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R v Trebeck[2022] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v Trebeck [2022] QCA 107

PARTIES:

R

v

TREBECK, Robert Ian

(appellant)

FILE NO/S:

CA No 22 of 2020

SC No 8 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Toowoomba – Date of Conviction: 28 May 2019 (Lyons SJA)

DELIVERED ON:

17 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2022

JUDGES:

Mullins JA and Flanagan and Davis JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant admitted that the deceased was unlawfully killed – where the only controversy in the trial was whether it was the appellant who unlawfully killed the deceased – where the appellant’s and respondent’s counsel framed the trial against the possibility of a different person murdering the deceased – where the jury had to exclude the hypothesis that another person killed the deceased – whether it was reasonably open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of murder

Criminal Code (Qld), s 668E(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited

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

R v Clapham [2017] QCA 99, cited

R v Conn; R v Conn; Ex parte Attorney-General (Qld) [2017] QCA 220, cited

R v Schafer [2017] QCA 208, cited

COUNSEL:

S R Lewis with L A Ygoa-McKeown for the appellant (pro bono)
P J McCarthy QC for the respondent

SOLICITORS:

No appearance for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MULLINS JA:  I agree with Flanagan J.
  2. [2]
    FLANAGAN J:  The appellant appeals his conviction of murder, which was recorded in the Supreme Court at Toowoomba on 28 May 2019 after a 12-day jury trial before Lyons SJA.
  3. [3]
    The deceased, Alexis Jeffery, was known to the appellant.  Her time of death was estimated to be between 3:30 to 5:15 on 16 March 2014.  Her jeans had been wrapped around her throat which stopped blood or air getting to her brain and required the application of significant force for approximately three to five minutes.  The police located the deceased’s jeans in a hedge approximately 150 metres from her body, which was found on the bank of the Macintyre River, at the back of the Cultural Centre in Goondiwindi.
  4. [4]
    The appellant appeals his conviction on the ground that the verdict was unreasonable.  The appellant submits that the jury, having regard to the evidence, could not have been satisfied that the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that another person, Daniel Rowsell, killed the deceased.
  5. [5]
    The issue raised by the ground of appeal is whether this Court, as an appellate court, is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code (Qld).[1]  On the authority of M v The Queen,[2] that involves a determination as “to whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty.[3]
  6. [6]
    In R v Conn; R v Conn; Ex parte Attorney-General (Qld)[4] Sofronoff P identified the following principles from M v The Queen:[5]

“In M v The Queen[6] the plurality emphasised the kind of case in which an appellate court might conclude that a reasonable jury ought to have entertained a doubt. Their Honours said:

‘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.’”

  1. [7]
    The relevant principles were also identified by Fraser JA (with whom Gotterson and McMurdo JJA agreed), in R v Clapham:[7]

“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. In considering this ground of appeal the ‘starting point ... is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses’, but:

‘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.’”

  1. [8]
    One of the advantages enjoyed by the jury is the fact that the jury has the benefit of seeing and hearing the witnesses.[8]  The High Court recognised this advantage in Pell v The Queen:[9]

“Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witnessbox.  The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses.  Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.”

  1. [9]
    In the present case, the prosecution called Rowsell as a witness and the appellant gave evidence.  The jury, in reaching its verdict, therefore had the advantage of seeing and hearing both Rowsell and the appellant give evidence.

The appellant’s evidence

  1. [10]
    The first time the appellant met the deceased was the night of 15 March 2014.  Prior to this meeting, however, the appellant had been in telephone contact with the deceased from 1 March 2014 to 17 March 2014.  The appellant over this period was living with his then fiancée Ms Larkins.  He described their relationship as having deteriorated.  Exhibit 54, which is the telephone records of the appellant, shows that there was a total of 162 calls or SMS messages from the appellant to the deceased for that period and 150 calls or SMS messages from the deceased to the appellant.  During the period Friday, 14 March 2014 to Sunday, 16 March 2014 there was a total of 80 SMS messages sent by the appellant to the deceased, in addition to three telephone calls, and 69 SMS messages from the deceased to the appellant, with an additional six telephone calls.  Some of the text messages were able to be retrieved, and are referred to below.
  2. [11]
    On 15 March 2014 the appellant and Ms Larkins spent the day with friends, Mr and Mrs Styles.  They attended a party of a friend’s wife and at the conclusion of the party the appellant decided to go out without his fiancée.  He went to change for that purpose but could not locate his black leather shoes and instead had to wear his reef boots.
  3. [12]
    After leaving the party the appellant unsuccessfully tried to gain access to the Royal Hotel.  He then went to the Queensland Hotel where he gained access through the rear.  In the course of the night of 15 March 2014 the appellant had been exchanging Facebook messages with the deceased: at 21:53 the deceased texted the appellant: Come to the QL.  At 21:54 the appellant replied: Hi, sexy.  I’m in town.  At 21:56 he messaged: I will soon, sexy.  At 22:01 the deceased messaged: Queensland pub.  Text me when you get here.  At 22:30 the appellant messaged:  Okay, sexy.  I’m on my way there.  At 22:50 the appellant messaged: Okay.  Give me 20.  Okay, sexy.  Eventually the appellant met the deceased face-to-face for the first time at the Queensland Hotel.
  4. [13]
    The appellant encountered Rowsell at the hotel.  After the hotel closed at approximately 1:00, CCTV footage shows a number of people gathered on the footpath on the Pratten Street side of the hotel.  While outside the appellant approached the deceased but noticed that Rowsell was standing by her side with a couple of other people.  The appellant felt some hostility from Rowsell, who was unsuccessfully attempting to give the deceased a lift home.
  5. [14]
    The deceased and the appellant then commenced walking along Marshall Street, stopping at the public toilets before continuing.  It was at this stage that Rowsell drove up in his car and came over to the deceased, asking her a few times if she required a lift home.  When she refused Rowsell took $20 from his pocket and threw it in the deceased’s lap and then walked away saying words to the effect, “Get a taxi then”.  The deceased gave the appellant this $20 and he returned it to Rowsell.  While this was happening the deceased continued to walk along Marshall Street.  Rowsell gave the appellant a lift to where the deceased had walked to.  Rowsell persisted in asking the deceased whether she wanted a lift.  CCTV footage shows the deceased waving her hands in the air.  According to the appellant she said words to Rowsell to the effect, “Fuck off, leave me alone”.
  6. [15]
    The appellant and the deceased then walked to a playground where they kissed and had other physical contact.  The appellant observed a police car.  The police officers checked on the deceased, who appeared to be fine.
  7. [16]
    They then decided to go for a swim at the boat ramp on the Macintyre River.  As they commenced to undress, the appellant assisted the deceased in pulling down her jeans and thereafter she commenced to perform oral sex on him.
  8. [17]
    At this stage out of the corner of his eye the appellant noticed Rowsell who said, “You’re gone, Trebeck”.  As this happened the appellant pulled his pants up and observed a kick.  The appellant left, running down the road into the park towards the police station.  He explained why he ran away:  “Because I was scared.  I didn’t want to fight.  They were there for me.  They said my name, no one else’s.”  The appellant had had a full facial reconstruction in 2013 and had been told by doctors that if he was hit in the right side of his face it would kill him.
  9. [18]
    The appellant walked past the police station and at one stage slipped over.  He made four telephone calls to Ms Larkins between 4:50 and 5:28.  According to the appellant he made these calls because he wanted Ms Larkins to pick him up.  When he finally arrived back at the Styles’ house he deleted the photographs and all messages that he had received from the deceased.  The reason he gave for deleting these photographs and messages was that he did not wish his fiancée to see the messages.  His explanation as to why he did not text the deceased to enquire how she was, was because he had already deleted her phone number.  He believed that the deceased would have been all right.
  10. [19]
    On 17 March 2014 the appellant’s brother rang him to inform him that the person he was with the previous night had been found dead and that the police were coming to question him.  When questioned by police the appellant denied being with the deceased in the park.  He told police that he had only gone as far as the Centrelink office on Marshall Street.  In his evidence-in-chief the appellant accepted that this was a lie.  He gave two reasons for this lie: first, that he felt guilty about being unfaithful to his fiancée, and secondly, that police had shown him a warrant identifying the offence of murder and he wished “to have nothing to do with it”.  He agreed that he told police that he did not own any reef boots.  His explanation for this lie was that he had “put [his] walls up”.  He told police that he had worn black leather shoes.
  11. [20]
    The appellant was questioned about his police interview conducted later on 17 March 2014.  In that interview he told police that he had been at the park with the deceased and had commenced to have sex with her.  He did not tell police that they then went to the boat ramp and he made no mention of Rowsell’s alleged involvement.  The appellant explained these lies, stating that he did not wish to mention Rowsell because he could place the appellant at the scene.  He further suggested that he was scared of Rowsell.  In the course of the record of interview the appellant told police that he was wearing black leather shoes on the night of the murder.
  12. [21]
    As the police investigation continued, the relationship between the appellant and Ms Larkins ended.  Ms Larkins commenced a relationship with Rowsell.  On 9 June 2014 the appellant made a telephone call to Crime Stoppers.  The call was recorded as police were recording the appellant’s phone as part of the police investigation.  In this anonymous call to Crime Stoppers he claimed that the person of interest in the police investigation had been set up because someone had taken the shoes that could clear his name.  The appellant did not mention any involvement of Rowsell.  He did, however, suggest that the persons who had taken his shoes were his sister and brother-in-law who may have had something to do with the murder.  The appellant accepted that what he said in this telephone conversation was a lie.  His explanation for this lie was that Ms Larkins had left him and he was drinking excessively and was not in a good mental state.
  13. [22]
    The first time that the appellant told anyone of Rowsell’s alleged involvement was in a recorded conversation he had with his parents while they were visiting the Capricornia Correctional Centre on 2 and 4 January 2015.  The appellant told his parents that he was too scared to tell police of Rowsell’s involvement because they would either charge him as an accessory to murder or think that he had committed the murder himself.  When asked by his mother why he had not told police of Rowsell’s involvement, the appellant explained that he was scared of being an accessory and being considered “a dog” whilst in custody.
  14. [23]
    As to the appellant’s failure to mention Rowsell’s involvement to police, he accepted in cross-examination that he appreciated the need to defend himself against false allegations.

Rowsell’s evidence

  1. [24]
    As at 15 March 2014, Rowsell was living at his father’s house eight kilometres south of Goondiwindi in Boggabilla.  Rowsell drove a HSV VN Commodore ’91 model.  It was a unique car: a steel grey with silver on the bottom, and a collector’s item edition.  As at 15 March 2014 the Commodore was missing its front bumper.
  2. [25]
    On the night of 15 March 2014 Rowsell attended the Queensland Hotel.  There he met the deceased and they spoke for around 10 to 20 minutes.  He had not previously spoken to the deceased.  His purpose in speaking to the deceased was to get to know her and see where it went from there.  He offered her a lift and she agreed.  By the time he collected his car and returned, he noticed that the deceased was speaking to the appellant.  He instead offered a lift to a group of young people to a nearby party.  He drove those people to the party.
  3. [26]
    After dropping this group off he was driving through town and thought that he saw the deceased.  His intention was to give her a lift home, maybe get her number and get to know her better.
  4. [27]
    He parked his car and walked over to offer the deceased a ride home.  She refused and he took $20 from his pocket and put it in her lap, suggesting that she get a taxi home.  The deceased was still with the appellant.
  5. [28]
    The appellant approached Rowsell’s car and returned the $20.  The appellant informed Rowsell that he had been chatting to the deceased for weeks and that he had been trying to get to know her.
  6. [29]
    While Rowsell was speaking to the appellant the deceased continued walking along Marshall Road.  Rowsell drove the appellant to the deceased.  CCTV footage shows the deceased and the appellant walking together.
  7. [30]
    Rowsell then pulled over to answer his phone or read a text.  He executed a Uturn at the end of the street and saw two people kissing in the nearby park.  He returned to the Queensland Hotel to meet up with his friend, Mr Zellers.  He had a conversation with Ms Saxby in the carpark of the hotel, stating that he had met the woman of his dreams but that she was playing hard to get.  CCTV footage shows that at around 2:30 Mr Zellers and Rowsell went upstairs to Zellers’ room.  Rowsell denied in cross-examination that he and Mr Zellers smoked methamphetamine while in the hotel room.
  8. [31]
    At 2:45 Rowsell received a call from his friend Mr Carter, who he had driven to the party earlier that night.  Carter was requesting a lift.  At about 3:00 CCTV footage shows Rowsell leaving the back of the Queensland Hotel in the direction of where his car was parked.  He collected Carter and another friend and dropped them home and proceeded to the BP service station on the western perimeter of Goondiwindi at about 3:22.  He was at the service station for about 43 minutes, until about 4:06.
  9. [32]
    According to Rowsell, at 4:06 he drove home to Boggabilla.  At 4:09 a car matching the specifications of Rowsell’s car was captured by a Safe-T-Cam gantry heading in the direction to Boggabilla.  He received a number of text messages while he was driving home.  They included texts from Mr McDonald at around 4:06.  At 4:23, 4:24 and 4:25 Rowsell sent text messages to three women.  His evidence was he sent those texts from his home.  There is a 37 minute gap where there was no communication on Rowsell’s phone until 5:03, when Rowsell sent three texts in about a minute.
  10. [33]
    In cross-examination Rowsell denied using any methamphetamine at the relevant time.  This was contradicted by the evidence of Mr Zellers, who stated that Rowsell smoked methamphetamine with him whilst at the hotel room at about 2:30.  Ms Coleborn also gave evidence that Rowsell smoked methamphetamine in his car with her early in the night.  Rowsell admitted that Ms Coleborn had smoked methamphetamine but denied smoking the drug himself.
  11. [34]
    The defence argued at trial that Rowsell smoking methamphetamine was relevant to the charge of murder as methamphetamine predisposes a person to a higher sex drive and violence.  The defence further submitted that the fact that Rowsell had sent text messages to three women, all of whom were in Goondiwindi, showed that it was more likely that at some point in the early morning of 16 March 2014 Rowsell headed back to Goondiwindi.  Rowsell accepted that he could get from Boggabilla to Goondiwindi via the old bridge, along Gunsynd Way and through backroads.  He accepted that he had in the past used backroads to avoid police attention when under the influence.  He accepted that if he had taken the backroads and gone over the old bridge which leads to Elizabeth Drive on the way back to Goondiwindi, he would have driven past the boat ramp where the deceased and appellant were present.
  12. [35]
    A witness gave evidence that she observed a Commodore parked on the street near the deceased’s residence at 4:00 on the morning of 16 March 2014.  Another witness observed an older model Commodore driving erratically only a block away from the crime scene.  This witness did not, however, identify anything distinctive about the Commodore.
  13. [36]
    In cross-examination Rowsell accepted that he was sexually interested in the deceased and had offered to drive her home on multiple occasions.  He accepted that he had seen the appellant and the deceased at the park and that he had previously thought they were kissing each other.  While denying that he was angry at the appellant, Rowsell accepted that he told police something to the effect that he thought the deceased was too good for the appellant.  Rowsell denied returning to Goondiwindi and seeing the deceased and the appellant at the boat ramp.  He also denied approaching the deceased and the appellant and saying words, “You’re gone Trebeck” and then kicking the deceased.  Rowsell described this suggestion as being “pretty far-fetched”.
  14. [37]
    Rowsell accepted that when questioned by police on the night of 16 March 2014, he told them that he had breakfast with his father at about 8:00 that morning.  He accepted in cross-examination, however, that his father did not arrive home until around 15:00 that afternoon.  Rowsell stated that when he spoke to police he honestly thought that his father had arrived home at 8:00, rather than late afternoon.

Forensic evidence

  1. [38]
    An autopsy was conducted on the deceased by Dr Philip Storey, a forensic pathologist.  Dr Storey identified a number of blunt force trauma abrasions to the deceased’s body concentrated around the area of the face and neck.  There was a fracture to the left side of the cheek that involved the orbit.  To produce this fracture, at least a moderate degree of force would have been required with a directed blow to that region.  Dr Storey opined that in order to produce the widespread pattern of abrasions and deeper haemorrhage in the muscles, at least a moderate degree of force would have been applied.  He considered that it was unlikely that the fracture could have been caused by a fall down the riverbank.  While Dr Storey considered that the cause of death was undetermined, the likely cause of death involved a mechanism of blunt force trauma in the region of the nose, mouth and neck.  The deceased had a deep furrowed abrasion at the right side of the neck that moved around the back of the neck and was indented.  Dr Storey opined that the mechanism was consistent with a smothering activity, such as a fabric applied tightly around the neck.
  2. [39]
    Dr Storey’s opinion as to the cause of death was based solely on what he observed at the autopsy.  Some months after performing the autopsy he was informed of the possibility of a pair of jeans being involved.  The deceased’s jeans were located on 18 March 2014 in a hedge near to where her body was discovered.  The jeans had bloodstains and DNA on them.
  3. [40]
    DNA samples were taken from the deceased’s body, her jeans and from other clothing.  These samples were analysed by Matthew Hunt, a scientist specialising in DNA.  A detailed summary of his analysis of the DNA samples is contained in exhibit 16.  The appellant’s DNA was found over the body of the deceased and her jeans and, in particular, at each end of the left leg.  The greatest concentration of the appellant’s DNA was at the top of the jeans around the waist and there was a lower concentration at the foot of the jeans.  It is not surprising that the appellant’s DNA was found on the body of the deceased and on her jeans as he had admitted to having sexual activity with the deceased both at the park and at the boat ramp.  None of Rowsell’s DNA was found on the deceased or her jeans, even though CCTV footage shows Rowsell hugging the deceased at 1:27 and again at 1:48 on the morning of the killing.  Mr Hunt clarified that the phrase used of Rowsell’s DNA “being excluded” did not mean that Rowsell did not touch whatever item was examined.  Mr Hunt further explained that a person may be considered to be a poor shedder and that there are circumstances that affect the likelihood of a transfer.

The Summing Up

  1. [41]
    The learned trial judge’s careful directions to the jury made it clear that in order to be satisfied beyond reasonable doubt that the appellant killed the deceased, the prosecution was required to exclude beyond reasonable doubt any reasonable hypothesis consistent with the appellant’s innocence.  One obvious hypothesis was that it was Rowsell not the appellant who killed the deceased.
  2. [42]
    Her Honour commenced her summing up by identifying the first “real issue” in the trial as whether the prosecution had proved beyond reasonable doubt that it was the appellant who killed the deceased.  This was in the context that the prosecution’s case was circumstantial.  Her Honour directed as follows:

“If there is another reasonable inference consistent with innocence then you must acquit.  You may only draw an inference of guilt if it so overcomes any possible inference as to leave no reasonable doubts in your mind.

An alternative hypothesis does not have to be equally open or equally compelling in order to give rise to a reasonable doubt about guilt.  Such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence.  You do not have to be able to infer that the event suggested by the innocent hypothesis actually occurred.  It is sufficient if there is a reasonable possibility that such an event took place.  Here the defence argues that the evidence raises a reasonable possibility that the circumstances point to someone other than Mr Trebeck being guilty of the offence and they argue this was Mr Rowsell.  You will need to exclude the possibility that it was somebody else beyond reasonable doubt.  If there is another view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt and you must acquit him.

So it is important when considering the evidence to bear all those warnings I have given you in mind.  If you are not satisfied that Mr Trebeck did the act or acts which killed Ms Jeffery, that is, there is another reasonable inference open consistent with innocence, such as the defence argues, then you do not turn to this question of intention.  If however you are satisfied that there is no rational inference available other than the inference that Mr Trebeck actually did the acts that killed Ms Jeffery, then you turn to the next question on intent.”

  1. [43]
    Her Honour dealt in detail with the evidence led by the prosecution, including Rowsell’s evidence.  Her Honour then summarised for the jury both the prosecution and defence submissions in relation to the first issue of whether the prosecution had proved beyond reasonable doubt that it was the appellant who killed the deceased.  This summary referred to the evidence relied on by the defence for the submission that there was a reasonable hypothesis consistent with innocence, namely that it was Rowsell rather than the appellant who killed the deceased.  This evidence included the following:
    1. (a)
      Rowsell had a sexual interest in the deceased earlier in the night, plus physical contact;
    2. (b)
      although Rowsell had physical contact with the deceased, he left no DNA;
    3. (c)
      it was Rowsell rather than the appellant who tried at least three times to get the deceased into his car;
    4. (d)
      Rowsell was intoxicated with methamphetamine;
    5. (e)
      the text messages sent by Rowsell after 4:00 showed that he was trying to meet up with a woman after 4:00;
    6. (f)
      Rowsell could have returned to Goondiwindi utilising backroads;
    7. (g)
      Rowsell’s car appeared to have been cleaned;
    8. (h)
      Rowsell told lies to police about having breakfast with his father and lies to the Court about taking drugs;
    9. (i)
      there was a period of 43 minutes unaccounted for between Rowsell’s text messages from 4:06 to 5:03 on the morning of 16 March 2014;
    10. (j)
      when observed by police the deceased appeared to be happy in the appellant’s company and was being consensually intimate with the appellant;
    11. (k)
      there was no observable blood or other items on the appellant’s clothes and noone noticed anything odd about the appellant’s behaviour or demeanour the following day;
    12. (l)
      a witness had seen an older model Commodore driving erratically about a block away from the crime scene in the early hours of the morning of 16 March 2014.
  2. [44]
    Her Honour referred to the following defence submission:

“Mr Power, as you will recall, gave his address first, and he commenced with the question, is it reasonably possible that Daniel Rowsell killed Alexis Jeffery.  He stressed that your task was not to choose whether Mr Trebeck or Mr Rowsell was guilty beyond reasonable doubt, but rather, you could only find Mr Trebeck guilty if you are satisfied his guilt – of his guilt beyond reasonable doubt.  If you think there is a reasonable possibility that Mr Rowsell killed Ms Jeffery, you must find Mr Trebeck not guilty.  He reminded you, it’s not a question of deciding whether it is more likely Mr Trebeck committed the crime.  The question is whether the Crown have proved beyond reasonable doubt, the elements of the offence.”

  1. [45]
    These directions reflected the fact that both the prosecution and the defence had framed the case by reference to both Rowsell and the appellant.[10]  To achieve a conviction the prosecution was required to exclude beyond reasonable doubt the hypothesis that it was Rowsell who unlawfully killed the deceased.  It was also necessary for the Crown to exclude beyond reasonable doubt that anyone other than the appellant was the killer.  The summing-up made this clear.

The only real issue in the trial

  1. [46]
    The Crown was required to prove four elements:
  1. the deceased was dead;
  2. the appellant killed her;
  3. the killing was unlawful; and
  4. the appellant, when he killed her, intended to kill or do grievous bodily harm to her.
  1. [47]
    There was no doubt about the first element.  Given the uncontested medical evidence as to the cause of death, there was no serious contest about the fourth element.  No authorisation, justification or excuse for the killing was raised in the evidence, so the Crown could prove the third element.
  2. [48]
    The real issue for the jury was whether they were satisfied beyond reasonable doubt that it was the appellant who killed the deceased.

Consideration

  1. [49]
    Upon a consideration of the evidence at trial it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the murder of the deceased.  It follows that it was also reasonably open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt the hypothesis that Rowsell killed the deceased.
  2. [50]
    The appellant submits that the verdict was unreasonable because the jury could not have been satisfied beyond a reasonable doubt to exclude the hypothesis that Rowsell killed the deceased having regard to the following evidence:

“(a) Mr Rowsell was seen with the deceased on the night prior to the killing and he had an interest in her.

  1. (b)
    Mr Rowsell and the deceased hugged on the night prior to the killing but his DNA was not found on the deceased.
  1. (c)
    Mr Rowsell lied about taking methamphetamine.
  1. (d)
    Mr Rowsell was sending text messages to friends and had a desire to meet up with women.  He gave evidence that he had stopped his car to send a message at 4.11am.  There was a gap in his phone activity from 4.26 to 5.06am.
  1. (e)
    Mr Rowsell did not have an alibi.  There was no evidence excluding Mr Rowsell returning to Goondiwindi.  Mr Rowsell lied about having breakfast with his father at 8.00am on 16 March 2014.
  1. (f)
    Natasha Williams gave unchallenged evidence of a dark blue or grey older model Commodore, driving erratically a block away from the crime scene shortly after 4.00am on 16 March 2014.  Mr Rowsell was driving a dark blue or grey older model Commodore on 16 March 2014.
  1. (g)
    The appellant gave direct evidence that Mr Rowsell tried to kick the appellant from the appellant’s right-hand side while the appellant was leaning over the top of the deceased but struck the deceased in the face instead.  This is consistent with the injury observed to the deceased’s medial orbit of the left socket.
  1. (h)
    The appellant gave evidence that he ran away and left the deceased with Mr Rowsell.  That was the last time he saw the deceased alive.”[11]
  1. [51]
    This evidence, when considered in the context of the whole of the evidence, does not render the verdict unreasonable on the basis that it was unreasonable to exclude Rowsell as the killer beyond reasonable doubt.  The jury was entitled to accept or reject such parts of the evidence of any witness, including that of the appellant and Rowsell as it thought fit.  There were important distinctions between the cases in relation to the appellant and Rowsell.
  2. [52]
    The first concerns the nature and significance of the lies said to be told by them.  Accepting for present purposes that Rowsell lied about using methamphetamine and the time at which he had breakfast with his father on 16 March 2014, neither of these lies directly connect Rowsell to the murder.  This is to be contrasted with the lies which the prosecution allege were told by the appellant.
  3. [53]
    The only evidence which placed Rowsell near the scene of the murder was the evidence of the appellant.  The appellant did not inform police of Rowsell’s presence or his actions in allegedly accidentally kicking the deceased when questioned on 17 March 2014.  Initially the appellant denied all knowledge of the murder.  When he then spoke privately to one of the officers, the appellant admitted that he had been with the deceased that night: they had walked together to about Centrelink near the park; that she had tried to get it on with him, but that he did not; and that he left her by Centrelink and returned to the Styles’ house.  When formally interviewed by police, and knowing that he was under investigation for the murder of the deceased, the appellant’s lies evolved further.  He stated that he had had sex with the deceased, that they were interrupted by police and that he left her at the park and had become lost on his way walking home.  Again the appellant made no mention of Rowsell’s involvement.
  4. [54]
    The first mention of Rowsell’s alleged involvement, as outlined above, was some months later when he spoke to his parents and alleged that it was Rowsell who killed the deceased.  The appellant was unable to give any cogent explanation as to why he had not mentioned Rowsell’s involvement to police earlier.  This was in circumstances where he would have had every incentive to do so.  There were other difficulties with the appellant’s version of Rowsell being involved, including the DNA evidence outlined above.  A further difficulty was that if the appellant observed Rowsell accidentally kick the deceased in the head, the appellant made no subsequent attempt to contact the deceased or check on her welfare.  Rather, the appellant deleted her contact from his phone.
  5. [55]
    Unlike Rowsell’s lies which did not connect him to the murder, the appellant’s evolving lies related to matters that incriminated him.  He lied to police as to what shoes he was wearing on the night of the murder.  He told police that he was wearing black leather shoes and denied owning reef boots.  Ms Larkins’ evidence was that when she overheard this she told the police to look for the appellant’s reef boots.  The reef boots have never been found but Ms Styles’ evidence was that when the appellant returned in the morning, he removed his reef boots and left them on the front porch of the Styles’ house.  Added to this was the appellant’s telephone call to Crime Stoppers, in which he claimed that a person of interest in the murder investigation had been “set up” because someone had taken the shoes that could clear his name.
  6. [56]
    There was also evidence which contradicted the appellant’s evidence that Rowsell was present.  That evidence included CCTV footage which showed that Rowsell left the Queensland Hotel in the direction of where his car was parked at about 3:00.  He then picked up two friends and dropped them home and went to the BP service station on the western perimeter of Goondiwindi at about 3:22.  He was at the service station for about 43 minutes until about 4:06.  At 4:06 he drove home to Boggabilla.  At 4:09 a car matching the specifications of Rowsell’s Commodore was captured by SafeTCam gantry being driven in the direction he would travel if heading home.  Rowsell was also co-operative with police and permitted police to take his clothing, cap and the shoes he had been wearing on the night.  Rowsell’s DNA was not found on the deceased.  The defence argued that Rowsell may not shed DNA as CCTV footage showed the two hugging earlier in the night.  However, there was no evidence of Rowsell’s DNA despite evidence that the murder involved close contact and the application of force against the deceased for a period of three to five minutes.
  7. [57]
    When one considers these significant differences in the evidence, it was reasonably open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that Rowsell killed the deceased.
  8. [58]
    Once that hypothesis was excluded by the prosecution, it was reasonably open, on the whole of the evidence, for the jury to be satisfied beyond reasonable doubt that the appellant murdered the deceased.  In particular:
  1. the appellant was seen in the company of the deceased at a time which must have been close to the time she died;
  1. the appellant told lies which incriminated him;
  1. the appellant’s DNA was found on the deceased’s jeans and in particular, at each end of the left leg, which suggested that he removed them;
  1. the evidence supported the deceased having been strangled or choked with her jeans;
  1. the absence of any suspects other than the appellant and Rowsell.

Disposition

  1. [59]
    The appeal should be dismissed.
  1. [60]
    DAVIS J:  The appeal should be dismissed.  I agree with the reasons of Flanagan J.

Footnotes

[1] R v Schafer [2017] QCA 208 at [131] per Philippides JA.

[2]  (1994) 181 CLR 487.

[3]  At 494–495; see also R v Baden-Clay (2016) 258 CLR 308 at [66].

[4]  [2017] QCA 220 at [24].

[5]  (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.

[6]  (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ.

[7]  [2017] QCA 99 at [4].

[8] M v The Queen (1994) 181 CLR 487 and 494.

[9]  (2020) 268 CLR 123 at 144–145 [37].

[10] R v Baden-Clay (2016) 258 CLR 308 at [57].

[11]  Appellant’s Outline (conviction), [34].

Close

Editorial Notes

  • Published Case Name:

    R v Trebeck

  • Shortened Case Name:

    R v Trebeck

  • MNC:

    [2022] QCA 107

  • Court:

    QCA

  • Judge(s):

    Mullins JA, Flanagan J, Davis J

  • Date:

    17 Jun 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC8/16 (No citation)28 May 2019Date of conviction of murder after retrial (see [2018] QCA 183); identity only real issue; Crown’s circumstantial case relied on, inter alia, opportunity, accused’s DNA on deceased’s jeans, which were said to have been used to strangle her, and incriminating out-of-court lies; accused testified that Crown witness killed deceased while accused was engaged in sex acts with her, having given various out-of-court accounts which belatedly inculpated witness, whose DNA was not found on deceased.
Appeal Determined (QCA)[2022] QCA 10717 Jun 2022Appeal against conviction dismissed; accused challenged conviction on ground that jury’s verdict unreasonable; reasonably open to jury to be satisfied that Crown excluded hypothesis that another person killed deceased; reasonably open for jury to conclude that accused guilty of murder: Flanagan J (with whom Mullins JA and Davis J agreed).

Appeal Status

Appeal Determined (QCA)

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