R v Wegener[2024] QCA 100

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with Boddice JA.
2. [2]
   BODDICE JA:  On 14 November 2022, a jury found the appellant guilty of the offence of murder.
3. [3]
   On 17 November 2022, the appellant was sentenced to life imprisonment.  A period of 1,424 days in pre-sentence custody was declared to be time served in respect of that sentence.
4. [4]
   The appellant appeals his conviction, on two grounds.  First, that a miscarriage of justice occurred, given the introduction of character evidence during the cross-examination of the appellant, without seeking leave under s 15 of the Evidence Act 1977 (Qld) (“the Act”).  Second, that the prosecutor’s conduct during the trial occasioned a miscarriage of justice, by making unfair submissions in closing address that did not reflect the evidence given at trial; and by denigrating the appellant’s case and the appellant in his closing address.

Indictment

5. [5]
   The indictment alleged that on 21 August 2018, at Brisbane in the State of Queensland, the appellant murdered Benjamin Alexander Suttie (“the deceased”).
6. [6]
   The Crown particularised the appellant’s criminal conduct as unlawfully causing the death, by inflicting a wound to the deceased’s neck.
7. [7]
   The Crown alleged that at the time the appellant did this act, he intended to cause either death or grievous bodily harm to the deceased.
8. [8]
   At trial, it was admitted that the appellant was present when the deceased was cut; that the appellant had the cutting implement; and that the cut caused the death of the deceased.
9. [9]
   There was also no dispute as to the time, date and place of injury; as to who was present at the time; or as to the nature of the injury and its cause.  What was in issue, was whether the appellant possessed the necessary intent; whether the Crown had negatived self-defence; and whether the appellant had established a partial defence of provocation, such that he was guilty of manslaughter, not murder.
10. [10]
    The Crown case was that the following facts, combined together, proved the appellant’s guilt beyond reasonable doubt:

    1. that the appellant “picked” a fight with the deceased;
    2. that the fight had only progressed to a scuffle, without injuries, before the appellant produced the cutting implement, a knife;
    3. that the deceased was unarmed, did not pretend to be armed, and did not say he was going to produce a weapon;
    4. the physical contest was relatively even, prior to the introduction of the knife;
    5. no injury was inflicted on the appellant;
    6. the appellant produced the knife when he and the deceased were standing face-to-face, scuffling;
    7. the knife was extremely sharp and rigid;
    8. due to the positioning of two wounds, the appellant targeted the deceased’s throat;
    9. the appellant fled immediately, despite it being obvious the deceased was bleeding profusely;
    10. the appellant disposed of the knife, such that it was never found;
    11. the appellant told his daughter not to tell anyone what had happened;
    12. the appellant offered no violence to anyone else; and
    13. the appellant attempted to locate and speak to a witness in the days following.
11. [11]
    The Crown relied on five matters as post-offence conduct evidencing a consciousness of guilt on the appellant’s part of the offence of murder.  First, the appellant ran from the scene.  Second, the appellant disposed of the knife at or around this time.  Third, he actively avoided police.  Fourth, he told his daughter not to speak to police.  Fifth, he texted another male in his group in the days following, wishing to speak to him, having obtained his details from a family member.

Evidence

12. [12]
    Late on the evening of 18 August 2018, the deceased was in a park at Woodridge, he was in the company of his son, Zac, another male, Rory and a female, Emma.  Prior to entering the park, the deceased had consumed a large quantity of alcohol.
13. [13]
    At around the same time, the appellant entered the park with his 8-year-old daughter, D, his brother David, David’s 4-year-old daughter, B (“B”) and another male, Ben.
14. [14]
    The two groups were travelling in opposite directions.  As they traversed the park, the groups crossed paths.  A verbal altercation between the appellant and the deceased deteriorated into a physical altercation.  There was another physical altercation between Zac and David.  The relevant altercations lasted only minutes.
15. [15]
    Members of the respective groups gave evidence at the trial.  There were variances in their accounts of the circumstances of the altercations.  What was not in dispute, was that at the conclusion of the physical altercations, the deceased had a wound to his neck, which bled profusely.
16. [16]
    Medical evidence was led that the deceased sustained two cuts from a knife.  One was a superficial cut, 35 millimetres in length and one millimetre in depth, on his right cheek.  The second, to the right front side of the neck, was four to six centimetres long, 3.6 centimetres deep and severed his carotid artery.  The blood loss caused the deceased to experience hypoxia and would almost inevitably have resulted in death without near immediate surgical intervention.  As a consequence of the hypoxia, the deceased’s life support was turned off and he died on 21 August 2018.

Deceased’s group

17. [17]
    Zac gave evidence that they entered the park walking in single file.  The lighting was very poor.  Zac described the deceased, when they entered the park, as showing signs that he was affected by alcohol, “Just happy, active, having a laugh”.^[1]
18. [18]
    As they approached Ewing Road, they observed a group still on Ewing Road.  There were three males and two children, heading towards the park.  One male was wearing a side satchel slung from his left shoulder.  A second male wearing a high-vis tee.  A third male wore clothing he could not recall.  They were walking essentially beside each other.
19. [19]
    As the groups passed, the deceased said in a friendly, non-aggressive way, “How’s it going guys?”.  The appellant, who was the male wearing the side satchel, aggressively replied, “Have a go, cunt – you’re getting cheeky?”.  The deceased responded, “It’s nothing like that, man. We’re just saying g’day”.  At that point, the male wearing the high-vis (it was not in dispute it was Ben) said to the deceased, “What are you doing Benny?” in an aggressive tone.  The deceased responded, “Nothing, cunt”.
20. [20]
    Zac said thereafter events happened very quickly.  The appellant pulled something out of the satchel and swung in the deceased’s direction, in a horizontal arc, striking him just under the right eye.  At that point, the deceased’s hands were empty and down by his side, and he was not moving in any particular direction.  The deceased reacted by walking backwards.  The deceased took a step, maybe two, backwards and the appellant moved a few steps forwards.  The swing was towards eye level.
21. [21]
    Zac said at that point the man in the high-vis jacket tried to hit Zac, three or four times.  Zac evaded the punches, bobbing and weaving, before grabbing the man’s collar and throwing a punch of his own.  He pushed the man towards the ground.  The third male went to hit Zac, so he dropped the man in the high-vis shirt.  Zac said he went backwards to get beside the deceased, who was walking backwards.  The appellant was still coming towards the deceased.  As the deceased reached the bollards, he fell backwards.  The appellant was still standing in front of the deceased, facing Ewing Road.  The other two males had run off towards the park.
22. [22]
    Zac said he attempted to help the deceased up.  The deceased stood up like he did not need help.  At that point, the appellant ran away.  Zac noticed the deceased had his hands around his throat.  The deceased said, “The cunt stabbed me in the throat”.  There was blood everywhere coming from the deceased’s throat, out of his fingers and down his shirt.  Zac took off his shirt and wrapped it around the deceased’s throat in an effort to stop the bleeding.  It did not work.  Zac tried to walk the deceased towards a chemist on Ewing Road.  Rory and Emma were on the phone contacting the ambulance.  The deceased collapsed once they crossed the road.  Ambulance and police arrived shortly thereafter.
23. [23]
    In cross-examination, Zac accepted he was 190 centimetres tall and weighed up to 70 kilograms at the time of the incident.  He agreed that the area of the park was very dark, near enough to black; that they were all intoxicated when they left the club; that his memory of the events could be described as a bit of a blur; that after they saw the other group, the deceased said something like, “It’s Woodridge – it’s Woodridge, stand behind me” and “if anything happens, protect yourself”;^[2] and that the deceased took the lead in continuing to walk through the park.
24. [24]
    Zac agreed that the deceased used the words “nothing cunt”, before he saw the appellant put his hand towards the satchel.  He had never met any of the people in the other group and had never heard their voices before.  He accepted that at committal he had said that the statement, “What are you doing, Benny?” occurred within a second of punches being thrown.^[3]
25. [25]
    Zac accepted that when he saw the appellant reach into the satchel, he was engaged in a fight with the man in the high-vis jacket.  His interaction with that man affected his ability to see what was happening with the deceased.  The reaching into the satchel and swinging at the deceased all occurred in a matter of seconds.^[4]  Zac did not see anything in the appellant’s hand.  Zac saw the appellant swing once at the deceased.  He did not see it connect.
26. [26]
    The time between the swing at the deceased and the time he saw the deceased trip over, was no more than “20 to 30 seconds, tops”.  He only saw the deceased trip over once in the park.
27. [27]
    Zac accepted that he spoke to Rory and later to Emma, about what might have happened at the time.  He had a number of conversations with Emma after he had made his first police statement, on those subjects.
28. [28]
    Zac disagreed with the suggestion that the interaction between the two groups occurred when the deceased approached the appellant and said something like, “Pretty effing rude, pretty fucking rude” and “look after your kids better”.  He denied that the deceased struck the appellant somewhere around the back of the head.  Zac did not ever see the deceased throw punches that night.
29. [29]
    Rory said at around 11.00 pm he, Emma, the deceased and Zac travelled towards shops in Ewing Road, through the park.  As they travelled down the path, they noticed there was a party, about 20 to 30 metres in front of them, towards Ewing Road.  Rory could not fully tell, at that time, whether there were children or adults in the group.  It was quite dark in the park.  Rory said the deceased called out, “Hop behind me.  I know what Woodridge is like.  Stay behind us”.  The other group were just standing together, not moving.
30. [30]
    As they approached the group, Rory noticed there were three male adults and two children in the other group.  The deceased asked the group, “How is your night going?”.  His tone was happy, chirpy.  The response from the other group was, “What do you mean how’s our night going?”, in an angry tone. There commenced to be a bit of back and forth between the groups.  There was swearing.  Neither Zac nor Rory were saying anything.
31. [31]
    By this time, both groups had stopped.  The deceased and Zac were in front facing two males in the group.  Rory and his partner were behind them.  Rory was trying to get Emma towards the road a bit more.  One of the males in the front had a satchel.  The other had a grey hoodie.  The third man had a high-vis jacket.  He was behind the two males, with the two children.
32. [32]
    Rory and Emma continued to walk towards Ewing Road.  As they did so, Rory heard a bit of a scuffle.  He turned around and saw Zac and another male were having a bit of a scuffle.  He also saw the deceased with someone at that point.  The men were wrestling with each other.  Both had a hold of their shirts.  There was not much throwing of punches.  Rory said he heard someone say, “What are you doing, Benny?”.  That was after a few words had been spoken by both sides and before the scuffling started between them.
33. [33]
    Rory said the scuffle became more intense.  The parties starting splitting up a little.  One of them produced a taser.  Rory did not actually physically see it.  He saw a light coming from it and heard it.  He also heard someone say, “I’ll tase you”.  At that point, Rory grabbed Emma and ran across the road.  As he turned to assess the situation, he saw the deceased stumbling backwards.  Zac was standing next to the deceased.  Rory could not see the other people or the children.
34. [34]
    Rory heard Zac call out, “Dad’s just been stabbed”.  Rory ran straight back across the road, and started ringing triple zero.  By then, the deceased had stood up; Zac was holding him.  The deceased was holding his own neck.  When the deceased lifted his hand off, blood squirted out about 5 metres.  Rory helped Zac bring the deceased across the road.  Zac took his shirt off and wrapped it around the deceased’s neck.  As they approached a shop, the deceased collapsed and hit the ground.
35. [35]
    In cross-examination, Rory accepted that he had told police Zac was his best mate; that the deceased had had a fair bit to drink; and that they were all very intoxicated.  Rory would not describe himself as intoxicated; he had only had four beers or so.  Rory accepted he had described the deceased as blind drunk all day and that the deceased was being really cheeky at the club.  The deceased was always cheeky.
36. [36]
    Rory said when he first saw the other group, they were stationary.  It was at that time he had heard music.  As his group started moving towards Ewing Road, the other group started moving towards them, walking at a normal pace.  He accepted that as the group got closer, the deceased “walked with a bit more of a step to him … walking with a bit of a hot step”.^[5]  The deceased was the first person in any of the two groups to speak.  The deceased spoke with a bit of gusto.  One of the adults in the other group said something back to the deceased like, “What do you mean, how’s it going?”  That started a verbal argument back and forth.
37. [37]
    The verbal argument escalated to include more than polite words.  There was swearing between both parties.  He could not recall who grabbed who first.  There were two separate scuffles, one involving Zac and the other involving the deceased.  He saw only one punch get thrown towards Zac.  Zac and the deceased were the two biggest people in the group.
38. [38]
    Rory accepted that he saw Zac take a person to the ground.  It was a pulling action with both hands on the collar.  Rory did not hear the deceased say something like, “Pretty fucking rude” or “Look after your kids better”.  He did not hear the deceased swear until the argument started between the two groups.
39. [39]
    Emma said that prior to leaving the club she was feeling happy, not too drunk.  Rory was the same.  When walking through the park, Emma saw three males and two children, standing, listening to music.  As her group walked past them, the deceased asked, “how’s it going and then they took it the wrong way”.^[6]  Emma described the deceased as being cheeky, but speaking in a friendly tone.  The reaction, by one in the group, was angry.  The deceased responded as if he was a bit offended.  At that point, the two groups stopped and a verbal altercation became a fist fight.  The deceased was fighting one male and Zac was fighting another male.  The men were throwing punches at each other, not really connecting.  The third male was standing next to the two children.
40. [40]
    Emma said after they crossed Ewing Road, she turned around, maybe a couple of minutes maximum later.  The three males and two children were running back into the park.  The deceased was stumbling towards them.  Zac was holding onto the deceased, helping him across the road.  The deceased was holding his neck.  She could see blood going across the road.
41. [41]
    In cross-examination, Emma accepted that when they entered the park, the deceased was very intoxicated.  She agreed the music coming from the direction of the other group was very loud.  As they approached that group, the deceased said something like “there might be trouble”.  The deceased was the first person to say anything.  She accepted that in her police statement she said that people in the other group did not reply to the deceased and that, later, she heard the deceased say, “That’s pretty rude”.^[7]
42. [42]
    Emma agreed there was yelling and swearing between the groups.  She saw Zac pull somebody to the ground.  At the same time, the deceased was engaged in a fist fight with another man.  Both of them were exchanging punches.  At one point she saw the deceased fall hard over some bollards, backwards onto his back.
43. [43]
    Emma did not recall the deceased ever saying, “Look after your kids better”.  She did not see the deceased throw a punch and hit a male in the back of the head.  At the time she heard the deceased say, “That’s pretty rude”, Emma believed there had been a verbal response from one person in the other group.  That person was a bit angry.

Appellant’s group

44. [44]
    David Wegener gave evidence that he could not remember seeing the appellant at all that night.  At that time, he was drinking a lot.
45. [45]
    D was spoken to by police on 23 August 2018 and 29 August 2018.  Those interviews were recorded and played to the jury.
46. [46]
    In the first interview, D, then aged 8 years, told police that she had come to talk to them about a stabbing.  She said she had been sitting in the lounge when her mother turned on the news.  It was on a weekend when she was meant to go to the appellant, but she remained with her mother.  The news item was saying something about a stabbing, someone playing loud music and someone wearing an orange jacket.
47. [47]
    When interviewed on the second occasion, D told police that she had told her mother about a secret; they had been walking through the park playing loud music on a speaker when her father told D and B to hop on his back and shoulders.  A man approaching from behind said, “Stop bossing your children around”.  He hit her father around the mouth or nose.  Her father then punched him once.  Uncle David punched another person, then Ben was hitting another man.  Ben was wearing an orange vest, work pants and a hat.  Ben told B and D to walk to E’s (“E”) house.  They were halfway there when her father came walking up.  D said her father told her not to tell anyone.
48. [48]
    D said it was really dark.  She could not see what the man walking behind them was wearing, but he was with three other people.  They were all adult-ish looking, about his height.
49. [49]
    B spoke with police on 4 September 2018.  At that time, she was 4 years of age.  She told police she saw her Uncle Harley punch a boy and a girl.  Her dad also punched the other ones.  Her Uncle Harley “was gonna stab them, but they took his knife”.^[8]  In evidence, she said did not see Uncle Harley punch a girl.
50. [50]
    Ben gave evidence that he was six foot tall and about 75 to 80 kilograms, in August 2018.  On the afternoon of 18 August 2018, he consumed about 10 beers.  David Wegener arrived at his house and they continued drinking.  Later, they went to the houses of other people, before ultimately meeting up with the appellant.  That was the first time Ben had met the appellant.
51. [51]
    Ben said he left the house with David, the appellant and two girls and travelled through a park.  The appellant was playing loud music.  As they entered the park, another group approached from the opposite direction, walking towards Ewing Road.  It was dark and he could not make out their faces.  When both groups met, a fight started between them.  The appellant and another person in the other group were fighting.  Ben did not see how it started.  He could not remember anything being said between the groups.  He did not know who threw the first punch.  David was having a confrontation with another person.
52. [52]
    Within 10 seconds of the altercation commencing, Ben said it looked like the other person got stabbed.  Ben saw the appellant move his right arm straight forward, like a punch.  The other person had their hands down by their side.  The appellant stabbed that person.  Ben saw blood and the other person falling over.  Blood was coming from his neck area.  Ben was standing behind the appellant, about five to 10 metres away, immediately before seeing the blood.
53. [53]
    There were three people in total in the other group.  The third person was a female.  Only two people from the other group were engaged in fighting.  Ben did not get involved in any of the fighting.
54. [54]
    Ben said after the appellant made that punching movement and the other person was bleeding and falling over, the appellant yelled out, “run” and ran back into the park away from Ewing Road.  David, Ben and the two children ran as well.  Ben said  he used his phone as a torch going back through the park.  The appellant yelled to Ben, who was at the very back of the group, to turn the torch off.
55. [55]
    Ben did not see the appellant or David again that night, as he ran a different way.  They were heading towards Defiance Road.  He ran into Whitely Street.  On Sunday 19 August 2018, he received a message from the appellant.  He had not previously received any messages from him.  The appellant asked Ben to ring him.
56. [56]
    In cross-examination, Ben accepted that you could not see more than 3 or 4 metres in the park; that he was intoxicated and still a little drunk as he travelled through the park; that he was the only person wearing a high-vis jacket that night; and that when they went into the park that night, they were walking at a normal pace.  He did not recall anything about the verbal exchanges between the two groups.  He was on the phone at the time.  He agreed he had previously said (at committal) that there was an initial verbal altercation like “You want to have a go?”.  David and the other man were exchanging words of the same character.  It was coming from both sides.  The yelling lasted for about 15 or 20 seconds.
57. [57]
    Ben did not see who threw the first punch.  It happened so fast after the yelling.  The physical exchange lasted 15 to 25 seconds.  Ben did not see the act of stabbing.  He saw a blood spray and a man holding his neck.  Ben was never able to confirm if the appellant actually had a knife, in his hand, at that point.
58. [58]
    Ben did not recall the appellant speaking to the children, just prior to the two groups meeting.  He did not recall the deceased saying, “Pretty fucking rude” and “Look after your kids better”.  All of that conversation “is new to me”.^[9]  He agreed that the appellant did not run after the deceased.

Aftermath

59. [59]
    Sarah Muhammad was driving along Ewing Road, on the evening of 18 August 2018, when a man banged on the front of her car.  When she looked at the passenger side, she saw someone holding his neck with one hand.  On his chest, there was blood.  She drove further along, stopped and called police.
60. [60]
    Police officers attended the scene on the evening of 18 August 2018.  A call was received at approximately 11.00 pm.  Police first attended the scene about 30 seconds later.  The deceased was on the ground being helped by Zac, who was holding what looked like a wound on the deceased’s neck.  There were two other people there, one male and one female.  There was a large amount of blood.  Initially the deceased was moving a bit, but within seconds he was completely unresponsive.  There was a great deal of blood spurting from an arterial bleed out of his neck.  Resuscitation was commenced by police.
61. [61]
    A critical care paramedic attended the scene on the night of 18 August 2018.  She was dispatched at 11.08 pm and arrived at 11.15 pm.  No other ambulance officers were in attendance at that time.  A man lying on the footpath was completely flat on his back.  A police officer was performing resuscitation, in a standard way.  A second police officer was applying pressure to the man’s neck.  There was blood around the patient and the police officer, indicating there was an injury under the area where pressure was being applied to the neck.
62. [62]
    An examination revealed a laceration on the right side of the upper neck.  When pressure was removed, blood spurted from the wound, indicating that a major vessel within the neck had been severed.  The patient remained unconscious the entire time.  A breathing tube was inserted and other ambulance officers arrived to assist in his treatment.  At no time did the patient show any improvement in his conscious level.
63. [63]
    A medical officer for the Queensland Ambulance Service attended the scene at approximately 11.30 pm.  Her assessment revealed that the patient was in cardiac arrest and had been intubated on the scene.  She observed a linear, horizontal laceration over his anterior neck, approximately four centimetres in length.  There was a small wound to his back as well.  There was no active bleeding as the patient was in cardiac arrest.  There was, however, a significant quantity of blood on the man and at the location.
64. [64]
    The laceration to the neck involved a major vessel.  The cardiac arrest implied that the patient had lost a significant volume of blood to the point that the heart no longer had anything to pump.  Any active bleeding would have involved spurting from the wound, implying that it was arterial rather than venous bleeding.  The medical officer administered blood, adrenaline and other medication.  The patient was taken from the scene about 10 minutes after midnight and transported to hospital.  By that stage the patient had improved to a narrow complex heart rhythm with no pulse.
65. [65]
    The surgeon who attended to the deceased in hospital specialised in head and neck exclusively.  He first examined the deceased at about 1.15 am on the morning of 19 August 2018.  There was an external wound, around six centimetres in length, to the patient’s neck.  It was quite a deep wound and involved the carotid artery, the largest artery in the neck, supplying the brain, head and neck structure.  The wound was a very clean wound, obviously done with a relatively sharp instrument.  It was almost identical to the wound that would be created by a surgical scalpel.  The doctor, who had been treating similar injuries for more than 15 years, had never seen an injury with such a clean transection before.
66. [66]
    Surgery was performed to reconnect the two ends of the carotid artery.  The deceased was placed in intensive care, where he remained until 21 August 2018.  By that date, his prognosis was terminal.  He had suffered a hypoxic brain injury, caused by the transection of the carotid artery and the significant loss of blood at the scene, with consequent cardiac arrest.  A decision was made to withdraw life support.  The deceased died shortly thereafter.

Autopsy

67. [67]
    A forensic pathologist undertook an autopsy of the deceased on 23 August 2018.  Her exterior examination of the body revealed recent injuries to the head, neck, trunk and limbs.  The injury to the neck was a sharp force injury to the interior side, which had undergone recent surgical intervention to the carotid artery.  There was no other finding that related to the deceased’s cause of death.  There was a facial injury, being a 35 millimetre incised wound on the right cheek.  It was quite superficial.  Its edges were sharp and clean, consistent with being produced by a sharp object or a blade.
68. [68]
    The pathologist opined that the injury to the neck was consistent with an incised wound, usually performed by a slashing motion.  A stab wound, which is deeper into the body, is usually caused by a thrusting motion.  Once the deceased received the cut transecting his carotid artery, his prospects of survival were extremely slim.  You would need surgical intervention within minutes to stop the bleeding.
69. [69]
    A toxicology report revealed that the deceased had a blood alcohol concentration of 0.268 per cent.  Tetrahydrocannabinol was also present.  The relevant blood sample was taken shortly after midnight on 19 August 2018, around two hours after the incident.  Neither of those findings were significant to the cause of death which was attributed to multi-organ failure due to sharp force injury to the neck.
70. [70]
    In cross-examination, the pathologist accepted that the deceased’s blood alcohol level, at the time of the injury, would have been higher as he had received significant fluid resuscitation before the blood sample was taken.  A knife propelled towards the neck of the person at the speed of a punch, could cause the injury, if the blade was sharp.  However, if that motion was used to cause the injury, the pathologist would expect it to be deeper in the centre, because of the curvature of the cheek.  The abrasions, bruises and lacerations observed could have been caused by the deceased falling down.  Some may also have been received during resuscitation efforts.  The deceased did not have any injuries which would be typically referred to as defensive injuries.  The injuries to the cheek and the neck would have been as a consequence of two applications of force, with a blade.

Investigation

71. [71]
    A police dog handler attended the scene shortly after 11.00 pm on 18 August 2018.  He placed the police dog in a tracking harness and commenced the command to seek and track human scent.  The dog tracked the scent through the park to a residential complex.  E lived in that complex.
72. [72]
    A police officer was tasked to undertake door knocks around the vicinity of the park on 19 August 2018.  The residence occupied by E was doorknocked that day.  No investigations of that unit were conducted that day.
73. [73]
    The lead investigator into the death of the deceased detained the appellant on 23 August 2018.  As part of the investigation, photographs were obtained from security recordings at the local club for 18 August 2018.

Other

74. [74]
    F gave evidence that she had previously been in a relationship with the appellant.  They had a daughter.  On 18 August 2018, their daughter was in the appellant’s custody.  She returned on the afternoon of 19 August 2018.  After that weekend, police contacted her, wanting to talk to their daughter.  Initially she told her daughter to tell police that she had been with her.  She did not want the involvement of Child Safety.  She later told police the truth.
75. [75]
    In cross-examination, F agreed that she did not tell her daughter to lie to police to protect the appellant.  She did not want Family Services involved in their lives.
76. [76]
    Robert Wegener was the younger brother of the appellant and David.  He had organised a birthday party for Sunday 19 August 2018.  On the day before, the appellant attended his residence for about 10 to 20 minutes.  He appeared to have had a few drinks.  He did not attend the residence on 19 August 2018.  In the days following, the appellant contacted him asking for Ben’s number.  He had not previously seen Ben and the appellant together.
77. [77]
    E was in a relationship with the appellant on 18 August 2018.  She had known him only a few weeks.  She lived at her unit with her two daughters.  On 18 August 2018, she and the appellant went out separately.  The appellant had not returned prior to her falling asleep that night.  The appellant woke her by a knock on the window.  She let the appellant into her unit.  She was awoken by her daughter the next day who said police were at the door.  Police were knocking on everyone’s door in the unit complex.  The police officer did not come into the unit.  She did not see any blood in the unit and the appellant did not ask her to wash anything for him.
78. [78]
    In cross-examination, E accepted that at this time in 2018, she was heavily addicted to ice.  It was difficult to remember things from time-to-time.

Appellant

79. [79]
    The appellant gave evidence that on the afternoon of 18 August 2018, he drank at least a bottle or two of Bourbon with Coke.  He had a few more drinks later when he returned to his sister’s house.  His daughter, D and niece, B, were present at that house, as was his brother, David.  It was decided to drop the girls off  at E’s residence.  They had been in a relationship for a week and a half, maybe.
80. [80]
    The appellant left with David, Ben and the two girls at about 10.30 pm.  The appellant was carrying a side satchel over his right shoulder.  There was a Bluetooth speaker in it.  He used Bluetooth on the phone to select songs to play through the speaker.  The appellant was also carrying a mobile phone and a knife.  The knife was like a fishing knife.  It had a silver blade.  It was a sharp knife.  He carried it because he felt safer walking through what was a pretty rough neighbourhood.  He had previously been beaten and robbed in that area.
81. [81]
    The appellant said he was playing music as the group moved along.  When he reached the corner of Ewing Road, he put his niece on his shoulders because she tended to run and stop in the middle of the road.  He told his daughter he would put her on his shoulders when they had crossed the road.  The appellant crossed first, followed by David and Ben.  His daughter was holding his shirt as he crossed the road.
82. [82]
    As they entered the park, his niece was still on his shoulders and his daughter was out in front, but she stopped as the park was dark.  David and Ben were coming up beside him.  The music was still playing.  They were walking along a dirt path.  As they approached a clump of trees, the appellant saw the silhouettes of four people: two walking in single file and two behind, side-by-side holding hands.  The two at the front were taller than the two at the back.
83. [83]
    The appellant said he stopped because his daughter was asking to get on his shoulders.  The lighting was really dark at this point.  As the other group approached, the man in front tripped as he had gone off the path to walk around them.  He did not recognise the man or anybody else in the group.  He later found out that it was the deceased, his son and their two friends.
84. [84]
    The appellant said as this happened, his daughter was asking to get on his back.  He said, “Just wait a minute” and looked to his right where the man was stumbling towards the creek.  At that point the man regained his balance.  There was no music playing through the speaker, just the sound of repeated bongo drums.  As the man started to walk back up from the creek area, he said, “That’s pretty fucking rude” and “Look after your kids properly”.  The appellant said he reached into his bag and turned the speaker off.  He then turned and said, “[W]hat’s your fucking problem, cunt?”.^[10]
85. [85]
    The appellant said the balance of the group had passed them.  As he turned to look at them, he felt a smack in the back of the head.  He started to exchange punches with the deceased.  The ground was moist and the appellant slipped onto his backside.  The appellant saw that his knife had fallen out of his pocket.  He grabbed the knife with his left hand.  When he looked up, the deceased was leaning down towards him.  The appellant put his left hand out and pushed the deceased off to keep him back while he got up with his right hand.
86. [86]
    The appellant did not know how many times he pushed the deceased, but he remembered pushing him once and then stepping out with his hand still out.  He made contact with the deceased’s chest.  He also felt the blade of the knife make contact with what he thought was the deceased’s shoulder.  The appellant denied that he wanted to kill the deceased, or to cause him harm.  He did not want to hurt him, he just pushed him out to keep him back while he stood up.  He knew nothing of a taser; he saw no taser that night.
87. [87]
    When he got to his feet, the appellant looked around.  The deceased had stopped.  David was on the ground with somebody on top of him.  He ran to push the man off him.  That man then jumped up and ran towards Ewing Road.  David got up to start to chase them.  The appellant told him to just leave it, “let’s go”.  Ben was standing just in front of David.  The two girls were standing next to Ben.  The appellant said he started running.  David, Ben and the girls also ran.
88. [88]
    The appellant said they ran, following the creek through the park.  He wanted to get out of there because the girls were screaming.  He knew he had made some contact with the deceased, but did not know he had cut him on the neck.  The knife was still in his hand at this time.  When he picked his niece up, he threw the knife away.  It was on the edge of the creek.  The appellant said as they were running he looked back and saw that Ben had a torch going on his phone.  He told him to turn the torch off.  At that point, he could see that the other group were in the middle of Ewing Road.  There was a car with its headlights on facing them.
89. [89]
    The appellant continued along the creek to E’s unit.  He tapped on the side window and she let him in through the front door.  E asked him what had happened because the girls were shaken up.  He said there had been a fight.  David and the two girls stayed with him in the unit that night.  He did not know where Ben went.  He had taken another route.  The last time he saw him was when he told him to turn off the torch.
90. [90]
    The appellant said the next night the news reported that somebody had been stabbed in the park.  He then knew that somebody had been badly hurt.  A couple of days later, the news said the person had died.  That was how he knew the name of the deceased.  The appellant said he was shattered.  He told his daughter not to tell any of her mother’s side of the family.  He did not want them involved.  He also rang his brother Robert and asked if he had seen Ben.  He wanted to let Ben know not to tell people as he had decided he was going to hand himself in.
91. [91]
    In cross-examination, the appellant said he was not glad that the deceased was dead.  He was sad.  He also said that he loved his daughter and his niece; that he had been in a relationship with E for at least a week and a half, but had known her for at least a month or so; that she was, to his knowledge, a fairly heavy drug user and that he knew on 18 August 2018, that she dealt in drugs.^[11]  The appellant agreed that he was going to drop his daughter and niece off at E’s unit before going out with his brother to collect something.  He agreed he had never previously taken his daughter to that unit.
92. [92]
    The appellant said he had owned the knife for a while, probably a few months.  He had been given it by David, who had bought it new, for a birthday gift.  He had not sharpened it, but he knew it came sharp.  He had previously carried a knife.  This knife was bigger.  The previous one was only a small pocket knife.  He had been bashed and robbed a few months before he was given the knife by his brother.  He had, however, carried a knife before that for the same reason.  He did not report the robbery to police, even though he had received injuries and had had items taken from him.  He did not go to hospital.
93. [93]
    The appellant said the knife had a leather case, enabling it to be worn on a belt.  He had lost it.  He agreed on this night he was carrying a very sharp knife in his tracksuit pants.  It made him feel safe.  He could show it, but not use it.  He had been in a number of fights in the past and on one occasion he did show a knife.  It was just a pocket knife.  It had a positive effect, the people left him alone.  On that occasion there were three people.  The pocket knife folded back into itself.
94. [94]
    The appellant denied that the only reason he carried a knife was because it was something he could use as a weapon.  He did not need to use it.  He agreed the knife he was carrying did not need to have the blade unfolded and that it was extremely sharp, much sharper than a pocket knife.  The slightest contact could have cut flesh.  If you applied any significant force with the knife, you would cut a person very badly.  He did not intend to make contact with the knife.  He denied he was just saying this to try and justify his position.
95. [95]
    The appellant said as the other group approached, his group stopped to let them go past because the path was darker there.  There was nothing threatening about the behaviour of the group.  None of them appeared to have anything in their hands.  None of them were yelling or screaming.  They were walking in single file.  The appellant said the deceased said hello first, as he was coming around the edge of the pathway.  The appellant did not say anything at that stage, nor did anyone in the appellant’s group.
96. [96]
    The deceased said hello in a reasonably friendly tone.  There was nothing aggressive about his behaviour.  He was not shaping up for a fight.  The appellant said the deceased’s tone, when he said “Take better care of your kids”, was a little bit cheeky.  It caused the appellant offence.  He responded, “What’s your fucking problem, cunt?”, probably a little bit aggressively.  He denied that he wanted to start a fight with the deceased.  He had his daughter and niece with him.  He accepted he was taking them through a dark park where he had previously been robbed, to drop off at someone’s house that he had only known two weeks,^[12] but said that was the route he would take to E’s house.  He denied it was nonsense that he was worrying about his children.  They always cut through that park.
97. [97]
    The appellant accepted that when the deceased said those words, things were obviously heating up and he was concerned about the safety of his daughter and niece.  The appellant said if he had been on his own with his daughter, he probably would not have said anything, but because he had his brother there to watch the children, he said something.  They did not intend on fighting with the group when they first saw them.  He accepted that what he said in response was a challenge to a fight, but said he was not challenging him to a fight.  He was asking him what was his problem.  He expected they would just keep on walking.
98. [98]
    The appellant said it was a complete shock when he was hit to the back of the head.  He did not know why the deceased hit him.  There was not much force and no injury.  The appellant started throwing punches at the deceased and the deceased started throwing punches back at him.  They were closed fist punches.  The appellant was putting force into it.  A couple of them struck the deceased before the deceased started punching back.  That was when the appellant slipped over onto his backside.
99. [99]
    The appellant said although it was pretty dark, the knife was silver and he was right on top of it.  He did not have to feel around for it.  He picked it up straight away.  As he grabbed the knife, the deceased was coming over the top towards him.  He had his hands out to grab the appellant.  There was nothing in the deceased’s hands.
100. [100]
     The appellant said he could see the outline of the deceased’s head, neck and chest.  He used his left hand to push the deceased back.  He had the knife in that hand.  The edge of the blade was facing towards the deceased.  The knife blade was probably 15 centimetres long.  He did not put the knife straight out.  The whole purpose of using the hand with the knife was to keep the deceased off him so that the appellant could get up.  He denied that he was trying to cut the deceased with the knife.
101. [101]
     The appellant said that he felt his hand touch the deceased’s chest, around the middle.  The deceased then just stood back up, turned and walked toward Ewing Road.  He did not say or yell anything.  He did not hear the deceased say, “The cunt’s stabbed me”.  The appellant accepted he yelled out for everyone to run.  As soon as he had pushed the person off David and David went to chase after them, he said “Let’s go”.  He did not know where the other two in the deceased’s group had gone to and he did not look for them.
102. [102]
     The appellant said when he was running away, he did not think he had severely injured anyone.  He knew he had made contact with the deceased, but did not know that contact had been made to his neck.  He thought he had pushed him off on his shoulder.  He did not think the blade of the knife had cut the deceased at all.  Out of all of the punches that were being thrown, he knew that only one or two had connected.  He thought he had done nothing wrong.  He had been attacked.  He threw away the knife because he was picking his niece up.  She was crying and hysterical.  The appellant said he was not going to pick up his niece with the knife in his hand.  He did not think of slipping the knife back into his pocket.
103. [103]
     The appellant accepted he was running because he was worried that the people may come after him.  When he arrived at E’s unit he knew they were safe.  He denied he did not make a complaint to police because he knew he had cut the deceased’s throat.  He denied that he threw the knife away to make sure it would not be found.  He did not ever go back to look for it.  He did not know why.
104. [104]
     The appellant said a few days later, he called his younger brother to see if he had seen Ben.  He did not know what had happened to Ben.  He was concerned for his safety.  He denied it was because he had heard that Ben was speaking to people.  He denied he was trying to make sure that Ben did not implicate him.
105. [105]
     The appellant denied that he had taken the knife from the satchel that was over his shoulder.  He denied that he struck the deceased with two swinging blows with the knife, aiming at his head and neck region.  He denied that his intention was to kill or to at least do the deceased grievous bodily harm.  The appellant did not mean to hurt the deceased in any way.  The appellant said he did not see the deceased fall over.  He did not see any blood.  He denied running away because he knew he had done serious harm to the deceased.  He denied telling his daughter not to tell the police what had happened.  He denied telling her to say he had been hit in the back of the head.

Consideration

Ground 1

106. [106]
     The prosecutor commenced the cross-examination of the appellant as follows:

“Sir, are you glad or sad that Ben is dead?---I’m not glad.  I’m sad, yep.

Why are you sad?---Because he’s one of my best friend’s mates brother’s – my best friend is his older brother or half-brother.

And when did you become sad?---After I’d seen on the news.

Right.  Now, sir, you love your daughter, D?---Yes.

And you love your niece B?---Yes.

And at that time there was – that is, the 18^th of August, there was a shared parenting arrangement with B’s mother – sorry, D’s mother?---Yes.  Yep

And you would see her some weekends?---Yes.

When was the last time prior to this weekend that you had D over?---It would’ve been the second – like, the – every second weekend I see her, so would’ve been - - -

Every second weekend?---Yep.

You hadn’t missed any weekends before that?---No.

All right.  Now, how long had you been in a relationship with E?---At least a week and a-half.

All right?---I’d known her for at least a month or so, but - - -

Okay, but become intimate?---Yep, within a week and a-half.  Yep.

All right.  Now, she was a fairly heavy drug user, wasn’t she?---Yes.  Yep.

And, in fact, she dealt in drugs?---Yes.

And you knew that on the 18^th?---Yes.”

107. [107]
     The cross-examination was then interrupted by an objection from defence counsel, on the grounds of relevance.  In the absence of the jury, the prosecutor declined to state the relevance of the line of questioning at that point, as it would give the defence “an unfair advantage and the witness and opportunity to counteract the very effective tool of cross-examination the prosecution is possessed of”.^[13]  The prosecutor asked for a degree of latitude, which the trial judge was initially prepared to allow.
108. [108]
     Defence counsel maintained an objection, on the basis that the questioning breached s 15(2) of the Act, in that it allowed questions that tended to show that the appellant was of bad character, in circumstances where no application for leave to adduce such evidence had been made by the prosecution.  The prosecutor’s response was that none of the questions asked and answered had run contrary to s 15(2), as the line of questioning was not directed to bad character.  On the basis of that assurance, the trial judge overruled the objection.  Later, the prosecutor contended that the line of questioning was relevant to credit and not directed to bad character, as it showed that the appellant “behaved inconsistently with the care for his daughter on that particular night”.^[14]
109. [109]
     Section 15 of the Act provides:

“Questioning a person charged in a criminal proceeding

1. Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with which the person is there charged.
2. Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless—
   1. the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of the offence with which the person is there charged;
   2. the question is directed to showing a matter of which the proof is admissible evidence to show that any other person charged in that criminal proceeding is not guilty of the offence with which that other person is there charged;
   3. the person has personally or by counsel asked questions of any witness with a view to establishing the person’s own good character, or has given evidence of the person’s good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding;
   4. the person has given evidence against any other person charged in that criminal proceeding.
3. A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court’s permission.
4. If the proceeding is a trial by jury, an application for the court’s permission under subsection (3) must be made in the absence of the jury.”

110. [110]
     Compliance with the requirements of s 15 are essential, if an accused person is to have a fair trial.  As was observed in R v Wands:^[15]

“This statutory rule makes a principle of ‘policy and humanity’ that seeks to ensure against injustice being inflicted upon an accused.  It does so by denying the usual right to cross-examine as to credit by reference to previous bad character because of the danger of propensity reasoning.  The right to cross-examine about an accused’s bad character is therefore subject to the cross-examiner justifying that course by satisfying one of the statutory exceptions and, even then, it remains subject to the judge’s discretion to forbid the intended questions.”

111. [111]
     In my view, the prosecutor’s cross-examination of the appellant was in breach of s 15 of the Act.  The evidence led called into question the appellant’s character, in that he was prepared to leave his young child with a person he barely knew, who was, to his knowledge, a dealer in dangerous drugs.
112. [112]
     This conclusion is supported by the use of the evidence in the prosecution’s address.
113. [113]
     In address, the prosecutor said:

“… you may have thought that the accused has sought to say that part of his reaction was based on his concern for his daughter, D.  But you know that there are a number of problems with his vaunted concern for his daughter.  One is having her out at that hour of the night.  Another is taking her through the park.  As you saw, he could’ve just gone straight down Jen Street, a well-lit area, and on – into Defiance Road and up to 35 that way.  Instead, he took her through the park.  Next off, he was going to leave her with his partner, someone that he had not known very long; they’d only been intimate for about a week and a-half.  Someone he knew was using drugs and someone he knew dealt him drugs.  And D had never met her.

Now, you might think all of that’s no – I’m not trying to comment upon the accused as a father or his character generally, but when he says to you that one of the reasons – through his counsel, for his actions and his behaviours that night, one of the reasons why he did the things he did, one of the things that fed his reactions and constructs his narrative is his concern for his daughter.  It doesn’t ring true.  Because, you see, he wasn’t even there on the Saturday, and on Ms F’s account, D had been dropped off on the Friday.  So you might think that that’s yet another example of the shapeshifting nature of both the accused’s narrative and his credibility. …”

114. [114]
     Contrary to the prosecutor’s contentions, his address was a direct attack on the appellant’s character.  The appellant’s knowledge of E’s drug dealing and his failure to be home on the Saturday, had nothing to do with the events in the park that night, or to any determination of a central issue in dispute at trial: intention.
115. [115]
     Whilst evidence of the recency of the appellant’s relationship with E and, perhaps, his knowledge that she was a user of drugs, may have been relevant to an assessment of the creditworthiness of any assertion that he was concerned for the welfare of his daughter and niece, at the time the events unfolded in the park, those contentions could properly be the subject of cross-examination and submissions to the jury, without leading evidence of the appellant’s knowledge of E’s dealing in drugs.  That line of questioning was to show that the appellant was not merely lacking credit, he was a person not of good character who maintained a relationship with a person who, to his knowledge, was engaging in serious criminal activity.
116. [116]
     Such evidence was not admissible, except with the leave of the court.  No application was made and accordingly, the evidence was inadmissible.
117. [117]
     The admission of that evidence was an irregularity properly characterised as a “failure to observe the requirements of the criminal process in a fundamental respect”.^[16]  The appellant was entitled to a trial where rules of procedure and evidence were strictly followed.^[17]
118. [118]
     That departure from a trial according to law, was to the prejudice of the appellant.  A central issue in dispute at trial was whether the appellant struck the deceased with the knife, intending to kill, or at least cause him grievous bodily harm.  The appellant had given sworn evidence that he did not intend to kill or cause grievous bodily harm to the deceased.  In order for the jury to convict, the Crown had to satisfy the jury, beyond reasonable doubt, that that evidence was untrue.  The leading of inadmissible evidence as to character had a particular significance, in these circumstances.
119. [119]
     Whilst the trial judge directed the jury:

“Second, with reference to the evidence of E, you heard evidence that Harley Wegener, the defendant, knew that E was involved in drug dealing.  Now, we did not hear any evidence about what sort of drug dealing, but that is the evidence that we heard.  You have heard how the Prosecution, in its closing, referred to why it is relevant, or why the Crown says it is relevant, that the accused knew about E’s drug dealing.  But there is no inference of bad character of the defendant to be drawn from that evidence.  So let me put that a different way, hopefully a clearer way: you cannot draw from the evidence that Harley Wegener knew E was dealing in drugs to conclude that Harley Wegener is of a bad character.  You are not to do that.”^[18]

that direction did not overcome the miscarriage of justice occasioned by the admission into evidence of inadmissible material prejudicial to the appellant.  The evidence ought not to have been used for any purpose.

120. [120]
     Further, it cannot be said that that miscarriage of justice did not deprive the appellant of a fair chance of acquittal, on the count of murder.  Whilst the Crown case, when regard is had to the expert evidence as to the nature of the injury and its consistency with Zac’s account of the events that night, was strong, there was a real risk that the impermissible undermining of the appellant’s character was used by the jury to reject the appellant’s sworn evidence as to intention.
121. [121]
     It was not contended by the respondent that if the court concluded that the evidence was inadmissible, it was an appropriate case for the substitution of a verdict of manslaughter.
122. [122]
     As the appellant was deprived of a fair chance of acquittal of murder, the miscarriage of justice was substantial.  The proviso has no application.  Accordingly, the appellant is entitled to a re-trial.

Ground 2

123. [123]
     It is unnecessary to consider the second ground of appeal.

Orders

124. [124]
     I would order:

1. The appeal be allowed.
2. The verdict below be set aside.
3. There be a re-trial.

125. [125]
     DAVIS J:  I agree with Boddice JA.