R v Graham & Roser[2022] QSCPR 12

SUPREME COURT OF QUEENSLAND

1. [1]
   Sharon Graham and Gregory Roser are charged on indictment that, on 12 November 2017 at Goomboorian in the State of Queensland, they murdered Bruce James Saunders. Their trial commenced on 19 September 2022 but each made application beforehand for a number of pre-trial rulings pursuant to s 590AA of the Criminal Code 1899 (Qld).

2. [2]
   Those applications were heard over the course of three days commencing on 30 August 2022 and, subsequently, further submissions were made by each of the parties in writing and an addendum statement from a police scientific officer, Ms Meginley, was advanced by the Crown.

3. [3]
   Given the imminence of the trial, I handed down my rulings on 12 September 2022 with a brief explanation of the bases for deciding the applications in the way that I had so that the parties could get on with preparing for the trial. I indicated that I would publish more detailed reasons in due course.

4. [4]
   On the fifth day of trial (26 September 2022), counsel for Graham, Mr Richards, renewed one of the applications I dismissed on 12 September, that is to say, an application that Graham be tried separately to Roser. I heard that renewed application the next morning and, after doing so, separated the accused by discharging the jury from having to return a verdict with respect to Graham. The trial with respect to Roser continued.

5. [5]
   The next day (28 September 2022) I was asked by the Crown to re-visit one of the rulings I made on 12 September in light of the feature that the trial no longer included Graham as an accused. Mr Falcongreen, appearing for Roser, supported the Crown’s application. I acceded to it.

6. [6]
   What follows are my reasons for the pre-trial rulings handed down on 12 September 2022, my decision to separate the accused on 27 September and my decision to accede to the application made by the Crown on the following day.

The Crown case

7. [7]
   The pre-trial applications fell to be determined on the evidence making up the Crown case, taking that evidence at its highest. To that end, the argument largely proceeded on the depositions, although the Crown relied on an affidavit bringing to prominence some of the photographic and other exhibits to be relied on at the trial. In addition, Ms Meginley was called to give evidence on 1 September 2022 and was cross-examined by Mr Richards.

8. [8]
   I set out below (at [9] to [31]) a summary of so much of the evidence making up the Crown case as was necessary to dispose of the pre-trial applications but, first, it is useful to provide something of an overview of the case.

Overview

9. [9]
   On Sunday, 12 November 2017, Mr Saunders, Roser and another man, Peter Koenig, were clearing vegetation at a semi-rural property situated at Tinana Road, Goomboorian which is near Gympie. This was the third weekend on which they had been so engaged, having been requested by Graham to help the owner, Sharon Beighton, tidy up the grounds. A woodchipper was hired for that purpose.

10. [10]
    Graham and Ms Beighton were friends. Ms Beighton’s husband died some months earlier (16 August 2017) following an illness and she had decided to sell the property. The clearing works were intended to help ready the property for sale.

11. [11]
    At around 5.00 pm that day, Ms Beighton returned to the property (having been away since the previous day) and spoke with at least Roser and Graham before taking pain medication and going to bed. About a half hour later, a neighbour walked to the front gate and had a brief conversation with the men before leaving. There is evidence also that a machine was heard to be running until around 7.30 pm or so.

12. [12]
    At approximately 7.45 pm, Ms Beighton awoke to the sound of a barking dog. On going outside to investigate, she saw Roser vomiting and Koenig stumbling onto the verandah of her house. Koenig told her there had been an accident, and that Mr Saunders was dead. Ms Beighton also telephoned Graham.

13. [13]
    Shortly thereafter, paramedics arrived, followed by the police. The woodchipper was not running and only Mr Saunders’ lower legs were visible from the feeder tray at the rear of the machine. What appeared to be passive (drip) blood stains and a longitudinal blood smear were located on the feeder tray. By the next day, blood was also thought to be present in at least two patches of “dark stain” on the ground, both of which were short distances from the feeder tray.

14. [14]
    Koenig was originally conjointly charged with Graham and Roser with murder. However, on 12 July 2022 he pleaded guilty to an ex-officio indictment charging one count of accessory after the fact to murder, following which, the Crown entered a nolle prosequi with respect to the indictment by which he had been charged with murder. Earlier, on 16 June 2022, Koenig signed a statement implicating Graham and Roser in the murder of Mr Saunders and, on 19 August 2022, a Basha hearing^[1] was conducted at which time Koenig gave evidence to supplement his statement and was cross-examined by counsel for Roser, Mr Falcongreen, as well as Mr Richards for Graham. Koenig subsequently gave evidence at the trial.

15. [15]
    In narrative summary, the Crown case primarily relies on the truthfulness of Koenig’s account together with various pieces of circumstantial evidence. It is that, sometime between 5.30 pm and 7.45 pm, Roser struck Mr Saunders to the head with a steel binder bar that had, up until that point, been used to clear debris from the woodchipper. Mr Saunders fell to the ground and was struck at least twice more by Roser until, it is to be inferred, Roser was satisfied he was dead. Roser then enlisted Koenig to assist in carrying Mr Saunders’ body to the woodchipper. His body was fed through the woodchipper and only stopped before Mr Saunders’ lower legs were consumed. The Crown contends this had a dual purpose – to destroy the evidence of Roser’s attack on Mr Saunders and to support the claims subsequently made by both men to police that Mr Saunders had fallen into the woodchipper by accident.

16. [16]
    That said, the case particularised by the Crown is of broader ambit than reliance solely on Koenig’s account would suggest, at least as it concerns Roser. So far as Graham is concerned, it is alleged that she counselled or procured Koenig and/or Roser to kill Mr Saunders and that on 12 November 2017 Koenig and/or Roser did the act or acts which unlawfully killed Mr Saunders intending to cause death or grevious bodily harm. As for Roser, the Crown alleges that he did an act or acts which unlawfully killed Mr Saunders, and that this was done with the intention of causing death or grievous bodily harm. Alternatively, it is alleged that he aided or encouraged Koenig to do the act or acts which unlawfully killed Mr Saunders with the intention of causing death or grievous bodily harm. In the further alternative it is alleged that Roser aided or encouraged Koenig by deliberate presence designed to encourage him or by words or acts to do the act or acts which unlawfully killed Mr Saunders with the intention of causing death or grievous bodily harm.

The evidence

17. [17]
    The evidence making up the Crown case is capable of establishing the following facts of relevance.

18. [18]
    After meeting online, Graham formed a relationship with Mr Saunders in around 2016. She moved with him to Toowoomba, then to Bli Bli, and finally to Nambour after they purchased a home in Wentworth Court in which they resided. Their relationship broke up at some time in early 2017. Graham moved out of the home, but she was later to return. When she did, the relationship did not resume and they slept in separate bedrooms, with Mr Saunders in the master bedroom and Graham in an adjacent bedroom.

19. [19]
    In about March or April of 2017, Graham commenced a relationship with Roser. At the time, he was living in a caravan and annex in Deception Bay. Graham stayed with him at various places but usually only saw him on weekends. During the week, it appears that Graham remained at Wentworth Court.

20. [20]
    When Mr Saunders died, Koenig was also living in a caravan in Brisbane although he had previously resided at a property at Tin Can Bay Road, Victory Heights which is also near Gympie. This property was owned by one of Graham’s former partners, Barry Collins. Koenig spent most weekends there although he had a habit of dropping into (and staying) at Wentworth Court on his way to and from Gympie.

21. [21]
    Koenig had known Graham for a long time and had worked for Collins as a truck driver for around 12 years. Koenig’s work for Collins was typically undertaken during the week in Brisbane. Koenig claimed to be a friend of Mr Saunders.

22. [22]
    Some time prior to the first of the three weekends on which Mr Saunders, Roser and Koenig were engaged in clearing work at Tinana Road, Koenig was asked by Graham to meet her and Roser at the Great Eastern Motel in Gympie. At that meeting, Graham discussed the clearing work and then told them that she wanted Mr Saunders killed. An insurance policy held by Mr Saunders in favour of Graham was also mentioned. Other evidence establishes that, at the time of his death, Mr Saunders had life cover of $750,000 and that Graham was the beneficiary of this policy in the event of his death.

23. [23]
    It is almost certainly the case that this meeting took place in August 2017. After Ms Beighton’s husband died on 16 August 2017, her granddaughter travelled to a motel in Gympie called “Great … something” which she recalled was situated opposite some duck ponds. She was sent there on an errand to return something to Graham and, when she arrived, she saw that Graham and Roser were staying at the motel. The evidence otherwise establishes that the Great Eastern Motel is situated opposite some duck ponds. Graham’s credit card was also used on 19 August 2017, a Saturday, at that motel.

24. [24]
    Around the middle of July 2017, Graham asked Koenig to loan Roser a handgun. This weapon had, years before, been given to Koenig by Collins. Koenig complied with Graham’s request, giving the gun to Roser together with some ammunition. About two weeks later, Roser returned the handgun to Koenig and all but two rounds of the ammunition, remarking that the gun was “too loud” for what he needed. About two weeks after Roser did this, the meeting in the Great Eastern Motel took place.

25. [25]
    Mr Saunders was a qualified butcher. Up until about two weeks before his death, he worked Fridays and Saturdays at an IGA store in Noosa Junction and most of the other days of the week at an IGA store in Yandina. When working at the Noosa Junction store, Mr Saunders usually parked behind the Noosa Bowls Club.

26. [26]
    Following Mr Saunders’ death, police twice searched Roser’s caravan and annex in Deception Bay. At one of the searches they discovered a document in the handwriting of both Roser and Graham. It contained details of where and when Mr Saunders worked as well as a description and the registration number for his car. Another document contained similar information in the handwriting of Roser together with the location of Mr Saunders’ usual car park behind the Noosa Bowls Club. Another document in Roser’s handwriting commenced, “3.30 – 4 am HAS TO BE THERE BEFORE HE WAKES UP”. Also recorded on that document was the address of the Wentworth Court home in which Mr Saunders was then residing, directions to the master bedroom and details of an alarm. There is then a note which reads, “… dates to be done” which were specified to be “14 – 23 July”. Other evidence in the case is to the effect that Graham travelled from Maroochydore to Adelaide on a Jetstar flight on 14 July 2017 and returned on 23 July 2017. She booked those flights on 23 February 2017. Roser also flew to Adelaide on 14 July and returned on 23 July, but he did not book those flights until 23 May 2017.

27. [27]
    A witness, Joan Balfour, lived in the same caravan park as Roser. She recalled a woman matching Graham’s description and driving a vehicle matching Graham’s vehicle visiting Roser at different times. In July 2017, Roser approached Ms Balfour in an agitated state. He told her that his “girlfriend is planning to get rid of her ex” and that “she wants me to shoot him”. The next day (probably 26 July 2017), Roser took Ms Balfour to Margate to eat fish and chips and, during their time together, he told her that his girlfriend had sourced a handgun for him from a friend at Gympie which was actually now in the boot of his car. Roser also confided in Ms Balfour that his girlfriend had told him “all about the route her ex drove to work” and told him to pick a spot where he could lay in wait to shoot him.

28. [28]
    In addition, there are two conversations of alleged significance between Graham and her former partner, Collins.

29. [29]
    The first took place about three months before the death of Mr Saunders. Collins and Graham were out fishing on Tin Can Bay when Graham “mused” that it would be easy to take someone fishing and that person not come back.

30. [30]
    The second conversation allegedly took place only a matter of weeks before Mr Saunders’ death. Graham told Collins that a property is going to be cleared and that there will be an accident.

31. [31]
    Lastly there is a conversation between Graham and Koenig during which it is alleged that Graham asked Koenig to “do away” with Collins. Graham allegedly told Koenig that Collins had “heaps of superannuation” and that, if she could have him killed, she would benefit. This conversation was said to have occurred a long time before Mr Saunders was killed.

The pre-trial applications

32. [32]
    Under cover of the applications made pursuant to s 590AA of the Criminal Code 1899 (Qld), the following issues fell to be determined:^[2]

1. Both Graham and Roser applied for a ruling to exclude evidence of various acts and statements which the Crown contended were admissible under the co-conspirators’ rule;
2. Graham also applied for several other rulings, viz., that:
   1. The evidence of Roser’s conversations with Ms Balfour be excluded;
   2. The evidence of Ms Meginley contained in paragraphs 3(a), 3(b) and 103 of her witness statement dated 4 December 2018 be excluded and, further, that she not be permitted to express any opinion to the effect there recorded;
   3. The alleged conversation between her and Koenig during which she is said to have attempted to procure Koenig to kill Collins be excluded;
   4. The alleged conversation between her and Collins during which she is said to have attempted to procure Collins to kill Mr Saunders be excluded;
   5. She be tried separately to Roser.

Is the challenged evidence admissible under the co-conspirators’ rule?

33. [33]
    The Crown contended that the evidence of the various acts and statements challenged by Graham was properly receivable under the co-conspirators’ rule. Foundationally, the Crown alleged that, at Graham’s urging, Roser agreed to kill Mr Saunders and that a plan was devised to achieve that object. Initially, it was for Roser to break into Wentworth Court to kill Mr Saunders but then it was decided that Roser should use a handgun (to be sourced from Koenig) to shoot Mr Saunders at some point on his journey to or from his place of work. Then, the final variation, was to kill Mr Saunders whilst clearing Tinana Road and make his death look like an accident.

34. [34]
    Where two or more persons combine in a common unlawful purpose, the acts and declarations of each in furtherance of that purpose are admissible against the other participants, notwithstanding that the latter were not present when they were done or made. In Tripodi v The Queen,^[3] it was said that the “basal reason” for admitting what would otherwise be inadmissible hearsay is that:

“[T]he combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.”^[4]

35. [35]
    However, before such evidence may be left to a jury, the trial judge must decide whether there is reasonable evidence of participation of the accused in the common unlawful purpose sufficient to let in against him or her evidence of the acts or declarations of the other participants in furtherance of that purpose.^[5] Put another way, the trial judge must be satisfied that there is reasonable evidence of preconcert and, in order to determine whether that is so, evidence independent of the acts and declarations in question must be considered.^[6]

36. [36]
    As their contentions were ultimately put, Mr Richards and Mr Falcongreen argued that none of the acts or statements that were allegedly done or said prior to the meeting in the Great Eastern Motel in Gympie in August 2017 could be admissible under the co-conspirators’ rule because the precondition to admissibility – reasonable evidence of preconcert – could not be satisfactorily established on the evidence making up the Crown case.

37. [37]
    As to this, and as I have said before,^[7] when determining whether there is reasonable evidence of the common unlawful purpose alleged by the Crown in this case, it is well to remember that the existence of a criminal conspiracy is seldom proved by direct evidence. Rather, such a fact will “in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence”.^[8] As such, the court will usually be concerned to determine whether there is reasonable evidence to support an inference to the effect contended by the Crown.

38. [38]
    It is important also to keep in mind that Graham is not charged with the offence of conspiracy. Accordingly, the following passage from Ahern v The Queen^[9] is apposite:

“The significant distinction between conspiracy and other offences for present purposes is that indicated in Tripodi, namely, that on a charge of conspiracy combination is also an element in the offence and not merely a ground for the admission of the evidence. The question does not, therefore, arise in cases other than conspiracy of the use of evidence of the acts and declarations of others to prove the combination except as evidence of separate acts from which a combination might be inferred. Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination, but the offence charged.” [References omitted].

39. [39]
    When those propositions are appreciated, there could be little doubt that there was reasonable evidence of preconcert independently of the acts and declarations in question. To the point, there was ample independent evidence to support as a matter of reasonable inference that Graham and Roser agreed to a plan to kill Mr Saunders prior to 23 May 2017. I refer particularly to the contents of the documents which had been in Roser’s possession and which were found on searching his caravan and annex, the detail of much of which was confirmed from various other evidentiary sources including the make, model and registration number for Mr Saunders’ car, his places of employment, hours of work and usual parking spot when working at one of the IGA stores (Noosa Junction), the street address and physical layout of the Wentworth Court home (including where Mr Saunders slept), the sourcing of a gun from Koenig (at a time when Koenig was not then part of the plan) and the dates when Graham travelled interstate (14 to 23 July 2017). The same body of evidence would support the further inference that the plan was formulated by Graham and Roser between the dates on which the pair separately booked flights to South Australia, that is, between 23 February 2017 and 23 May 2017, but was subsequently varied. There being in my view satisfactory independent evidence of the participation of both accused in a plan to kill Mr Saunders prior to 23 May 2017, it followed that evidence of the acts or declarations of one in furtherance of that purpose^[10] but in the absence of the other will be admissible against that other.^[11]

40. [40]
    That being the case, I concluded the following with respect to the acts and declarations challenged by Graham and Roser, using the Crown’s description (italicised below) of the act or statement in question:

    1. Sometime in July/August according to Koenig he is asked to lend Roser a handgun by Graham which he then does in the presence of Graham. The request by Graham is capable of being considered by the jury as a statement in furtherance of the plan to kill and is admissible against both accused for that reason. The provision of the gun to Roser was alleged to have occurred in Graham’s presence and, if so, the receipt of the gun is admissible against both accused without more but, if the gun was provided in the absence of Graham, its receipt by Roser would still be available for consideration by the jury (and therefore admissible against both accused) as an act in furtherance of the plan;
    2. Koenig says Roser returns the handgun approximately two weeks after that. As above, if the gun was returned to Koenig in Graham’s presence, that evidence will be admissible against both accused but, if it was returned in the absence of one of them, it would still be available for consideration by the jury (and therefore also admissible against the other) as an act in furtherance of the unlawful common purpose;
    3. Koenig says that approximately two weeks after the gun is returned, he is invited to a motel in Gympie identified as the Great Eastern Motel where he meets Graham and Roser who were staying at the motel on a weekend morning just before they had to book out at 10am and Graham asks him and Roser to help clear Sharon Beighton’s property with Bruce Saunders and to kill Saunders while doing that. The request made by Graham of Koenig to attend the meeting at Great Eastern Motel in Gympie is capable of being considered by the jury as a statement in furtherance of the plan to kill and is admissible against both accused for that reason. The balance concerns what allegedly transpired during the meeting at which both accused were present and, unsurprisingly, its admissibility was not challenged by either Mr Richards or Mr Falcongreen;
    4. Koenig says Graham mentions that Saunders had a life insurance policy and Saunders takes out a life insurance policy on 16 August. The same reasoning as in (c) immediately above applies – this evidence is admissible against both accused;

5. Graham’s credit card is used to pay for accommodation at Great Eastern Motel on 19 August 2017 which is a Saturday. This payment by Graham is capable of being considered by the jury as an act in furtherance of the plan to kill and is admissible against both accused for that reason;
6. About three months before he hears of Saunders death, Barry Collins says he says Graham was out on his fishing boat with him and she suggests to him that it would be easy to take someone out on the boat and for them not to come back. This evidence could never be admissible under the co- conspirators’ rule. If Graham was making some sort of sinister suggestion to Collins, that had no apparent connection to Roser or the plan agreed by Roser and Graham to kill Mr Saunders. It was for that reason incapable of being characterised as a statement in furtherance of that plan. In the result, this evidence could only ever be admissible against Graham but, as I explain below (at [55]), I decided to exclude it from the evidence that might be led at her trial;
7. Two to three weeks before Collins learns of death of Saunders, Graham says the boys are clearing a property and there will be an accident. This statement by Graham to Collins is not admissible against Roser. Informing a stranger to the unlawful common purpose of the plan, however obliquely, could hardly be said to do anything to advance the plan. It is only admissible against Graham.

The Balfour conversations

41. [41]
    For the reasons just expressed (at [40](g)), the conversations between Roser and Ms Balfour in July 2017 during which Roser is said to have told her that his girlfriend wanted him to kill an “ex” and had sourced a handgun, and provided him with information, for that purpose is not admissible against Graham under the co- conspirators’ rule. The conversations could do nothing in furtherance of the plan and, so, the evidence is only admissible against Roser. The Crown, no doubt recognising this, did not intend leading the evidence against Graham in any event.

The blood pattern analysis opinions

42. [42]
    So far as the challenge to some of Ms Meginley’s opinions is concerned, it is necessary to say something about her qualifications as well as the nature of the examination of the woodchipper and surrounds which she undertook in this case.

43. [43]
    Ms Meginley is a forensic scientist and a senior sergeant in the Queensland Police Service. At the time of her examination of the woodchipper, she was attached to the scientific section of the Major Crime Unit. That Unit is accredited by the National Association of Testing Authorities as meeting the requirements specified in the relevant national and international standards for forensic laboratories and forensic analysis. She holds a Bachelor of Science degree with Honours (2001) from the Leeds University, England and a Master of Science and Forensic Science degree (2015) from Griffith University. She has several years’ experience performing forensic examinations and is authorised by the Laboratory Director of the Forensic Services Group, Queensland Police Service to undertake the examination of crime scenes, the collection and examination of physical evidence and certain specialised examinations including bloodstain pattern analysis. When giving evidence on 1 September 2022, Ms Meginley impressed me as a competent and thoughtful forensic scientist who could be expected to bring an appropriate degree of independence and transparency to the examinations she undertakes.

44. [44]
    That said, bloodstain pattern analysis involves an examination of the size, shape and distribution of bloodstains as a means, potentially at least, of determining the movement of blood prior to deposit including, in some cases, the sequence of several deposits. As such, it is typically employed to assist in crime scene reconstruction. However, although the science underlying such analyses would appear to be sound, the interpretation of what a particular bloodstain might depict is largely subjective and, for that reason, this type of expert evidence has been the subject of much criticism.^[12]
45. [45]
    Furthermore, Ms Meginley’s examinations in this case, conducted as they were on various dates between 15 November 2017 and 8 March 2018, were considerably hamstrung by the feature that the woodchipper was hosed down on the day following Mr Saunders’ death. The investigating police, believing that Mr Saunders had died through misadventure, would appear to have authorised officers from the Queensland Fire and Emergency Services to clean the machine. In consequence, Ms Meginley was deprived of the opportunity to examine the woodchipper in the state in which it was when the police first arrived on the previous evening or to take high resolution images, measurements or samples of the blood staining in question. Nonetheless, Ms Meginley felt able to express opinions based primarily on photographs which were taken by other officers before the machine was cleaned and, in that regard, I was satisfied that Ms Meginley was acutely aware of the limitations inherent in such an approach, each of which she freely declared when giving evidence.

46. [46]
    Indeed, it was not suggested by Mr Richards that Ms Meginley should not be permitted to express opinions within her field of expertise based on an examination of the bloodstains depicted in the photographs. Rather, his challenge was limited to the opinions she expressed in paragraphs 3(a), 3(b) and 103 of her witness statement dated 4 December 2018.

47. [47]
    Those opinions were that the bloodstain patterns she identified supported the conclusions that:

    1. A “blood shedding object/body”: (1) was stationary for a period of time at a bloodstained area on the ground approximately 2.5 metres behind the machine; (2) moved or was transported from behind the machine to and across the feed tray of the machine; and (3) was then stationary for a period of time at the head of the feed tray near the feed rollers where broad transfer bloodstains were observed; and
    2. The volume of blood deposited on the ground approximately 2.5 metres behind the machine together with DNA analysis results provided support for the “blood shedding object” being the body of Mr Saunders.

48. [48]
    Now, it may be that the expression of such opinions might be within the field of expertise of a forensic pathologist but they are not within the field of expertise of Ms Meginley. She is only qualified to express opinions about the transfer patterns depicted in the photographs and should be restricted in her evidence accordingly. Assuming that what is depicted is bloodstaining, she may therefore express opinions about the appearance and shape of the stain in question and whether that suggests a particular direction or angle of deposit (e.g., a drip from above), subsequent disturbance of the blood after deposit (e.g., a longitudinal smear) and the like. She may not venture any of the challenged opinions.

49. [49]
    To be clear, although Mr Falcongreen did not mount any challenge to Ms Meginley’s evidence, the challenged opinions are inadmissible and must therefore not be led by the Crown against either accused.

Propensity evidence

50. [50]
    I earlier referred to two conversations (at [29] and [31]) which the Crown sought to lead in evidence at the trial of Graham:

    1. The alleged conversation between Graham and Koenig during which it is alleged that Graham asked Koenig to “do away” with Collins so that she could help herself to Collins’ superannuation, which conversation was said to have occurred a long time before Mr Saunders was killed; and
    2. The alleged conversation between Graham and Collins about three months before the death of Mr Saunders when Collins and Graham were out fishing on Tin Can Bay during which Graham suggested that it would be easy to take someone fishing and that person not come back.

51. [51]
    The second of those conversations has been partly dealt with in the sense that it has already been determined that this evidence is not admissible under the co- conspirators’ rule (at 40(f)). However, the Crown relies on another possible path to the admissibility of that conversation, that is to say, as propensity evidence. The same path is relied on by the Crown in the case of the second of the conversations in question. The Crown contends that the statements allegedly made by Graham in these conversations were revealing of a propensity not merely for violence but for recruiting others to kill on her behalf.^[13]
52. [52]
    As Mason CJ, Wilson and Gaudron JJ explained in Hoch v The Queen,^[14] the rationale for the admission of propensity evidence lies in it possessing a particular probative value or cogency such that, if accepted, it can bear no reasonable explanation other than the inculpation of the accused in the offence charged.^[15] It follows that, for such evidence to be admissible, the “objective improbability of [it] having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged”.^[16]
53. [53]
    Also, it will be appreciated that where the propensity evidence is in dispute the probative value of the disputed facts will be less than the probative value those facts would have if they were not disputed.^[17] Thus, as Mason CJ, Deane and Dawson JJ observed in Pfennig v The Queen, the “prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused.”^[18] Their Honours continued:

“Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here ‘rational’ must be taken to mean ‘reasonable’ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.”^[19]

54. [54]
    Of course, when applying this principle, the proposed propensity evidence must be viewed in the context of the Crown case as a whole and, furthermore, the court must do so assuming that the evidence will be accepted as true.^[20] Although the court is not required to conclude that the evidence, standing alone, would demonstrate guilt of the accused of the offence or offences for which he or she is charged, the evidence must be excluded if, viewed in the context and on the assumption just described, there is “a reasonable view of the … evidence which is consistent with innocence”.^[21]
55. [55]
    Applying those principles to the two conversations in question, neither could be said to possess such cogency that, if accepted, they could bear no reasonable explanation other than the inculpation of Graham in the murder of Mr Saunders. Both are vaguely recalled, even more vaguely expressed and are bereft of any detailed context. The evidence in support of the first conversation also varied in an important respect between the witness’ statement to police and what the witness recalled in conference with prosecutors just prior to trial. That conversation was also said to have occurred a long time before Mr Saunders died. The second conversation, while more temporally connected to the relevant events, had no other connection to what was apparently afoot. The admission of either conversation would be productive of prejudice to Graham far outweighing its probative value. Both conversations are excluded and must not be led by the Crown at the trial.

A separate trial?

56. [56]
    I turn then to Graham’s application that her trial be heard separately from that of Roser.

57. [57]
    By s 597B of the Criminal Code 1899 (Qld), the court may direct that the trial of an accused person be had separately from the trial of another accused with whom he or she is conjointly charged on an indictment. When read with s 590AA, such an application may be brought at any time after the indictment is presented and, if a jury has been sworn, a separation is to be achieved by discharging the jury from giving a verdict with respect to the accused who is to be tried separately.

58. [58]
    That said, there are strong reasons of principle and public policy why joint offences should usually be tried together, and that will be particularly so where one or more of the accused seeks to cast blame on another accused.^[22] Plainly, consideration of the case by the same jury at the same trial is likely to avoid inconsistent verdicts,^[23] and the mere fact that evidence admissible against one accused but inadmissible against another accused will be before the jury is not a reason by itself for ordering separate trials.^[24] However, the danger inherent in the reception at a joint trial of evidence which would not be admitted at the trial of one accused will need to be obviated by express directions to the jury as to the use (if any) they may make of the evidence so far as it concerns each accused.^[25]
59. [59]
    Of course, that is not to say that there will not be cases where it is appropriate to order separate trials in the case of joint offences. That will often be so where the evidence admissible against each accused is “impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other, … accepting also that there may be cases in which prejudice may cause a jury even to ignore the directions of a trial judge”.^[26] Similarly, a separation may be called for where “one case is significantly weaker than the other, where there is a real risk that the weaker prosecution case will be made immeasurably stronger by reason of prejudicial material in the case of the other accused and where the degree of prejudice from evidence admissible only in the case of one accused to the case of the other is so great as to make it unfair to try the accused together.”^[27] As a sub-set of that proposition, where the Crown case against the relevant accused “is weak and turns on the credibility of an important witness … about whom there is an apparent real question of credibility”,^[28] a separate trial may be required if the apparent evidence admissible against another accused but not against the relevant accused “would have the effect of bolstering” the important witness’ credibility against the relevant accused.^[29]
60. [60]
    In support of this application, Mr Richards submitted that Graham would be substantially prejudiced at a joint trial because of the reception of evidence at the trial that was not admissible against her. Particular reliance in this regard was placed on the evidence from Ms Balfour of her conversations with Roser. Mr Richards argued that the resulting prejudice would be such that directions to the jury as to the use to which that evidence could be put could not be expected to overcome it. He also submitted that, because the bulk of the evidence against Graham would come from Koenig, there was a real risk that the jury would be wrongly influenced by Ms Balfour’s evidence to bolster Koenig’s evidence of Graham sourcing a gun for Roser and collecting it for him and, if that occurred, Koenig’s credibility with respect to the admissible evidence he could give against Graham might be impermissibly enhanced.

61. [61]
    I was not persuaded by these arguments. The evidence from Ms Balfour could not be used against Graham, and the jury would be told that in no uncertain terms. Further, having decided to exclude from the evidence at the trial the conversation between Graham and Koenig during which it is alleged that Graham asked Koenig to “do away” with Collins as well as the conversation between Graham and Collins about three months before the death of Mr Saunders when they were out fishing on Tin Can Bay during which Graham allegedly suggested that it would be easy to take someone fishing and that person not come back, I did not think that it would be asking too much of the jury to give the cases against each accused separate consideration. As to the additional risks identified by Mr Richards, each of those risks could be satisfactorily addressed by appropriate directions to the jury.

The applications made after the trial commenced

62. [62]
    As earlier mentioned, the trial commenced on 19 September. That afternoon, Mr Richards applied for a separate trial after it had become clear from Mr Falcongreen’s opening statement to the jury that Roser was running a line of defence to the effect that he accepted Graham counselled the murder but maintained that it was Koenig who killed Mr Saunders and not him. He would also accept that he assisted Koenig in concealing Koenig’s crime. I refused the application.

63. [63]
    On the morning of Day 4 (23 September), Mr Richards made another application for a separate trial after one of the Crown witnesses, Ms Watts, agreed during cross- examination by Mr Falcongreen that Mr Saunders had told her that Graham “knew some unsavoury people” and that, if she ever needed someone “knocked off, they are the people to contact”. Ms Watts said that she was given to understand by Mr Saunders that it was Collins as well as Graham who knew the “unsavoury people”. Ms Watts said that she warned Mr Saunders, “[b]e careful, it could be you”, to which Mr Saunders responded by laughing.

64. [64]
    During the course of argument on Mr Richards’ application, it was accepted that the evidence given by Ms Watts was admissible against Ms Graham but was not, and would never have been, led by the Crown because of its highly prejudicial effect. The evidence would otherwise be admissible pursuant to s 93B of the Evidence Act 1977 (Qld) and, so, the jury would need to be warned in any event about placing any reliance on what was in effect the recounting of a rumour given that the maker of the statement was dead. While Mr Richards accepted during the course of argument that his application should really be for a mistrial, rather than for a separate trial, but after that application was made, it was refused because I was of the opinion that the warning to the jury under s 93B would be sufficient to overcome any prejudice that might be occasioned to Graham by the receipt of the evidence.

The renewed application for a separate trial

65. [65]
    However, late on the afternoon of Day 5 of the trial (26 September), Mr Richards renewed his application for a separate trial and I heard argument on it the following morning.

66. [66]
    By then, the conduct of Roser’s defence saw a range of other evidence, none of which the Crown had led, introduced at the trial. In addition to the evidence of Ms Watts, evidence was elicited during Mr Falcongreen’s cross-examination of two other Crown witnesses – Ms Grills and Collins – to the effect that Graham along with Collins were persons of bad character, that Collins “could make people disappear”, that Graham was a controlling, manipulative person, that she had attempted to “blackmail” Collins and that she had assisted Collins with his cannabis trafficking business “on a number of occasions through the years”. Also, one of the conversations I excluded – between Graham and Collins when Graham allegedly suggested that it would be easy to take someone fishing and that person not come back – was re-introduced during Mr Falcongreen’s cross-examination of Collins and the other conversation – between Graham and Koenig during which it was alleged that Graham asked Koenig to “do away” with Collins – was certain to be revived in the same way when Koenig was called.

67. [67]
    The aggregation of this further evidence, none of which was led by the Crown but all of which was legitimately called in aid of Roser’s defence, meant that I could no longer be satisfied that Graham could receive a fair trial or that such mounting prejudice, heaped as it was alongside the inadmissible evidence of Ms Balfour and the centrality of Koenig’s evidence to Graham’s case, was capable of cure by judicial direction. For that reason, I discharged the jury from having to deliver a verdict in respect of Graham and the trial proceeded against Roser alone.

A conversation re-introduced

68. [68]
    Koenig’s evidence commenced on Day 6 of the trial (27 September) and continued into the next day. During that next day, and in the absence of the jury, the Crown sought leave to lead from Koenig the conversation he had with Graham during which it was alleged that Graham asked Koenig to “do away” with Collins. Given the circumstance that Mr Falcongreen indicated that he would attempt to elicit it in cross-examination if it was not led in chief, I acceded to the Crown’s application.