was directly after it that I hadn’t had a chance to actually process and run through my head again of what I’ve seen, what I had heard because it was extremely traumatic when someone is trying to kill you of thinking everything”.[10]  She confirmed she had recognised the applicant’s voice immediately.  She said “at that point there when I was sitting there, I’m more worried about my children and the fact that someone had just tried to shoot me that – did I get a few things confused, yes I did because I had head injury … but that’s not to say that I didn’t recognise his voice when I had a chance to process everything”.[11]
  7. [21]
    It was for the jury to assess the significance of the inconsistency between statements the complainant made about the identity of her assailant immediately after she had been shot and statements made by her afterwards.  There was an overwhelming body of eyewitness evidence that it was in fact the applicant who shot her.  He does not argue to the contrary.  In relation to any impact the complainant’s evidence upon this point might have had upon her credibility, the jury could take into account the evidence about the head injury sustained by the complainant when she was shot in the head.  Furthermore, the applicant’s arguments upon this topic have no bearing upon the persuasive force of the evidence adverted to in [11] – [13] of these reasons.
  8. [22]
    The applicant extensively annotated sections of the transcript of evidence[12] given at the trial by the complainant and an investigating police officer, Detective Paddock, with assertions that both witnesses’ evidence included many lies or was otherwise not credible.  The annotations largely reflect merely the applicant’s own version of events, which the jury had the opportunity of assessing.  The applicant describes as the complainant’s “biggest lie” her statements in response to questions about whether she had told Detective Paddock that the firearm discharged when the complainant hit the firearm away.  The complainant said she could not recall.  It was possible that she had told the police officer the firearm discharged when she hit it away.  The concession of that possibility was a logical consequence of her evidence that she did not recall.  The transcript does not support the applicant’s many submissions that statements in this passage of the complainant’s evidence were untrue.
  9. [23]
    The transcript records an argument in the absence of the jury about a passage in an affidavit Detective Paddock swore in relation to an objection to bail.  The passage refers to the applicant being armed with a sawn-off .22 rifle pointing towards the victim’s chest and concludes:

“The victim has responded by hitting the firearm away. At which time it is believed the firearm has been discharged.”

  1. [24]
    Defence counsel applied for leave to ask Detective Paddock questions about that passage in the presence of the jury, upon the ground that the complainant had given a prior inconsistent statement.  Detective Paddock was cross-examined on a voir dire.  The effect of his evidence was that he had spoken with numerous police officers who may or may not have attended or spoken with witnesses, he could not say where that information came from, and it was not recorded in his own notes of his conversation with the complainant at the hospital.  Defence counsel accepted that evidence by Detective Paddock about the passage would be hearsay.  Ultimately, defence counsel did not press the submission that the objection to bail affidavit should be admitted in evidence as a prior inconsistent statement by the complainant.
  2. [25]
    The trial judge ruled that the proposed cross-examination of Detective Paddock should not be allowed because the evidence he might give would be hearsay and it did not support a conclusion that the complainant had made a prior inconsistent statement to which s 101 of the Evidence Act 1977 was applicable.  Upon the evidence to which the applicant referred the ruling is unexceptionable.  Contrary to the effect of annotations made by the applicant adjacent to the transcript of the trial judge’s ruling,[13] the last two sentences of the quoted passage from Detective Paddock’s bail affidavit are not evidence the complainant lied in her description of the offence.
  3. [26]
    The applicant argues that fresh evidence in the form of financial documentation exhibited to his affidavit supports his numerous arguments that, for a long period up to August 2014, the complainant committed serious offences of dishonesty, including forging and falsifying documents, deliberately lying and misleading police, the Australian Taxation Office, liquidators, creditors, the Australian Financial Services Authority and others, and stealing from the applicant and others.
  4. [27]
    Where fresh evidence is admitted on appeal, the Court will allow the appeal if, upon all of the admissible evidence at the trial together with the fresh evidence, there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant.[14]  In Mickelberg v The Queen,[15] Toohey and Gaudron JJ observed that the rationale for setting aside a conviction on the ground of fresh evidence is that the absence of such evidence from the trial was a miscarriage of justice, but there is no miscarriage of justice in a failure to adduce at trial evidence that was then available or could have been made available by the exercise of reasonable diligence.  Evidence sought to be adduced after trial is fresh evidence only if that evidence did not exist at the time of the trial or could not have been discovered by the exercise of reasonable diligence by the person seeking to adduce it.[16]  An application to adduce further evidence on appeal may be refused if the evidence did exist at the time of the trial, or it could with reasonable diligence have been discovered then by the party seeking to adduce it, but the Court retains a residual discretion to receive further evidence if that is necessary to avoid a miscarriage of justice.[17]
  5. [28]
    The applicant’s argument relating to what he describes as “fresh evidence” commences with the proposition that the evidence shows that the complainant lied.  The applicant argues that the attempt at trial to discredit the complainant failed because the applicant had insufficient evidence to corroborate his assertions and his evidence.  He contends there were “very serious accusations” made by the complainant about the applicant, which he denied and for which he gave very clear explanations.  The applicant contends that he has discovered that the complainant “conducted significant criminal and fraudulent activities” which matched his evidence at the trial.  After describing the nature of the complainant’s suggested misconduct and making statements about the importance at the trial of what he contends were the complainant’s lies, the applicant focuses upon what he contends was the false denial by the complainant in evidence that she held a life insurance policy on his life after they had separated.
  6. [29]
    The applicant argues that, after the complainant and the applicant separated, the complainant secretly reactivated a policy of insurance over the applicant’s life, in respect of which suicide was an insured risk and the complainant’s mother was named as the sole beneficiary.  The applicant argues that the complainant goaded him to commit suicide.  He argues that documents relevant to this topic exhibited to his affidavit contradict the complainant’s evidence and support his evidence.  The documents relevant to the applicant’s arguments in this respect are in exhibits 18 – 40, 52 – 55, and 57 of his affidavit.  Those exhibits are annotated and supplemented with extensive handwritten notes in which the applicant expresses opinions about the effect of the documents and the identity of the persons who signed those documents.
  7. [30]
    This material is not shown to be fresh evidence.  Exhibit 37 to the applicant’s affidavit includes copies of an email dated 24 June 2014 from the applicant to the insurance company.  In that email the applicant referred to a conversation of the same day, he identified two policies in respect of which the applicant wished to change the beneficiary, he emphasised he did not want the complainant to be the beneficiary, and he sought confirmation that the policy had been changed to show the applicant’s mother as the only beneficiary.  The same exhibit includes nomination of beneficiary forms in respect of both policies identifying the applicant’s mother as his nominated beneficiary.  The applicant states in handwritten notes in the same exhibit that he rang the insurance company on 24 June 2014 and he was told that his policy was paid up to July 2014.  The applicant states that was the first time he found out about the “secret life insurance”, which was for $2.7 million and in which the complainant’s mother was named as sole beneficiary.  He states he “was freaking out” and “frantic”.  The applicant’s notes record he “knew then I would kill myself”, he “lost all hope”, and he was again back in hospital.  Upon the applicant’s own statements, more than two and a half years before the trial he knew the essential facts which he now seeks to prove by further evidence.
  8. [31]
    So much is consistent with the transcript of cross-examination of the complainant on the first day of the trial.[18]  The complainant agreed that during the course of her marriage to the applicant his life was insured.  It was put to her that the insurance was cancelled in February 2014.  She answered that it may have been and she did not know if it was cancelled or not.  She denied she had the life insurance policy reactivated.  She said the applicant had it reactivated and the applicant knew about it because he had to have a nurse come to the house to have blood tests done.  She denied that was at her insistence.  It was put to the complainant that after they separated the complainant continued to pay for the life insurance policy.  She denied that, said it was on a direct debit, and said she did not know if it continued to be paid or not.  She denied there was a direct debit from her account.  She thought it was from a business account.  She said there would have to be clarification and she couldn’t remember that one.  It is apparent that defence counsel was given instructions about the argument concerning the insurance policy over the applicant’s life which the applicant now wishes to develop on appeal.
  9. [32]
    There are some documents relating to the same topic exhibited to the applicant’s affidavit which post-date the trial.  Exhibit 39 to the applicant’s affidavit, for example, comprises letters from the insurance company to the applicant dated 13 and 21 February 2019.  Those letters contain lists of premiums paid with respect to the two policies in a period preceding August 2014.  Exhibits 52 – 55 comprise communications in 2020 between the insurance company and the applicant, including (in exhibit 55) recordings of the phone calls in June 2014 between the applicant and the insurance company in relation to his life insurance policies.  The applicant submits that those exhibits confirm his allegations about the complainant’s misconduct in relation to the insurance policies and the applicant’s discovery of that misconduct in June 2014.  In circumstances in which the applicant’s own case is that he had discovered in June 2014 that the complainant had been secretly maintaining those policies, there is no reason to think that the applicant could not have obtained those additional documents before the trial in March 2017.
  10. [33]
    Whether or not the applicant’s suggested discovery in June 2014 that the complainant had maintained insurance policies over his life led to him then knowing that “I would kill myself”,[19] his argument that he had a suicidal state of mind at the time of the offence on 16 August 2014 depends upon his own evidence, not the documentary evidence he seeks to adduce.  Furthermore, a suicidal state of mind is not inconsistent with the applicant having formed an intention to kill the complainant at the time he shot her.
  11. [34]
    I will outline the substance of the other evidence upon which the applicant seeks to rely:
    1. (a)
      Exhibits 4 – 9 are bank statements recording transactions for businesses between 2006 and 2012.  The applicant’s argument is to the effect that these documents evidence systematic frauds by the complainant in businesses they ran together before their separation.
    2. (b)
      In exhibit 2 there are two letters from a liquidator of a company to the applicant dated 19 February 2018 and 28 May 2018 which respond to letters from the applicant dated 1 January 2018 and 21 May 2018 respectively.[20]  Those letters indicate that the liquidator had demanded repayment of money the liquidator contended was owed by the complainant to the company, the complainant was made bankrupt on 13 March 2014, and the liquidator lodged a claim in the complainant’s estate in bankruptcy.  According to the applicant’s notes within the same exhibit, he “first started to find massive indicators of [the complainant’s] frauds (out of [the company]) and other businesses” in approximately June 2014.  That statement indicates that at the time the applicant was aware of what he now contends to be a relevant subject of enquiry on appeal.
    3. (c)
      Exhibit 3 comprises, in addition to the applicant’s notes, a certificate of appointment of the Official Trustee in Bankruptcy upon the complainant’s debtor’s petition on 13 March 2014 and a letter from the Official Trustee to a bank dated 6 August 2018, requiring the bank’s advice about whether the complainant ever had an account with that bank.  According to the applicant’s notes he had originally contacted the Australian Financial Security Authority (which is named on the letterhead of the correspondence from the Official Trustee) in about June 2014, and explained his contention that the complainant had “committed a massive fraud for many years from approx 2006 – 2014”.  This is another indication of the applicant’s knowledge more than two and a half years before the trial of the matters he wishes to agitate upon appeal.
    4. (d)
      Exhibits 10 – 16 comprise letters and other documents provided to the applicant by an accountant, Mr Cook of “Worrells”, between November 2018 and October 2019.  Exhibit 56 is a letter from Mr Cook to the applicant dated 15 April 2020, confirming receipt of money paid on the applicant’s behalf that will cover his costs to conduct the next phase of his investigations into bank accounts in the name of the debtor.  From the documents it appears that Mr Cook was appointed as the trustee of the bankrupt estate of the complainant on 28 September 2018.  The documents indicate that, at the applicant’s request and using funds supplied by the applicant, Mr Cook made preliminary investigations into transactions evidenced by bank statements in the name of the complainant during periods commencing in 2002 and concluding in about 2013.  Mr Cook’s investigations related to allegations of misappropriation by the complainant of money that might be recoverable under the voidable transaction provisions of the bankruptcy legislation.[21]  The documents are heavily annotated with contentions by the applicant to the effect that the complainant had engaged in criminal offences and other misconduct.
    5. (e)
      Exhibit 50 comprises what appear to be documents created by the Commonwealth Bank in relation to “Youthsaver” bank accounts, in which any personal details and signatures have been masked.  The documents are not evidence of any relevant fact.
    6. (f)
      Exhibit 51 comprises what appears to be a record of an exchange of email correspondence between Mr Laurence, an investigator engaged by the applicant, and a bank.  Mr Laurence unsuccessfully sought historical statements of bank accounts in the name of companies of which the applicant was said to have been a director before the companies were deregistered.  The documents are not evidence of any relevant fact.
    7. (g)
      Part of exhibit 57 comprises a report dated 13 August 2020 by Mr Cook into his investigations into nine bank accounts in the name of the complainant.  The report refers to numerous transactions, some of which were for substantial amounts of money (including cash withdrawals), between January 2012 and March 2017.  In relation to a CBA account, Mr Cook reported that he would correspond with the complainant requesting clarification on some of the more substantial transactions and would provide a summary of her response once he received it.  He noted that, in light of the small value of many transactions it might not be commercial to pursue those matters further.  In relation to transactions on Westpac accounts, Mr Cook referred to transactions between March 2002 and April 2012 in which cumulative totals of nearly $1 million were deposited into the complainant’s account and nearly $900,000 was paid out of that account.  Mr Cook recorded that, in addition to querying those transactions, he would write to the complainant requesting a response about all transactions in the Westpac account.  In the absence of a response he would apply for the Official Receiver to issue a notice requesting information under a provision of the Bankruptcy Act.  If the complainant did not provide a response to such a notice he would consider continuing investigations by undertaking a public examination.  This report, and a spreadsheet recording the transactions annexed to the report, are heavily annotated by the applicant with notes and he also includes handwritten submissions about the effect of the documents.
    8. (h)
      The applicant also seeks to rely upon a further report by Mr Cook dated 11 May 2021 and a related “advice to creditors” dated 21 December 2020.  The applicant summarises these new documents as amounting to statements by the forensic accounting firm Worrells that they have found enough irregularities to warrant a further investigation into the financial affairs of the complainant and to refer the complainant to the Official Receiver.  Mr Cook’s report dated 11 May 2021 notes that he had identified large sums of cash withdrawals and transfers in the complainant’s personal bank accounts before her bankruptcy of 13 March 2014, the complainant had failed to respond to his enquiries, and if she continued to fail to comply with his request he would lodge a “pre-offence referral” to the Official Receivers which would include but not be limited to failing to comply with the trustee’s reasonable requests.  Mr Cook’s advice to creditors stated that his investigations indicated that the complainant operated several bank accounts with Westpac and CBA in her name and in some of her known aliases, there were large volumes of “questionable transactions” from March 2002 until October 2017 totalling a little over $1.1 million, and his office had not been able to identify all the recipients and the reasons for the transfers made from the accounts.  His investigations were still ongoing.  The applicant’s handwritten submissions in exhibit 57 in relation to Mr Cook’s most recent report includes the statement that the accountants “know what she’s done and I’ve been saying it since 2014! Over 6 yrs”.
  12. [35]
    The applicant’s arguments include contentions that the Court should use its coercive powers to require third parties to supply documents the applicant contends would provide further support for the allegations he makes against the complainant concerning financial transactions and the insurance policies.  The applicant asserts that this anticipated evidence, and the documentary evidence he seeks to adduce in this appeal, could not have been obtained before the trial.  He has not explained why it could not have been obtained, despite this topic being raised in the form of the application for leave to adduce evidence.  The form requires an answer to the question, “If the witness was not called at your trial, why wasn’t the witness called?”.  A responsive answer is given only in relation to Detective Paddock – “Was not allowed by [the trial judge]”.  Otherwise the applicant’s answer to that question merely asserts that the evidence is important because of “all the “fresh evidence” which has now come to light” and “all witness are critical to my appeal” with “links to the “fresh evidence””.  Such evidence as there is upon the topic is to the effect that the further evidence the applicant seeks to adduce could have been obtained for use at the trial.
  13. [36]
    The applicant argues that the further evidence he seeks to adduce would damage the complainant’s credit, but his argument does not explain how such evidence would be admissible to contradict answers given by the complainant in cross-examination.  In any case, the proposed further evidence would not affect the force of the body of evidence given by witnesses other than the complainant.
  14. [37]
    To focus upon evidence of the kind the applicant now seeks to adduce would also risk strengthening the Crown case that the applicant intended to kill the complainant. Defence counsel might reasonably have considered that a more extensive pursuit of the applicant’s arguments about what he alleged was the complainant’s misconduct in relation to the insurance policies and the financial transactions would emphasize that the applicant had a strong motive for harming the complainant, thereby adding persuasive force to the Crown’s circumstantial case upon the intent issue.  In R v Baden-Clay[22] the High Court explained that “… a criminal trial is accusatorial but also adversarial.  Subject to well-defined exceptions, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.””[23]  Upon the appropriate objective analysis in this  matter, there was an apparently good reason for defence counsel not to develop an argument before the jury of the kind which the applicant now seeks to pursue.  The applicant’s evidence and his arguments do not justify an exception to the general rule that a party is bound by defence counsel’s conduct of the trial.
  15. [38]
    The further evidence which the applicant seeks to adduce in this appeal is not shown to be fresh evidence.  It does not show that the applicant’s conviction of attempted murder involved a miscarriage of justice such as to require the admission of that evidence.  The application for leave to adduce evidence and the application for an extension of time within which to appeal against conviction should be dismissed.
  16. [39]
    McMURDO JA:  I agree with Fraser JA.
  17. [40]
    BROWN J:  I agree with the reasons for judgment of Fraser JA and the orders proposed by his Honour.

Footnotes

[1] R v Stephens [2017] QCA 173.

[2] [1999] 2 Qd R 667 at 668 [5].

[3] See R v GV [2006] QCA 394 at [3].

[4] Transcript, 3 March 2017 at 3 – 4 to 3 – 8.

[5] Transcript, 2 March 2017 at 2 – 9 to 2 – 40.

[6] Transcript, 8 March 2017 at p. 7, l. 27 – p. 8, l. 34.

[7] Transcript, 7 March 2017 at 5 – 62 (in exhibit 1 to the applicant’s affidavit).

[8] Transcript, 7 March 2017 at 5 – 69 (in exhibit 1 to the applicant’s affidavit).

[9] Transcript, 1 March 2017 at 1 – 69 (in exhibit 1 to the applicant’s affidavit).  The same transcript is also in exhibit 17.

[10] Transcript, 1 March 2017 at 1 – 74 (in exhibit 1 to the applicant’s affidavit).  The same transcript is also in exhibit 17.

[11] Transcript, 1 March 2017 at 1 – 75 (in exhibit 1 to the applicant’s affidavit).  The same transcript is also in exhibit 17.

[12] The transcript is in exhibit 1 of the applicant’s affidavit.

[13] Transcript 6 March 2017 at 4 – 14, in exhibit 1.

[14] Gallagher v The Queen (1986) 160 CLR 392 at 399 and Van Beelen v The Queen (2017) 262 CLR 565 at 575 citing Mickelberg v The Queen (1989) 167 CLR 259.

[15] (1989) 167 CLR 259 at 301, citing Gallagher v The Queen (1986) 160 CLR 392 at 395, 402, 410 and Ratten v The Queen (1974) 131 CLR 510 at 516 – 517.

[16] Ratten v The Queen (1974) 131 CLR 510 at 516 – 517; Lawless v The Queen (1979) 142 CLR 659 at 674 – 676; R v Katsidis; Ex parte Attorney-General (Qld) [2005] QCA 229 at [2], [10] – [19].

[17] See R v Spina [2012] QCA 179 at [32] – [34] and R v VI [2013] QCA 218 at [64] – [66].

[18] Transcript, 1 March 2017 at 1 – 79 to 1- 80, in exhibit 17.

[19] “Exhibit 37”, applicant’s handwritten notes.

[20] “Exhibit 2” to the applicant’s affidavit.

[21] See, for example, Mr Cook’s “Advice to Creditors” dated 8 February 2019 in Ex 13.

[22] (2016) 258 CLR 308 at [48].

[23] The High Court quoted from Nudd v The Queen (2006) 80 ALJR 614 at 618 [9]; 225 ALR 161 at 164 and also cited Ratten v The Queen (1974) 131 CLR 510 at 517 and Doggett v The Queen (2001) 208 CLR 343 at 346 [1].

Close

Editorial Notes

  • Published Case Name:

    R v Stephens

  • Shortened Case Name:

    R v Stephens

  • MNC:

    [2021] QCA 127

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Brown J

  • Date:

    08 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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