Re Carmichael[2020] QSC 255

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant, Tony Boyd Carmichael, is charged with one count of murder.  He applies for bail.  This is his second application.  His first was refused by Bowskill J on 25 June 2019.
2. [2]
   An indictment has been presented in the Supreme Court at Brisbane in these terms:

“that on a date unknown between the seventh day of May, 1997 and the seventh day of November, 1997 at Maryborough or elsewhere in the State of Queensland, TONY BOYD CARMICHAEL murdered GREGORY JOHN ARMSTRONG.” (emphasis in original)

3. [3]
   Particulars have been delivered as follows:

“The accused is liable for the murder of GREGORY JOHN ARMSTRONG because he caused the death of GREGORY JOHN ARMSTRONG by deliberately shooting him in the head. (Section 7(1)(a) of the Criminal Code)”

4. [4]
   The trial on the indictment is listed to be heard by Applegarth J and is to commence on 12 October 2020 in Brisbane.

Background

5. [5]
   Gregory Armstrong was a resident of Maryborough.  He had some intellectual limitations.  He went missing in 1997 around the time of his birthday on 7 May.  The applicant, at the time of Mr Armstrong’s disappearance, was also a resident of Maryborough.
6. [6]
   A police investigation commenced and numerous witnesses were interviewed.  These witnesses included Susan Gabrielle Messer and Robyn Frances McCullock.^[1]  They are of particular significance, as I will later explain.  The witnesses who made statements shortly after Mr Armstrong’s disappearance covered various topics, including:

   1. (a)
      Mr Armstrong’s movements up until the time of his disappearance;
   2. (b)
      the fact that Mr Armstrong has not been seen since May 1997;
   3. (c)
      Mr Armstrong’s associates including an association with the applicant; and
   4. (d)
      Mr Armstrong’s association with illicit drugs.
7. [7]
   In those witness statements, the applicant is mentioned quite regularly.  The witnesses spoke of the applicant dealing in illicit drugs and committing acts of violence.^[2]  Suspicion is also cast on other persons.
8. [8]
   The applicant left Maryborough in late August 1997.  On 2 September 1997, he killed a man by shooting him.  He was charged with murder and wounding.^[3]  He was arrested and remanded in custody.
9. [9]
   On 21 May 1998, the applicant was convicted of manslaughter and wounding and sentenced to 11 years’ imprisonment.
10. [10]
    By about the year 2000, the investigation into Mr Armstrong’s disappearance had stalled.  Witnesses had told police that there were rumours that the applicant had shot and killed Mr Armstrong over a drug debt.^[4]  There was no admissible evidence to support such a theory.  Mr Armstrong remained missing.  While the Crown alleges that Mr Armstrong is dead, his body has never been located.
11. [11]
    Police then referred the case to the Queensland Crime Commission.^[5]  Various witnesses were summonsed and examined, including the applicant.
12. [12]
    No-one was charged with any offence concerning Mr Armstrong’s disappearance and presumed death following the Queensland Crime Commission investigation.  The matter was then referred to the Coroner and a coronial investigation was conducted.  No inquest was heard but in due course a report of the Coroner was delivered.
13. [13]
    The coronial inquiry was governed by the now repealed Coroners Act 1958.^[6]  The coroner concluded that Mr Armstrong was likely dead but made no meaningful findings about the circumstances of the death.  It seems that the investigation then again stalled. 
14. [14]
    In 2012, Ms Messer attended the Maryborough Police Station offering information in addition to that which she had provided to police initially.  That information squarely implicated the applicant.  However, the investigation was not, it seems, reignited. 
15. [15]
    In 2017, the police investigation was recommenced.  Further evidence was obtained and the applicant was charged with murder.
16. [16]
    The applicant was committed for trial on the count of murder in November 2019.  The indictment was presented on 12 December 2019 in Brisbane.

The position of the respective parties

17. [17]
    The applicant accepts that it is only appropriate for me to entertain this second application for bail if he can show a material change in circumstances since dismissal of the application before Bowskill J.^[7]
18. [18]
    The applicant points to the reasons of Bowskill J in dismissing the first bail application.  Her Honour observed that it was not possible to determine the strength or otherwise of the Crown case.  Mr Walsh submitted that it is now possible to ascertain that the Crown case is a weak one.  This is particularly so given revelations (since the first bail application) concerning the two witnesses, Messer and McCullock.   Mr Walsh submitted that Ms Messer only approached police with her present version in 2012 after, he says, a reward was posted for information into Mr Armstrong’s disappearance.  As to Ms McCullock, evidence has emerged as to her mental health and that affects her credibility.  These things, he submitted, are material changes in circumstances since the first bail application.
19. [19]
    As to the bail application generally, Mr Walsh submitted:

1. the Crown case is weak;

2. there is no risk of flight;

3. the applicant has a bail address which the Crown accepts is suitable; and

4. a surety can be posted of $50,000.

20. [20]
    Mr Whitbread for the Crown, submitted:

1. there is no material change in circumstances;

2. flight is always a risk where an applicant is charged with murder;

3. because of an incident which occurred at the applicant’s committal proceedings, there is risk of interference with witnesses;

4. the surety is bad because the person offering the surety has been convicted of indictable offences and cannot, as a matter of law, give a surety;

5. the applicant is in a show cause situation; and

6. he has not shown cause.

The case against the applicant

21. [21]
    I have been managing the criminal case since 18 March 2020.  Despite various applications and mentions, it is not yet clear exactly what evidence will be led at the trial.  The parties’ legal representatives are not to blame for this.  The fact that the applicant was the subject of compulsory examinations by the Queensland Crime Commission, gave rise to issues under the principles considered in cases such as X7 v Australian Crime Commission^[8] and Lee v R.^[9]  That led the applicant’s legal team on a line of inquiry which ultimately was fruitless for them.
22. [22]
    I have been told by Mr Walsh of counsel, who appears for the applicant, that he will take objections to parts of the evidence sought to be led by the Crown.  Those objections have not been finalised.  Naturally then, the Crown’s attitude to them is unknown.
23. [23]
    However, it is obvious that there are issues with the evidence which must be resolved.  For instance:

1. Some of the evidence seems irrelevant.  An example is a body of evidence concerning an incident where the applicant and his son travelled to a forested area and the vehicle in which they were travelling broke down.

2. There is a relatively large body of evidence proposed to be led to prove that the applicant was supplying dangerous drugs for commercial gain.

3. There is also a body of evidence which is proposed to be led to prove that the applicant was violent to various persons at about the time Mr Armstrong went missing.

4. There are various equivocal admissions.^[10]

5. Both Ms Messer and Ms McCullock say that the applicant admitted to them that he killed Mr Armstrong, although for reasons explained later, there are some difficulties with that evidence.

6. Donna Yvette McKillop says that at a time (arguably at least) close to when Mr Armstrong went missing, the applicant appeared at her house wet and dishevelled.  He told her that he had walked from home in the rain and asked for some clothes.  It was raining at the time he appeared at her house.  She took possession of some clothing, including a jacket.  The jacket was later examined and on it was found DNA material consistent with that of the applicant and what appeared to be a blood stain which bore DNA consistent not with either the applicant or Mr Armstrong, but a third party.  The relevance of this evidence is in dispute.

24. [24]
    The evidence in categories 2 and 3 above is sought to be led to prove that the applicant was, in 1997, involved in the drug trade and prone to use violence to settle disputes and recover debts arising from his drug dealing.  That is clearly evidence of discreditable uncharged conduct.  Issues arise as to its admissibility and, if evidence of that kind is admissible, the amount of that sort of evidence which should be led.
25. [25]
    Questions also arise as to the probative value of evidence of the equivocal admissions (category 4).
26. [26]
    I do not understand from Mr Walsh that he intends to object to the evidence of Ms Messer but he intends to object to the evidence of Ms McCullock on the basis that it is inherently unreliable (for the reasons I later explain) and it would be unfair to lead the evidence at trial.  The unfairness has not been particularised and articulated by Mr Walsh.  However, from argument, I anticipate that he will submit that the unfairness is that the jury may improperly use the evidence to bolster the evidence of Ms Messer.  In other words, they may reason that if the applicant confessed to Ms McCullock, it is more likely that he confessed to Ms Messer.^[11]
27. [27]
    It seems to me that the Crown case can broadly be described in these terms:

1. The applicant was a drug dealer.

2. The applicant was violent.

3. The applicant used violence in the conduct of his drug business, including recovering debts.

4. Mr Armstrong was also a drug dealer and perhaps a customer of the applicant.

5. The applicant and Mr Armstrong were associated with each other.

6. The applicant had access to guns.

7. The applicant made admissions to Ms Messer and Ms McCullock.

28. [28]
    The particulars which have been delivered are obviously based on the terms of the alleged confessions to Ms Messer and Ms McCullock.

Strength of the Crown case^[12]

29. [29]
    In the course of argument on the application, Mr Whitbread of counsel for the respondent Crown, who is also the Crown prosecutor who is prosecuting the applicant on the indictment, conceded that the Crown could not achieve a conviction unless the jury was satisfied beyond reasonable doubt of the fact of the making of the alleged confession and the truth of the confession made to either Ms Messer or Ms McCullock.  This appears to be a proper concession.
30. [30]
    It follows that any assessment of the strength of the Crown case concerns an assessment of the evidence of Ms Messer and Ms McCullock.
31. [31]
    Ms Messer gave statements to the police dated 20 August 1998, 29 August 1998, 29 November 2000 and 26 April 2018.  She also participated in a recorded interview with police on 10 December 2012.
32. [32]
    In her first statement,^[13] Ms Messer identified a number of persons as associates of Mr Armstrong.  These people included David Canavan, Peter Canavan (David Canavan’s brother) and “a guy called Boyd” which the Crown says is a reference to the applicant.  She also identified a person called “Les” and Shane Jofeski as friends of Peter Canavan, Les and Boyd.
33. [33]
    As to Boyd, she said:^[14]

“12. I also know a guy called Boyd. I don’t know his last name. I know that his wife’s name is Michelle and they have two children. I would say that Boyd is about 24 years old, about 160cms tall, with black hair and brown eyes. Whenever I saw Boyd he would always be wearing jeans and a flannelette shirt or t-shirt. I did not know that Boyd had a car and I believe that he used to borrow other people’s cars.

13. When I first met Boyd I was living in Albert Street. I think I first met him at Yvette McKillop’s house in Zante Street only about 18 months. Boyd would come to my place in Albert Street and I would sometimes buy small packets of amphetamines from him for my own use.

14. I last saw Boyd just before Greg disappeared. At that time I would say that he was using a lot of speed because his behaviour and actions would be erratic. Boyd has never been violent towards me but I know that he was involved in bashing Terry the painter and my ex-boyfriend Gary Tantanini. I believe that these bashings were over drugs. I think Terry was bashed over marijuana and I think that Gary was bashed over amphetamines.”

And later:

“21. I also know a woman named Darlene Oldfield. I know that she has been in trouble with the police over amphetamines in the past. I first met her about six or seven years ago when were both involved in drugs in Maryborough. In the past couple of years I have not had much to do with her because she was getting into trouble with the police all the time and I was trying to avoid drugs at the time.

22. In November last year Darlene came to my place in Albert Street asking about Greg. I know that the police were asking about him because one of the detectives had been to my place to see me. Darlene was asking all these questions about Greg, and about a white 4WD. She seemed really curious about what had happened to Greg.

23. I know that Les told me that Peter, Les and Boyd had taken Greg to the jew hole fishing spot on the Tin Can Bay Road. I don’t know what the reason was for them taking Greg out there was, but I have been told that Boyd was on taking amphetamines at the time and that he was erratic on them. Les told me that Greg was shot by Boyd and that Les and Peter panicked and took off, leaving Boyd at the scene. Boyd was left out at the Jew Hole without a vehicle.

24. I don’t recall being told how Boyd got back to town or how they had gone to the fishing spot. I was told they got there by a car but I do not know who owned the car.

25. I do know that on two consecutive nights after Greg had gone missing Boyd showed up at my house in Albert Street in the middle of the night; He woke me up on both nights and he ended up sleeping in one of the kids beds. The next morning he would just go and I have no idea where he was going.”

34. [34]
    In her second statement,^[15] she identified various vehicles which she had seen “Boyd” driving.  She also spoke of him being indebted to others for drugs and ultimately learning that he had been imprisoned in relation to a shooting.  She then spoke of having a conversation with the person she identified as Les and she said this:

“9. When I told Police that Les Peter and Boyd had taken Greg out to the Jew Hole on the Tin Can Bay (para23), I remember that the subject was raised as we were talking about Peter CANAVAN was complaining that he had been at the Police Station all night being questioned in relation to Greg’s disappearance and he knew that the Police were going to speak with him again.

10. On that occasion Les was my place and he had brought some Heroin over. I didn’t know that he was bringing it over. He never told me where he had got it from and I never asked. I knew it was heroin as he told me it was and I believed him. We shot it up and by that I mean that Les and I mixed it with water and I injected into my arm. It increased and within ten minutes I was stoned. I was stoned but still in control. Les could not keep his eyes open. He then told me about the Jew hole and Greg.

11. I did not tell Detective RYAN this the first time H is more heavy duty than speed. I did not want to get into any trouble but I think it’s time I came clean with myself.

12. I remember that Les’s words were ‘Peter, Boyd and I took Greg to the Jew Hole on a camping trip’. I was still coherent.

I said, ‘Why’

Les said, ‘We were only supposed to give him a fright. Greg’s said, come on then pull the trigger and Boyd did’.

I remember I just sat there and thought, fuck.

13. I remember that Boyd was already in gaol up in Mackay or Rocky when Les told me this. Les did not talk about Boyd going to Mackay and shooting that bloke up there. I did not ask Les anything else after that. Les did not speak of anything further in relation to the Jew hole but I can remember Les saying the words, ‘We thought that Boyd would just turn on us so we took off. We left Boyd at the Jew hole by himself’.”

35. [35]
    In her statement to police of 29 November 2000, Ms Messer gave more detail about her conversation with Les about the shooting of Mr Armstrong at the Jew fishing hole.  She said:

“I can say that Boyd never spoke to me about what had happened and I never let onto him that I knew what Les had told me or anything else as far as that goes as I just did not want to get involved.”^[16]

36. [36]
    Sergeant Anderson interviewed Ms Messer on 10 December 2012.  Ms Messer said many things.  Her statements were disjointed and somewhat rambling.  She spoke of the involvement of various persons, including “Boyd” in the drug scene at the time and then, contrary to what she had said in her police statement, that Boyd had spoken to her about the death of Mr Armstrong.  It is difficult from the interview to clearly delineate what Ms Messer recalls Boyd telling her, from what she has heard from others and from what she has deduced or suspects.  She seems though to say that the person Boyd came to her house, he was traumatised, wet and muddy and that he told her that he shot Mr Armstrong twice in the head at the Jew hole.^[17]
37. [37]
    Ms Messer’s final statement was made on 26 April 2018 after the investigation had been recommenced in 2017.  In her last statement, she refers to the conversation she had with Les, now identified as Les Ryan, and then says:

“11. Something that I have never told police in a statement is that Boyd CARMICHAEL told personally me that he had shot Greg ARMSTRONG in the head. I remember that we were at my place in Albert Street, Maryborough the day of the murder. This conversation happened a few hours after he arrived at my house. He said ‘I shot Greg twice at point blank range and I didn’t mean it to happen’. He said that Greg was ‘egging him on’.

12. At first when Boyd arrived at my house he was acting very weird and wouldn’t say anything at all. He was wet as he told me he had swum across the river. He was paranoid from the drugs he was taking which was pure amphetamine ‘straight off the plate’. By this I mean not cut with anything else meaning that it’s stronger than normal. Although I was a drug user at the time, this was late at night and my mind was clear. I remember it clearly to this day.

13. I remember that in 2012 I spoke to a Detective called Rob ANDERSON. About what I knew about the murder of ARMSTRONG. I told ANDERSON that Boyd told me he fired ‘two shots at point blank range to Greg’.

14. Boyd actually came over on two consecutive nights. Boyd told me on the first night that the body and the weapon were still out in the forest at the ‘Jew Hole’. I remember that when he was talking about Greg’s body, Boyd told me that ‘pigs eat through bone’. This sticks in my mind because it is horrible to imagine. I remember that Les said the same thing to me at the time. He said ‘they’ll never find Greg’s body, because pigs eat through bone’. Les was very worried about what he saw Boyd do and wanted to avoid him.

15. Both Boyd and Les told me that after killing Greg, Boyd returned to town and returned to the forest alone later the next day to deal with the body.

16. I remember that Boyd woke me up very late on those nights and he ended up sleeping at my house in one of my children’s beds. Boyd appeared to be in a state of shock while he was at my house.

17. I remember that he was in such a state that Les RYAN had to keep bringing him heroin to calm him down.”

38. [38]
    Mr Walsh relied upon the statement of Terence Edward Bristow made on 4 September 2018 as contradicting Ms Messer’s account.  Mr Bristow said:

“3. In 1997 I was employed as a door man at a local hotel. I knew a lot of people at that time due to this.

4. At this time I knew a woman named Sue Messer, who was a regular at the hotel. I knew Sue was a junkie. Sue was concerned about something and she let on about knowing something about Greg Armstrong and what had happened to him.

5. After a short time I convinced Sue to tell me what she knew about it. Sue then told me a story over a few days.

6. Sue’s story was:

7. Two persons came to her house one night, they were covered in blood. Sue asked them what had happened and they told her that they had been with ‘Boydy’ and Greg Armstrong, they had gone with Boydy to give Armstrong a scare because he owed Boydy money, $200.

8. They took him out to a forest area near the Cod Hole. They gave Armstrong a bashing, Armstrong then started saying that he was going to go to the Police, he only used drugs and they sold them, so who was going to go to jail. Boydy then shot Armstrong in the face, killing him. The three then stripped Armstrong naked and burned his clothes, they then built up the fire and they placed Armstrong’s body onto the fire. The two then made an excuse and left, Boydy remained there to clean up. They said they didn’t know or expect Armstrong to be shot and killed and were in shock and scared.

9. About 3am that morning Sue was woken up and found Boydy wanting to come in and shower. Sue saw he was covered in dried blood. Boydy removed his clothes and burnt them. He then had a shower and cleaned up.”

39. [39]
    In some significant respects, the version given to Mr Bristow by Ms Messer differs from her evidence. 
40. [40]
    Ms McCullock^[18] made a statement to police on 26 November 1997.  She then participated in an interview with Senior Constables Sharpe and Cavanough on 23 August 2018 and then made a statement on the same day.
41. [41]
    In her statement of 26 November 1997, Ms McCullock spoke of her association with Mr Armstrong and Mr Armstrong’s association with others.  She then said this:

“I’ve heard around town that Boydy shot Greg with a single shot to the back of the head and dropped into a shallow grave in the Tuan Forestry. I believe that his body is near a Water Point road. I heard that Boydy would knock him off as he had nothing to lose as he was going to jail for murder anyway. I’ve heard that the weapon was a hand gun.”

42. [42]
    On 23 August 2018, Ms McCullock was interviewed by police for almost two hours.  That interview covers a wide range of topics and it is sufficient just to refer to the written statement which was distilled from the interview.  In that statement, she said that she had heard that Mr Armstrong had gone missing and then:

“18. When I heard he’d disappeared, I knew straight away he was dead. Personally, I believe he either saw something he shouldn’t have, and had to be shut up, or got in over his head in something. I can’t otherwise think why anyone would kill Greg, he was just a gofer. I never even saw him in any fights. I thought he was dead, not just missing, because of a few things - one thing is because the time I saw him in the car seemed out of character because I’d only seen him walking everywhere, then along with what I’d heard a fella named ‘Boydy’ had been saying earlier about not caring if he went to jail, I thought ‘he’s dead’.

19. In my first statement, I stated I heard around town that Boydy shot Greg. I think ‘Boydy’ was his surname, but I’m not sure - I was just introduced to him as ‘Boydy’. I didn’t know Boydy that well, we just drank together, mainly at the Tinana Hotel. What I remember about him is that he was a solid fella, Caucasian, with tattoos, maybe about medium height and very short hair, like it had been clippered all over. I think he was between mine and Gavin’s age, maybe in his 30’s. I remember he was at the Tinana pub - for maybe about a month period, or a few weeks, he was always at the Tinana. This was around the time Greg disappeared. He was mates with Bruce and Gavin. Then after Greg ‘went missing’, Boydy just seemed to disappear, as suddenly as he turned up. It was like he came from nowhere.

20. In my first statement, I state I heard Boydy make the comment about ‘having nothing to lose’ as he was ‘going to jail for murder anyway’. I heard him say this before Greg went missing. We were sitting at the front bar, there was a fair few of us out there. We’d only just met him recently, and he was there drinking with us. Someone had said something about bashing someone, or something like that. Then Boydy said something to the effect ‘I’m your man’ or ‘If you want any cunt knocked off’, then ‘I’m going to jail for murder anyway’, and everyone just laughed. But I didn’t think it was funny, I believed him, he was a scary man.

21. It was only within a couple of weeks after I saw Greg that time in Tinana, and after he’d gone missing, that I was at the Tinana pub, drinking, possibly at the back bar, with a few people. The subject came up about Greg, people were saying ‘poor Greg’, wondering where he was and I remember saying something like ‘I hope someone finds him, I hope he’s okay’. Then Boydy said something like: ‘Well, no cunt’ll find him because I shot him in the head’. He didn’t whisper it. It was like he was proud of it. I was stunned, gobsmacked. I wasn’t the only person who would have heard this but I can’t think of who else exactly was there. I knew he wasn’t bullshitting or trying to make himself big - he wasn’t that sort of person, and he’d already said he didn’t give a fuck about going to jail. I don’t think he’s the sort of person who would admit to doing something he didn’t do; but at the same time, he didn’t care.

22. I also heard that Boydy had dropped Greg in a shallow grave in the Tuan Forestry, and I’m quite sure, though not positive, that he, Boydy was the person who said this because I seem to remember it was a part of the same conversation. And I can’t think of who else would have said this to me because I've never spoken about what I heard, to anyone, until now. I was scared then, I’m still scared now. I remember him saying something about the body being near Waterpoint Road, in the Tuan Forestry. I don’t know where Waterpoint Road is, or how to spell it. It might be one of the forestry trails, not a proper road. I remember I went to the ladies’ shitter and wrote down the address in my notebook, which I kept in my bag. I don’t have this notebook any longer, but I wrote it down because I didn’t want to forget it.

23. I still spoke to Boydy after that conversation, but he wasn’t around much longer after that. I seem to remember it was only about a month.”

43. [43]
    A report was in evidence under the hand of Dr Karin Fuls, a consultant psychiatrist.  Ms McCullock is Dr Fuls’ patient.  Doctor Fuls reports that Ms McCullock suffers post-traumatic stress disorder and schizophrenia manifesting in auditory perceptual abnormalities, suicidal thoughts and auditory hallucinations.  Her mental health has recently deteriorated and she cannot withstand the stress of giving evidence.  Mr Walsh has indicated that he will bring an application for an order that Ms McCullock’s evidence be excluded. 

Strength of the Crown case

44. [44]
    There are obvious difficulties with Ms Messer’s evidence.  She does not mention the confession until 2012.  She says that she did not mention the confession in her earlier statements (1997, 1998 and 2000) because she was frightened of retribution from the applicant.  That explanation seems dubious for at least two reasons:

1. The applicant was in jail when she made the first three statements and he was serving a lengthy period of imprisonment.  He was hardly in a position to hurt her.

2. She had in fact implicated the applicant in her earlier statements by relaying to the police that a person called Les had told her that the applicant had shot Mr Armstrong at the Jew Hole.

45. [45]
    In 1997, McCullock’s evidence was that she had “… heard around town that Boydy shot Greg with a single shot to the back of the head and dropped him into a shallow grave in the Tuan Forestry” but by 2018 that rumour had evolved into a conversation with the applicant where he made a confession to killing Mr Armstrong in the Tuan Forest.
46. [46]
    There are doubts whether she can actually identify the applicant as the person who made the alleged confession.  She did not previously know him. 
47. [47]
    I do not know whether the Crown allege that Ms McKillop’s evidence supports the confession allegedly made to Ms Messer.  Ms Messer says that when the applicant appeared at her house “he was wet as he told me he had swum across the river”.  Ms McKillop says that on the night the applicant turned up at her house, he was wet but had apparently been walking in the rain.  She says that the applicant changed into dry clothes.  That must therefore be a different evening to that referred to by Ms Messer as she said that the applicant slept at her house on the nights he visited her.
48. [48]
    The various Crown witnesses depose to Mr Armstrong going missing at about the time of his birthday on 7 May 1997.  Evidence of him being seen after that time would affect the Crown case in at least two ways.  Firstly, if he is alive but has not made contact with his family and friends, that would suggest that he has disappeared by his own volition rather than being murdered.  Secondly, it would tend to undermine the veracity of the confessions the effect of which is that the applicant killed Mr Armstrong about the time he went missing.
49. [49]
    Constable Stefan Graff investigated the disappearance of Mr Armstrong.  He noted in his statement of 22 September 1997 that Detective Dallas Ryan of the Maryborough CIB had seen and spoken to Mr Armstrong at the Maryborough markets on 29 May 1997.  Detective Ryan had entered into the investigation running log that he had seen Mr Armstrong in the company of an unknown male described as tall and slim and a female described as being short with a heavy build and dark hair. 
50. [50]
    Almost 22 years after making that entry in the log, Detective Ryan swore a statement where he said this:

“9. I am aware of an entry to the Running Sheet - ‘Background’ and contained in the signed statement of Police Officer GRAFF, which makes a comment that PCC Ryan made a possible sighting on 29/05/1997 of the missing person at the local Maryborough market.

10. To clarify this point I can say that I saw and spoke with Greg ARMSTRONG at the Maryborough Markets, however have given due consideration that the date nominated above may have been incorrect. Further examinations of this incident at that time, and with further enquiries which did not support my observation.”

51. [51]
    It is difficult to see how Detective Ryan could make the entry in the log in 1997, effectively contemporaneously with having seen Mr Armstrong, but 22 years later “due consideration” leads him to believe that the date of the sighting, which he no doubt believed in 1997 to be accurate, was wrong.
52. [52]
    Rory Brown was spoken to by Detective Graff in 1997.  Mr Brown is a house painter who also operated a hot dog van in Maryborough.  He was sure that he saw Mr Armstrong on 5 June 1997.  Mr Brown knew Mr Armstrong well because he painted his house.
53. [53]
    Because there are still unresolved issues as to the admissibility of evidence sought to be relied upon by the Crown, it is difficult to make anything but general observations about the strength of the Crown case.
54. [54]
    However, it is clear that the Crown case relies upon alleged confessions made 23 years ago to witnesses who have previously given statements inconsistent with the evidence which they say they can now give.  Sightings of Mr Armstrong weeks after he apparently went missing undermine the strength of the confessional evidence further.  The Crown case cannot be said to be a strong one. 

The threat to Colin Ellis

55. [55]
    Colin Grahame Ellis gave a statement to police on 11 December 2018.  In that statement, he relayed an incident which had occurred in 1997 when the applicant allegedly demanded money from another man and then beat him with a stick when it was not paid.
56. [56]
    In an interview between Acting Inspector Michael Ackery and the applicant on 12 March 2019, Ellis’s statement was put to the applicant who responded “That cocksucker, I will fucking break his jaw if I ever see him again for telling lies”.  Police asked the applicant to clarify who he was referring to as “that cocksucker” and the applicant said “this Colin fucking dog”.

The incident at the committal

57. [57]
    Section 71B(1)(a) of the Justices Act 1886 makes it an offence to take photographs in court during proceedings in the Magistrates Court.  Section 71B(1)(c) prohibits the taking of photographs during proceedings in places which can be described as the broader court precincts.
58. [58]
    Over the two days of the committal proceedings, Ms Belinda Jackson, the applicant’s partner, using her Samsung 10 mobile telephone, took photographs of some of the Crown witnesses as they were in court or as they appeared by video link.  That constituted the first charge laid against her under s 71B(1)(a).  She also took photographs of Crown witnesses as they were outside the courtroom and that constituted a charge that was laid against her under s 71B(1)(c).
59. [59]
    Ms Jackson pleaded guilty to two charges, one against s 71B(1)(a) of the Justices Act and one against s 71B(1)(c).
60. [60]
    In mitigation, Ms Jackson’s solicitor said that Ms Jackson didn’t really know why she took the photographs but she thought they may be of some benefit to the applicant. 
61. [61]
    Of some particular concern to the sentencing magistrate was the fact that Ms Jackson had taken a photograph of a car owned by one of the witnesses and that photograph showed the car’s numberplate.  The magistrate recorded a conviction and fined her $900.

Criminal history

62. [62]
    As already observed, the applicant was convicted of manslaughter on 24 May 1998.  He had suffered a number of convictions prior to being imprisoned for manslaughter.  His first conviction was in the Mackay Magistrates Court on 21 September 1990.  They were offences against the Drugs Misuse Act 1986.  Between then and the manslaughter conviction, there are a number of convictions, none of which resulted in periods of imprisonment except a sentence of seven days imposed in the Rockhampton Magistrates Court on 19 February 1998.
63. [63]
    On 7 October 1994, the applicant was convicted of a breach of a domestic violence order and on 29 October he was convicted of assault occasioning bodily harm.
64. [64]
    Four months after being sentenced on the charge of manslaughter, the applicant appeared in the Rockhampton Magistrates Court charged with two counts of assault occasioning bodily harm which had occurred on 4 February 1998 while he was held on remand.  A short term of imprisonment was imposed.
65. [65]
    Since release, he has been convicted of offences on five separate occasions.  All offences have been dealt with in various Magistrates Courts and none have resulted in terms of imprisonment.  Apart from a conviction on 11 September 2012 in the Murgon Magistrates Court, all appearances have involved drug offences.  The conviction in Murgon was for contravening a direction or requirement contrary to the Police Powers and Responsibilities Act 2000.
66. [66]
    In addition to the drug offences, the applicant has been convicted of various weapons or explosive offences; two counts of unlawful possession of weapons in the Sandgate Magistrates Court on 16 August 2012, possession of explosives in the Gympie Magistrates Court on 9 September 2013 and possession of a knife in a public place in the Longreach Magistrates Court on 12 May 2015. 

General bail particulars

67. [67]
    The applicant is in what appears to be a stable relationship with Ms Jackson.  That relationship began in 2012.  She supports him and says that she is “willing to assist Boyd however I can to comply with any conditions ordered should this Honourable court grant him bail”. 
68. [68]
    Since being released from prison in 2012, the appellant has found gainful employment and it is likely he will do so again. 

The surety

69. [69]
    The surety of $50,000 is offered by Mark Alan Wenzel.  He, though, has been convicted of indictable offences and therefore is prohibited from being a surety by s 21(1) of the Bail Act 1980.

Risk of flight

70. [70]
    At least since the judgment of Connolly J in R v Hughes,^[19] courts have approached applications for bail on a charge of murder on the basis that the prospect of mandatory life imprisonment upon conviction raises a motivation to flee.
71. [71]
    Here there are clearly countervailing factors:

1. The applicant appears to have lived in the central Queensland area his entire life when not in prison.

2. He has a stable relationship with Ms Jackson.

3. He has known for the last 23 years that he is a prime suspect in the murder of Mr Armstrong yet when he was released from prison he returned to the Maryborough area to live.

72. [72]
    It is true that the applicant left Maryborough in late August 1997 while the police investigation into Mr Armstrong’s disappearance was underway.  However, he only travelled as far as Mackay and it is not suggested by the Crown that travelling to Mackay was post-offence conduct namely flight from a consciousness of guilt.

Principles under the Bail Act

73. [73]
    By force of s 13 of the Bail Act and s 305 of the Code, only this Court may grant bail on a charge of murder. 
74. [74]
    Section 16 of the Bail Act provides relevantly as follows:

“16 Refusal of bail generally

1. (1)
   Notwithstanding this Act, a court or police officer authorised by this Act to grant bail shall refuse to grant bail to a defendant if the court or police officer is satisfied—

1. (a)
   that there is an unacceptable risk that the defendant if released on bail—

1. (i)
   would fail to appear and surrender into custody; or

2. (ii)
   would while released on bail—

1. (A)
   commit an offence; or

2. (B)
   endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or

3. (C)
   interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or

2. (b)
   that the defendant should remain in custody for the defendant’s own protection. …

2. (2)
   In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant—

1. (a)
   the nature and seriousness of the offence;

2. (b)
   the character, antecedents, associations, home environment, employment and background of the defendant;

3. (c)
   the history of any previous grants of bail to the defendant;

4. (d)
   the strength of the evidence against the defendant;

5. (e)
   if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—

1. (i)
   the defendant’s relationship to the defendant’s community; or

2. (ii)
   any cultural considerations; or

3. (iii)
   any considerations relating to programs and services in which the community justice group participates; …

3. (3)
   Where the defendant is charged—

1. (a)
   with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant’s apprehension and the date of the defendant’s committal for trial or while awaiting trial for another indictable offence; or

2. (b)
   with an offence to which section 13(1) applies; or

3. (c)
   with an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or …

the court or police officer shall refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified and, if bail is granted or the defendant is released under section 11A, must include in the order a statement of the reasons for granting bail or releasing the defendant. …”

75. [75]
    By force of ss 9 and 16, there is a presumption in favour of the granting of bail unless one of the risks identified in s 16(1) is “unacceptable”, or the circumstances identified in s 16(1)(b) apply.  However, that presumption is reversed by s 16(3) where the applicant is charged “with an offence to which s 13 applies”.  Murder is an offence to which s 13 applies.
76. [76]
    In determining whether the applicant has shown cause why his detention in custody pending trial is not justified, it is relevant to consider the risks and matters identified in s 16(1). 

Has there been a material change in circumstances?

77. [77]
    I have considered the merits of the application and determined that the application ought to be dismissed.  Whether there is a material change in circumstances since the first application therefore becomes an issue of largely academic interest only.
78. [78]
    However, I do find a material change in circumstance.
79. [79]
    It seems that the Crown brief had been delivered before the first application for bail.  However, as earlier observed, the precise evidence to be led by the Crown at the trial is still not yet settled upon.  The committal hearing was conducted after Bowskill J refused bail.  Since the committal proceedings, it has become apparent that the Crown case is dependent upon acceptance of the evidence of at least one of Ms Messer or Ms McCullock and there have been revelations which undermine the evidence of Ms McCullock (at least) significantly. 
80. [80]
    In my view:

1. The applicant is presently in a better position to appreciate and make submissions as to the strength or otherwise of the Crown case than he was on the application before Bowskill J.

2. The Crown case is materially weaker than it would have appeared at the time of the first bail application, if for no reason other than disclosure of Ms McCullock’s mental health.

3. I was therefore in a better position to assess the strength or otherwise of the Crown case than was Bowskill J.

4. Therefore, a material change in circumstances has been shown.

Has cause been shown?

81. [81]
    In my view, given the factors identified at paragraphs [71] and [72] of these reasons, there is no unacceptable risk of flight which cannot be adequately addressed by the imposition of strict reporting conditions.  That is so even though no valid surety is offered.
82. [82]
    I am also of the view that there is no unacceptable risk of general reoffending which could not be addressed by conditions such as the imposition of a curfew and other restrictive conditions.  While the applicant committed offences after his release from serving the manslaughter sentence, none of those offences have been serious enough to have attracted a custodial sentence. 
83. [83]
    In my view, there is an unacceptable risk of interference with witnesses.  In particular:

1. There is evidence available from many witnesses that the applicant was, in 1997, prone to violence.

2. He was convicted of manslaughter in 1998.

3. He has been convicted of other offences of violence.

4. He has been convicted of firearms and weapons offences since his release after serving the manslaughter sentence.

5. His instinctive reaction to learning of Mr Ellis’s evidence was to tell police that he should assault Mr Ellis.

6. His partner, Ms Jackson, took photographs of Crown witnesses (and one of their vehicles) at the committal proceedings.

84. [84]
    Mr Walsh of counsel submitted that the actions of Ms Jackson should not have ramifications for the applicant.  True it is, that there is no evidence that he counselled her to take the photographs.
85. [85]
    However, Ms Jackson was present at the committal proceedings in support of the applicant.  There was no other reason for her to be at court.  She clearly thought that taking the photographs could assist the applicant in some way and I cannot imagine any legitimate use to which the photographs could be put.
86. [86]
    In the context of the charge of murder, the applicant’s history of violence and his expressed attitude towards Mr Ellis, the fact that Ms Jackson was seemingly prepared to provide him with photographs of Crown witnesses is very concerning.  This is particularly so given that the applicant’s submissions in support of his application for bail rely in part upon the stability of his relationship with Ms Jackson and her support for him.
87. [87]
    In all the circumstances, I find that the applicant has not shown cause why his continued detention is not justified.  I dismiss the application.