R v Wagner[2025] QCA 29

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  The factual matters that are necessary to understand the issues in this appeal are stated in Wilson J’s judgment.
2. [2]
   At the beginning of the oral hearing of this appeal, the appellant sought leave to place psychiatric opinion before the Court as to conditions from which he suffers.  This was an unusual course, but the Court granted leave on the basis that it would assist in understanding the appellant’s personality and the way in which he presented his case.
3. [3]
   The appellant sought leave to amend his notice of appeal.  The Crown did not oppose this and the Court gave that leave.  The outlines filed on behalf of the appellant at times departed from the grounds in the original and amended notices of appeal.  The appeal was conducted on the basis that the Crown was prepared to meet the substance of the arguments in the two outlines.  I proceed on this basis.
4. [4]
   The appellant’s case was presented in a more detailed, prolix and confusing manner than most self‑represented cases.  The appellant’s original outline of argument was extremely lengthy (outline 20 June 2024).  He was ordered to file a second summary outline of no more than 10 pages, which he did (16 July 2024).  He made extensive oral submissions at the hearing.  In dealing with the appeal I have tried to identify the real points raised by the appellant and overlook the prolixity and confusion in his arguments.

Grounds 1, 5, 6 and 7

5. [5]
   The appellant relied upon the decision in M v The Queen to say that the verdict below was unreasonable.^[1]  He made three main points.  The first concerned the evidence of Mr ABC.  So far as it concerns Mr ABC’s evidence, the unreasonableness ground overlaps with grounds of appeal 5 and 7 (using the numbering in the summary written argument).  Ground 5 was that the trial judge failed to give the jury an explanation of the operation of ss 13A and 13B of the Penalties and Sentences Act 1992 (Qld) when warning the jury about whether Mr ABC’s evidence should be accepted.  Ground 7 was that Mr ABC’s notebook ought not to have been before the jury.  For convenience those grounds are dealt with in conjunction with the part of ground 1 concerning Mr ABC’s evidence.
6. [6]
   The second main point on the unreasonableness ground concerned the evidence of Messrs Snow and Doyle.  The third main point concerned the evidence of Ms Teodorescu.  This part of the argument in relation to unreasonableness substantially overlapped with ground of appeal 6.  Again I deal with ground 6 in the course of discussing the unreasonableness arguments.  There were also some submissions about the circumstantial nature of the case made in support of the unreasonableness ground.

Mr ABC’s Evidence

7. [7]
   The appellant said that Mr ABC’s evidence was unreliable given his history of dishonesty and the advantages Mr ABC had to gain for himself in giving evidence against the appellant.  He attacked the link made by the prosecution between Brooke Wagner’s evidence and Mr ABC’s evidence.  He submitted that Mr ABC’s evidence should not have been placed before the jury.  Independently, he submitted that the notes Mr ABC made of his conversation with the appellant, in which the appellant confessed, should not have been before the jury.
8. [8]
   Mr ABC was a fraudster.  The trial judge gave the jury “a particular warning about the danger of acting on the evidence of Mr ABC without first scrutinising his evidence carefully” – t 43.  He told the jury that evidence of a fellow prisoner of an alleged confession might easily be concocted, and that such evidence was hard to refute.  The trial judge reminded the jury of the defence submission that Mr ABC was a dishonest man and a practised liar.  He reminded the jury of what the defence said about Mr ABC’s motivation to gain an advantage in his own sentencing by giving information to the police about the appellant.  He said:

“I warn you that it would be dangerous to act on the evidence of Mr ABC unless there is independent evidence substantially confirming it.  You should scrutinise his evidence with great care.  You should consider whether certain evidence substantially confirms what Mr ABC says about the defendant having admitted the offence to him.” – t 43.

9. [9]
   He discussed what that direction meant at some length, assisting the jury with the reasoning process they would need to undertake to decide whether or not there was independent evidence substantially confirming what Mr ABC said.  He discussed the defence contention that Mr ABC’s evidence was based on the Courier-Mail article dealing with the first trial, and invited the jury to consider whether or not there were other sources of information Mr ABC might have had.  At the conclusion of this part of the summing-up the trial judge reminded the jury to scrutinise the evidence of Mr ABC with great care.  That seems to have been the fourth express warning given on the topic.
10. [10]
    There is no legal basis for the appellant’s submission that the entirety of Mr ABC’s evidence should have been excluded.  It was relevant and highly probative.  Matters relevant to Mr ABC’s credibility were explored in cross-examination and in addresses.  The judge gave sufficient warning to the jury about these potential difficulties.  It was a matter for the jury whether they accepted Mr ABC’s evidence.
11. [11]
    There were two matters which might have strongly inclined the jury to accept Mr ABC’s evidence.  Both of them are particularly challenged by the appellant in relation to this ground.  The first is that Mr ABC knew that the appellant’s niece or cousin visited him during the time he was killing his uncle and that she heard activity in the house, including a muffled voice at that time.  The jury was entitled to conclude that Mr ABC could not have known this detail unless the appellant had told him of it.  Further, they were entitled to conclude that the appellant could not have known of the visit, and the timing of the visit, unless (contrary to what he told police) he had been at home at the time Brooke Wagner came to his house.  This was strong evidence against the appellant and nothing he raised on appeal diminished its strength.  To the contrary, the appellant made long and detailed submissions comparing his statements to police about his whereabouts at the time Brooke Wagner said she visited his home with Brooke Wagner’s evidence.  These submissions were tangential to the real point of significance for the jury, which was the comparison between Brooke Wagner’s evidence and what Mr ABC said the appellant told him.
12. [12]
    At times in his submissions the appellant submitted that ABC’s notebook was inadmissible because it was irrelevant.  It clearly was not irrelevant.  Similarly, there are indications in the appellant’s outline of argument that he contended the notebook ought to have been excluded because it was more prejudicial than probative.  Again, there can be nothing in this contention where objection is taken to a confession to the crime charged.  At another part of his submissions the appellant submitted that the judge’s directions in relation to the notebook were inadequate.  At other times the appellant appears to assert that the tender of the notebook offended the rule against self-corroboration.
13. [13]
    There might have been something in this last point except that the tender of the notes came about in a way described by Wilson J.  The opportunity for tender came about because defence counsel challenged the contemporaneity of the notes.  That decision on the part of defence counsel could not be challenged as incompetent; it was clearly a decision taken in the interests of the appellant in an attempt to destroy the impact of very strong evidence led against the appellant.  However, once the challenge to the evidence of Mr ABC was made, s 101 of the Evidence Act 1977 (Qld) applied and the notes became admissible.  Once the document was admitted, s 101(1)(b) applied, and Mr ABC’s notes became admissible as evidence of their contents.
14. [14]
    The appellant has not raised any basis on which Mr ABC’s notes ought to have been excluded from evidence.  Nor having reviewed relevant matters can I see any other basis for their exclusion.  There was no need for the trial judge to give any specific warning in relation to the notes.  This part of the unreasonable verdict argument must fail, as must ground 7 of the appeal.
15. [15]
    There is no requirement at either s 13A or s 13B of the Penalties and Sentences Act for any specific direction to be given if a witness gives evidence after having given an undertaking pursuant to these sections.  The appellant contended that nonetheless the judge ought to have explained the effect of these sections pursuant to his general duty to instruct the jury as to the law applicable to the case and the evidence – s 620(1) Criminal Code 1899.
16. [16]
    There was no evidence in the trial that ABC had given an undertaking pursuant to s 13A or s 13B.  The matter was not put to Mr ABC by either counsel.  The appellant asserts that the trial judge ought to have intervened and questioned Mr ABC so as to elicit evidence that undertakings had been given pursuant to ss 13A and 13B.  That suggestion must be rejected.  There is no reason to think the trial judge would have been aware of any evidence that had not been led before him, and the appellant was represented by competent defence counsel who did not ask Mr ABC about the matter, or ask the prosecutor to tender any such undertakings as existed.  Indeed, there is no evidence before this Court that Mr ABC gave any undertaking pursuant to ss 13A or 13B.
17. [17]
    The judge addressed the jury on this point in accordance with the evidence in the trial:

“You should have regard to Mr ABC’s admitted commission of dishonesty offences in 2011 and between 2013 and 2016. You should have regard to what he stood to gain or thought he stood to gain by giving evidence against the defendant. Would he have known that co‑operation with police would be taken into account in sentencing? You may think that if he thought about it, he would have known that co‑operation with police in relation to the defendant might be taken into account in mitigation of sentence.

You should therefore take into account the possibility that Mr ABC may have been motivated to fabricate his evidence, thinking that he’d derive some benefit in terms of sentence, treatment in prison or an earlier parole eligibility date.

Consider the evidence that he gave about his motivation in speaking to police.” – t 43.

18. [18]
    I cannot see that anything further was required from the trial judge.  This argument in support of the unreasonableness ground must fail.

Mr Snow and Mr Doyle

19. [19]
    The second main point made in support of the unreasonableness ground related to the evidence of Mr Snow and Mr Doyle.  Again, it was submitted that their evidence should not have been placed before the jury, or it was of a type which required a warning in accordance with Robinson v The Queen.^[2]
20. [20]
    These submissions were based on credibility and reliability problems with the evidence.  By the time of trial Mr Snow was dead and although a statement was tendered, the jury had no ability to assess his credit in the witness box.  As well, there had been collusion between Mr Snow and Mr Doyle as to their evidence.  Both Mr Snow and Mr Doyle had discreditable and dishonest conduct in their past, and Mr Doyle said that Mr Snow was a habitual liar.  There were differences between their accounts and there were differences between the accounts Mr Doyle gave at various different times.  When attending to serve a summons on Mr Doyle a particular police officer said to him, “The only thing we want is something to convict Robert Wagner”, although even the appellant acknowledges that the police officer’s evidence was that statement was made in the context of explaining to Mr Doyle that the police wanted formal evidence of the information he had been asserting he had.^[3]
21. [21]
    The argument that the evidence of Mr Snow and Mr Doyle should not have been before the jury must be rejected.  Their evidence was highly relevant and admissible, in the case of Mr Snow, pursuant to s 93B of the Evidence Act 1977 (Qld).
22. [22]
    There were certainly problems with their credit and reliability and in my view the judge gave the jury sufficient warnings as to this.
23. [23]
    In relation to three witnesses whose evidence was admitted under s 93B of the Evidence Act, the judge explained the evidence was hearsay and was admitted under a particular provision of the Evidence Act.  He told the jury that hearsay evidence may be unreliable, so that there was a need for caution in relation to that evidence, firstly as to whether or not it should be accepted at all, but if it was accepted, as to the weight that should be given to it – t 14.  The judge repeated that warning specifically in relation to Mr Snow a little later in the summing-up – t 17.  Mr Snow had been examined on oath before the Crime and Corruption Commission and had been cross-examined by the appellant’s lawyers at a committal.  The judge instructed the jury that they had not had the advantage of seeing and hearing him, so that there was a need for caution in deciding to accept thing he said on those different occasions.
24. [24]
    The trial judge took some time summarising the substance of Mr Snow’s evidence.  He pointed out to the jury that his evidence included non-contentious matters and matters which were exculpatory of the appellant.  He explained to the jury that there was a threshold issue as to whether or not they regarded the contentious parts of Mr Snow’s evidence as credible and reliable.  He reminded them again that they had not heard or seen Mr Snow – t 26.  The trial judge directed the jury that in assessing Mr Snow’s credibility they were to have regard to the circumstances under which the statements were made and whether “there was an imperative to tell the truth” – t 27.  They were to consider any motivation Mr Snow had in speaking to the police and whether he had any reason to falsely accuse the appellant.  They were to have regard to Mr Doyle’s assessment of Mr Snow, which in turn required them to consider the reliability of Mr Doyle’s evidence.
25. [25]
    The trial judge told the jury they needed to carefully assess the reliability and credibility of Mr Snow’s evidence and told them, “You should scrutinise the evidence of Mr Snow with care before acting on it where he may have had, depending on your view, a financial incentive in the form of the publically-offered reward to implicate the defendant” – t 28.  In that regard the trial judge drew to the jury’s attention that the police contacted Mr Snow; Mr Snow did not contact the police.  Nor did Mr Snow apply for the reward, or indeed give evidence which was to the effect that the appellant had made an express confession.
26. [26]
    In my view the trial judge appropriately warned the jury about Mr Snow’s credibility and reliability.  His directions to the jury in relation to Mr Snow were detailed, fair and balanced.
27. [27]
    Having dealt with Mr Snow’s evidence, the trial judge said to the jury that he would speak to them about Mr Doyle’s evidence.  He directed the jury that, “The same care should be applied in assessing the credibility and reliability of his evidence” – t 34.  Again he pointed out to the jury that Mr Doyle had not applied for a reward, and had not contacted police; police contacted him.  Nonetheless he warned the jury that they should scrutinise his evidence with care because of the possible existence of a financial incentive to implicate the defendant.
28. [28]
    The trial judge discussed the detail of Mr Doyle’s evidence and appropriately discussed whether or not the jury could regard that as being evidence of confessions by the appellant.
29. [29]
    He reminded the jury that in cross-examination Mr Doyle’s credibility and reliability were tested in a number of respects.  He reminded the jury that Mr Snow and Mr Doyle had spoken to each other about their evidence and reminded them of cross‑examination on behalf of the appellant designed to use that fact to discredit both Mr Doyle and Mr Snow – t 37.  The trial judge reminded the jury of cross-examination of Mr Doyle about the police offer for reward.  He again warned the jury to scrutinise Mr Doyle’s evidence because of this potential for a financial incentive to implicate the appellant – t 37.
30. [30]
    He reminded the jury of inconsistencies between Mr Doyle’s evidence and the evidence of a Mr Duncan – t 38.  He reminded the jury of Mr Doyle’s poor view of Mr Snow’s creditworthiness and personality.  The trial judge raised other things as to Mr Doyle’s evidence with the jury.  He concluded by saying, “So just by way of summary or conclusion in relation to Mr Doyle’s evidence, I repeat my earlier direction that you should exercise great care in assessing the credibility and reliability of the evidence of Mr Doyle.  It’s a matter for you as to whether you rely upon it and, if so, what weight you give to his evidence.” – t 40.
31. [31]
    Again, I cannot see any legitimate criticism in the way the trial judge instructed the jury as to Mr Doyle’s evidence.  This argument in support of the unreasonableness ground must fail.

Ms Teodorescu

32. [32]
    The third main argument advanced in support of the unreasonableness ground was the evidence of Ms Teodorescu having seen someone who she identified as the deceased driving in a car after his reported disappearance must have created a reasonable doubt as to the prosecution case that the appellant murdered his uncle on 7 January 1999.
33. [33]
    The trial judge correctly told the jury that they should treat this evidence with caution for the reason that it is quite possible for an honest witness to make a mistake about identification.  He also told the jury that the observation was fleeting, of someone in a moving car, and only for a few seconds.  I would add that it was from a distance.  The trial judge told the jury that it was a matter for them what they made of Ms Teodorescu’s evidence.  That was correct.  There was no compelling reason that the jury should rely upon that evidence rather than the other overwhelming evidence all pointing in the direction that the deceased had died on or about 7 January 1999.^[4]
34. [34]
    By ground 6 of his appeal the appellant contended that the direction set out above diminished Ms Teodorescu’s evidence.  It was submitted that in fact her evidence raised a reasonable doubt.  As explained, her evidence stood at variance to an otherwise impressive body of evidence strongly supporting the idea that the deceased died in January 1999.  Her evidence was not, of itself, compelling.  The direction the trial judge gave was fair to the appellant.

Circumstantial Case

35. [35]
    Lastly in his original outline of argument, the appellant made reference to the circumstantial nature of the Crown case and complained about the judge telling the jury that his statement to police contained deliberate lies showing consciousness of guilt.  That the Crown case was circumstantial, except for the evidence of Messrs ABC, Snow, Doyle and Ms Wagner, may be accepted.  Having reviewed all the evidence, it was a strong circumstantial case.
36. [36]
    The trial judge did not tell the jury that the appellant had deliberately lied in his statement to police, or that these deliberate lies showed a consciousness of guilt.  The trial judge gave an Edwards direction, explaining to the jury how careful they had to be in reasoning about the prosecution’s submission to this effect.  There is no proper basis for complaint in this regard.
37. [37]
    Grounds 1, 5, 6 and 7 of the appeal must be dismissed.

Ground 2

38. [38]
    By this ground the appellant contends that his 1 May 2000 diary entry, “Is there anything in my statement which is suspicious?” ought not to have been admitted, and alternatively that directions given about it caused the trial to miscarry.
39. [39]
    The appellant had lost a pre‑trial application under s 590AA of the Criminal Code as to the admissibility of this diary entry.  The appellant’s counsel sought to revisit this ruling at trial and the trial judge refused to revisit the issue; he found no special reason shown to do so within the meaning of s 590AA(3).  It is clear from his original outline of argument that the appellant seeks to challenge both the original ruling as to admissibility and the trial judge’s refusal to revisit it.  It is only necessary to consider the first of those arguments.
40. [40]
    The appellant argues that the diary entry was more prejudicial than probative and should therefore have been excluded by the trial judge in order to ensure a fair trial.^[5]  The appellant relied upon his counsel’s submissions below that the diary entry, “has absolutely no probative value whatsoever given that he was in the midst of another criminal matter”.^[6]  It was said to be prejudicial because to put the diary in context the appellant would be forced to elicit evidence that he had faced other criminal charges, and because any implication that the appellant made the entry because he was anxious that his police statement would incite suspicion that he had killed his uncle was just speculative.
41. [41]
    The difficulty with the point relating to the statement’s probative value, and the first of the two points about prejudice, was that the evidence was that the appellant had only ever given one police statement, and that was in relation to the murder of the deceased; he had never given any police statement in relation to the other charges he faced.
42. [42]
    The only real question then was whether or not the diary entry could support an inference that the appellant had a guilty mind and was worried that he had betrayed himself in the police statement he gave about his uncle’s disappearance.  In my view the evidence was capable of supporting such an inference on a rational, not speculative, basis.
43. [43]
    The Crown relied upon the diary entry as an implied admission and a perfectly adequate Edwards-type direction was given in relation to it – see the extracts from this part of the summing-up in Wilson J’s judgment.

Ground 3

44. [44]
    At the beginning of his summing-up the trial judge gave a very broad overview of the Crown case.  He made the distinction between direct and circumstantial evidence.  He referred to the confessional evidence as direct evidence and then told the jury that even if they were not satisfied that there had been a confession by the appellant, they would need to consider a circumstantial case made by the Crown.  He then said:

“Some disputed facts which form part of the prosecution’s circumstantial case are more important than others. For example, the prosecution contends, in reliance upon the evidence of Brooke Wagner and other evidence, such as the defendant’s inconsistent accounts of where he was when Brooke Wagner visited his home, that (a) he was present on the evening of 7 January 1999 at the Waterworks Road unit when she visited and (b) the noises which Brooke Wagner reports hearing were of him and possibly her uncle moaning after being attacked in the garage.

The prosecution relies upon the alleged confession to Mr ABC as supporting the conclusion that when Brooke Wagner came round that evening, she heard her uncle moan.

The prosecution case largely depends upon your accepting that the defendant and Gerhard Wagner were present on the evening of 7 January 1999 at that unit when Brooke Wagner made an unexpected visit to her cousin’s home at around 5.20 pm.

Therefore, a key issue is whether you are satisfied beyond reasonable doubt, based upon the whole of the evidence, both circumstantial and direct, that the defendant and Gerhard Wagner were at the Waterworks Road unit at that time.” – t 5.

45. [45]
    It can be seen that this part of the summing-up was in the appellant’s favour, directing the jury to apply the standard of beyond reasonable doubt to an intermediate factual finding.  Nonetheless, the third ground of appeal complains about the underlined sentence in the passage above.  The sentence contains an error by the trial judge – Ms Wagner never gave evidence of hearing a moan; her evidence was that she heard “a muffled voice”, which made her believe that the appellant “was coming to the door” – t 5-45.  This error was drawn to the trial judge’s attention as soon as possible, and the error was corrected as soon as the jury returned to the courtroom:

“Well, thank you. Ladies and gentlemen, I should just correct and clarify something that I said towards the start of my summing up, and it dealt with the prosecution case, the circumstantial case, and in that context, I was outlining what the prosecution contended should be drawn on the basis of Brooke Wagner’s evidence and other evidence. I said that the prosecution contends that her evidence and other evidence and the defendant’s inconsistent accounts of where he was when Brooke Wagner visited his home leads to the conclusion that (a) he was present on the evening of 7 January 1999 at the Waterworks Road unit, and, secondly, the noises which Brooke Wagner reports hearing were of him and possibly her uncle moaning after being attacked in the garage. Just to be clear, that is the prosecution’s contention about what Ms Wagner heard. Her actual evidence was that she heard what she thought was a muffled sound. So I just want to make clear she did not say that she heard a moan. So I would like to clarify that.” – t 34.

46. [46]
    The appellant’s point was that the trial judge ought not to have told the jury that Ms Wagner heard her uncle’s voice when she visited his unit on 7 January 1999.  However, the trial judge did not tell the jury this.  The trial judge summarised the prosecution contention that Brooke Wagner heard her uncle during that visit.  That was an accurate summary of the Crown case.
47. [47]
    In his summary outline of argument the appellant added that Mr ABC never used the word “moan” in his oral evidence.  That was true, but he used the word in his diary which, as explained above, became evidence of the truth of its contents.  In fact ABC’s oral evidence was that the appellant said to him “… he could [hear] somebody outside knocking and his uncle made a noise, so he muffled him” – t 2-88.  That is, the similarity between Mr ABC’s oral version and Brooke Wagner’s version was marked.  I cannot see anything in this argument.
48. [48]
    The remark in the summing-up which contained error was the very beginning of the summing-up as part of a general outline.  The trial judge gave a detailed summing-up and discussed the evidence of Mr ABC and Ms Brooke Wagner accurately and in a detailed way later in the summing-up.  In summarising what Mr ABC said the appellant confessed, the trial judge said:

“He says that the argument was about money, the world and the Gerni, and that Mr Wagner invited his uncle to come over to see the alleged Gerni the following day to his house, that he put a plastic sheet down in the garage, preparing for his uncle to come. When his uncle arrived, he hit him over the head with a hammer in the garage. He says that Mr Wagner said not long after that, he could hear someone outside knocking, and his uncle made a noise, so he muffled him with his hand. He said that the person left a note. He thought it was a niece or a cousin …” – t 41.

49. [49]
    Further, the trial judge said this about Ms Brooke Wagner’s evidence:

“… And you’ve got, then, the body of circumstantial evidence starting with Brooke Wagner’s evidence. She wasn’t being asked to recall these things for the first time five years after the event or 20 years after the event. Her uncle’s disappearance was obviously an important matter in the family once Gerhard Wagner [had] disappeared. And you have to assess the accuracy of her recollection and when she was first asked to recall these matters. She was very specific about the time that she was there by virtue of when she left work, how long it would take there, and that when she wrote the note she wrote 5.20 on it.

So that is evidence that gives you an impression, on the basis of her evidence, when she was there. There are the inconsistent stories from Robert Wagner about where he was at the time. He tells her that he must have been at Woolworths. In his witness statement he mentions possibly being in the shower. I mentioned the evidence from Brooke Wagner about going around and she hears sounds from inside and thinking that she hears a muffled voice. Could it have been something else? So those are matters that you need to consider as part of the circumstantial evidence case.” – t 32.

50. [50]
    There is nothing in ground 3; it is misconceived.

Ground 4

51. [51]
    This ground of appeal is also misconceived.
52. [52]
    The trial judge gave the jury conventional instruction that four elements were necessary to be established before the offence of murder could be proved at the beginning of the trial.  At the beginning of the summing-up he returned to those four elements and gave the jury a short summary of some of the important factual issues for their consideration, including whether or not the deceased died on 7 January 1999; whether the evidence persuaded them that he did not die of natural causes but was killed; whether he was killed by the appellant; whether the killing was unlawful, and if he was unlawfully killed, whether or not the appellant killed him with an intent either to kill him or cause him grievous bodily harm – tt 3-4.
53. [53]
    After that introduction the trial judge discussed the evidence in some detail and returned to the four elements which must be proved to secure a murder conviction much later in the summing-up, t 48.  It appears to be this latter part of the summing-up about which complaint is made.  Again the trial judge told the jury that they needed to be satisfied that the deceased man was in fact dead; that the appellant had killed him, that is, caused his death; thirdly, that the killing was unlawful, and fourthly, that the appellant had an intention to cause death or at least grievous bodily harm.  The judge spent a little time explaining the offence of manslaughter; that is where a killing occurs, but there is no intention to kill or do grievous bodily harm, and went on to say:

“In this case, neither party contends that this is a case in which a verdict of manslaughter is open on the evidence. The position of both parties is that this is not like the example of the punching case that I gave you a minute ago where manslaughter is an alternative offence that is open on the evidence, the prosecution case is that this was an intentional killing. The Defence position is equally simple; the prosecution has not proven beyond reasonable doubt that the defendant killed his uncle. The defendant does not advance as a fall‑back position in the event that you find that he killed his uncle, that he did not have the requisite intent to prove murder.

It does not advance as some fall-back alternative argument that there was some defence – self-defence – some other excuse that would make any killing not unlawful, in other words, excused. Still, you have to be satisfied of that third element that it was an unlawful killing and you need to be satisfied of the fourth element, which is intent in order to return a verdict of guilty to murder.” – t 49.

54. [54]
    The trial judge explained that it was for the prosecution to prove an intention to kill and then went on to explain that intention should not be confused with motive – t 50.  The trial judge recorded that the prosecution’s submission was that the appellant may have had a financial motivation to kill, but went on to say,

“… but motive is not a fifth element. It’s not an element of the offence of murder. I direct you that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility. If, in fact, you decide that there’s no reliable evidence of such a motive and that such a motive did not exist, that does not necessarily mean the prosecution has failed to prove guilt because of the lack of motive. In that event, you would have to base your verdict on the evidence that you do accept. However, the existence of a motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks you to infer guilt and to infer that a person did the act intentionally. If there is a motive, then what might otherwise be inexplicable becomes explicable. So, in summary; although it’s unnecessary for the prosecution to prove a motive – as motive [is not] an element of either murder or manslaughter – nonetheless, the presence or absence of motive may be taken into account when considering whether the prosecution has proved guilt.” – t 50.

55. [55]
    I can see no error in any of these directions.  They were legally correct and fair to the appellant.
56. [56]
    The appellant complains that the judge’s directions were wrongly confined to a deliberate killing, which expressly conditioned the jury to find that it was the appellant, who had a financial motive to kill, who had killed his uncle.^[7]  In fact it can be seen that the judge’s directions were not confined to a deliberate killing.  The question of whether or not the killing was intentional was expressly given to the jury for their consideration.  However, the judge’s job was to describe the evidence in this case, and the issues in this case, and as the judge described to the jury, it was not a case where the defence (or indeed the prosecution) contended there was a sensible basis for a verdict of manslaughter based on lack of intention.
57. [57]
    There is nothing in this ground of appeal.

Ground 8

58. [58]
    In respect of this ground I agree with the reasons given by Wilson J.

Ground 9

59. [59]
    This ground concerns exhibit 44, the fax which is set out at [402]-[413] in the reasons of Wilson J.  The appellant correctly identifies that it was relevant to the Crown case about him having a financial motive to murder the deceased man.  He makes two points.
60. [60]
    First he says that the document did not exist in 1999 and that it is a forgery.  This point was never raised below.  The document was witnessed by Messrs Aaron and Peter Mulholland.  Both those men gave evidence.  Mr Aaron Mulholland was cross-examined, but not about his witnessing the document which was exhibit 44.  Mr Peter Mulholland was not cross-examined at all.  In their evidence-in-chief both witnesses described in detail their journey with the appellant for the express purpose of witnessing the deceased signing a document; the place where they saw the deceased sign the document, and the demeanour of the deceased when he signed it.
61. [61]
    The appellant puts no evidence before this Court which would support his contention that the document which is exhibit 44 is a forgery.  His argument must fail.
62. [62]
    Further, I cannot see any fault in the judge’s remarks about the document to the jury; see the judgment of Wilson J as to this point.  This ground of appeal must fail.

Ground 10

63. [63]
    The appellant complains that he was interrogated at the Crime and Corruption Commission before the trial.  His point seems to be that because he had no claim of privilege against answering questions during that interrogation, he gave a version of events in his evidence to the CCC which prevented him giving evidence at his trial.  Thus, he complains he was not able to answer evidence given by Messrs ABC, Doyle and Snow (in particular) at his trial.  Perhaps because the appellant (understandably) does not wish to speak about the evidence he gave at the CCC, his submissions about this point are particularly obscure.  They seem to rest on an assumption either that evidence he gave to the CCC was not true, or that he desired to give evidence at his trial which was not true.  That is, if the appellant was innocent as he continues to maintain; had given truthful evidence to the CCC, and wished to give truthful evidence at his trial, I cannot understand that there would be any point to make.  As it is, I cannot see that the appellant raises any legitimate point by this ground of appeal.

Disposition

64. [64]
    I agree with the order proposed by Wilson J.
65. [65]
    WILSON J:  On 1 July 2019, the appellant was found guilty of murdering his uncle, Gerhard Wagner, on 7 January 1999.  He appeals his conviction on 10 grounds of appeal that can be summarised as:

    1. the verdict being unreasonable (ground 1);
    2. the learned trial judge making various errors (grounds 2–7);
    3. the prosecution failing to disclose evidence (ground 8);
    4. a facsimile dated 24 November 1998 being wrongly admitted into evidence (ground 9); and
    5. the appellant being denied the choice to give, or not give, evidence because of a coercive investigation by the Queensland Crime and Corruption Commission (CCC) (ground 10).

The prosecution case

66. [66]
    The prosecution case is that the deceased was last seen at about 3.00 pm on 7 January 1999 by his friend, Kelvin Woodward, when they were both at Mr Woodward’s workshop at Hemmant.  The deceased gave the impression that he was driving to his home at Kalinga.  The prosecution case is that he never went home.  Rather, the deceased went to visit his nephew, the appellant, who lived in a unit at Ashgrove which was owned by the deceased.  It is here that the prosecution contends the appellant murdered his uncle.  No body has ever been recovered.
67. [67]
    The prosecution’s precision as to when, and how, the appellant killed his uncle comes from two sources:

    1. the content of the appellant’s confession to Mr ABC whilst they were both in custody; and
    2. Brooke Wagner, the appellant’s cousin, whose evidence dovetails with an aspect of Mr ABC’s evidence.
68. [68]
    The evidence of Mr ABC and Ms Wagner forms the backbone of the prosecution case, such that the jury were directed that the prosecution must prove beyond reasonable doubt that the appellant and the deceased were present at the appellant’s home when Ms Wagner made an unexpected visit there at around 5.20 pm on 7 January 1999.
69. [69]
    The prosecution case also included evidence of other statements against interest made by the appellant:

    1. telling a Peter Snow that the police had accused him of dismembering the deceased’s body and putting it in bags which he disposed of in the Glass House Mountains when police had not made any such allegation; and
    2. telling a Milton Doyle that he had “knocked his uncle off”.
70. [70]
    Further, the prosecution case consisted of a body of circumstantial evidence, including the deceased changing his will to nominate the appellant as sole beneficiary and executor, the appellant owing money to the deceased, the appellant’s poor financial position, and the appellant’s conduct after the deceased went missing.

Relationships between the deceased and others

71. [71]
    The deceased was born in Germany and moved to Australia in 1949 with his family.  He was the oldest of four siblings, with two brothers, Peter and Paul Wagner, and one sister, Erika Palmisano.  The appellant is Erika’s son.  He was close to his family and family members often lent money to each other “on a handshake”.
72. [72]
    Whilst the deceased had a limited education, he could read and write but struggled with some of the words used in financial documents.  Accordingly, he relied on others, in particular his brother, Paul Wagner, and the appellant, in relation to legal and financial matters.  For example, John Cicchiello, the real estate agent who dealt with the attempted sale of the deceased’s Kalinga property, described the appellant being heavily involved in the process.  He stated that, in relation to legal matters, the deceased had complete faith in the appellant and that the deceased repeatedly told him that he trusted the appellant to look after his legal affairs in relation to the property contract.
73. [73]
    For a time, the deceased’s girlfriend, Menchie Clune, and her son, Sam Villegas, as well as the deceased’s father, lived at Kalinga with him.  By the time the deceased went missing, his father had moved to live with Erika Palmisano.  The deceased signed a contract for the sale of the Kalinga property on 27 November 1998.  Settlement for the property was scheduled for 24 February 1999.  The deceased intended to move back to the Ashgrove unit and told Paul that the appellant knew that this was going to occur and, when it did, the appellant would move in with his mother, Erika, at Blyth Road, Murrumba Downs.
74. [74]
    There was evidence from the deceased’s friends and family about the importance of the deceased’s boat to him.  It was described as “his pride and joy”.  The boat was called the Memel, named after the deceased’s birthplace in Germany.  It was moored in the water at Scarborough Marina from 1 May 1998.
75. [75]
    The deceased told his brother, Paul, that he had broken up with Ms Clune, and he thought that she might pursue his assets.  As the deceased did not want to lose any part of the boat, he put the boat in the appellant’s name.  The deceased also put the Kalinga property up for sale.
76. [76]
    There was evidence at the trial that the deceased had a very close relationship with the appellant, with the relationship being described like a father-son relationship.  Aaron Mulholland, a friend of the appellant, described the appellant as being very upset when the appellant told him that the deceased was missing.  The deceased lent money to the appellant.  As of 7 January 1999, it is unknown how much money the appellant owed the deceased.  It could have been somewhere between $85,000 and $300,000.
77. [77]
    However, there was also evidence that, around the time of the disappearance, the relationship between the appellant and the deceased was fracturing.  Robert Eggleton,^[8] a friend of the deceased, described the deceased and the appellant’s relationship in this way:

“Gerry was very fond of Robert though. He spoke highly of Robert but later became concerned about Robert’s use of Gerry’s money. I remember Gerry being upset about him loaning Robert a high pressure water blaster. Gerry told me that Robert had traded that water blaster in for a bigger one and paid for it with Gerry’s money. Gerry was ropeable about it. He was getting quite worked up when telling me about it. I cannot remember when this was. It was just before Gerry went missing, maybe a month before he went missing.

Well before Gerry went missing I noticed his attitude about Robert changing significantly. When we became close and he started to trust me he opened up and discussed his concerns openly. Gerry would tell me that Robert ‘was not playing the game’. That’s how he used to describe it, Robert ‘was not playing the game’.

In the early times, as I have said, Gerry spoke very fondly of Robert then it changed and Robert turned it sour. All I started to hear were gripes about Robert. Gerry would tell me that Robert had done this and Robert had done that. It was all about money and Robert taking Gerry for granted and doing the wrong thing with his money. Even though he griped about Robert, I know that Gerry still had a soft spot for him.” – t 1-42.

Circumstances in which the deceased went missing

78. [78]
    Friends and family of the deceased gave evidence as to the last time they saw him, all of which painted a picture of a content man who had plans for the future.  There was evidence from the deceased’s friends and family that, if he was going to be away, he would always call them, and it was out of character for him to not contact anyone.
79. [79]
    His brother, Peter, last saw the deceased on 5 January 1999 at the deceased’s house in Kalinga, when he helped him with a storage container.  The deceased and his brother took the storage container to Mr Woodward’s workshop to be repaired.  The deceased spoke of moving to the Ashgrove unit, where the appellant lived, and using the storage container at the Ashgrove unit.
80. [80]
    The deceased had a telephone call with a friend, Mr Eggleton, on 6 January 1999 when he rang the deceased about a proposed trip on the Memel.  The deceased did not seem worried, or concerned, about anything.  The deceased proposed to go sailing on Sunday, 10 January 1999.  However, Mr Eggleton could not go sailing on Sunday, and the conversation was left with them planning to go sailing sometime down the track.
81. [81]
    Ms Clune gave evidence that the deceased was going to pick her up from her home to go to the Breakfast Creek Hotel for dinner on the night of 7 January 1999.  However, he never came.  On 13 January 1999, she alerted the deceased’s brothers and the appellant that she could not find him, and, on 18 January 1999, the appellant reported the deceased missing to the police.
82. [82]
    The deceased’s bank accounts have not been touched since 2 January 1999.
83. [83]
    His sister, Erika, last saw the deceased at his house in Kalinga on 4 January 1999.  Around this time, the deceased told his sister that he was dizzy and not feeling well.  On 3 August 1998, the deceased went to his doctor as he had a dizzy spell on his boat.  The deceased’s doctor gave evidence at the trial and was taken through the deceased’s medical history.  Ultimately, the doctor’s opinion was that the deceased was in reasonably good health.

The appellant confessed to ABC

84. [84]
    The appellant, whilst on remand, confessed to Mr ABC that he killed the deceased.
85. [85]
    Mr ABC, by his own admission, is a fraudster and a liar.  He met the appellant when they were both on remand sometime around 15 December 2017.
86. [86]
    Mr ABC and the appellant worked in the print shop for six or seven months, Monday to Friday from 7.30 am to 1.30 pm.  About a month after Mr ABC began working in the print shop, the appellant began discussing his case with Mr ABC.  The main theme of these conversations was that everyone was against him.  In particular, the appellant told Mr ABC an incident involving a boat at Hemmant and Mr Snow and Mr Doyle.  The appellant often spoke about Mr Snow and Mr Doyle.  The appellant said that one was a corrupt informant, and the other was a corrupt ex‑policeman.
87. [87]
    Mr ABC stated that the appellant had documents, that he had written and would read from, about his case.
88. [88]
    In the week before Christmas of 2018 Mr ABC told the appellant that he was making a statement and confessing to the police about his own fraud charges.  Mr ABC told the appellant that making this confession was a relief for him and he felt that a weight had been lifted from his shoulders.  The appellant’s response to this was to confess, in some detail, to Mr ABC that he had killed his uncle:

“Did Mr Wagner respond to you after you told him that you felt a weight had been lifted off your shoulders?---Yeah. He went, sort of, quiet for about 30 seconds. And then he just looked at me and said “I killed my uncle.”

All right. What did you do when he said that he killed his uncle?---Well, I didn’t know what to say. I said “why?” I just didn’t - yeah. My reaction was “why?”

And when you asked Mr Wagner why, did he respond to that question?---He did. He said that he owed his uncle quite a bit of money and that he’d been asking about it. That his uncle was changing his will back to his ex-girlfriend’s or wife’s name and cutting Robert out as well as - I’ve drawn a blank. It was basically around money. Oh, [Gerni].^[9] An argument over a [Gerni], of all things.

Now, so you say Mr Wagner responded and was talking to you about it being over money?---Yes.

And you indicated he also said it was about a change of a will?---Yes.

Did he talk to you about what had happened?---That he’d been the day before or two days before he’d had an argument with his uncle, and I think there was another uncle present, I’m not 100 per cent sure, I can’t recall it. But it was definitely Gerry, his uncle, he’d had an argument with.

And did he say what they had an argument about?---About money, the world and the [Gerni].

And [Gerni?]---Yeah.

And did Mr Wagner tell you what happened after that argument?---He invited his uncle to come over to see the alleged [Gerni] the following day.

Did Mr Wagner say where?---He said out to his apartment or house.

And did he say anything about - so he told you that he had arranged for his uncle to attend his apartment or flat?---Yes.

Do you say anything about his apartment or flat at that time?---He said that he’d put a plastic sheet down in the garage. Prepared for his uncle to come.

And did he tell you what happened when his uncle arrived?---He did.

And what did he say?---He said he hit over the head with a hammer.

Did he say where he was when he did that?---In the garage.

Did Mr Wagner tell you what happened after he his uncle in the head with a hammer?---He said that not long after, he could here [sic] somebody outside knocking and his uncle made a noise, so he muffled him.

Did he say how he muffled him?---With his hand.

Did he say anything about who was knocking on the door?---After - he said that the person had left a note and it was his - I think it was niece, but it could have been cousin. His niece or cousin.

Did Mr Wagner tell you what happened after he muffled his uncle?---He just more or less then said over the next two to three days he proceeded to cut pieces off and chop up the body with a knife.

I was going to ask you that. Did he tell you how he cut up the body? ---Yeah. He was using a knife. He had a knife, a hammer and an axe.

And did he tell you anything else about how he was cutting up his uncle’s body?---No. But it was - the way he was telling me, it was like he was enjoying telling me what he had done. It was quite horrible.

Did he tell you anything about what happened to his uncle’s body?---He said he took a lot of the skin and meat and guts and put them - I’m not sure if he said “the Brisbane river” or “a Brisbane river”.

And did he say how he got them to the Brisbane river? Or a Brisbane river?---I didn’t - I assumed - he didn’t actually say how he got them there.

Did he tell you anything else about what happened to his uncle’s body?---I know that he moved the motorbike. I think his uncle had arrived on a motorbike, I just missed that. He put the motorbike in the garage. He chemically - he got chemicals and tried to chemically clean parts of the body. And what he couldn’t clean he smashed with the hammer and the axe and distributed at the Glass House Mountains.

Did he tell you where at the Glass House Mountains at all?---It was like the gorilla mountain or the gorilla face.

Did he say anything else about where those parts of his uncle had been disposed?---He mentioned the mouth a lot. The gorilla mouth at the gorilla mountain. But it was two locations. There was another location that he didn’t go into as much as the gorilla.

Now you mentioned to us he had referred to using chemicals on the body?---Yeah, he tried to dissolve as much as he could. He disposed of those chemicals and he chemical washed the garage and the whole area, he said.

Did he say how he did that?---Just with chemicals and the [Gerni].

Did he say anything about how he got the body parts to the Glass House Mountains?---No, he didn’t say how he got there.

Did Mr Wagner talk to you at all about where his uncle had been before he arrived?---He’d been at Hemmant I’m not sure if it’s the boat, or a boat but he’d been working on a boat at Hemmant.

And what did he tell you about that? That his uncle was working there?---That he’d been working on the boat and was coming over to the house.

And did Mr Wagner indicate anything else about his uncle having worked over at Hemmant before coming to the house?---No. Just that he was working on the boat.” – tt 2-87-89.

89. [89]
    The appellant told Mr ABC that, for his mother’s sake, he would not be pleading guilty.
90. [90]
    When Mr ABC returned to his cell, he made some notes about his conversation with the appellant.  After exhausting his recollection in evidence, he was allowed to refresh his memory from these notes.  He then gave evidence that the appellant told him that:

    1. he had been to the Glass House Mountains two to three times to dispose of things;
    2. he owed $300,000 in a loan;
    3. there was an argument with two uncles about a generator or Gerni;
    4. he disposed of the hammer and the axe, but he wanted to keep the knife;
    5. “after one week, chemical clean garage”, and
    6. three or four years later, he had gone back to check to see if some of the bones were visible and re-scattered some.
91. [91]
    Prior to making these statements to Mr ABC, the appellant staunchly and consistently maintained his innocence every single day for the six months that Mr ABC had known him.
92. [92]
    In cross-examination, it was asserted that:

    1. Mr ABC obtained details about the appellant’s case by looking at the appellant’s notes where the appellant detailed the allegations made against him, and
    2. the notes made by Mr ABC had been made on several occasions – every time he learned something new about the appellant’s case after having spoken to him in the print shop, or from media reports about the appellant’s previous aborted trial.
93. [93]
    Mr ABC denied such suggestions, and, in re-examination, his notebook was tendered.
94. [94]
    Mr ABC contacted his own lawyer to say he was prepared to speak to police about his conversation with the appellant.  He said that at the time he spoke to police about the appellant he did not know that this assistance might result in his receiving a lower sentence.  By the time he gave evidence he did know this.
95. [95]
    Mr ABC was cross-examined at length about his credibility.  Mr ABC was pleading guilty, the week after giving his evidence at the appellant’s trial, to frauds in excess of $1,000,000.  He accepted that he was a fraudster, a professional liar, and that he fled Australia for New Zealand prior to being charged to avoid being caught.
96. [96]
    Ultimately, the following propositions were put to Mr ABC by the appellant’s counsel:

“All right. Look, I suggest that Mr Wagner never confessed to you. You agree or disagree with that?---Disagree.

Right. I suggest that everything that you have learned and every aspect of the story that you have told this court and this jury has come from a combination of reading Mr Wagner’s notes about the evidence in his trial, talking to Mr Wagner about his trial, news reports, either television or newspaper, and you’ve just then filled in the gaps. Agree or disagree with that?---Disagree.” – t 3-10.

A media report of the appellant’s previous trial

97. [97]
    This appeal is from a second trial.  There had been an article published in the Courier Mail on 21 February 2018 about the first trial:

“FINAL WILL AND ‘DISMEMBERMENT’

Accused had ‘peculiar knowledge’ in death of wealthy uncle, court told

A BRISBANE man murdered his wealthy uncle in a plan to benefit from his will and later admitted he ‘knocked him off’, a court has been told.

Robert James Wagner also allegedly told a friend in graphic detail that police accused him of dismembering Gerhard Wagner and disposing of the body parts in the Glasshouse Mountains, but a jury has heard investigators never made such a claim.

Wagner, 56, yesterday pleaded not guilty in the Supreme Court in Brisbane to the cold-case murder of his uncle, 61, who has not been seen since January 7, 1999.

Prosecutor Phil McCarthy said Robert Wagner orchestrated an amendment to his uncle’s will in late-1998 that gave him ‘complete control’ in the event of the other man’s death.

Gerhard Wagner had $195,000 in the bank and was preparing to retire and sail the world on his large yacht, which he owned along with property in sought-after suburbs Wooloowin and The Gap. He signed the amendment to the will, but Mr McCarthy said his brothers would give evidence that he often relied on the ‘trust of others to explain documents to him’.

Mr McCarthy said Gerhard Wagner was last seen at his friend’s workshop at Hemmant on January 7, 1999, and had promised his former partner Menchie Clune that he would meet her at the Breakfast Creek Hotel that night. He never showed.

Mr McCarthy said that on January 15, 1999, a man alleged to be Robert Wagner purchased gloves, a mask and protective boots at a local shop, with an employee recalling a conversation that he ‘was working with acids’ to clean a garage floor.

It was also alleged that Robert Wagner confirmed to an acquaintance – an ex-police officer – that he ‘had knocked his uncle off’.

The court was told he gave a detailed account to another friend of what he said was the police case against him, but no such allegations were ever made as there was no body.

‘(Robert Wagner said) the accusation made of him by the police service was that he’d been accused of dismembering his uncle’s body, of putting it in plastic bags, placing those plastic bags in hessian bags then disposing of the body in the Glasshouse Mountains,’ Mr McCarthy said. ‘That simply has never been an accusation made by the Queensland Police Service.

‘The crown invites you to conclude that the detail of that allegation … reveals that Robert Wagner has peculiar knowledge of the circumstances of his uncle’s death.’

When the friend asked if it was true, Robert Wagner told him it was not.

Mr McCarthy said police searched the accused man’s home in 2014 and found a 1999 diary, but did not initially seize it as evidence. When they returned weeks later, it was nowhere to be found. But Mr McCarthy said officers discovered a diary from 2000 which included the notation: ‘Is there anything in my statement which is suspicious?’

The court was told there would be evidence Robert Wagner was in a dire financial position when his uncle vanished. The amended will forgave debts he owed to his uncle which he told police was about $80,000, but Mr McCarthy said it could have been as high as $300,000.

He sold his uncle’s yacht for $95,000 in 2001 after advertising it under his mother’s name. ‘The defendant disposed of that money within months,’ Mr McCarthy said.

The proceeds of the sale of the house in Wooloowin were put into a trust account.

The trial continues with more than 40 witnesses expected to give evidence.” – t 3-11, exhibit 20.

98. [98]
    Mr ABC arrived in the same prison unit as the appellant on 15 December 2017.  He got to know the appellant when he started to work in the print shop and he was moved to a cell opposite the appellant on 26 June 2018, some four months after the Courier Mail article was published.

Evidence supporting Mr ABC’s reliability

99. [99]
    Several things Mr ABC swore the appellant told him were in fact true:

    1. the appellant had sacked his lawyers;
    2. there had been a change in his uncle’s will;
    3. there had been an argument with two uncles about a generator or a Gerni;
    4. his uncle arrived on a motorcycle;
    5. his cousin or niece arrived and knocked on the door;
    6. after one week he did a chemical clean of the garage;
    7. he went to the Glass House Mountains to dispose of things; and
    8. Mr Doyle and Mr Snow were giving evidence against him.

The appellant sacked his lawyers

100. [100]
     In the appellant’s discussions with Mr ABC in the print shop, he referred to “sacking” his lawyers.  On 16 July 2018 former legal representatives of the appellant were given leave to withdraw from further representation of the appellant.^[10]

The deceased’s will

101. [101]
     Mr ABC stated that the appellant told him:

“…that he owed his uncle quite a bit of money and that he’d been asking about it. That his uncle was changing his will back to his ex‑girlfriend’s or wife’s name and cutting [the appellant] out…”

102. [102]
     There was evidence of a change in the deceased’s will in 1996, which change was against the appellant’s interests.  There was also evidence of the appellant’s attempting to control the deceased’s estate and owing the deceased money, which it is convenient to outline at this point.
103. [103]
     The deceased signed a will in 1992 which:

     1. appointed the appellant as the executor and trustee of his will;
     2. left his half share of two farming properties to his brother, Paul Wagner, who owned the other half of this property;
     3. left his sister either the Ashgrove unit or the Kalinga house;
     4. devised and bequeathed the rest of his estate in the following way:
     1. half to his brother, Peter Wagner; and
     2. the other half to his nephews, Mark Palmisano and the appellant.
104. [104]
     In 1996, the deceased amended his will.  There is no copy of this will, but there are notes made by a solicitor on 14 May 1996.  They show that the deceased’s assets included: the Kalinga property, the Ashgrove unit, his boat, a no‑interest, unsecured loan of $300,000 to the appellant, and $300,000 cash.
105. [105]
     In relation to the $300,000 loan to the appellant, the deceased told his solicitor that there was no agreement as to its repayment, the appellant was indebted to banks and the deceased lent money to him so that the appellant did not have to pay interest to the bank, the deceased did not want to put pressure on the appellant to repay the money, and the deceased was thinking of persuading the appellant to put one of the appellant’s properties on the market which should have realised about $160,000.
106. [106]
     The solicitor recorded the deceased’s instructions that:

     1. Ms Clune was to receive the Kalinga property (or if the Kalinga property was sold, then a similar house), the contents of the Kalinga property and the Ashgrove unit, and $150,000.
     2. his sister was to receive the Ashgrove unit.
     3. the appellant’s debts would be forgiven.
     4. Mark Palmisano was to receive the appellant’s boat.
     5. Peter Wagner was to receive $100,000 and the rest and residue.
107. [107]
     A will in these terms was executed on 23 May 1996.
108. [108]
     On 24 November 1998, the deceased signed a document cancelling his previous wills and making the appellant the executor of his will with wide ranging powers:

“My name is Gerhard Bruno Wagner of [address] Ashgrove in the State of Queensland.  This fax will serve to authorise the cancellation of all my earlier wills as from the 17^th of November 1988.  I thank you for returning my last will dated the 23^rd of May 1996 when I personally came into your office on the 16^th of November 1998.

As I requested on the 16^th November 1998, please confirm in writing the fact that you have deleted all computer files relating to this transaction and destroy all and sundry of this WILL.

Also confirm in writing that you will not provide as evidence for a court of law any WILLS in my name at any date or provide it to other persons, companies or businesses.

This confirmation is to be sent to my past and current EXECUTOR (same as TRUSTEE), and nephew, Robert Wagner at the above PO Box.

I will be rearranging a significant portion of my assets over the next few months, which will require several changes at different times, and I need greater convenience at an affordable rate. Thankyou for suggesting that I should establish a new WILL as I have now destroyed the above WILL.

To put your mind at ease, until I organise a new in-house one to my satisfaction, my Executor will have the power according to my verbally instructed WILL as of this day to apply the whole of the income, capital, asset or property to which any beneficiaries are entitled either absolutely or otherwise in any manner determined by the interpretation of the Executor. He may control and profit from any investments held by me at my loss even if they are not investments authorised by law and my Executor will not be liable for any loss.

This letter confirms that McLAUGHIN IVEY WOODMAN Lawyers of 554 Lutwyche Road LUTWYCHE Q 4030 no longer represent GERHARD BRUNO WAGNER.” – ex 44.

109. [109]
     The appellant drove his friends Peter and Aaron Mulholland to meet with the deceased in order to witness his signing of this document.  When he signed this document, the deceased told Aaron Mulholland that he was having separation issues and difficulties with his partner and her son, and he was wanting to protect his assets.  Both Mr Aaron Mulholland and Mr Peter Mulholland gave evidence that the deceased looked embarrassed about this situation at the time he signed the document.
110. [110]
     As to the appellant owing the deceased money, a $300,000 debt was recorded in May 1996 when the deceased spoke to a solicitor.  Peter, the deceased’s brother, also gave evidence about a loan in that sum by the deceased to the appellant.  Peter said that the deceased had told him, “he had his boat ready to go around, tripping around, that he was going to start calling some of the loan back in.” – t 5-11.
111. [111]
     When the appellant spoke to the police on 22 January 1999, he stated that he owed the deceased $85,000 for two residential properties that he had invested in.

An argument about a Gerni

112. [112]
     Mr ABC stated that the appellant told him that there was an argument with two uncles about a generator or a Gerni.  Further, that he lured the deceased to the Ashgrove unit under the pretence of speaking to him about the Gerni.
113. [113]
     There was no reference to any Gerni issues in the Courier Mail article published in February 2018.
114. [114]
     Peter and Paul Wagner owned a Gerni and lent it to the deceased.  Unbeknownst to them, the deceased then lent the Gerni to the appellant.  On 4 January 1999, Peter saw a receipt showing that the Gerni had been traded in.  The next day, he went over to the Kalinga house and the deceased told him that he did not know anything about the appellant trading in the Gerni.  The appellant told Peter that he did not trade the Gerni in and that there was a mistake.  The appellant was agitated when he was discussing this.  Peter said the deceased was surprised and a little bit angry, because he knew nothing about it.
115. [115]
     In November 1999, the appellant made a complaint to police about a Gerni.  Police then went to Chelmer Patios and were shown a green Gerni without the hosing.  As a result of information obtained from the owner of Chelmer Patios, Peter Snow was then formally interviewed by police on 18 December 1999 and relinquished the Gerni.  The Gerni was returned by the police to the appellant on 2 June 2000.

The deceased was last seen riding his motorcycle

116. [116]
     Mr ABC stated that the appellant told him that the deceased arrived at the appellant’s house on a motorcycle on the day he killed him.  The deceased left Mr Woodward’s workshop on the afternoon of 7 January 1999 on his motorcycle.  This was the last time anyone saw the deceased.  The deceased’s motorcycle has not been seen since.  There was no reference to this in the Courier Mail article.

Visit from cousin or niece

117. [117]
     Mr ABC’s account of the deceased’s confession is supported by the evidence of Brooke Wagner.  Brooke Wagner is the appellant’s cousin and the deceased’s niece.  On 7 January 1999, she finished work at Milton at 5.00 pm and went to visit the appellant at the Ashgrove unit.  This was an unexpected visit.  Ms Wagner’s evidence was:

“And what happened when you went to see your cousin?---So, as I was pulling into the unit block, I could see that his car was there so I believed he was home. Parked my car, walked down to the front door, knocked on the door. I think I yelled out a few times, “Hi, it’s me, Brooke.” I felt like I – I felt a bit uneasy being there because I looked up and I remember seeing the - - -

Sorry, I?--- - - - [indistinct] and the security screens completely missing from the top window. Which increased my certainty that Robert was home. And I felt like I could hear movement in the apartment, and I believed he was coming to the door. And I heard a muffled voice, which also made me believe that he was coming to the front door. And then when he still didn’t come to the front door I walked around the back here and had a look at the backdoor…

Okay. I’ll just take you to that area?---Yep. Yes.

So this next photograph shows down the side of your cousin’s home. And is it down that area that you walked?---Yes. I walked down here, and around the back to check to see if the door was open because I thought somebody was inside. I believed somebody was inside.” – t 5‑45.

118. [118]
     Ms Wagner stated curtains covered the glass door at the back of the appellant’s place and she saw no-one.  She then wrote the time of 5.20 pm on a note and left it at the front door to let the appellant know that she had visited.  She was at the appellant’s place for about five to 10 minutes before she left.
119. [119]
     The appellant rang Ms Wagner the next day and told her he was “up at Woolies” when she visited.  She replied, “Oh, all the windows were open.  I thought you couldn’t be too far because all of your windows were open.”  The appellant then changed the subject.
120. [120]
     The appellant gave a statement to police dated 22 January 1999, where he stated that he was at home when Ms Wagner came, but he did not hear her knock as he must have been in the shower.
121. [121]
     Ms Wagner said that when the deceased visited the appellant, his practice was to park his motorcycle in the garage.
122. [122]
     There was no reference to Ms Wagner or her visit in the Courier Mail article.

Chemical clean of garage

123. [123]
     Mr ABC stated that the appellant told him that he got chemicals to clean parts of the body.  Mr ABC made a note in his notebook, “after one week, chemical clean garage”.  There was reference to the appellant purchasing protective items and acids to clean the garage floor on 15 January 1999 in the Courier Mail article.  This diminishes the support which the purchase of cleaning items gives to Mr ABC’s account.
124. [124]
     However, the purchase of the items on 15 January 1999 is strong circumstantial evidence in the Crown case.  On 15 January 1999, the appellant’s credit card was used at Alsafe Safety Industries, Salisbury to the value of $162.55 in relation to a number of items which include the chemical-rated boots, clear goggles, a face mask, cotton gloves, neoprene-supported gloves (long gloves), and a filter to put in a mask to deal with toxic fumes.  Andrew Gray was the employee who dealt with the customer who purchased these items.  The customer stated that he was working with nitric and sulphuric acids.  Mr Gray thought he overheard the customer stating that he was cleaning a garage.  Mr Gray described the purchaser of these goods as:

“a male person that I would describe as about six foot two, wearing a black t-shirt, blue jeans, a pair of black boots with a square front, similar to bike boots.”

125. [125]
     The evidence was that the appellant is only about 168 cm tall.  Mr Gray was not asked to identify the appellant from a photo board.
126. [126]
     On 15 January 1999, the appellant’s credit card was used at a hardware shop in Windsor to the value of $123.05 in relation to a number of items which included a broom handle, and a landscaping broom.

The Glass House Mountains

127. [127]
     Mr ABC stated that the appellant told him he had distributed the deceased’s remains at two locations at the Glass House Mountains, one being “gorilla mountain” or “gorilla face”.  The evidence was that the Glass House Mountains Mount Tibrogargan is colloquially known as “Gorilla Mountain”.  On 5 August 2014, police executed a search warrant at the appellant’s home.  During the search, police found the appellant’s diaries which were littered with shorthand references to his visits to the Glass House Mountains, in particular, from October to November 2001.

Peter Snow

128. [128]
     Mr ABC gave evidence about the appellant’s animosity towards Milton Doyle and Peter Snow.
129. [129]
     Mr Snow died before the trial.  However, his police statement was read to the jury.  Further, recordings were played to the jury of Mr Snow’s numerous telephone calls with investigating police in 2014, evidence before the Queensland Crime and Corruption Commission in 2014, and evidence at the appellant’s committal hearing in 2016.
130. [130]
     Mr Snow’s statement to police in 2014 was the first time he was asked to recall his conversations with the appellant about the disappearance of the deceased.  He met the appellant in June 1999 and, in early July 1999, he came to know of the deceased.  Mr Snow’s statement records the conversation in this way:

“Robert said to me words to the effect of, ‘I have a boat moored down at Hemmant… Do you know anyone with a truck with a tow bar that could tow the boat?’

I said to Robert words to the effect of, ‘Is this legit? Is your uncle leaving the boat to you?’

Robert said, ‘Yes.’

I said, ‘I have one mate who I think has a fairly big ute or four wheel drive with a tow bar on it. I’ll give him a ring or the next time I see him I’ll ask him about it.’

Robert said, ‘I want to hide the boat where no one has access to it.’

I said, ‘Is there a problem?’

Robert said, ‘No, there is just going to be a family argument about who gets what.’

I said, ‘How big is the boat?’

Robert said, ‘It’s a big boat 40 to 42 feet. It is a 2 masted boat. My uncle built it and it was for me when my uncle died”. Robert then said, “If you and your mate can do this I am prepared to pay you if your mate can tow the boat and find a location.’

I said, ‘What are you prepared to pay?’

Robert said, ‘I don’t know what it’s worth but I’m prepared to pay up to $5000. How soon could you do it?’

I said, ‘I’ll ring Milton and I’ll have a chat.’

Robert then said, ‘I might as well tell you I have been accused of killing my uncle.’

I said, ‘Did you?’

Robert said, ‘Of course not. If I did I wouldn’t be sitting here.’” – t 6‑26.

131. [131]
     Mr Snow and the appellant discussed the deceased on a number of other occasions.  The appellant described how the police had accused him of dismembering the body, putting it in plastic bags, then putting it in hessian bags which he put in his rucksack and disposed of in the Glass House Mountains or in those regions.  No accusation that the appellant dismembered the deceased’s body, put it in plastic and then hessian bags, and disposed of it in the Glass House Mountains had been made by police.  There was no information in the investigation suggesting this.
132. [132]
     In a subsequent conversation between Mr Snow, Mr Doyle and the appellant, Mr Doyle stated that Mr Snow had told him that the appellant had been accused of murdering his uncle and he did not want to get involved if the appellant had been involved in anything like that.  Mr Snow recorded his conversation with the appellant in his statement:

“… Milton was pretty inebriated and he fronted Robert and said words to the effect of, ‘Snowy tells me you are accused of killing your uncle.’

Robert said, ‘Yeah well that’s true but I didn’t do it. So there is nothing to worry about.’

Robert was also getting on the verge of being drunk after having about 3 – 4 scotches. Milton challenged Robert at this point. I remember Milton saying to Robert words to the effect of, ‘You described how the police have said what you did to your uncle’s body. How could the police have told you this if they hadn’t found the body? How would the police know you dismembered the body, put it in plastic bags and then hessian bags before disposing of the parts or is that you describing to us exactly what you did?’

Milton did it in such a way so as to verbally confront Robert. Milton raised his voice while saying this. Robert’s reaction was one of initial shock. His face changed colour straight away from his ruddy complexion to white. He started to stammer and stutter and shake. Robert looked like he was about to cry too. Robert pointed out to Milton that there were other people around and to lower his voice. Robert made no comment to Milton about what Milton had just said though.” – t 6-28.

133. [133]
     There were inconsistencies in the evidence between the details recounted by Mr Snow and Mr Doyle as to this conversation.  Further, there were some inconsistencies between Mr Snow’s statement, his evidence at the CCC, and his evidence at the committal hearing about when conversations with the appellant occurred, and what the appellant said.  By the time of the committal Mr Snow had had a stroke which he said affected his memory.
134. [134]
     Mr Snow met Mr Doyle in around 1993 and they were good friends who used to lunch with each other regularly.  At the committal hearing, Mr Snow recalled going with Mr Doyle and the appellant to Hemmant to have a look at the boat.  He stated that, on this occasion, the appellant and Mr Doyle had a conversation by themselves, away from him, for about three minutes.  Mr Doyle did not mention at any time that the appellant told him that he had knocked off his uncle.
135. [135]
     At the committal hearing, Mr Snow stated that the appellant had always asserted his innocence and had never said anything to him admitting his involvement in the deceased’s death.

Milton Doyle

136. [136]
     Mr Doyle was a police officer between 1980 and 1996.  He gave evidence at the CCC on 16 September 2014.  He provided a statement to police on 25 September 2014.
137. [137]
     On one occasion, Mr Doyle had a lunch with the appellant and Mr Snow at The Office Restaurant.  The appellant uncharacteristically drank scotch whiskey.  Mr Doyle and Mr Snow asked the appellant what was going on with his uncle.  Mr Doyle directly asked the appellant whether he had killed his uncle.  The appellant did not reply.  The appellant’s demeanour changed; the appellant had watery eyes.  It was not put to Mr Doyle in cross-examination that there was no confrontation of this kind at The Office.
138. [138]
     On another occasion Mr Doyle, Mr Snow, and the appellant went to an industrial site and the appellant requested, “… that I take this boat belonging to his uncle and take it to a place and hide it until police started to get hot.” – t 6-42.
139. [139]
     The conversation continued:

“Are they the words you used: “Snow told me some things”?---Yeah, “Snow told me things. He said –” I said to him, “Snow has told me that you’ve killed your uncle.” No reply. And I said, “Robert, I need to know what I’m getting myself in here for.” You know? “You’ve got to tell me so I can protect both of us if we get pinched on the way out or pinched any time for something.” I said, “I’m bringing myself in on this.” I said, “I’m in for helping you move your uncle’s boat, but,” I said, “I need to know what the hell’s going on.” Now, I said, “Have you killed your uncle?” I said, “Just tell me.” I said, “I don’t care. Just tell me. I need to know what’s going on so I can protect myself.” So – and I might’ve said that two or three times, and then I said – I said, “Look,” I said, “if you’ve killed your uncle,” I said, “I used to be in the drug squad.” I said, “All my mates now are at homicide.” I said, “I’ve got one good contact there that owes me a lot of favours.” And I said, “I can’t get your name wiped off the list”, I said, “but, for goodness sake”, I said, “just tell me.” And I said, “At least he’ll be able to ring me and say the police are getting hot.” You know? Because Snow had told me certain things what he was – wanted to do with this boat.

Okay. So you told Robert Wagner these things?---That’s right.

“Just tell me”?---Yeah.

What happened then?---“Just tell me.” And I was screaming at him in the end, bearing in mind Snow’s up there trying to eavesdrop and, you know, so I turned this way to try and get away from Snow because I – I couldn’t tell Snow anything and – I couldn’t trust him. He’d go straight back to Wagner and tell him just for the hell of upsetting me – just for the, you know, to say that he knew and I didn’t know.

Yeah, okay?---Anyway, so that’s why Wagner – that’s why Snow was left up at the car, and until this day I still don’t know why because he knows he’s Snowy. For this, I – I - - -

Okay. Again - - -?---Yeah.

Can I get you to refocus - - -?---Go on.

- - - on that point in time. You’ve said to him, “Did you kill your uncle”?---“Did you kill him? Did you kill your uncle?” And I was screaming at him at the end. And I said, “Like, did you kill him or not? Just tell me. Just tell me.” And that’s the – the shuffle came along with the feet, the watery eyes came, he’s looking over my shoulders, exactly the same demeanour as he was at the office restaurant some time prior. And I formed an opinion.

Okay. Did he say anything to you when you said, “Did you kill your uncle”?---Look, at some stage – and bearing in mind I asked that questions four or five or six times – four or five times – at some stage he did say to me, “Yes, I knocked my – I knocked my uncle,” or, “I knocked my uncle off.” – tt 6-43-44.

140. [140]
     Mr Doyle had given inconsistent accounts of this conversation.  In his statement to police on 25 September 2014, Mr Doyle framed his conversation with the appellant in this way:

“I can’t remember whether I suggested to him, ‘Did you knock your uncle off?’ or whether, after a series of questions from me, whether Wagner said to me, ‘I knocked my uncle off.’”^[11]

141. [141]
     At the CCC, Mr Doyle gave this evidence about this conversation with the appellant:

“… my evidence is very vague except for a few important parts, and –now, I said to the detective the other day, I said did you – did you knock – knock your uncle off or – or after I – after I said to him, “Well, what did you expect? You knocked your – you knocked your uncle off? What do you expect? They’re going to catch you some time, you know. You’re not that smart, Robert.” And he made no reply. I then said, “Well, did you knock your uncle off or not?” And he either nodded his head and dropped his head, and then had this vacant look. But that’s what I told Detective Roddick the other day. Or, no. I told Detective Roddick the other day that it was the other way around. That he told me he knocked his uncle off. And I’ve had second thoughts about that – about recollection, and I don’t know which one it is now. I – I think it was that I put it on him about his uncle, and he nodded his head. I think that was the way.” – t 7-25.

142. [142]
     There were other inconsistencies about when he decided to go to police.
143. [143]
     The transcript shows Mr Doyle was a garrulous witness who, at times, was argumentative and gave non-responsive answers.  He was cross-examined as to his disreputable conduct as a police officer.  He was a gambler.  It was put to him that the appellant never confessed to him and the reason he was saying so was because of a $250,000 reward, a proposition which Mr Doyle denied.  There was no evidence that he (or Mr Snow) had claimed the reward.
144. [144]
     Mr Doyle was scathing in his assessment of Mr Snow’s credibility.  Mr Doyle regarded Mr Snow as a compulsive liar and conman with a history of exaggeration.  When Mr Snow first stated that he thought that the appellant had killed his uncle, Mr Doyle’s response was: “That’s one of your better fictional stories that you’ve come up with, Snowy”.
145. [145]
     When he spoke to police, he told them that Mr Snow had read portions of his statement to him and that he thought that 40 per cent of Mr Snow’s statement was fiction.  As to sharing their statements, Mr Doyle stated:

“Are you saying that you didn’t tell Snow what you were going to be telling the police?---I told him I disagreed with some of the things in his statement. He asked me which parts? And I said Peter – I said if all our statements line up together – I said that’s when it does send out a signal of a red flag. Police will pick up a 20 year old statement, and if it’s exactly the same between two people after 20 years, the police will become suspicious. I said I’m not going to tell you what I’ve said in my statement, because it differs from yours. …” – t 7-11.

146. [146]
     However, Mr Doyle gave evidence to the CCC that both he and Mr Snow jogged each other’s memories.

Other evidence

147. [147]
     There was a considerable amount of other circumstantial evidence led by the prosecution.

Ms Clune and the deceased

148. [148]
     Ms Clune lived with the deceased at some stage.  She would however return to the Philippines where her son lived from time to time.  She brought her son to Australia on 2 February 1998, and they both lived with the deceased at his Kalinga property thereafter.  Ms Clune stated that she was still in a relationship with the deceased at the time of his disappearance.  However, there was evidence from the deceased’s family and friends that they had broken up by this time.
149. [149]
     At the time when the deceased went missing, Ms Clune was not living with the deceased.  Ms Clune stated that she moved out in November 1998, but that she and the deceased were still in a relationship.  She said she would return to the Kalinga property to do his washing and, when she stayed the night, they would sleep in “our room”.  She did not accept that they had broken up.
150. [150]
     However, her son gave different evidence as to Ms Clune’s and the deceased’s living arrangements.  Yolanda Cruz, a friend of Ms Clune, stated that Ms Clune told her when the deceased went missing that she had separated from the deceased a couple of months prior.  Ms Cruz also stated that Ms Clune told her on 23 January 1999 that her son’s father was her boyfriend, he was going to come to Australia, and that she was going to marry him.
151. [151]
     There was evidence from several witnesses that the deceased had told them that he and Ms Clune had broken up, he was concerned that Ms Clune would make a “grab for his assets”, and he was trying to organise his assets so that she could not come after them.
152. [152]
     Ms Clune’s evidence was that she stayed at the Kalinga house with the deceased on Sunday 3 January 1999 and that they slept in the same room.  The deceased dropped her off at her work at Virginia at 7.00 am on Monday morning.  She left her key to the Kalinga house, inside the house.  She also left some clothes there.  She and the deceased arranged to have dinner at the Breakfast Creek Hotel on Thursday 7 January 1999.  He was going to collect her from where she was living at her son’s unit in Clayfield.  She did not hear from him again.
153. [153]
     On Saturday 9 January 1999, Ms Clune went to the deceased’s home at 6.00 am.  She knocked but no one answered.  Ms Clune contacted the deceased’s family on 13 January 1999 to say that she and the deceased were supposed to go out for dinner on 7 January 1999 and that she could not get hold of him.  This was the first time the deceased’s brothers were aware that the deceased was missing.  When the deceased’s brother searched the deceased’s house, a key was found in a bowl with a note from Ms Clune to the deceased stating that she was returning the keys to the house.
154. [154]
     The deceased’s brother, Peter Wagner, stated that Ms Clune told him that the deceased had received a letter or card from a friend in Sydney and he told her that he should go to Sydney to visit.  In cross-examination, it was put to Ms Clune that, after the deceased went missing, she found a card addressed to the deceased inviting him to come to Sydney and that she told Ms Palmisano this.  Ms Clune rejected such a proposition.  Ms Clune’s son stated that, after the deceased went missing, he spoke to his mother as to where the deceased might be.  Ms Clune said that the deceased may be somewhere in Australia, Sydney, or in Europe.  Ms Clune denied saying this.
155. [155]
     Ms Clune told the police on 23 January 1999 that she did not know if the deceased had a will.  He asked her in about 1996 what property she wanted from his will.  She told him she wanted the Kalinga property.  She did not know that the deceased’s will left $150,000 to her.  She did not know at the time that the deceased disappeared that he was selling the Kalinga property.
156. [156]
     At the trial, Ms Clune was asked whether she killed the deceased or whether she arranged for him to be killed, propositions which she emphatically denied.
157. [157]
     Ms Clune was cooperative with police investigators, and she allowed them to search her home.  The police carried out forensic investigations and found nothing of interest.

The appellant’s movements around 7 January 1999

158. [158]
     The appellant did not give or call evidence but gave a statement to police on 22 January where he said that he went with his mother to Montville on 7 January 1999.  They returned, and he left his mother’s home at about 4.30 pm and then went to the Ashgrove unit.  He was at home when Brooke Wagner came to his unit at 5.15 pm on 7 January 1999.  He did not hear her knock; he must have been in the shower.  He did not see the deceased on 7 January 1999.  He went over to his mother’s place for breakfast at around 6.30 am on 8 January 1999 and returned to his house and got his high-pressured hose to clean the house.  He returned to his mother’s place that day and stayed there all day and night.
159. [159]
     The appellant’s mother gave evidence that, on 7 January 1999, she went to Montville with the appellant.  They had breakfast and went to the souvenir shops in Montville.  They returned to her address at Murrumba Downs around 4.30 pm in the afternoon.  The appellant then went home.  The appellant’s mother swore that she probably told the police that the appellant called in for breakfast on 8 January 1999.  At the trial, she had difficulty remembering as it was so long ago.

Conversations with Mr Woodward

160. [160]
     Mr Woodward owned the workshop where the deceased spent time on 7 January 1999.  He was the last person to admit to seeing the deceased that day.  He said the deceased left his workshop at about 3.00 pm on 7 January 1999.  He gave a statement to police on 22 January 1999.  He stated, “I have not received a telephone call from Robert, Jerry’s nephew or had any contact with him.”  The telephone records of Mr Woodward and the appellant were tendered; they do not show any phone calls between the two men.
161. [161]
     The appellant informed police on 18 January 1999, as part of his missing person report, that Mr Woodward was the last person who had seen the deceased.^[12]  The prosecution case was that the appellant could not have known that the deceased had left Mr Woodward’s workshop at 3.00 pm on 7 January except if he (the appellant) had seen the deceased that day.
162. [162]
     Consistent with this part of the Crown case was part of Mr Eggleton’s statement to police; he stated that:

“On Monday the 18th January 1999 I received a call from Robert WAGNER at home at around 8 am. Robert told me he was about to submit his formal statement to the police.

I can recall words of this conversation as being words to the effect as follows.

Robert said, “Can you clarify the brand of the motor bike?”

I knew Jerry to have a black Kawasaki motorcycle.”

I said, “A Kawasaki.”

Robert said, “What would he have been wearing on the bike?”

I said, “He would usually wear a boiler suit.” These were like overalls and they were orange in colour and that would stand out. That’s what Jerry told me.

Robert asked, “Would he have had a helmet?”

I said, “I know him to have a red full face helmet.”

I have also seen Jerry in a black helmet.

Robert said, “What about the shoes?”

I said, “He would be wearing, like, Asian sandals.”

He also told me that he had been talking to Kelvin WOODWARD and he told Robert that on the day he last saw Jerry was the Thursday the 7th January 1999 at about 3 pm.”^[13]

Loans to the appellant

163. [163]
     The appellant’s statement to police was read to the jury.  The appellant stated that, for the past six years, the deceased had been financing the appellant’s business ventures.  The appellant stated that the deceased would lend money to him, and he would use the money to purchase and renovate residential property.  The appellant stated that he would then pay the money off, as he went, at a low interest rate.  The appellant would pay the deceased back in cash instalments when the deceased requested.  Further, the appellant paid the deceased’s bills so that the deceased did not have to outlay money.  Ms Clune’s evidence gave some support to this.
164. [164]
     The appellant also stated that he and the deceased made plans to hide the money from the sale of the Kalinga property from Ms Clune.  They planned to do this by depositing it into the appellant’s investment account.  From this account, the deceased would invest into the share market in the appellant’s name.
165. [165]
     As at 22 January 1999 (when the appellant gave his statement to police), the appellant stated that he owed the deceased about $85,000.

The appellant and the sale of the Kalinga property

166. [166]
     In November 1998, the deceased had engaged real estate agents to sell his house at Kalinga.  A contract for the sale of the Kalinga property was signed on 27 November 1998 with settlement scheduled for 24 February 1999.  There was a special condition, “My nephew Robert Wagner is to have exclusive authority regarding legals and progression of this contract, and both Gerhard Bruno Wagner and Robert James Wagner will execute and attend settlement.”
167. [167]
     The real estate agent who sold the deceased’s house, John Cicchiello, stated that the deceased appeared to have complete faith in the appellant in relation to legal matters and did not engage solicitors.  On 31 December 1998, the buyer’s solicitors received a fax from the deceased which directed the settlement sum to be paid to a bank account in the name of the appellant.  This document was signed by the deceased and witnessed by Bruno Ribone.  Mr Ribone knew the deceased and recalled witnessing the document for the deceased who, at the time, was in the company of a younger man.
168. [168]
     Gavin Bartlett was an articled clerk working for the solicitors acting for the buyer in relation to the property and recalled a conversation in January 1999 where he questioned the appellant about this arrangement.  The appellant said his uncle was away in Europe and not able to be contacted.

The appellant’s finances

169. [169]
     Christopher Allan, a forensic accountant, gave evidence that the appellant did not submit any tax returns between 1998 and 2003.  The majority of the appellant’s income in the period of February 1998 to 27 February 2006 came from property or asset sale.
170. [170]
     By January 1999, the appellant owned two properties in Murrumba Downs at Goodrich Road and Blyth Road.  The Goodrich Road property was sold for $230,000 in 2000 and the Blyth Road property was sold for $137,000 in 2001.  They were both mortgaged.  The evidence was that yielded about $74,000 after repayment of the mortgages.  That is, insufficient to repay on a loan of $85,000.  However, the appellant had sold a house in Sydney for $124,000 in September 1998, and it was not proved whether proceeds from that were available to him in January 1999.

The appellant’s van

171. [171]
     Paul and Peter Wagner and their wives all gave evidence about seeing scratches at the back of the appellant’s van.  Glenda Wagner, Peter’s wife, stated that she remembered the seats were down.  Paul Wagner was familiar with the size of the appellant’s motorcycle and stated that, if the front wheel was taken off the motorcycle, then it could fit into the appellant’s van.  The Crown case was that the scratches were caused by the appellant using his van to dispose of the deceased’s motorbike, after killing him.

The appellant drives his Saab to Sydney

172. [172]
     As well as the van, the appellant owned an old blue Saab.  He told Aaron Mulholland that he had tried to sell the blue Saab in Brisbane, but he thought he would get a better deal in Sydney.  Mr Mulholland’s evidence was that the appellant was trying to sell both the Saab and the van in Sydney and get a new car.  Mr Mulholland, his father, and the appellant drove to Sydney in convoy.  The appellant drove the Saab and the Mulhollands followed, driving the van.  They arrived in Sydney about 31 January 1999.  The appellant sold the Saab to wreckers for $250.  He did not sell the van.
173. [173]
     Prior to their trip to Sydney, the appellant offered to sell the Saab to Aaron Mulholland for $500.  Mr Mulholland declined as he only had a learner’s permit.  The appellant told Mr Mulholland that he tried to sell the Saab to a wrecker in Brisbane but did not get the price for it that he wanted.
174. [174]
     Tulia Whippy, an ex-partner of the appellant, gave evidence that in the week of 4 January 1999, the appellant helped her move into a unit.  At this time, she asked the appellant whether he would be interested in selling her the Saab and she offered to purchase it.  The appellant was not interested in selling the Saab to her but said that she could use it for 12 months.
175. [175]
     The prosecution invited the jury to infer that the circumstances of this sudden interest in disposing of the Saab after the disappearance of the deceased was to avoid the risk of police examination of that car.

Searches for the deceased

176. [176]
     The appellant reported the deceased missing to police on 18 January 1999.  Searches for the deceased began on 20 January 1999, some 13 days after the deceased disappeared.  Family and friends looked for the deceased at his house, on his boat, at the marina, and along the route from Mr Woodward’s workshop to the deceased’s house at Kalinga.  Police conducted aerial, land, and water searches for the deceased and his motorcycle, in particular, along the route from Mr Woodward’s workshop in Hemmant to where the deceased lived in Kalinga.  Police water divers searched the low-lying water areas around Hemmant.  Scenes of Crime officers searched the deceased’s boat, but divers did not search Scarborough Marina where the deceased’s boat was moored.  Searches were undertaken in Sydney, looking for the appellant’s Saab.
177. [177]
     At the trial, the appellant’s counsel emphasised to the jury in his closing address that police searches focused on metropolitan Brisbane and did not include divers searching waterways, except for the low-lying water areas around Hemmant.

Alina Teodorescu

178. [178]
     Ms Teodorescu lived with Ms Clune’s son, Mr Villegas, in Clayfield.  She gave evidence that, after Ms Clune and her son went to the police to talk about the deceased disappearing, she was on the balcony of their unit and saw the deceased driving his white Mercedes car on Franz Road.  It drove past a few times.  When the car passed her unit, she observed it for a couple of seconds.

Forensic examination of the appellant’s house

179. [179]
     Police executed a search warrant on the appellant’s home, the unit at Ashgrove, on 24 January 1999.  Nothing significant was found.  The appellant’s counsel submitted to the jury that, if the killing had taken place as Mr ABC had said, then there should have been some forensic residue left.  None was found by the police.

The sale of the deceased’s boat

180. [180]
     In June 2001, Edmond Ostrenski was a marine broker operating from Gold Coast City Marina at Coomera.  A man approached Mr Ostrenski to sell the Memel, who he later identified from a photo board to be the appellant.  This man introduced himself as “Mark” and Mr Ostrenski got the impression from him that the boat belonged to his father, who had died, and he was helping his mother to sell the boat.  The man said that he was changing the name of the boat.
181. [181]
     On 18 June 2001, the appellant’s mother signed an authority to sell document in relation to the vessel, Winn, with the address being the Ashgrove unit and the contact name being “Mark”.  On 2 July 2001, the boat was transferred from the appellant to his mother.  On 31 August 2001, the appellant’s mother signed an acceptance of a $95,000 offer to sell the boat to a third party.
182. [182]
     A Citibank account in the appellant’s mother’s name was set up to receive the proceeds from the sale of the boat.  From 15 October 2001, there were a number of ATM withdrawals of $3,000 from this account on consecutive days.  The appellant’s mother gave evidence that she could not remember whether she took money out of the account.

The appellant’s diary

183. [183]
     On 5 August 2014, police executed a search warrant at the house where the appellant was then residing.  During the search, police found diaries belonging to the appellant, including one from 1999.  A recording made contemporaneously with the search suggests police took, or at least intended to take, the 1999 diary.  After the search, the police completed a field property receipt which set out the items seized in an attached list.  The police could not produce the attached list.
184. [184]
     The police evidence was that the 1999 diary was left behind at the appellant’s house by mistake.  However, other diaries were taken by police.  Police again searched the house on 22 October 2014.  The primary purpose of this search was to locate the 1999 diary.  However, police could not find the diary at this time.  The prosecution case was that the appellant destroyed the 1999 diary after the first search and that this showed a consciousness of guilt.

A diary entry made by the appellant on 1 May 2000

185. [185]
     In the appellant’s diary the following entry appears dated 1 May 2000:

“Is my grandfather still senile?

Is there anything in my statement which is suspicious?”

186. [186]
     The prosecution case was that “my statement” is a reference to the appellant’s statement to police dated 22 January 1999, and that the diary entry was an implied admission.  The entry was made a short time before the appellant appeared in the Magistrates Court for other matters.  However, the appellant did not give a statement to police in relation to these matters.  The evidence was that the only statement provided by the appellant to the police was that given on 22 January 1999.

Ground 1 – Unreasonable verdict

187. [187]
     The legal principles applicable where the grounds that the verdict was unreasonable were recently restated by the High Court in Dansie v The Queen^[14] which reaffirmed the relevant task as set out in M v The Queen:^[15]

“[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

[9] The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

“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 [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”^[16]

188. [188]
     The High Court went on to state:

“[12] The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”.^[17]

189. [189]
     In R v Miller,^[18] this Court stated:

“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought 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.”^[19]

190. [190]
     In this case, the appellant has not done so.
191. [191]
     Rather, the appellant’s focus in his substantial written submissions appears to be on alleged mis-directions or misstatements of evidence, as well as arguments relating to the admission of evidence.  He has separate grounds of appeal dealing with some of these issues, none of which have any basis.  It is difficult to tease out of his submissions the matters that directly relate to this ground of appeal.
192. [192]
     As to the appellant’s case at the trial, the appellant’s counsel at the trial synthesised the prosecution case to this in his closing address:

“But, if you take a step back and look at the bigger picture, the Crown case essentially is that Robert Wagner bludgeoned to death his favourite uncle, who was like a father figure to him, with whom by all accounts he had a very good relationship, in his garage, because he was worried that his uncle might change his will because they’d had a blue about a Gerni.

And, when you take a step back and when you look at the Crown case in that way, you might think that it puts it in a different light. You might think that that – just boiling that down to its essence makes the Crown case from the very beginning an inherently implausible one.”

193. [193]
     The appellant’s counsel raised the following matters for the jury to consider in his closing address:

     1. the police relentlessly pursued the appellant over many years without consideration of other alternate theories.
     2. Gerhard Wagner is probably dead.  However, a live issue in this case was whether he was killed by any person at all.  People go missing all the time but that does not mean that somebody has murdered them.  There are many ways, only limited by imagination, how the deceased could have died that do not involve another person killing him.
     3. Dr Kelly gave evidence that the deceased presented as suffering dizzy spells whilst working on his boat.  The prosecution had not excluded beyond a reasonable doubt that the deceased suffered a dizzy spell and fell into the marina.
     4. the marina was never searched by police divers.  Police divers only searched a drainage ditch on 2 February 1999, nearly a month after the deceased went missing.  The search for the deceased focused on the Brisbane metropolitan area and his yacht.  The prosecution had not excluded that the deceased went for a ride on his motorcycle, to Sydney or elsewhere, and left the road and ended up in an area not searched by the police.
     5. the appellant’s Ashgrove unit was thoroughly searched and no forensic evidence was found in circumstances where Mr ABC described the appellant cutting the deceased up into little pieces.
     6. the deceased and the appellant had a close relationship which was described as akin to a father-son relationship.
     7. the deceased had forgiven the debt that the appellant had owed him in his will and there is no evidence that the deceased was calling in the debt from the appellant.  Deals were done on a handshake with the deceased, which were not reduced to financial records.  Even if the debt had to be repaid, the appellant could have sold real estate to service the debt.  The evidence does not support that the appellant was in financial trouble; he was an astute property investor making money from the investments.  Blyth Road and Goodrich Road were sold some time after the deceased’s death which does not indicate someone who was in financial distress at the time of the deceased’s disappearance.  There was no suggestion that the appellant was living the high life or had any gambling debt for which he needed money to service.
     8. the deceased was financially astute and was concerned about Ms Clune pursuing his assets.  The deceased did not like dealing with lawyers and whilst the appellant would help him, it was the deceased who was driving his financial decisions prior to his disappearance.  Nothing turned on Mr Bartlett’s evidence where the appellant told him that the deceased was overseas in circumstances where the deceased did not like to speak to lawyers and, if he did, he would have to explain that he was trying to siphon off his assets so that they were out of the reach of Ms Clune.
     9. the special condition for the sale of the Kalinga property was that both the appellant and the deceased had to attend settlement.  It does not make sense that, if the appellant was going to kill the deceased, he would put such a special condition into the contract.
     10. the appellant was always the executor of the deceased’s estate.  The codicil signed by the deceased making the appellant the executor with wide-ranging powers could not be regarded as an asset grab by the appellant.
     11. the yacht was sold, upon prompting by the appellant’s mother, due to the costs of maintaining a yacht in the marina.
     12. it is not plausible that the appellant and the deceased’s relationship ruptured over a minor matter, such as the Gerni.
     13. Ms Clune was the only person who gave evidence that she was in a sound relationship with the deceased.  All of the evidence was that the relationship was over.
     14. there was no evidence that the deceased was at the Ashgrove unit when Ms Wagner visited.  There was no forensic evidence that the Ashgrove unit was the scene of a crime.
     15. the appellant gave a statement to police where he stated that he did not see the deceased on 7 January 1999, and his movements on 8 January 1999 (by spending time with his mother) do not bespeak a person who had just brutally murdered his uncle in his garage.
     16. as to the purchase of protective clothing, this should be seen in the context of the appellant demolishing and renovating a house with fibro and asbestos, where protective clothing and breathing masks were worn.  In any event, the person who made this purchase was significantly taller than the appellant.  Further, these items were purchased some time (eight days) after he allegedly murdered his uncle.
     17. he offered to sell his Saab to Aaron Mulholland and also offered Tulia Whippy the use of it, before driving it to Sydney to sell, all of which is inconsistent with him trying to dispose of evidence.  There is no evidence that there was paint from the motorcycle on the scratches seen on the Odyssey van.
     18. the entry in the appellant’s diary of “Is there anything suspicious in my statement?” may have been a reference to a statement made to his solicitors in relation to the stealing and wilful damage offences he was charged with.  There was no evidence that the appellant disposed of his 1999 diary.
     19. Mr Snow and Mr Doyle’s evidence could not be accepted due to the significant credibility issues infecting their evidence.
     20. the appellant spoke to Mr ABC when he was in custody about his case and Mr ABC filled in the gaps.  Mr ABC is a self-confessed professional liar, and his evidence needed to be seen in that light, and
     21. Alina Teodorescu gave evidence that she saw the deceased after his disappearance.
194. [194]
     The appellant’s counsel emphasised that, in all the circumstances, the prosecution had not:

     1. proven beyond a reasonable doubt that the appellant murdered his uncle.
     2. not excluded, beyond a reasonable doubt, all reasonable hypotheses consistent with innocence.
195. [195]
     The jury were well placed to consider all of the evidence in light of the submissions made to them by the appellant’s counsel.
196. [196]
     In this case, the prosecution case included the appellant making a confession, admissions, and statements to three people:

     1. the appellant confessing to Mr ABC that he had murdered the deceased,
     2. the appellant telling Mr Snow that the police had accused him of dismembering the deceased’s body and putting it in bags which he disposed of in the Glass House Mountains in circumstances where the police, at that time, had not made any such allegation, and
     3. the appellant telling Mr Doyle that he had “knocked his uncle off”.
197. [197]
     However, the prosecution case rises and falls upon the jury accepting Mr ABC’s evidence about the appellant confessing to murdering his uncle.  This evidence, in combination with Ms Wagner’s evidence, establishes the time, place and circumstances of the killing.
198. [198]
     Before convicting the appellant, the jury were directed that they had to accept, beyond a reasonable doubt, that the appellant and the deceased were present on the evening of 7 January 1999 at the Ashgrove unit when Brooke Wagner made an unexpected visit to the appellant’s home at around 5.20 pm.
199. [199]
     For the jury to be so satisfied, they had to be satisfied beyond a reasonable doubt of Mr ABC’s evidence where he stated that the appellant told him that:

     1. he could hear somebody outside knocking,
     2. the deceased made a noise, and
     3. the appellant muffled the deceased with his hand.
200. [200]
     This evidence ties in with Brooke Wagner’s evidence where she stated that she visited the appellant at around 5.20 pm on 7 January 1999, knocked on the door, and heard a muffled noise.
201. [201]
     It was not suggested that Ms Wagner’s account was untrue or unreliable and where there was no reasonable alternative explanation for Mr ABC knowing of that event without being told by the appellant.
202. [202]
     The appellant states that Mr ABC’s evidence about the appellant confessing to him was uncorroborated, unrecorded, and needed to be seen in the context of a person who lies to gain an advantage.
203. [203]
     Mr ABC is a self-confessed liar and cheat.  He, as the appellant’s counsel told the jury, was a professional fraudster who extracted money from victims by making things appear legitimate when they were not.  There was a certain dichotomy in Mr ABC’s circumstances:

     1. in the appellant’s trial, he gave evidence about the appellant confessing to him and was relied upon by the prosecution as a truthful witness, and
     2. then, the following week, he was sentenced for offences of dishonesty.
204. [204]
     As the appellant’s counsel submitted to the jury:

“ABC – he was a professional liar. He was being wheeled out as a witness of truth by the prosecution one week and then sentenced by the prosecution the very next week for a 1.7 million dollar fraud. You may or may not think there’s something just not right about that. One week he’s a star prosecution witness, and they’re saying he’s a truthful one. The next week he’s being sentenced for lying – being a professional fraudster and liar. He had a significant benefit to gain in giving evidence against Mr Wagner, which led – would have led to a significant discount in the sentence that he has received. He would have had an expectation that he would receive a lighter sentence by giving evidence against somebody in court than he otherwise would have received. He would have had an expectation that he was going to get out of jail quicker if he told this story in court to you during this trial.” – t 12-57.

205. [205]
     The appellant states that, when considering whether the verdict was unreasonable, it is necessary, first, to consider the prosecution case without Mr ABC.  However, this is a fundamentally incorrect approach.  As stated by the High Court in M v The Queen:^[20]

“… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”^[21]

206. [206]
     If the jury accepted Mr ABC’s and Ms Wagner’s evidence beyond a reasonable doubt, which they did, then the defendant is guilty of murdering the deceased on the afternoon of 7 January 1999 at his home.
207. [207]
     Mr ABC’s evidence, when considered in combination with other evidence (in particular, Ms Wagner’s evidence) is compelling.  His evidence about what the appellant told him could only have come from the appellant.
208. [208]
     Mr ABC rejected the proposition that he obtained details of the appellant’s murder case from a Courier Mail article and then reframed these facts into a confession by the appellant.  There are two reasons that support Mr ABC not using the Courier Mail article as a basis to construct a confession from the appellant:

     1. the Courier Mail article was published in February 2018.  Mr ABC was not working with the appellant until around 26 June 2018 when he moved cells, and
     2. crucially, the Courier Mail article did not mention Brooke Wagner.
209. [209]
     The appellant submits that Mr ABC more than likely read Ms Wagner’s police statement, and also other critical statements, to try to corroborate her statement.
210. [210]
     Mr ABC rejected that he pieced together things that the appellant had told him about his case, as well statements that he had seen, and manipulated these matters into forming the factual basis of the appellant’s confession.
211. [211]
     Mr ABC was clear in his evidence: it was only on one occasion that the appellant spoke to him about killing his uncle.  He then went and made notes of what the appellant had told him in a diary.  The diary was tendered without objection from the appellant’s counsel.  From the context of the diary, it can be seen that Mr ABC made notes about his conversation with the appellant in one block or sitting.
212. [212]
     The appellant further submits that “Ms Wagner’s prima facie satisfactory explanation of a reasonable doubt at trial exposed [Mr ABC] as being a fully constituted material concoction when his lying exposed the impossibility of his version of events”.^[22]
213. [213]
     This submission relates to the appellant’s contention that Ms Wagner stated that, when she arrived at his place, she “looked up and confessed that she could not rule out [the possibility] that I had moved into the upstairs shower upon her visit”.^[23]
214. [214]
     However, Ms Wagner’s evidence needs to be put into context:

“MR FUNCH: You don’t know, do you, whether you could hear the shower from the front of the house?---The shower from the front of the house. I don’t know if I would’ve been able to hear that. I may have, but I’m – I’m definitely not sure I would’ve been able to hear that.

HIS HONOUR: Just for perhaps our assistance, where was the shower? You’ve described downstairs?---The shower was upstairs, so it was near the bedroom that I used to live in, opposite the bedroom that I used to live in.

MR FUNCH: So what you’re saying is you’re unable to say when you visited the – you’re unable to say whether the shower was running or not because you’re not sure whether you would’ve been able to hear it if it was running?---Yes.” – t 5-53-54.

215. [215]
     Such evidence does not amount to Ms Wagner “confess[ing] that she could not rule out [the possibility] that [the appellant] had moved into the upstairs shower upon her visit.”
216. [216]
     Mr ABC was an important witness for the prosecution.  His credibility was front and centre for the jury’s consideration, and it was open for the jury to accept his evidence as credible and reliable in relation to what the appellant told him about killing his uncle.  This is especially so when considering his evidence in light of Ms Wagner’s evidence.
217. [217]
     The combined power of Mr ABC’s and Ms Wagner’s evidence is that, when their evidence is considered together, it proves that Ms Wagner did hear the deceased, based on the appellant’s admissions made to Mr ABC, in circumstances where there was no alternative explanation for how Mr ABC came by that information.
218. [218]
     Issues of credibility were also relevant when considering Mr Snow and Mr Doyle’s evidence.  Mr Snow and Mr Doyle’s credibility were significantly attacked by the appellant’s counsel, all of which were matters for the jury to consider, and many of them were the subject of both addresses and summoning up.  As the trial judge observed to the jury in his summing up:

“Putting Snow and Doyle together, you have to consider whether, as the defence submitted, they got their heads together and cooked up a story. You would probably conclude, but it is entirely a matter for you, that there are some odd things about their evidence. It is not as if they vouch for each other.” – t 25.

219. [219]
     However, in relation to the evidence given by Mr Snow and Mr Doyle, the jury did not have to accept any part of their evidence beyond a reasonable doubt.
220. [220]
     Indeed, the jury did not need to accept any of the evidence given by these two witnesses.  As the trial judge directed the jury, if they decided not to act upon the evidence of Mr Doyle, particularly in relation to the implied admissions at The Office Restaurant and the alleged express confession at Hemmant, then they put their evidence to one side and considered whether the prosecution had proven its case on the basis of other evidence.
221. [221]
     Such was the strength of the prosecution case that it was open to the jury to draw the ultimate conclusion that guilt had been proved to the criminal standard, with or without the evidence of Mr Snow and Mr Doyle.
222. [222]
     As the trial judge directed the jury, if they found that the appellant’s confession to Mr ABC was made, and was true, they might convict on the basis of a confession to murder, along with whatever circumstantial evidence they accepted proved the prosecution case.
223. [223]
     Besides the compelling combined evidence of Mr ABC and Brooke Wagner, the prosecution case also relied upon a body of circumstantial evidence which, relevantly included that:

     1. the appellant and the deceased had a close relationship, although there was a dispute about a Gerni leading up to 7 January 1999,
     2. as at 7 January 1999, the appellant owed the deceased money,
     3. the deceased changed his will shortly before 7 January 1999 which allowed the appellant full discretion as to how to distribute the deceased’s estate,
     4. the appellant was closely involved in the deceased’s financial affairs,
     5. the deceased was last seen shortly before 5.15 pm on 7 January 1999 when Ms Wagner attended the appellant’s place,
     6. purchases were made on the appellant’s credit card, on 15 January 1999, for goggles, interlocking gloves, a filter mask and protective boots,
     7. there was an entry in the appellant’s diary on 1 May 2000 stating, “Is there anything in my statement which is suspicious?” and
     8. the appellant’s diary records a number of entries of him going to the Glass House Mountains in 2001.
224. [224]
     However, it was necessary for the jury to consider all the evidence, both direct and circumstantial evidence, which included evidence that was inconsistent with the appellant’s confession to Mr ABC and the prosecution case.  The appellant’s counsel spent considerable time referring to these pieces of evidence in his closing address.  However, in particular, he noted:

     1. Ms Teodorescu stated she saw the deceased after 7 January 1999,
     2. a thorough forensic search was done of the appellant’s unit with nothing found, and
     3. the appellant gave a statement to the police stating that he did not see the deceased on 7 January 1999.
225. [225]
     It should be noted that Ms Teodorescu’s evidence about seeing the deceased drive past her unit after 7 January 1999 was not compelling.  She stated that she observed this person for a couple of seconds.
226. [226]
     Further, in relation to there being no forensic evidence in the garage where the appellant killed the deceased, the appellant told Mr ABC that he tried to dissolve as much as he could of the deceased’s body with chemicals and then he washed the garage with chemicals and a Gerni.  There is evidence that the appellant’s credit card was used to buy protective cleaning items of boots, goggles, facemask, and gloves.  Mr Gray, who sold these items to the person, said the person was working with nitric and sulphuric acids.
227. [227]
     The appellant’s counsel raised many matters which he relied upon to explain these pieces of evidence, all of which were matters for the jury to consider.
228. [228]
     It was open, in the circumstances, for the jury to reject the appellant’s statement to the police in light of the strong prosecution case against him.  Indeed, considering the evidence of Mr Eggleton and Mr Woodward, the jury were entitled to use such evidence as a lie going to consciousness of guilt.
229. [229]
     In relation to circumstantial cases where inferences are being asked to be drawn, they must be rational inferences based upon evidence; guesswork, speculation or intuition are not permitted.  The competing inference must also be logically based, that is, it must bear some logical relationship to the evidence from which it proceeds.
230. [230]
     The statement of principle that, in order for a hypothesis to be a reasonable one, it must be based upon something more than mere conjecture was restated in R v Baden-Clay,^[24] where the High Court said:

“For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”^[25]

231. [231]
     In R v Baden-Clay, the High Court emphasised the role of the jury as a “constitutional tribunal for deciding issues of fact” and stated:

“Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”^[26]

232. [232]
     In Libke v The Queen,^[27] the High Court reiterated that the question is whether, on the evidence, it was open to the jury to be satisfied of guilt beyond a reasonable doubt:

“… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.”^[28]

233. [233]
     On the evidence, particularly that of Mr ABC and Ms Wagner, it was open for the jury to be satisfied beyond a reasonable doubt that the appellant was guilty of murdering his uncle.
234. [234]
     In my view, when all of the circumstances established by the evidence are considered and weighed, and not in a piecemeal fashion, there is no inference consistent with innocence that was reasonably open on the evidence.  The inference of guilt is the only reasonable inference open upon a consideration of all the facts and evidence.
235. [235]
     I am unable to reach the conclusion that the case meets the tests laid down in M v The Queen and as restated in Dansie.  I do not consider there is a “significant possibility that an innocent person has been convicted”.^[29]

Issues repeatedly raised by the appellant

236. [236]
     The appellant relies upon 10 grounds of appeal and has filed two sets of submissions, the first being over 100 pages and the second (by order of the court) being a more condensed version of 10 pages.  The appellant’s outlines of argument deal with the 10 grounds of appeal in a chaotic and confusing way by constantly diverting into unrelated issues.
237. [237]
     The appellant repeatedly raises a number of issues throughout his voluminous submissions, notwithstanding that they have little or no relevance to the ground of appeal the appellant is addressing.
238. [238]
     For example, as part of the first ground, the appellant raised unrelated issues about the Crown prosecutor’s address.  The appellant referred to a number of passages of the prosecutor’s address and claimed that the prosecutor materially misrepresented the evidence.
239. [239]
     There was no misrepresentation of the evidence by the prosecutor.  The prosecutor was making submissions as to the evidence; it is not an error to present a persuasive argument as to what the evidence proves.
240. [240]
     Further, there are a number of issues raised by the appellant that are constantly weaved throughout his grounds of appeal, including:

     1. the ‘Important Issues’ document,
     2. Mr Snow and Mr Doyle’s evidence and directions given by the trial judge in relation to these two witnesses,
     3. Mr ABC’s evidence and directions given by the trial judge in relation to his evidence,
     4. Ms Wagner’s evidence,
     5. the evidence relating to the purchase of acid, and
     6. the jury being directed that the appellant’s statement to police of “I did not see Gerry on this day” was a lie.
241. [241]
     Accordingly, it is more efficient to deal with these issues before addressing the remaining nine grounds of appeal.

‘Important Issues’ document

242. [242]
     The appellant takes issue with a document provided to the jury by the trial judge setting out the important issues for them to consider (the important issues document) and states that, in combination with the directions given by the trial judge, there has been some reversal of onus and/or not a full account of the evidence.
243. [243]
     The appellant was charged with murdering his uncle, Gerhard Wagner, and the prosecution had to prove beyond a reasonable doubt that:

     1. Gerhard Wagner was dead,
     2. the appellant caused Gerhard Wagner’s death,
     3. the defendant did so unlawfully, and
     4. the defendant intended to kill or cause grievous bodily harm to Gerhard Wagner.
244. [244]
     The prosecution case was that the appellant murdered Gerhard Wagner on the afternoon of 7 January 1999 at the appellant’s unit in Ashgrove.  As noted, the particulars of the time and place of the murder came from the combined effect of Ms Wagner’s evidence and the appellant’s confession to Mr ABC.
245. [245]
     The trial judge had an obligation to identify the real issues in the case.^[30]
246. [246]
     In this case, he did so and provided the jury with a document setting out the important issues for them to consider, which contained six questions:

“1. Are you satisfied that the defendant and Gerhard Wagner were present on the evening of 7 January 1999 at Unit 3, 168 Waterworks Road, Ashgrove, when Brooke Wagner made an unexpected visit to her cousin’s home at around 5.20 pm?

2. Did Gerhard Wagner die on or about 7 January 1999?

3. If so, does the circumstantial evidence, or the alleged admissions made by the defendant, or the circumstantial evidence and the direct evidence in combination, persuade you that Gerhard Wagner was killed? In other words, are you satisfied that he did not die of natural causes or in a road accident or some other accident, but was deliberately killed?

4. If so, does the circumstantial evidence, or the direct evidence of alleged admissions made by the defendant, or the circumstantial evidence and the direct evidence in combination, satisfy you beyond reasonable doubt that Gerhard Wagner was killed by the defendant?

5. If so, are you satisfied that the killing was unlawful? (For example, because there is no evidence that Gerhard Wagner was killed by the defendant as a result of an accident, in self-defence or in other circumstances that would, in law, excuse a killing).

6. Finally, if the defendant unlawfully killed Gerhard Wagner, did he intend to kill him, or at least cause him grievous bodily harm, at the time he killed him?

The prosecution must prove each of these matters beyond reasonable doubt.”

247. [247]
     The trial judge spent some time and care settling these questions with counsel.  With the consent of the appellant’s counsel, this document was provided to the jury.  In doing so, the trial judge noted that each of these issues had to be satisfied beyond a reasonable doubt.
248. [248]
     The appellant now takes issue with these important issues as framed by the trial judge and agreed to by counsel.
249. [249]
     The appellant states that the structure and content of these questions supported what he characterises as:

“… the cascading effect of material misrepresentation for its seductive effect on Gerry Wagner’s identity in [Q1] and for conjecturing to the decision maker that Gerry was deliberately killed in [Q3] inferable as a cause of death in [Q4] as a matter of an unreasonable inference drawn from ABC’s self-serving notebook. The trial judge failed to apprise the jury that the onus of proof and the standard of proof beyond reasonable doubt are built into what were labelled jury questions on the legal elements.”

250. [250]
     The appellant contends that these questions created an easy pathway for the jury to “reason back” guilt and goes on to say that the jury’s process of drawing a rational inference on the key disputed issues was “rationally infected by the trial judge materially misrepresenting key witnesses from the witness box.”  He repeatedly refers to the trial judge’s summing up, where the judge stated:

“Some disputed facts which form part of the prosecution’s circumstantial case are more important than others. For example, the prosecution contends, in reliance upon the evidence of Brooke Wagner and other evidence, such as the defendant’s inconsistent accounts of where he was when Brooke Wagner visited his home, that (a) he was present on the evening of 7 January 1999 at the Waterworks Road unit when she visited and (b) the noises which Brooke Wagner reports hearing were of him and possibly her uncle moaning after being attacked in the garage.

The prosecution relies upon the alleged confession to Mr ABC as supporting the conclusion that when Brooke Wagner came round that evening, she heard her uncle moan.” (the moaning reference) – t 5.

251. [251]
     The appellant correctly identifies that Ms Wagner never stated that she heard her uncle or that she used the term “moaning” in her evidence.
252. [252]
     Ms Wagner’s evidence was that she heard a muffled voice:

“And what happened when you went to see your cousin?---So, as I was pulling into the unit block, I could see that his car was there so I believed he was home. Parked my car, walked down to the front door, knocked on the door. I think I yelled out a few times, “Hi, it’s me, Brooke.” I felt like I – I felt a bit uneasy being there because I looked up and I remember seeing the - - -

Sorry, I?--- - - - [indistinct] and the security screens completely missing from the top window. Which increased my certainty that Robert was home. And I felt like I could hear movement in the apartment, and I believed he was coming to the door. And I heard a muffled voice, which also made me believe that he was coming to the front door. And then when he still didn’t come to the front door I walked around the back here and had a look at the backdoor.” – t 5-45.

253. [253]
     The appellant places significant weight, in this appeal, upon this error made by the trial judge:

“I lost the opportunity of gaining a relatively precise knowledge of the trial judge’s presumption of guilt case against me in the summing up and of testing the Crown witnesses, give evidence on oath by cross-examination to refute the adverse inferences not adduced by the prosecution. By law, the appellant did not have to say anything in my trial. I should not have been placed in a position of disadvantage by the fact that, in accordance with the then law, I elected not to give sworn evidence. To do so would amount to a form of coercion upon me, give sworn evidence to contradict Brooke Wagner heard her uncle at around 5.15 pm, 7^th of January 1999.

The misdirection in a murder trial which favoured the prosecution case in the absence of corroboration between Brooke Wagner and a witness who was a professional fraudster, prison informer incorrectly imposed upon me, in effect, an obligation to give sworn evidence that was not required by law or to suffer a significant burden of a wholly improper purpose to build a strong belief in [ABC’s]^[31] evidence and self-serving notebook central to a consideration of the decisionmaker’s verdict winner.”

254. [254]
     The appellant states that it was a legal error to recast question three as an “alternative mechanism to sway the jury on causation”.  Further, he circles back to the moaning reference often in his submissions when addressing various grounds of appeal.
255. [255]
     The appellant submits that the moaning reference made by the trial judge was a self-serving direction to impermissibly build a strong belief in a prison informer which favoured the prosecution case to convict and that his trial was fundamentally flawed by the “impermissible inclusion of an irrelevant and legally inadmissible criminal accusation” of Ms Wagner hearing her uncle.
256. [256]
     However, the appellant’s complaint about the moaning reference ignores that the prosecutor corrected the trial judge about Ms Wagner using the term “moaning” and the trial judge corrected this error in this way:

“… I should just correct and clarify something that I said towards the start of my summing up, and it dealt with the prosecution case, the circumstantial case, and in that context, I was outlining what the prosecution contended should be drawn on the basis of Brooke Wagner’s evidence and other evidence. I said that the prosecution contends that her evidence and other evidence and the defendant’s inconsistent accounts of where he was when Brooke Wagner visited his home leads to the conclusion that (a) he was present on the evening of 7 January 1999 at the Waterworks Road unit, and, secondly, the noises which Brooke Wagner reports hearing were of him and possibly her uncle moaning after being attacked in the garage. Just to be clear, that is the prosecution’s contention about what Ms Wagner heard. Her actual evidence was that she heard what she thought was a muffled sound. So I just want to make clear she did not say that she heard a moan. So I would like to clarify that.” – t 34.

257. [257]
     Accordingly, an error was made by the trial judge when he initially included the moaning reference.  It was quickly corrected.  There is no prejudice to the appellant.  Further, any reliance on the moaning reference in submissions made by the appellant have no basis.
258. [258]
     The appellant states that there are four elements of murder, not five, and to include question three adds an additional element which constituted an impermissible interference in his fundamental right to a fair trial according to law.
259. [259]
     The appellant goes on to further state that the combination of question three and the moaning reference leads to:

“…a line of reasoning of a person’s deliberation to kill which those legal errors conditioned the jury to find a financial motivation to kill which excluded others as a possibility, or accidental misadventure, because it required the jury to speculate a conscious consideration of motive as an indispensable link in [Q3]…”

260. [260]
     The appellant then goes on to reference the trial judge’s direction about the distinction between intent and motive:

“Intent does not necessarily involve premeditation. Intent should not be confused with motive. You’ve heard reference by the prosecution to what may have been a motive in killing, namely a financial motivation, but motive is not a fifth element. It’s not an element of the offence of murder. I direct you that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility. If, in fact, you decide that there’s no reliable evidence of such a motive and that such a motive did not exist, that does not necessarily mean the prosecution has failed to prove guilt because of the lack of motive. In that event, you would have to base your verdict on the evidence that you do accept. However, the existence of a motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks you to infer guilt and to infer that a person did the act intentionally. If there is a motive, then what might otherwise be inexplicable becomes explicable. So, in summary; although it’s unnecessary for the prosecution to prove a motive – as motives mark an element of either murder or manslaughter – nonetheless, the presence or absence of motive may be taken into account when considering whether the prosecution has proved guilt.”

261. [261]
     The inclusion of question three did not add an additional element to the offence of murder.  The work that question three performs is in circumstances where the appellant’s counsel expressly asked Ms Clune whether she killed the deceased.  Accordingly, the jury were instructed by the trial judge in these terms:

“I want to emphasise that this is not a whodunnit mystery like you might see on the ABC on a Sunday night. The issue that Gerhard died is not, effectively, a real issue. If you reach the point – which I’ll come back to shortly when I’m discussing these matters in more detail – if you reach the conclusion that he was killed, rather than dying of natural causes or in some kind of accident – if he was deliberately killed, then you don’t ask “well, who did it? Whodunnit? Was it the defendant or was it A or B or C?” It’s not a matter of asking “is the defendant more likely than someone else – nominated or unknown – to have killed his uncle”? If you’re satisfied that Gerhard Wagner was killed, then the issue is this; has the prosecution proven, beyond reasonable doubt, that Gerhard Wagner was killed by the defendant.

I should add that if the prosecution’s submissions – which I’ve attempted to capture – and your consideration of all the relevant evidence leads you to exclude the hypothesis that Ms Clune or someone else killed the deceased, then you don’t automatically and immediately reach the conclusion that the prosecution’s proven its case. It still has to prove its case against the defendant beyond a reasonable doubt, either on the basis of circumstantial evidence or on the basis of alleged confessions and admissions or a combination of both.” – t 52.

262. [262]
     The inclusion of question three did not recast the issue of causation.
263. [263]
     The appellant further states that questions in the important issues document (with the exception of question two), and the judge’s summing up as a whole, required him to establish actual innocence as opposed to “merely pointing to a doubt, in order to counter the favourable impression of ABC’s credibility and reliability adopted by the jury”.  This, the appellant states, amounts to a reversal of the onus of proof.
264. [264]
     The important issues document could not be clearer.  It clearly identified the issues on which the jury would have to be satisfied to prove the appellant’s guilt, as well as identifying that it was for the prosecution to prove each of those issues beyond a reasonable doubt.  There was no error by the judge in framing the issues in this way.  Further, the trial judge reiterated a number of times in his summing up that each of the matters raised by the important issues document needed to be proved beyond a reasonable doubt.
265. [265]
     There was no reversal of proof.

Mr Doyle and Mr Snow

266. [266]
     The appellant deals with Mr Doyle and Mr Snow’s evidence and the CCC hearing in ground 10, but his complaints about their evidence permeates throughout the other grounds.
267. [267]
     The appellant submits that the evidence of Mr Snow and Mr Doyle should have been removed from consideration by the jury.
268. [268]
     Mr Snow did not give evidence because he died prior to the trial.  His statement and cross-examination at the CCC hearing and the committal hearing were read to the jury pursuant to s 93B of the Evidence Act.  Because of the passage of time, there were a number of witnesses whose evidence was led in his way.  The trial judge appropriately directed the jury as to how to consider their evidence by reminding them that hearsay may be unreliable and that there was a need for caution in deciding whether to accept as reliable things presented in such a way.  The jury were directed that if they were to accept hearsay evidence, then they had to consider, and apply caution in deciding, the weight that should be given to it.
269. [269]
     Significant credibility issues, including collusion, were raised at the trial in relation to Mr Snow and Mr Doyle.  These credibility issues did not mean that their evidence was not admissible but, rather, they were matters for the jury to consider when assessing their evidence.  The credibility of both witnesses was front and centre for the jury’s consideration and was the subject of both addresses and summing up.  As I have stated, these issues were quintessentially matters for the jury and the jury were well placed to consider them.
270. [270]
     The appellant states that a Robinson^[32] direction should have been given in relation to these witnesses, i.e., it would be dangerous to convict based on their evidence.  Accordingly, the appellant submits that a miscarriage of justice was occasioned by the directions to the jury in relation to their evidence.  The appellant emphasises that the jury had no ability to assess the credibility and reliability of Mr Snow as he had died, and the evidence showed that there was a high degree of collusion between the two of them such that it could not be seen that either corroborated the other.

271. [271]
     The appellant’s counsel at the trial accepted the words “dangerous to convict” were not required in relation to both witnesses.  However, in relation to Mr Snow, a direction was sought by the appellant’s counsel that his evidence should be scrutinised with great care, over and above that which is contained in s 93C of the Evidence Act but perhaps falling short of use of the words “dangerous to convict”, as per a Robinson direction.  Indeed, that is what the trial judge did.
272. [272]
     In relation to Mr Snow, the trial judge instructed the jury in the following terms:

“You need to carefully assess the credibility and reliability of Mr Snow’s evidence. You may accept all, or part, or none of it. Having carefully assessed his evidence, you might find that Mr Snow accurately recalls certain events or accurately recalls the substance or effect of certain things that were said to him by Mr Wagner. This might include the occasion when Mr Wagner referred to what police were said to have accused him of, namely murdering his uncle and disposing of his remains in the Glasshouse Mountains.

If you reach the conclusion that such a statement was made by Mr Wagner then the evidence is capable of suggesting that Mr Wagner had knowledge of the circumstances of the killing being circumstances which the police had not, in fact, accused him of. If you reach that conclusion, and the defence points to many reasons why you would not rely on that part or, indeed, of most parts of Mr Snow’s evidence, that conclusion falls short of evidence which, by itself, is capable of proving guilt. Instead, what the prosecution contends is that evidence of Mr Wagner’s knowledge of the body’s remains being left at the Glasshouse Mountains is an additional piece of evidence which you can take into account.

You should scrutinise the evidence of Mr Snow with care before acting on it where he may have had, depending on your view, a financial incentive in the form of the publically-offered [sic] reward to implicate the defendant. As to the reward, police contacted Mr Snow. Mr Snow did not contact the police. He did not apply for a reward, and his evidence fell short of alleging that the defendant had made an express confession. You may think that is the sort of thing he might have come up with if he was desperate to get the reward, but that is a matter for you.

Despite his evidence falling short of an express confession, the prosecution relies upon it as being incriminating evidence. And Mr Snow’s credibility and reliability are significant issues, and the existence of a possible financial incentive is a reason why you should scrutinise his evidence with great care.” – t 27-28.

273. [273]
     The trial judge could not be clearer that Mr Snow’s evidence needed to be scrutinised with great care.
274. [274]
     The trial judge also appropriately directed the jury to exercise great care when considering Mr Doyle’s evidence:

“Before the break, I finished dealing with Mr Snow’s evidence, and I am now moving to the evidence of Mr Doyle. Again, I direct you that the same care should be applied in assessing the credibility and reliability of his evidence, and the reason is, in part, similar to the one that I gave in relation to Mr Snow. Mr Doyle has not applied for a reward. It was the police who contacted him, not the other way around. And he gave evidence that he was not motivated by a reward. Still, you should scrutinise his evidence with care because of the possible existence of a financial incentive to implicate the defendant.

…

I turn to the question of Mr Doyle’s motivation. He denied that he was motivated by any offer of a reward. He denied having only raised the matter when there was an offer of a reward. He says he only heard about the reward after being contacted by Mr Roddick. He did not contact the police and has not applied for any reward. He also gave evidence that he was not keen to get involved in 2014 and was very upset about being summoned to give evidence to the CCC.

Despite the fact that it was the police who contacted Mr Doyle, not the other way around, and his denial of being motivated by any financial reward, you should scrutinise Mr Doyle’s evidence with care before acting on it where he may have had, depending on your view, a financial incentive in the form of a reward to implicate the defendant.

Another reason to scrutinise Mr Doyle’s evidence with care, especially in relation to the alleged confession, is that whilst Mr Doyle said he reported the matter to Mr Duncan some weeks or months later after brooding on it, Mr Duncan cannot recall speaking to Mr Doyle about that matter.

…

So just by way of summary or conclusion in relation to Mr Doyle’s evidence, I repeat my earlier direction that you should exercise great care in assessing the credibility and reliability of the evidence of Mr Doyle.” – t 34, 37-38, 40.

275. [275]
     Again, the trial judge could not be clearer that Mr Doyle’s evidence needed to be scrutinised with great care.
276. [276]
     Further, the trial judge repeated the warning when considering any collusion between Mr Snow and Mr Doyle:

“But you have to consider the extent to which they got their heads together, or the extent to which they were each giving their recollections, jogged to some extent by speaking to each other. I want to emphasise and repeat the reasons for caution in acting on their evidence. That includes possible financial motivation. So you must carefully scrutinise their respective evidence.” – t 26.

277. [277]
     The evidence of Mr Snow and Mr Doyle was admissible, and the jury were properly directed as to carefully scrutinising their evidence.

Mr ABC

278. [278]
     The appellant states that Mr ABC’s evidence and his notebook should have been removed from consideration by the jury.
279. [279]
     The appellant is particularly scathing about Mr ABC’s evidence in his submissions and refers to eight lies that Mr ABC made which, in essence, are his submissions about inconsistencies in Mr ABC’s evidence and arguments about his credibility.  These were all matters for the jury to consider.
280. [280]
     The appellant submits that Mr ABC was a man who had made his living through dishonesty and the trial judge’s misdirection (the moaning reference) built a strong belief in a prison informer by appealing to prejudice that the jury should follow some impermissible path of reasoning to corroborate him.
281. [281]
     Mr ABC accepted that the appellant spoke to him about his case a lot and, accordingly, he knew about allegations that witnesses were making against the appellant.  Mr ABC accepted that he saw some documents that the appellant had prepared about his case, including, on one occasion, a document which summarised the evidence of various witnesses.  Mr ABC was cross-examined as to where he got the information which formed the basis of his evidence as to the content of the appellant’s confession to him:

“I suggest that everything that you have learned and every aspect of the story that you have told this court and this jury has come from a combination of reading Mr Wagner’s notes about the evidence in his trial, talking to Mr Wagner about his trial, news reports, either television or newspaper, and you’ve just then filled in the gaps. Agree or disagree with that?---Disagree.” – t 3-10.

282. [282]
     It was put to Mr ABC that his evidence about the appellant’s case came from what he had learnt from the appellant about Mr Doyle’s evidence:

“All right. Now, what I suggest is that all of this story that you’ve told today has come from a witness by the name of Doyle. Does that name sound familiar?---He’s talked about Doyle before, yes.

Right. He talked about Doyle a lot, didn’t he?---And Snow.

Yes. And his boat. Do you agree?---The boat incident, yes.

All right?---But I don’t agree that’s where the information came from. – t 2-98.

283. [283]
     In relation to Mr ABC’s contemporaneous notes, it was put to him that these notes were not contemporaneous notes, but rather a consolidation of information he had learnt about the appellant’s case over time:

“And I suggest these contemporaneous notes that you rely on were, in fact, you making a little note every time you learnt something new about Mr Wagner’s case after having spoken to him in the print shop?---No.

You disagree?---Absolutely.” – t 2-92.

284. [284]
     The prosecution, in re-examination, then tendered Mr ABC’s notebook which showed where and when these notes were made.  The prosecutor set out the basis for such a tender:

“MR McCARTHY: Your Honour, the jury ought be entitled to examine not only the note but the surrounding pages to the note, in which they can make an assessment of the statement made of this witness to understand the circumstances in which the contemporaneity of the note is purported by this particular witness. Your Honour may recall from the pre-trial hearing the particular contemporaneous notes that I’ve bookmarked, if I can use that term, by entries in relation to proposed weight loss, which are punctuated in terms of not being filled in for the week of 23 December, and the end of the bookmark is a list of prospective goals that the witness would have.

Contained within the bookmarking of those particular pages are what the Crown relied upon as his contemporaneous notes, and the nature and the way and the manner in which the notes are written will be examined by the Crown. And it’s a matter of assessment of the jury as to whether they accept the reliability of this witness in the explanation as to the manner in which the contemporaneous notes are taken, but without being provided – any copy being proved before the jury, the jury are not in a position to properly assess his evidence in those circumstances.

HIS HONOUR:  Yes. Yes. Mr Funch, anything in reply on that?

MR FUNCH: Your Honour, I’m just looking at those notes.

HIS HONOUR:  I’ve got a hard copy if that speeds up the process.

MR FUNCH:  No, your Honour, I’m almost finished. Your Honour, I’m not opposed to that - - -

HIS HONOUR: Okay.

MR FUNCH: - - - occurring.

HIS HONOUR:  Very well. Well, that’s clarified the matter. We might as well have the jury back and conclude Mr ABC’s evidence.” – t 3-20.

285. [285]
     All of this is unremarkable.
286. [286]
     In Wojcic v Incorporated Nominal Defendant,^[33] Winneke CJ, delivering the judgment of the Court, stated:

“A party, however, is entitled, in re-examination, to elicit from his witness facts which explain away or qualify facts which have been elicited from the witness in cross-examination, and which are themselves prejudicial to the party’s case or the witness’ credit, or from which prejudicial inferences could be drawn.”^[34]

287. [287]
     Once the appellant’s counsel suggested that the notes were made on a piecemeal basis each time after Mr ABC had spoken to the appellant, the prosecution was entitled to tender the notebook for the jury to assess such a proposition, considering how the notes appeared and their context in relation to other entries made by Mr ABC.  In any event, the appellant’s counsel did not object to such a course.
288. [288]
     As the trial judge remarked to the jury:

“The significant question is this: did the detail as recorded in Mr ABC’s notebook come from the defendant in the print room conversation because Mr ABC was only told about those matters that day and, could not or did not, obtain them from any other source.” – t 45.

289. [289]
     Further, once the notebook was tendered, the entries were admissible as evidence of any fact stated therein, pursuant to s 101 of the Evidence Act:

“101 Witness’s previous statement, if proved, to be evidence of facts stated

1. Where in any proceeding—

1. a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17, 18 or 19; or

2. a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that the person’s evidence has been fabricated;

that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.

2. Subsection (1) shall apply to any statement or information proved by virtue of section 94(1)(b) as it applies to a previous inconsistent or contradictory statement made by a person called as a witness which is proved as mentioned in subsection (1)(a).

3. Nothing in this part shall affect any of the rules of law relating to the circumstances in which, where a person called as a witness in any proceeding is cross-examined on a document used by the person to refresh the person’s memory, that document may be made evidence in that proceeding, and where a document or any part of a document is received in evidence in any such proceeding by virtue of any such rule of law, any statement made in that document or part by the person using the document to refresh the person’s memory shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.”

290. [290]
     Mr ABC was an important witness for the prosecution.  So much so that the important issues questions were framed in that the jury had to be satisfied beyond a reasonable doubt that the deceased was at the appellant’s house at the time when Ms Wagner unexpectedly came to visit him on the afternoon of 7 January 1999.  The prosecution made this concession when the trial judge was discussing his summing up and directions with counsel.
291. [291]
     The appellant’s case was that Mr ABC gained knowledge of the appellant’s case by:

     1. speaking to the appellant,
     2. reading the appellant’s documents, and
     3. reading media reports about the appellant’s case.
292. [292]
     Further, the appellant’s case was that, from this information, Mr ABC manipulated it into stating that the appellant confessed to him.  Further, it was specifically suggested to Mr ABC that he was aware of Mr Doyle’s evidence, which he then used to construct a confession from the appellant.  Mr ABC rejected all of these propositions and steadfastly maintained that the appellant confessed to him.
293. [293]
     In the appeal, the appellant stated that Mr ABC was aware of Ms Wagner’s evidence by reading her statement.  Whilst this was not directly put to Mr ABC during the trial, Mr ABC rejected any suggestion that he gained information about the appellant’s case from other means than from the appellant confessing to him.
294. [294]
     Mr ABC did not shy away from the fact that he had a background of lying for his own benefit and his circumstances of giving evidence against the appellant were made clear to the jury.  The jury were properly instructed by the trial judge of the dangers of acting on Mr ABC’s evidence:

“I’m going to give you a particular warning about the danger of acting on the evidence of Mr ABC without first scrutinising his evidence carefully.

Evidence of a fellow prisoner of an alleged confession may be easily concocted. It’s hard to refute. Where the fellow prisoner has previous convictions or has admitted his guilt to an offence, particularly an offence of dishonesty, there’s a question of character and credibility. There’s also the possible motivation to gain some benefit. Also, you should have regard to the values and culture of prison society. Conventional standards of conduct are replaced by a culture in which values such as truth and respect for the rights of others has very little relevance to some prisoners. In such an environment, some prisoners will not hesitate to make false accusations against other prisoners if to do so will advance their own interests.

Therefore, you should scrutinise Mr ABC’s evidence with great care. Before you act on his evidence, you should consider whether you’re satisfied of his reliability, accuracy and honesty in relation to his evidence. You should take into account the fact that while it might be easy enough for Mr ABC to concoct that evidence, it’s very difficult for someone in the defendant’s position to refute it.

You should have regard to Mr ABC’s admitted commission of dishonesty offences in 2011 and between 2013 and 2016. You should have regard to what he stood to gain or thought he stood to gain by giving evidence against the defendant. Would he have known that cooperation with police would be taken into account in sentencing? You may think that if he thought about it, he would have known that cooperation with police in relation to the defendant might be taken into account in mitigation of sentence.

You should therefore take into account the possibility that Mr ABC may have been motivated to fabricate his evidence, thinking that he’d derive some benefit in terms of sentence, treatment in prison or an earlier parole eligibility date.

Consider the evidence that he gave about his motivation in speaking to police.

I warn you that it would be dangerous to act on the evidence of Mr ABC unless there is independent evidence substantially confirming it. You should scrutinise his evidence with great care. You should consider whether certain evidence substantially confirms what Mr ABC says about the defendant, having admitted the offence to him.

Is there anything which tends to confirm the actual making of the confessional statements to Mr ABC? For example, is there any material in the alleged conversation between the defendant and Mr ABC about the murder that would not have been known to Mr ABC unless the defendant confided in him? – t 43-44.

295. [295]
     The trial judge went on and directed the jury to consider whether there was any independent evidence that could be regarded as substantially confirming that the appellant did in fact speak to Mr ABC about the charges he was facing, was prepared to confide in him and, most importantly, to confess things to him about killing his uncle:

“I’ve warned you that it would be dangerous to act on the evidence of Mr ABC unless there’s independent evidence substantially confirming it. So my direction invites you to look for confirmation or support, but you should focus on evidence which makes it likely that the defendant trusted Mr ABC, spoke to him, said the things which Mr ABC alleges and that those things were accurate. In the case of a prison informant like Mr ABC, you’d not regard as confirmation material which could have been ascertained from sources other than the defendant, for example, because these things were spoken about in the media or in prison. You’d not treat as confirmation the basic fact that there is other evidence against the accused such as the evidence which caused him to be arrested, charged and put in prison in the first place.” – t 44.

296. [296]
     Mr ABC’s evidence was a very important plank of the prosecution case.  His evidence, combined with Ms Wagner’s, established the time, place, and manner of the killing, and his credibility was front and centre for the jury’s consideration.  The jury was best placed to consider all of this.
297. [297]
     Despite all of the credibility issues raised about Mr ABC, it was open for the jury to accept his evidence, when considered in combination with other evidence and, in particular, Ms Wagner’s evidence.

The purchase of acid

298. [298]
     The appellant refers to the “irrelevant and inadmissible criminal accusation as to the evidence concerning the purchased of acid” which was “a prima facie showing of guilt in context of my incapacity to test that false accusation which undermined my legal rights and the accusatorial character of my trial.”
299. [299]
     The purchase of acid and other items by a person using the appellant’s credit card was admissible as part of the prosecution’s circumstantial case against the appellant.
300. [300]
     The trial judge properly directed the jury as to the issue of Mr Gray, who served the customer, identifying the appellant, culminating in:

“I direct you that there’s a special need for caution before convicting in reliance on the correctness of such an observation. The reason for that is it’s quite possible for an honest witness to make a mistaken observation or identification in the sense I have described.

A mistaken witness may, nevertheless, be convincing.

You must examine carefully the circumstances in which the observation by Mr Gray was made; how long did he have the person under observation. Mr Gray hadn’t seen the customer before.

Another question is whether Mr Gray had any special reason for remembering the customer. What time elapsed between the conversation with and observation of the customer and the subsequent reporting of the matter? Did the description given by Mr Gray accord with the defendant’s appearance at the time? Was there any material discrepancy between the description given to the police by Mr Gray and the defendant’s appearance?” – t 12-13.

301. [301]
     In relation to the purchase of the acid and other items, the appellant complains about this part of the trial judge’s summing up:

“If, however, you do not accept or have major reservations about Snow, Doyle and ABC and, therefore, placed limited or no weight on their evidence, then the prosecution case would be substantially or wholly a circumstantial case, and to convict him you need exclude all reasonable hypotheses consistent with innocence, that the defendant unlawfully killed his uncle, and for murder, did so with intent. That would need to be the only reasonable inference in the light of all of the evidence. Circumstantial evidence is in many categories. This includes possible financial motive. Brooke Wagner’s evidence and observations on the evening of 7 January, conduct before and after the alleged killing, the acquisition of gloves and other items from Alsafe suitable for using acid to clean the garage and the sudden disposal of the Saab. I’ve been over this evidence this morning.

You need to consider each of those matters as circumstantial evidence. You need to consider possible explanations for each piece of circumstantial evidence. However, having done so, you look at the whole of the evidence. You look at the different strands of the circumstantial case taken together. You decide on the whole of the evidence which you accept where the prosecution has proven each of the four elements of the offence of murder beyond reasonable doubt.” – t 34.

302. [302]
     There is nothing controversial about such a direction dealing with circumstantial evidence.  However, the appellant states that such a direction:

“… cast a legal burden upon me to disprove “Brooke Wagner heard her uncle” after being attacked in my garage which might have been used to infer intent, and that I had to prove there was no acid purchase in 1999 which was nothing more than the trial judge’s impermissible inclusion of irrelevant and legally impermissible criminal accusations @ [R 206.34 – “As to the evidence concerning the purchase of acid” – there was none] that rendered my trial fundamentally unfair. Both accusations inferred I was liable for murder in substantially a circumstantial case.”

303. [303]
     I have already referred to the moaning reference made in error and its subsequent correction.  The other part of the trial judge’s summing up (R206.34) that the appellant refers to as part of his complaint is where the trial judge summarised the appellant’s counsel address to the jury:

“As to the evidence concerning the purchase of acid, protective clothing, the question posed for you by Mr Funch’s address was, in effect, “Has the Crown proven that the person talking about cleaning the garage and talking about acids was, in fact, the defendant?” – t 23.

304. [304]
     Nothing arises from this summary of the appellant’s case by the trial judge.
305. [305]
     In relation to the purchase of acid and other items, the trial judge properly directed the jury, including in the following terms:

“And as I identified this morning, an issue for you is if it was Mr Robert Wagner who acquired that equipment, could the equipment have been used for renovations and work that he was planning to do? You remember the evidence of Aaron Mulholland about having undertaken some work there some months earlier. Mr Gray’s evidence is that those gloves are required for acid, and that’s what the customer wanted the gloves for, not asbestos. On this aspect, the defence submits, Mr Funch said to you the other day the prosecution has to prove the conversation with the customer about acid cleaning of the garage, has to prove that that conversation about acid cleaning and about a garage was a conversation with the same person who Mr Gray served, and that’s true. The prosecution has to prove that.

The prosecution’s position is, yes, we did. We did that by calling Mr Gray, and he spoke about one transaction with one customer and that one customer had to be referred on to Kevin, and there’s a discussion about acids. And the prosecution case is the person who bought the goods on that invoice, the defendant, was speaking about acid and a garage. Is there any explanation as to why the defendant would need acid-proof gloves? Well, an explanation is that he might need those gloves for whatever reason. He might need the other equipment for work he was doing, including renovations and asbestos removal. So to consider the prosecution’s case and you consider possible explanations for it.” – t 33.

306. [306]
     There was no error in Mr Gray’s evidence being admitted, nor in the trial judge’s directions relating to the use to be made of it.

Lie going to consciousness of guilt

307. [307]
     The appellant states that the prosecution and the trial judge erred in concluding that his exculpatory statement of “I did not see Gerry on this day” was a lie going to a consciousness of guilt.
308. [308]
     The basis for this statement being a lie going to consciousness of guilt is that:

     1. Mr Eggleton stated that the appellant rang him on and told him that he had spoken to Mr Woodward and Mr Woodward had told him that the deceased left his workshop at 3.00 pm on 7 January 1999, and
     2. Mr Woodward gave a statement to police where he stated that the appellant had not spoken to him.
309. [309]
     Accordingly, the prosecution stated that the only way that the appellant would know that the deceased left Mr Woodward’s premises at 3.00 pm on 7 January is if the deceased had told him.  Accordingly, the prosecution stated that the appellant’s statement to police of not seeing the deceased on 7 January was a lie going to consciousness of guilt.
310. [310]
     The trial judge put it to the jury in this way;

“Now, I return then to the parts of Mr Wagner’s police statement that represented that he had not had contact with his uncle on 7 January 1999. As I introduced, the prosecution’s position is that this alleged lie is in a different category and was motivated by a consciousness of guilt. The prosecution says that the representation that he had not seen his uncle was false and a lie because, upon analysis of call records – telephone call records, and the evidence of Mr Eggleton and Mr Woodward, it’s clear that the defendant had not spoken to Mr Woodward as he said in his statement and, therefore, couldn’t have told Mr Eggleton that he had. The reason for the lie is said by the prosecution to be that the defendant had, in fact, seen his uncle after 3 pm on 7 January 1999 and he deliberately omitted to report that to the police because he knew the truth would implicate him in the murder. Again, there’s a similar process in relation to a lie which is alleged to indicate a consciousness of guilt to the process of reasoning, I indicated, in relation to conduct which is relied upon as showing a consciousness of guilt.” – t 11.

311. [311]
     To be relevant to the question of guilt, Edwards v The Queen^[35] makes clear that the lie must be deliberate, material to the case, and explicable on the basis that the truth would implicate the accused.  While other explanations may be open, that is beside the point,^[36] as whether the lie does evidence a consciousness of guilt is a matter for the jury.^[37]
312. [312]
     Considering the evidence of Mr Woodward and Mr Eggleton, it was appropriate to leave the appellant’s exculpatory statement to the jury as a lie going to consciousness of guilt.
313. [313]
     The trial judge properly directed the jury as to how to use such evidence and warned them appropriately in accordance with a consciousness of guilt direction.
314. [314]
     There is no basis for any complaint about the appellant’s statement being left to the jury to consider whether it went to consciousness of guilt.

Ground 2 – “Is there anything in my statement which is suspicious?”

315. [315]
     A diary of the appellant’s was seized by police which contained this entry for 1 May 2000:

“Is my grandfather still senile?

Is there anything in my statement which is suspicious?”

316. [316]
     The appellant’s argument on this ground is twofold:

     1. that the diary entry should not have been admitted, and
     2. the directions given were somehow inappropriate or misleading.
317. [317]
     The appellant states that the diary should have been excluded because it:

     1. required the jury to speculate the “entry” as an implied admission of guilt which, in turn, catalysed their acceptance of a “consciousness of guilt” corroborating Mr ABC,
     2. was not sufficiently cogent to justify an implied admission of guilt, and
     3. was a business diary not a personal diary and was so ambiguous that it was incapable of supporting the inference advanced by the prosecution.
318. [318]
     The evidence at trial established that the appellant kept diaries regarding matters of significance to him.  This entry was made at a time when he was aware he was a suspect in the deceased’s murder, and that police were seeking to question him.
319. [319]
     Collectively, in the context of the evidence in the case against the appellant, the evidence was clearly probative and capable of proving the inference as argued by the trial prosecutor.
320. [320]
     The prejudice to the appellant was that, to give an alternative explanation, he would have had to identify he was the subject of other (much less serious) criminal offending.
321. [321]
     The trial judge in his summing up referred to the diary entry in this way:

“The prosecution contends that, in context, that must be a reference to the witness statement he gave on 22 January 1999. In context, that diary entry is capable of referring to that police statement. It’s also capable to referring to some other statement. It’s for you to decide if it in fact refers to the police witness statement.

If it does, you need to consider whether the concern about it containing something suspicious is the concern of someone who had in fact committed the offence and who, therefore, had a reason to be worried about how his statement might harm him, or was the concern of someone who was simply anxious about being falsely accused of committing a crime he did not in fact commit.

So you consider whether a statement like that constitutes an admission of some kind. If so, what that admission amounts to and what weight you give to it.” – t 15.

322. [322]
     The trial judge then went on to give a detailed direction and made clear what the prosecution had to prove before that diary entry could be used as a strand in the circumstantial case.  In the course of that direction, he explained alternative explanations which the jury would have to exclude before they could use that evidence:

“The prosecution contends that in context, that must be a reference to the witness statement he gave on 22 January 1999. In context, the diary is capable of referring to that police witness statement because, as you were told, police investigations were ongoing. And you’ve heard evidence that the defendant understood that police had accused him of killing his uncle. The diary entry is also capable of referring to some other statement.

You have to ask yourself the question, might it relate to some other statement that he made?

That entry for 1 May 2000 is a few weeks before the committal hearing, on the charges the defendant was then facing, with stealing and wilful damage, relating to property located at the Waterworks Road, Ashgrove unit. And the question arises, might it have referred to a witness statement given to police by him, in relation to those matters? However, the evidence wouldn’t support that. The evidence is that the only witness statement that the defendant ever gave to the Queensland Police was the one dated 22 January 1999. And that statement, 22 January 1999, didn’t relate to the subject matter of the stealing and wilful damage charge.

Still, the diary entry is capable of referring to some other unidentified statement.

It’s for you to decide if the diary entry, in context, refers to his police witness statement, in relation to his uncle’s disappearance.

Next, if you conclude that the diary entry relates to the witness statement he gave on 22 January 1999, then you have to consider explanations consistent with innocence. Adopting a process that I explained earlier, in relation to each category of conduct. You need to consider whether that entry, if it relates to the police statement dated 22 January 1999, whether it was written out of concern that the statement might contain something suspicious. Whether that concern was of someone who had in fact committed the offence of murder, or at least manslaughter, and who therefore had a reason to be worried about how his statement might harm him. Or is it the concern of someone who’s simply anxious about being falsely accused of committing a crime that he didn’t, in fact, commit.” – t 17-18.

323. [323]
     The trial judge concluded that there were alternative ways in which the appellant could attempt to establish an alternative explanation (as was in fact done), and the submissions of counsel addressed those as did the trial judge’s direction.
324. [324]
     There was no prejudice in the admission of the evidence itself, and the probative value arose out of a consideration of the relevant evidence as a whole.
325. [325]
     The trial judge appropriately directed the jury on what use they could make of the diary.

Ground 3 – Voice identification

326. [326]
     Whilst the appellant continually refers to “voice identification”, the relevant evidence was never directed, nor purported, to be identification evidence.
327. [327]
     The substance of this area of evidence was the statements made by the appellant to Mr ABC (that he hit the deceased with a hammer and shortly after someone knocked at the door, the deceased made a noise which he muffled, and he later saw a note from his cousin at the door) and the evidence of Brooke Wagner (that it appeared someone was home because windows were open and the appellant’s van was in the driveway, that she knocked at the door and thought she heard a noise and muffled voice, and then left a note at the door for the appellant) and the conclusions that could be reached having regard to the independent consistency of the evidence.
328. [328]
     The appellant states that the trial judge erred by entering “the factual contest of disputed jury questions” when directing the jury in relation to Mr ABC’s evidence that “Brooke Wagner heard her uncle” and influencing “the jury to comply with judicial direction on voice identification” which “conditioned the jury to find that guilt should be the only rational inference drawn”, and this error occasioned a miscarriage of justice.”
329. [329]
     The appellant states that the effect of the trial judge’s direction about Ms Wagner and Mr ABC allegedly corroborating each other, did not provide an adequate warning about the use of the evidence.
330. [330]
     The appellant ties this ground of appeal back to the moaning reference, made in error, by the trial judge.  However, the trial judge properly corrected his direction summarising the evidence as to what Ms Wagner said and nothing turns on this.
331. [331]
     In relation to a noise coming from the house, Ms Wagner stated that, when she visited on the afternoon of 7 January 1999, it appeared someone was home because the windows were open, and the appellant’s van was in the driveway.  Ms Wagner stated that she knocked at the door and thought she heard a noise and muffled voice and then left a note at the door for the appellant.  It was not suggested that her account was untrue or unreliable.
332. [332]
     Ms Wagner’s evidence did not purport to identify the deceased.
333. [333]
     Rather, Ms Wagner’s evidence is relevant due to the combined effect of her evidence with the evidence of Mr ABC where the appellant told him that he hit the deceased with a hammer:

“He said that not long after, he could hear somebody outside knocking and his uncle made a noise, so he muffled him.” – t 2-88.

334. [334]
     Mr ABC stated that the appellant told him that the person who knocked on the door was his niece or cousin.
335. [335]
     Mr ABC’s diary note of this conversation stated, “[niece] came round and uncle moaned held mouth + gaged”.
336. [336]
     There is a consistency between his evidence and Ms Wagner’s evidence.
337. [337]
     The power of Ms Wagner’s evidence is that there was no reasonable alternative explanation for Mr ABC knowing of that event without being told by the appellant.  In the circumstances, the actual description of the noise is immaterial.
338. [338]
     This evidence is relevant to establishing that the appellant and the deceased were inside the appellant’s unit when Ms Wagner made her unexpected visit on 7 January 1999.  The jury were instructed that they had to be satisfied of this beyond a reasonable doubt.
339. [339]
     Further, the appellant states that the heart of this ground of appeal is the appellant’s contention that Ms Wagner “confessed that she could not rule out [the possibility] that [the appellant] had moved into the upstairs shower upon her visit.”  However, as I have already noted, Ms Wagner did not give such evidence.
340. [340]
     The associated directions by the trial judge were entirely appropriate, consistent, and did not reverse the onus of proof.

Ground 4 – Motive directions 

341. [341]
     The appellant, when addressing this ground, refers to the following part of the trial judge’s summing up:

“In terms of Ms Clune’s evidence, she’s given an account of her movements and there’s also evidence from Ms Teodorescu that accounts for Ms Clune having come home to her home, that she was at Clayfield on Thursday afternoon and staying home that evening. And the prosecution says that the possibility that Ms Clune killed Mr Wagner is excluded because she had no motive to kill him. She still loved him. And the prosecution says that in circumstances in which their relationship had re-kindled by early January, it was the defendant who had a motive to kill because he was concerned that Gerhard would change his will back in favour of Ms Clune to some extent, and also, possibly, disfavour him or possibly even cut him out of his will because of his disappointment over the defendant’s conduct in relation to the Gerni.

I want to emphasise that this is not a whodunnit mystery like you might see on the ABC on a Sunday night. The issue that Gerhard died is not, effectively, a real issue. If you reach the point – which I’ll come back to shortly when I’m discussing these matters in more detail – if you reach the conclusion that he was killed, rather than dying of natural causes or in some kind of accident – if he was deliberately killed, then you don’t ask “well, who did it? Whodunnit? Was it the defendant or was it A or B or C?” It’s not a matter of asking “is the defendant more likely than someone else – nominated or unknown – to have killed his uncle”? If you’re satisfied that Gerhard Wagner was killed, then the issue is this; has the prosecution proven, beyond reasonable doubt, that Gerhard Wagner was killed by the defendant.

I should add that if the prosecution’s submissions – which I’ve attempted to capture – and your consideration of all the relevant evidence leads you to exclude the hypothesis that Ms Clune or someone else killed the deceased, then you don’t automatically and immediately reach the conclusion that the prosecution’s proven its case. It still has to prove its case against the defendant beyond a reasonable doubt, either on the basis of circumstantial evidence or on the basis of alleged confessions and admissions or a combination of both.

To prove its case, the prosecution must exclude any reasonable hypothesis open on the evidence. I emphasise open on the evidence; it has to be a reasonable hypothesis that has a basis. It has to exclude any reasonable hypothesis that Gerhard Wagner was killed by someone other than the defendant. The prosecution does not need to exclude speculative conjecture unsupported by evidence or any unreasonable hypothesis. It does, however, have to satisfy you on the whole of the evidence – both circumstantial and direct – that the defendant killed his uncle and must prove that element of the offence beyond reasonable doubt.

And I remind you that to bring in a verdict of guilty based entirely or substantially on circumstantial evidence, it’s necessary that guilt should not only be a rational inference, but also that it should be the only rational inference that could be drawn from the circumstances.” – t 53.

342. [342]
     The appellant states that the effect of this part of the summing up was that the trial judge “expressly conditioned fact-finding” that the appellant was the only person with a financial motive to deliberately kill to sway the jury to draw irrational inferences so Mr ABC ought to be believed.
343. [343]
     However, this part of the summing up needs to be put into context.
344. [344]
     At this stage of the summing up, the trial judge was addressing the point that the defence had raised possibilities that other people could have been responsible for the deceased’s death.  He sets this out in the immediately preceding passage:

“The next matter is particularly important. It’s not for the defence to disprove the prosecution case, or even to nominate who might be responsible for the disappearance of Gerhard Wagner. As I’ve told you – more than once, but it’s worth repeating – the defence bears no onus of proving who killed Gerhard Wagner. The prosecution must prove it was the defendant. And the prosecution seeks to do so by proving that the defendant was responsible for the disappearance of his uncle, relying on the inference that being responsible for the disappearance, he was also responsible for unlawfully killing his uncle. Also relying on admissions – particularly confessions – allegedly made by the defendant. And, by that process, thereby excluding the hypothesis that someone other than the defendant killed Gerhard Wagner.

If you’ve reached the conclusion the defendant intentionally killed his uncle, then the prosecution will have proven the charge of murder.

Consistently with what I’ve said, the defendant does not need to prove other possibilities, let alone prove that someone else killed Gerhard Wagner.

This possibility was mentioned in submissions. The defence raises the possibility – it doesn’t positively assert but it raises the possibility – that Ms Clune or some other party may have killed Gerhard Wagner. And yesterday Mr Funch submitted that there were these possibilities, and he submitted that the police investigation, however, soon focussed on Robert Wagner. As I say, the defence doesn’t positively assert that Ms Clune or anyone else killed Gerhard Wagner. Instead it raises those hypotheses for your consideration and says the prosecution must exclude them.

The prosecution says that proof that the defendant killed his uncle on the basis that I’ve outline excludes the possibility that someone else did. It just follows that by proving the case circumstantially and also if needs be relying on admissions – or, for that matter, simply relying on admissions, it’s proven its case. The prosecution also says that the possibility raised by the defence is unsupported by the evidence. And in the submissions, it was said that whatever disharmony had earlier existed in the relationship between Mr Wagner and Ms Clune, by the time of the disappearance of Mr Wagner, Mr Wagner and Ms Clune were dating, visiting each other’s homes and were on intimate terms. There was reference in the addresses yesterday to Yolanda Cruz’s evidence about Sammy’s father and a marriage. And the prosecution case is that Yolanda Cruz is just wrong about those things and points to the evidence of Ms Clune and her son that Sammy’s father just wasn’t on the scene – wasn’t in Australia and that Ms Clune wasn’t going to marry him.” – t 51-52.

345. [345]
     Taken as a whole, the trial judge was correctly directing the jury that the defence did not have to prove anything but that it was for the prosecution to have excluded other hypotheses.
346. [346]
     The trial judge properly directed the jury in relation to motive:

“Intent does not necessarily involve premeditation. Intent should not be confused with motive. You’ve heard reference by the prosecution to what may have been a motive in killing, namely a financial motivation, but motive is not a fifth element. It’s not an element of the offence of murder. I direct you that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility. If, in fact, you decide that there’s no reliable evidence of such a motive and that such a motive did not exist, that does not necessarily mean the prosecution has failed to prove guilt because of the lack of motive. In that event, you would have to base your verdict on the evidence that you do accept. However, the existence of a motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks you to infer guilt and to infer that a person did the act intentionally. If there is a motive, then what might otherwise be inexplicable becomes explicable. So, in summary; although it’s unnecessary for the prosecution to prove a motive – as motives mark an element of either murder or manslaughter – nonetheless, the presence or absence of motive may be taken into account when considering whether the prosecution has proved guilt.” – t 50.

347. [347]
     In relation to the prosecution’s submission as to motive, the trial judge directed the jury to consider other possible explanations:

“You need to consider what the prosecution submits is evidence of the defendant’s opportunity, means and motive.

You also need to consider other possible hypotheses provided they are reasonable and open on the evidence that someone known or unknown killed Gerhard Wagner.

I’m going to turn – unless you are fatigued and want to call it an afternoon? I’m going to turn now to a category of circumstantial evidence which is prior conduct and possible innocent explanations for the evidence that’s relied upon by the prosecution. So I’m dealing here with the circumstantial evidence and, in that context, the prosecution points to a body of evidence particularly in relation to the sale of the Nelson Street property and the terms of the new will as suggesting the defendant positioned himself to receive a large amount of money if his uncle Gerhard died and had a financial motive to kill him.

In this context and in every other context when you consider evidence about the defendant’s conduct you need to consider other possible – emphasise possible – explanations. For example, you need to consider that it was not unusual for members of the Wagner family to not use lawyers to draft contracts and for them to turn up at a settlement with the title deeds. You consider the unusual terms of the contract of sale and the authority which is exhibit 77 to pay the sale proceeds of the sale of Nelson Street into an account of Robert Wagner. The prosecution says, well, that’s suspicious. A competing explanation is that doing so was an attempt to – an attempt,  I should emphasise, an attempt to get asset protection from a possible de facto property claim and possibly to get an aged pension at some stage or to somehow simplify his financial affairs in preparation for retirement.

Next – and, as I said, the prosecution points to that – I’ve called them “informal will”. The technical term might be a codicil. It’s that fax dated 24 November 1988. It’s exhibit 44. It’s the one that’s addressed from and sent by fax seemingly from the fax in Mr Robert Wagner’s unit to McLachlan, Ivey & Woodman. It’s a document that was witnessed by Peter and Erin Mulholland and that document – which revoked the previous wills – was an informal will. Or I could just say a will or a codicil that not simply placed Mr Robert Wagner as executor but appointed him, effectively, as trustee where he could decide who got what including if he chose to exercise his discretion as trustee in favour of himself that he could benefit from the estate . So that document placed all of Mr Gerhard Wagner’s estate under the control of Robert Wagner. Again, the prosecution says that’s suspicious. It’s the defendant positioning himself. But the competing possible explanation is similar to the one mentioned by me a minute ago in relation to the Nelson Street Property that he was content to trust Robert Wagner with those financial affairs. At least, until he sorted out a new will.

Of course, in this context you need to consider whether Gerhard Wagner knew the terms and effect of the documents which he signed and which directed the proceeds of the sale of the Nelson Street property to Robert Wagner’s account. That’s exhibit 77, the authority dated 31 December 1999 and place all of his estate in the event he died under the sole control of Robert Wagner as trustee. Did he simply sign the documents Robert prepared for him without knowing their effect? However you need to consider what he knew and intended and whether he trusted Robert enough to give him those financial benefits and to place him in the proceeds of sale and in the event of death in control of the estate.

…

You’ve heard evidence about relationships and, importantly, the relationship between the defendant and Gerhard Wagner over the years. You need to take that into account and I’m not going to provide an editorial commentary. You’ve heard how there was a type of father-son relationship; a trusting relationship. It had its problems and sometimes a criticism of lifestyle and the like but you’ve heard a body of evidence about the state of that relationship over the years and that Gerhard Wagner, effectively, entrusted his nephew with $300,000 by way of a loan.

You take into account the evidence about that relationship but you will wish to focus on the state of their relationship in early January 1999.

You’ve heard evidence about the Gerni and the dispute or disquiet that started on 4 January 1999 over Robert Wagner trading the Gerni in for a new one; the unexpected trip to get the invoice which Robert Wagner obtained when he turned up without much forewarning but that’s how things happened in the family and picked up that invoice. You’ve heard of the discussions that followed on the 5^th of January. You need to consider the evidence about Gerhard Wagner’s relationships with his siblings; with his nephew Mark to whom he’d in an earlier will made provision in relation to the Memel and you need to think whether it’s likely that Gerhard Wagner would have wanted at least some of his siblings and his nephews to benefit from his will.

You need to consider the state of the relationship between Gerhard Wagner and Ms Clune over the years. But, again, the focus needs to be on their relationship, particularly, in early January 1999. To say that their relationship was complicated is really to say the least. There’s evidence that their de facto relationship had come to an end in October 1998. There’s evidence about apprehension that she may have a claim. I don’t need to dwell on whether she would have had a claim or – or didn’t but you understand that in de facto relationships there’s legislation just like in the Family Court where people can seek property on the basis of either financial or nonfinancial contributions but there is the potential, at least in Mr Gerhard Wagner’s mind, that she may have had a claim and that’s part of the narrative.

You’ve heard the evidence of how and why she moved out of Nelson Street and that precipitated Gerhard Wagner’s father moving as well. You’ve heard evidence that they maintained contact and there’s evidence that they spent New Year’s Eve together and that in early January 1999 they were seeing each other and Mr ABC’s evidence suggests that Gerhard Wagner may have been considering changing his will back to his girlfriend and there’s the suggestion – mere suggestion about cutting Robert out as well. In any event, the takeaway point is that you need to consider the state of different relationships particularly in early January 1999.” – t 62-64.

348. [348]
     This part of the trial judge’s summing up dovetailed with what had been said at that earlier passage, and raised the issue in relation to the possibility, first of all, that there could have been somebody else responsible for the death.
349. [349]
     That was because, as was indicated in the previous passage, those were matters that were raised by the appellant’s counsel during cross-examination, and obviously they were then matters that the jury had to be satisfied the prosecution had excluded beyond a reasonable doubt.
350. [350]
     There was no error in the directions given by the trial judge regarding the issue of motive.

Ground 5 – Mr ABC’s evidence and s 13A statement

351. [351]
     The appellant states that the trial judge failed to direct the jury that Mr ABC was a person who gave a s 13A statement or a s 13B statement, pursuant to the Penalties and Sentences Act 1992 (Qld) (the Act).
352. [352]
     Section 13A of the Act states:

“13A Cooperation with law enforcement authorities to be taken into account—undertaking to cooperate

1. This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding.

2. Before the sentencing proceeding starts, a party to the proceeding—

1. must advise the relevant officer—

1. that the offender has undertaken to cooperate with law enforcement agencies; and

2. that written or oral submissions or evidence will be made or brought before the court relevant on that account to the reduction of sentence; and

2. Smay give to the relevant officer copies of any proposed written submissions mentioned in paragraph (a)(ii).

3. After the offender is invited to address the court—

1. the offender’s written undertaking to cooperate with law enforcement agencies must be handed up to the court; and

2. any party may hand up to the court written submissions relevant to the reduction of sentence.

4. The undertaking must be in an unsealed envelope addressed to the sentencing judge or magistrate.

5. If oral submissions are to be made to, or evidence is to be brought before, the court relevant to the reduction of sentence, the court must be closed for that purpose.

6. The penalty imposed on the offender must be stated in open court.

7. After the imposition of the penalty, the sentencing judge or magistrate must—

1. close the court; and

2. state in closed court—

1. that the sentence is being reduced under this section; and

2. the sentence it would otherwise have imposed; and

3. cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court, including on an application to reopen the sentencing proceedings under section 188(2)—

1. the written undertaking;

2. a record of evidence or submissions made relevant to the reduction of sentence and the sentencing remarks made under paragraph (b).

8. The sentencing judge or magistrate may make an order prohibiting publication of all or part of the proceeding or the name and address of any witness on his or her own initiative or on application.

9. In deciding whether to make an order under subsection (8), the judge or magistrate may have regard to—

1. the safety of any person; and

2. the extent to which the detection of offences of a similar nature may be affected; and

3. the need to guarantee the confidentiality of information given by an informer.

10. A person who contravenes an order made under subsection (8) commits an offence.

Maximum penalty—

1. for an order made by a judge—5 years imprisonment; or

2. for an order made by a magistrate—3 years imprisonment.

11. In this section—

relevant officer means—

1. for a proceeding before the Supreme or District Court—the sentencing judge’s associate; or

2. for a proceeding before a Magistrates Court—the relevant clerk of the court.”

353. [353]
     Section 13B of the Act states:

“13B Cooperation with law enforcement authorities to be taken into account—cooperation given

1. This section applies for a sentence if—

1. the sentence is to be reduced by the sentencing court because the offender has significantly cooperated with a law enforcement agency in its investigations about an offence or a confiscation proceeding; and

2. section 13A does not apply for the sentence.

2. For subsection (1), an offender has not significantly cooperated with a law enforcement agency in its investigations about an offence only because the offender has admitted guilt for the offence.

3. Before the sentencing proceeding starts, a party to the proceeding—

1. must advise the relevant officer—

1. that the offender has significantly cooperated with a law enforcement agency; and

2. that written or oral submissions or evidence will be made or brought before the court relevant on that account to the reduction of sentence; and

2. may give the relevant officer copies of any proposed written submissions mentioned in paragraph (a)(ii).

4. After the offender is invited to address the court—

1. an affidavit, provided by a person representing the law enforcement agency, must be handed up to the court; and

2. any party may hand up to the court written submissions relevant to the reduction of sentence.

5. The affidavit must—

1. state the nature, extent and usefulness of the cooperation given to the law enforcement agency by the offender; and

2. be in an unsealed envelope addressed to the sentencing judge or magistrate.

6. If oral submissions are to be made to, or evidence is to be brought before, the court about the cooperation or the reduction of sentence, the court must be closed for that purpose.

7. The penalty imposed on the offender must be stated in open court.

8. After the imposition of the penalty, the sentencing judge or magistrate must cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court—

1. the affidavit;

2. a record of evidence or submissions made relevant to the reduction of sentence;

3. a record of the sentencing remarks relevant to the reduction of sentence, as opposed to the sentence imposed.

9. The sentencing judge or magistrate may make an order prohibiting publication of all or part of the proceeding or the name and address of any witness on his or her own initiative or on application.

10. In deciding whether to make an order under subsection (9), the judge or magistrate may have regard to—

1. the safety of any person; and

2. the extent to which the detection of offences of a similar nature may be affected; and

3. the need to guarantee the confidentiality of information given by an informer.

11. A person who contravenes an order made under subsection (9) commits an offence.

Maximum penalty—

1. for an order made by a judge—5 years imprisonment; or

2. for an order made by a magistrate—3 years imprisonment.

12. In this section—

relevant officer means—

1. for a proceeding before the Supreme or District Court—the sentencing judge’s associate; or

2. for a proceeding before a Magistrates Court—the relevant clerk of the court.”

354. [354]
     It is noted that paragraph 1 of Mr ABC’s statement stated the statement was pursuant to an undertaking given under s 13A of the Act.  However, Mr ABC, in his evidence, stated this part of the statement was pre-typed, and he had not read it before he gave his statement.
355. [355]
     In his evidence, Mr ABC did not accept that his police statements in January 2019 were provided pursuant to an undertaking given under s 13A and s 13B of the Act.
356. [356]
     As to ss 13A and 13 B of the Act, the appellant submits:

“Because the trial judge did not intervene and question the felon and make it clear to the jury he accepted his undertaking pursuant to sections 13A and 13B of the Penalties and Sentences Act 1992, his Honour was obliged in law to give a section 13A warning carried with a robust judicial caution on a witness who is a prison informer, and instruct the jury on the distinction between the two has occasioned a miscarriage.”

357. [357]
     Whilst s 13A of the Act deals with future cooperation, s 13B deals with past cooperation.  Section 13B is a procedural provision premised upon the relevance of past cooperation as a mitigating factor which McMurdo JA explained in R v PBH:^[38]

“[6] Section 13A is premised upon the relevance, as a mitigating factor, of an offender’s cooperation which is promised in a proceeding about an offence other than that for which the offender is then being sentenced. As Pincus JA said in R v Ianculescu, s 13A is largely a procedural provision, and he identified (what is now) s 9(2)(r) of the Act as the source of the Court’s obligation to have regard to future cooperation. In the same way, the principal function of s 13B is procedural. Section 13B is premised upon the relevance of past cooperation as a mitigating factor. As Pincus JA observed in Ianculescu, the source of the court’s duty to have regard to past cooperation is s 9(2)(i).”

358. [358]
     Section 13A of the Act is not applicable to Mr ABC’s circumstances as he was giving evidence prior to being sentenced for his unrelated fraudulent offending.
359. [359]
     In relation to s 13B cooperation, there was no evidence before the jury that Mr ABC gave a statement to the police on that basis.  However, Mr ABC accepted that he would expect a reduction in his sentence for his fraudulent offending based on the evidence he gave against Mr ABC:

“Your understanding is that, because of the evidence that you are giving here today, you will receive a lower sentence at your sentence next Thursday?---Today, yes. When I made the statement, no.” – t 2-95.

360. [360]
     The trial judge identified for the jury the risks in accepting the evidence of a person who possibly had something to gain by giving it.
361. [361]
     The trial judge gave appropriately strong directions to the jury about scrutinising Mr ABC’s evidence with great care, and that it would be dangerous to convict on that evidence unless there was some independent evidence supporting it.
362. [362]
     The trial judge then summarised the rival contentions regarding Mr ABC’s evidence.
363. [363]
     No other directions were required, nor were any sought, and there was no misdirection.

Ground 6 – Ms Teodorescu’s evidence

364. [364]
     The prosecution case is that the appellant killed the deceased on the afternoon of 7 January 1999.  Ms Teodorescu gave evidence that she saw the deceased after this time.
365. [365]
     Both counsels addressed the jury on her evidence.  The prosecution characterised her evidence as a red herring:

“A brief sighting from her balcony, drinking coffee, of a passing car – and she says she saw Gerhard’s car, and he had a mysterious woman in the car with him – is attenuated with all the problems associated with identification evidence.” – t 12-27.

366. [366]
     The appellant’s counsel refuted the red herring characterisation and stated that this evidence, from an independent witness, caused a problem for the prosecution case in circumstances where they were required to prove beyond a reasonable doubt that the appellant murdered the deceased on 7 January 1999.
367. [367]
     In relation to Ms Teodorescu’s evidence, the trial judge directed the jury in these terms:

“I note that Ms Teodorescu gave evidence of seeing someone who looked like Gerhard Wagner driving in a car with an older woman sometime after his reported disappearance. To be clear, her evidence was that she saw the car, “after Sammy and Menchie had gone to talk to police about Gerry disappearing.” So it was not just a couple of days after he disappeared. You should treat her evidence about identification with caution and the reason for that is it is quite possible for an honest witness to make a mistaken identification. In general, the powers of observation and recollection of observation are fallible and the risk of mistake is especially great with fleeting encounters. This was a fleeting observation. She was seeing someone in a moving car and only for a few seconds. When did she first report that sighting? What did she report at the time? Is her observation on what precisely her present recollection of her observation is likely to be accurate when regard is had to all of the other evidence? Did Mr Wagner, many days after he went missing, pick up the car – the Mercedes – from Nelson Street and go for a drive and drop it back without being observed by anyone else? It is a matter for you.” – t 59.

368. [368]
     The appellant states that the trial judge recast a Domican^[39] direction and, in doing so, effectively undermined a pathway for his acquittal.
369. [369]
     However, in the context of the evidence of this case, the issues raised by the trial judge were relevant and his directions on this issue were reasonable for the jury to consider.
370. [370]
     The trial judge gave similar directions in relation to other witnesses, for example, Mr Gray, who sold the acid to the customer who used the appellant’s credit card.
371. [371]
     Importantly, in relation to Ms Teodorescu, the trial judge raised issues for the jury to consider and directed the jury that it was clearly a matter for their determination.  No re-direction was sought by the appellant’s counsel.
372. [372]
     The trial judge, in his summing up, revisited the rival contentions for the jury to assess whether they raised a doubt on the issue of whether Gerhard Wagner was in fact deceased.  The trial judge’s summary of the various evidence relevant to the jury’s assessment was not a positive statement of argument, but an accurate summary of the effect of the evidence collectively.
373. [373]
     The trial judge correctly expressed to the jury that they had to be satisfied the prosecution had excluded any reasonable hypothesis that Gerhard Wagner had not been killed.
374. [374]
     There was no error in the trial judge’s direction to the jury about how to consider Ms Teodorescu’s evidence.

Ground 7 – Notebook entry

375. [375]
     This ground deals with Mr ABC’s notebook which contained Mr ABC’s notes of the appellant’s confession to him, in particular the reference to:

“[niece] came round and uncle moaned held mouth + gaged”

376. [376]
     The appellant states that the trial judge erred by making cogent these “insufficiently relevant words” and by introducing the “impugned evidence” tending to corroborate ABC’s notebook which was not independent evidence of any of the four elements of murder.
377. [377]
     This notebook was tendered without objection by the appellant’s counsel.
378. [378]
     The appellant’s argument seems to be returning to the issue of whether Mr ABC’s evidence was corroborated by (or consistent with) that of Brooke Wagner.
379. [379]
     The conclusions discussed, as to what the evidence meant, flowed from an acceptance of the truth of both witnesses in circumstances where the jury were consistently reminded of the prosecution’s duty to prove beyond reasonable doubt and exclude hypotheses consistent with innocence.
380. [380]
     One such conclusion, if the evidence of both Mr ABC and Ms Wagner was accepted, was that the noise heard by Ms Wagner was made by the deceased although she did not give that evidence herself.  That conclusion is no more than the logical consequence of accepting that evidence of both witnesses beyond reasonable doubt.
381. [381]
     Further, the trial Judge’s direction – that if the jury were satisfied beyond reasonable doubt that confessional statements made by the appellant (to Mr Doyle and/or Mr ABC) were in fact made and were true, they might convict in conjunction with whatever circumstantial evidence they found proved – was an entirely appropriate direction consistent with the law.  The trial judge had reminded the jury to heed the directions he had given with respect to both witnesses.
382. [382]
     Amongst the appellant’s submissions in relation to the notebook, he raises the bad conduct direct given by the trial judge:

“This misdirection to the jury on alleged bad conduct @ [R 158.03 – 159.37]: was used to expressly condition fact-finding the adverse inference to be drawn from the fact the jury was reminded that I did not give evidence to contradict the trial judge’s misdirection which suggested my bad conduct, before and after Gerry disappeared can be used in assessing the probability that I committed the offence charged because I am mean, greedy and unkind as a method to decide whether I told the truth, or not, in a police statement l made out of Court.

In other words, this misdirection to the jury on alleged bad conduct @ [R 158.03 – 159.37]: was used to prejudice the jury when deciding the appellant’s motive to deliberately kill his uncle in [Q3] as a reason why I did not give evidence because of a consciousness of guilt murder tending to corroborate a fraudster felon’s notebook through the calculated backdoor.”

383. [383]
     None of this makes any sense.
384. [384]
     The trial judge gave a conventional bad conduct direction which then flowed into a direction regarding the appellant not giving evidence.  Both directions were consistent with the appropriate directions to be given on those subjects and there was no error of the type alleged by the appellant.

Ground 8 – The prosecution’s failure to disclose statements

385. [385]
     The appellant’s eighth ground of appeal encompasses two submissions:

     1. first, the appellant states that the prosecution failed to disclose critical evidence relevant to the defence case prior to the trial, and
     2. further, the appellant also states the trial judge erred by denying an application by the appellant for a Basha hearing to test Mr ABC’s version of events.
386. [386]
     The alleged non-disclosure of statements is in relation to the prosecution’s failure to provide:

     1. a statement by Glenda Wagner, the deceased’s sister in law,
     2. items concerning the appellant’s 1999 diary, and
     3. CCTV footage from inside prison.
387. [387]
     Ms Wagner gave a statement to the police in 2009 and was cross-examined by the appellant’s counsel about making her statement 10 years after the deceased’s disappearance as being the first time that she went and spoke to police about these matters.
388. [388]
     However, this cross-examination was interrupted by the prosecutor.  In the absence of the jury, the prosecutor informed the court that he had just learnt that Ms Wagner had made a statement in 1999.  The material needed to be located and the appellant’s counsel specifically requested time to consider it and to take instructions from the appellant.  The trial was adjourned at 11.00 am until the next day so all of this could occur.
389. [389]
     When the trial resumed the next day, no issue was raised by the appellant’s counsel and the cross-examination of Glenda Wagner continued.  Ms Wagner was questioned about her statement:

“All right. Thank you. Now, you gave a statement to the police that you signed on the 1^st of April 2009. Do you agree with that?---That’s correct.

All right. And when – what was the process in giving that statement? Did you tell your story in 2009 or did you only sign the statement in 2009? Had you told your story at an earlier time or do you recall - - -?---Oh, I had been questioned before, but that was the time I signed my statement, yes, on April 2009.

Right. And when you gave that statement?---Yes.

Is it the case that you sat down with a police officer and the police officer was at a computer typing what you were saying?---That’s correct.

All right. And how long did that process take of telling this story and the police officer typing it?---Oh, I’m sorry, I can’t recall that. That was – that’s 20 years ago. I can’t recall how long that took.” – t 5-4.

390. [390]
     Neither party addressed the issue further.
391. [391]
     There is no evidence to suggest any improper withholding of evidence, nor that the appellant’s counsel considered there was still an issue, given the way in which it was dealt with in cross-examination.
392. [392]
     The appellant suggests that there was some failure to disclose something associated with his 1999 diary.  The appellant acknowledges that Detective Roddick was cross-examined regarding that issue.  Any submissions associated with credit could be (and were) made.  This issue has nothing to do with a prosecution disclosure.
393. [393]
     The appellant also raises an issue regarding CCTV footage from inside the prison.  There is no evidence to suggest that such footage had been secured, or otherwise seized by police, nor that it was in the possession of the prosecution.
394. [394]
     The fact that there were cameras does not prove that footage was obtained.
395. [395]
     It is a matter about which there is simply no evidence.
396. [396]
     Mr ABC was subjected to a Basha hearing where he was cross-examined as his statement was provided after the committal hearing.
397. [397]
     The appellant’s counsel raised at Mr ABC’s Basha hearing that, had Mr ABC’s statement been available pre-committal, then witnesses may have been cross-examined regarding any perceived differences in their respective timelines of accounts.  The trial judge took into account the history of the matter and, expressing his provisional view if an application for pre-trial examination of other witnesses were to be made, concluded that:

“I would think there have been forensic choices made to not apply to cross-examine the witnesses either at the committal or at a pre-trial hearing, and Mr Wagner didn’t raise at the pre-trial hearings before me in late 2018 that he wished to examine these witnesses. And so I think certain forensic choices have been made. The extent to which any application is pre-viewed, indicates a desire to consider the extent of inconsistency between what Mr ABC recounted as a narrative and the evidence given by those witnesses, but it seems to me that those inconsistencies exist.” – t 46-47.

398. [398]
     There was no substantive basis for requiring a Basha hearing in relation to these other witnesses in circumstances where the issue was so narrow.
399. [399]
     However, in relation to Brooke Wagner, whose evidence was directly interrelated with Mr ABC’s evidence, the trial judge indicated that cross-examination of Brooke Wagner could be accommodated at the trial:

“The Crown’s indicated a preparedness of – to accommodate a request to have a Basha hearing in relation to one aspect of the evidence of Brooke Wagner. She was always to be a witness at the trial and if an application is made to have, in effect, a voir dire or a Basha hearing in relation to that aspect, I think that application, if I grant it, and the Crown provisionally indicated it would not necessarily have a difficulty with this, that can be accommodated, I would think, in the course of the trial. And if Mr Wagner wished the prosecution to obtain a supplementary statement from Ms Wagner in relation to a particular topic, he could ask and that would facilitate his making choices about applying to examine her on the voir dire.” – t 47.

400. [400]
     At the trial, no application was made to cross examine Ms Wagner.
401. [401]
     Nothing turns on any of these issues raised by the appellant.

Ground 9 – Exhibit 44 should not have been admitted

402. [402]
     The appellant states that a fax from the deceased to his then solicitor on 24 November 1998, directing them to delete his existing will and, until he made a new will, that the appellant would have discretion to apply the deceased’s estate as he saw fit, should not have been admitted.
403. [403]
     No objection was taken to the admissibility of this fax by the appellant’s counsel at the trial.
404. [404]
     The appellant submits that this evidence should not have been led at the trial as it was irrelevant, dangerously misleading and the trial judge’s directions on it prejudiced him.
405. [405]
     The trial judge referred to this fax in this way:

“The other piece of evidence is the one-page will. Whether you call it an informal will, homemade will, codicil, isn’t important. It’s that facsimile document, that was not just appointing Robert Wagner as an executor, it was giving him power to decide who got what out of Gerhard Wagner’s estate.” – t 29.

406. [406]
     It seems that the appellant now states that no such document existed and that:

“[It] does not bear a certificate that it is a copy, and the prosecutor did not adduce evidence that it was an examined copy free of fraud.”

407. [407]
     No suggestion was made at the trial that this document was false.  The fax was witnessed by Mr Aaron Mulholland and Mr Peter Mulholland.  No such suggestion was put to them about such fraud.
408. [408]
     The appellant submits that the trial judge “wrongly influenced the jury” by his summing up in relation to that document.  The trial judge fairly drew the jury’s attention to this document:

“It’s a document that was witnessed by Peter and [Aaron]^[40] Mulholland and that document – which revoked the previous wills – was an informal will. Or I could just say a will or a codicil that not simply placed Mr Robert Wagner as executor but appointed him, effectively, as trustee where he could decide who got what including if he chose to exercise his discretion as trustee in favour of himself that he could benefit from the estate. So that document placed all of Mr Gerhard Wagner’s estate under the control of Robert Wagner. Again, the prosecution says that’s suspicious. It’s the defendant positioning himself. But the competing possible explanation is similar to the one mentioned by me a minute ago in relation to the Nelson Street Property that he was content to trust Robert Wagner with those financial affairs. At least, until he sorted out a new will.” – t 62-63.

409. [409]
     The trial judge referred to counsel’s submissions as to the appellant’s financial state including the changing of the deceased’s will in this way by the contents of the fax.  The appellant takes umbrage as to how the trial judge summarised his counsel’s submissions as to this point:

“As to the financial motivation upon which the prosecution relies, Mr Funch submitted that Mr Wagner was not in dire financial straits. He submitted there is no evidence that Gerhard Wagner was going to call in the loan and, even if he did, Mr Funch submitted that Mr Wagner had sufficient assets accumulated by prudent investment over the years. He submitted that the defendant did not position himself to financially benefit. He said there was nothing unusual about the way the Nelson Street sale went ahead without lawyers turning up with the title deed and so on. There is nothing remarkable about that special condition.

He submitted there was no asset grab by his client and that Gerhard Wagner trusted Robert Wagner. That explains the terms of the Nelson Street authority and the one page will. Mr Funch submitted that changing the will was consistent with Gerhard Wagner’s wishes of protecting his assets from a possible claim by Ms Clune and he submitted the Gerni was not a reason to change the one page will which had put Robert Wagner in effective control of Gerhard Wagner’s estate. As to the circumstantial case, Mr Funch submitted that each piece of it is open to an innocent explanation.” – t 23.

410. [410]
     From this benign summary, the appellant submits that the trial judge misdirected the jury by:

“…misstating the effect of the defence case, and by that process, implicated Mr Wagner in the charge of murder by identifying a motive to act with intent in the way misdirection supported ABC’s evidence and notebook.”

411. [411]
     Such a submission has no basis.
412. [412]
     The appellant has laid no foundation as to why the fax was not properly admissible.
413. [413]
     There was no misdirection regarding the fax, and it was properly identified as a relevant matter for the jury to consider in the context of the prosecution’s allegations and related evidence going to the deceased’s level of literacy.

Ground 10 – CCC hearings

414. [414]
     The appellant has submitted that he was prevented from giving evidence as a result of having been subject to coercive hearings before the CCC.  The appellant continues by alleging that that evidence from Mr ABC, Mr Snow and Mr Doyle should not have been admitted and the CCC process somehow constituted an impermissible interference with the administration of criminal justice.
415. [415]
     With respect to the three witnesses, as noted above, appropriate directions were given to the jury.  It was for the jury to make a determination of credit, bearing in mind the directions they were given, to consider the evidence as a whole and whether such evidence was consistent and capable of being accepted beyond reasonable doubt.
416. [416]
     As regards the appellant himself, his argument seems to be that he could not give evidence at his trial for risk of prosecution if it “diverged in a material way” from the evidence he had given at the CCC.
417. [417]
     The appellant states in his submissions that the CCC examination hindered the strategic management of his case:

“[29] The examination by the CCC hindered the strategic management of my  case in two ways; first, challenging at trial, or putting to test any part of the prosecution case on a misuse of Exhibit 44 relative to my evidence given before the CCC on the “Deed of Action” consistent with my uncle’s forensic purpose to protect his assets from Menchie Clune and her son, Sammy Villegas @ [R 758.23 – 758.46].

[30] Secondly, the parties did not appreciate my inviolable right of election in s 618 of the Code and Rule s 50 of the Criminal Practice Rules 1999 (Qld) which that alteration of the accusatorial process denied me my fundamental right to put to test the prosecution case on the jury’s use of an unlawful document [Exhibit 44] at my trial. Rule 50 of the Criminal Practice Rules is expressed.”

418. [418]
     The appellant has already raised Exhibit 44 in Ground 9 of his appeal.
419. [419]
     It is difficult to understand the appellant’s complaint in relation to the CCC hindering the strategic management of his case.
420. [420]
     There was no suggestion that the trial prosecutor had the transcript of the coercive hearings and the fact that the appellant had been subject to a coercive hearing is no bar to him giving evidence at his own trial, or challenging evidence.
421. [421]
     This ground of appeal has no basis.

Conclusion

422. [422]
     None of the grounds raised by the appellant have any basis. The appeal should be dismissed.
423. [423]
     CROWLEY J:  For the reasons stated by Wilson J and Dalton JA, I agree this appeal should be dismissed.