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[2003] QCA 499
mixed. Appeal No 98 of 2003, Aboud: appeal allowed, verdict of guilty set aside, new trial ordered, and Aboud remanded in custody until further or other order of a court with jurisdiction to grant bail....
The Court of Appeal allowed Aboud’s appeal because the jury was not told how to assess the prosecution’s claim that she had lied to police about knowing who might harm the deceased. The Court could not be sure that the missing direction made no difference, so it set aside her conviction and ordered a new trial. The Court rejected Stanley’s arguments. It treated the mobile-phone records as one part of the overall circumstantial case, rather than a separate fact that had to be established independently beyond reasonable doubt. It also found no substantial prejudice from the joint trial and dismissed his appeal.
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2,427 words · generated 02/10/2026
The judgment concerns two appeals from murder convictions, heard together by the Queensland Court of Appeal. The deceased had been in a relationship with Aboud and was found with a bullet wound to the head in a shed at Gracemere in the early hours of 16 February 2001. The Crown case was that the killing occurred at about 8.30 pm the previous evening. It alleged that Stanley and John Allen Bell were involved in the actual killing, and that Aboud counselled or procured it.
No linked legislation citations have been extracted yet.
Bell was tried jointly with Aboud and Stanley. The jury was discharged in relation to Bell after counsel for Aboud inadvertently referred in an address to prejudicial material that had been excluded from evidence. The appeals considered in this judgment were Aboud’s and Stanley’s.
The evidence about Aboud included conversations she had had before the killing with friends and other acquaintances about the possibility that the deceased might be killed. On some occasions she presented herself as seeking reassurance that the prospect was not real. The defence position was that she had discussed the possibility, but was not serious about bringing about the deceased’s death. The prosecution also relied on her response to police when they told her the deceased had been found. It characterised her statement, in substance, that she had no idea who might want to harm him as a lie evidencing consciousness of guilt.
The trial judge told the jury that the Crown asked them to consider alleged lies by each accused and said he would deal with each in turn. He then gave directions about the alleged lies by Stanley, including the principles from Edwards v The Queen (1993) 178 CLR 193. The summing up contained no corresponding direction identifying the alleged lie by Aboud or explaining how the jury should assess it.
Stanley’s grounds concerned the treatment of mobile-phone records and cell-site evidence, whether his verdict was unsafe or unsatisfactory, and whether he should have been tried separately from Aboud. The phone records identified the cell sites that relayed calls, but the evidence was that billing-origin labels were not a definitive description of where a call was made. The trial judge directed the jury about the evidence, including the possibility that Stanley was in or near Yeppoon at the time of the killing. Mackenzie J concluded that the cell-site evidence was one strand in the circumstantial case, rather than an intermediate fact requiring separate proof beyond reasonable doubt.
The Court allowed Aboud’s appeal, set aside her conviction and ordered a new trial. It dismissed Stanley’s appeal.
For Aboud, the critical question was not whether her statement to police was in fact a lie. The appellate issue was whether the jury had been adequately directed about the prosecution’s use of it as possible evidence of consciousness of guilt. Mackenzie J noted that the judge had expressly said he would deal with the alleged lies by each accused. The judge then explained how the jury might use Stanley’s alleged lie, but did not address Aboud’s alleged lie at all.
Mackenzie J regarded the omission as an oversight rather than a deliberate decision to exclude the alleged lie from the jury’s consideration. Because the prosecution had raised the issue and it had not been withdrawn or excluded, the jury could still have considered it. Yet it received no direction on the specific statement attributed to Aboud, or on matters relevant to deciding whether it was a lie and what significance, if any, to attach to it.
The omission mattered in light of the defence case. Aboud’s position was that, despite her discussions about the deceased’s possible death, she was never serious about participating in a plan to kill him. The defence also argued that it was unlikely anyone would include her in such a plan given her tendency to discuss the subject widely. Those arguments were relevant to whether her statement to police was actually false. The summing up referred to aspects of the defence case and to her reaction to the news of the death, but did not connect them to the question whether her statement about knowing of no one who might harm the deceased was a lie.
Mackenzie J also considered how the lie allegation fitted into the Crown’s reasoning. To conclude that Aboud had lied, the jury would first have had to accept that she and Stanley had seriously discussed bringing about the deceased’s death. At that point, the jury would already have rejected the central defence claim that she was not serious. That may have meant the lie evidence did not add much. But Mackenzie J said it was not possible to be confident that the absence of directions had not affected Aboud’s chance of acquittal. The directions given for Stanley did not cure the failure to direct on Aboud’s case. The Court therefore allowed her appeal.
The Court’s conclusion on Stanley’s phone-evidence ground turned on the distinction between an evidentiary strand and an intermediate fact. Drawing on Edwards and Shepherd v The Queen [No 5] (1990) 170 CLR 573, Mackenzie J explained that individual items of evidence need not each be proved beyond reasonable doubt. The criminal standard applies to facts that form links in the chain of reasoning, and to the ultimate inferences of guilt drawn from those facts.
The call records did not, in Mackenzie J’s view, establish a separate intermediate fact that Stanley was or was not at a particular location. They were one part of the circumstantial matrix. That matrix also included evidence that Stanley had been at Gracemere earlier, his initial denial of being there, his relationship with Aboud, evidence of antipathy towards the deceased, and other statements and conduct. The trial judge’s approach to the phone evidence was therefore not erroneous on the ground argued.
As to the joint trial, Mackenzie J applied the test in Webb & Hay v The Queen (1994) 181 CLR 41: whether the joint trial caused a substantial miscarriage of justice or created improper prejudice against the accused. The jury had been told that statements made outside the presence of another accused were not evidence against that other accused. Mackenzie J considered that the cases against Aboud and Stanley involved substantial overlapping evidence and that the directions adequately addressed the risk that evidence might be used improperly. He found no miscarriage of justice in Stanley’s case.
This judgment did not purport to establish a new general test for circumstantial evidence or joint trials. It applied existing High Court and Queensland Court of Appeal authorities to the issues raised by these appeals.
For circumstantial reasoning, Mackenzie J relied on the discussion in Edwards and Shepherd, including the distinction between “strands” of evidence and “links” in a chain of proof. The judgment applies that distinction to mobile-phone cell-site evidence: a piece of evidence that bears on a possible location does not automatically become a separate intermediate fact. The classification depends on the role the evidence plays in the reasoning. Here, the call evidence was part of the overall circumstantial case, not a stand-alone link that had to be found beyond reasonable doubt.
For joint trials, the judgment applied Webb & Hay and referred to R v Davidson [2000] QCA 039. It recognised both the reasons for joint trials, including avoiding inconsistent verdicts, and the possibility that a joint trial may create unfairness. It treated careful directions limiting the use of evidence against co-accused as important. The judgment also referred to Gilbert v The Queen (2000) 201 CLR 414 and the general assumption that juries understand and follow judicial directions, while recognising that unusual cases can require a different assessment.
For the alleged omission in Aboud’s summing up, the judgment demonstrates the significance of matching a direction to each accused and each issue the Crown asks the jury to use. The fact that the judge correctly explained the law in relation to Stanley did not substitute for directions concerning Aboud. The particular holding was fact-specific: the judge had said he would deal with the alleged lies of each accused, yet did not give a direction for Aboud, whose alleged lie remained part of the prosecution case.
The judgment’s discussion of manslaughter did not resolve a general rule. Mackenzie J considered R v Rehavi [1998] QCA 28, as explained in R v Willersdorf [2001] QCA 183, but said it was unnecessary to decide the issue because Aboud’s appeal succeeded on the directions ground. The judgment therefore provides no final appellate determination of that ground.
The supplied judgment text does not include numbered paragraphs, so the passages below are identified by subject rather than by paragraph number.
Aboud’s missing direction: Mackenzie J said the omission of specific directions about lies and consciousness of guilt concerning Aboud was “a fundamental flaw in the summing up.” In plain English, the judge’s directions did not adequately address an allegation the Crown had put to the jury as evidence against Aboud. The appellate court could not treat the missing direction as harmless.
The limits of the conclusion about prejudice: Mackenzie J said it was “not possible to be confident” that the absence of specific directions had not affected Aboud’s chances of acquittal. This was not a finding that the jury necessarily used the alleged lie improperly. It was a conclusion that the Court could not safely rule out an effect on the verdict.
The phone evidence: Mackenzie J described the call evidence as “one piece of the circumstantial matrix” relied on by the Crown. In plain English, the records had to be considered alongside the other evidence, not isolated and treated as a separate fact that automatically determined Stanley’s location.
The joint-trial test: Mackenzie J stated that the appellate test was whether the joint trial caused a “substantial miscarriage of justice” or created “improper prejudice” against an accused. This directs attention to the effect of the joint trial in the particular case, including how the jury was instructed, rather than treating the mere presence of evidence against a co-accused as enough to invalidate the trial.
Manslaughter: Mackenzie J considered that the way the case was conducted left murder or not guilty as the apparent verdicts open for Aboud. He did not decide the ground, because the appeal already succeeded on the failure to direct about the alleged lie.
The most direct relevance is to trials where the prosecution relies on an accused’s alleged lie as evidence of consciousness of guilt, and the judge addresses that issue for one accused but not another. The case highlights the importance of checking whether the summing up identifies the alleged lie, explains the jury’s task in deciding whether it was a lie, and addresses how the evidence may be used in the particular accused’s case. The case does not establish that every omission concerning an alleged lie will require an appeal to be allowed. Its conclusion depended on the whole summing up and the Court’s inability to be confident that the omission had not affected Aboud’s chance of acquittal.
The judgment is also relevant where a party argues that a particular item of circumstantial evidence must be treated as an intermediate fact and proved beyond reasonable doubt. The key question is how that item functions in the prosecution’s reasoning. If it is merely a strand of evidence contributing to a broader inference, the reasoning in this case treats it differently from an intermediate fact that forms a link in the chain.
For mobile-phone evidence, the judgment illustrates a fact pattern where call records identify the cell site that relayed a call but the witness explains that the site label is not a definitive description of the caller’s location. The Court considered that evidence with the rest of the circumstantial case. The judgment does not establish a general technical rule about cell-site evidence or the accuracy of a particular phone network’s coverage.
For joint trials, the case concerns co-accused whose cases share relevant evidence, with some statements admissible against only the person who made them. It shows that the appellate issue is whether the joint trial caused substantial prejudice or a miscarriage of justice, and that directions restricting the use of evidence may be relevant to that assessment.
The supplied judgment does not describe any later court’s treatment of R v Aboud; R v Stanley. It therefore does not support a claim that later courts have followed, limited, distinguished, or otherwise applied this decision.
The judgment itself discusses authorities that pre-date it. It applies Edwards, Shepherd, Webb & Hay, Gilbert and R v Davidson to the issues before it. It cites Chamberlain v The Queen (No 2) in discussing the proof of intermediate facts, and refers to R v Rehavi as explained in R v Willersdorf on the alternative-verdict issue. Those are the authorities discussed in this judgment, not later treatment of this judgment.
Any account of subsequent citation history would require sources beyond the judgment text provided here.
The judgment leaves the manslaughter issue unresolved. Mackenzie J expressed the view that failing to leave manslaughter would not have entitled Aboud to have her conviction set aside in the circumstances, but expressly said there was no need to decide the point. The judgment therefore should not be read as a definitive ruling on when manslaughter must be left as an alternative verdict for a person alleged to have counselled or procured a killing.
The judgment also does not set out a universal checklist for directions about alleged lies. It identifies the defect in Aboud’s summing up and explains why the omission mattered there, but the appropriate directions in another case would depend on the prosecution’s use of the alleged lie, the evidence, the defence case, and the directions given as a whole.
On circumstantial evidence, the judgment applies the “strands” and “links” distinction to the phone records before it. It does not decide how different forms of technical location evidence should be classified in other cases, or what technical evidence is required to establish the coverage or operation of a particular mobile network.
Finally, the supplied text contains no subsequent decisions discussing this judgment. Its later status and treatment cannot be established from the material provided.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Aboud; R v Stanley [2003] QCA 499
PARTIES: R v ABOUD, Ann Louise (appellant) / R v STANLEY, Ian Charles (appellant)
FILE NO/S: CA No 98 of 2003 / CA No 99 of 2003 / SC No 8 of 2002
DIVISION: Court of Appeal
PROCEEDING: Appeals against conviction
ORIGINATING COURT: Supreme Court at Rockhampton
DELIVERED ON: 14 November 2003
DELIVERED AT: Brisbane
HEARING DATE: 15 October 2003
JUDGES: McPherson JA, Mackenzie and Wilson JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: In Appeal No 98 of 2003: / In Appeal No 99 of 2003:
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where appellants convicted of murder – where appealed convictions – where prior to victim’s death Aboud taped conversations with others regarding prospect of deceased’s death – where allegedly attempting to gain reassurance of untruth of such – – where claimed not serious about carrying out killing – where told police she knew of no-one who might wish to harm deceased – where issue of lies and their effect on credibility and inferences of guilt raised by prosecution in respect of Aboud and Stanley – where trial judge directed jury regarding lies and consciousness of guilt in respect of Stanley but not Aboud – whether adequate directions given – whether omission fundamental flaw – whether no miscarriage of justice notwithstanding the omission / CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PRACTICE AND PROCEDURE – ALTERNATIVE VERDICTS – DIRECTION TO JURY WHERE EVIDENCE POINTS TO MURDER OR NOTHING – where directions in respect of Stanley included elements of murder and manslaughter – where jury told in respect of Aboud only that she was charged with counselling or procuring the killing – where no alternative verdict of manslaughter left in respect of Aboud – where prosecution case conducted so that only verdicts open on evidence in respect of Aboud were murder or not guilty – whether error of law in not leaving open verdict of manslaughter – whether failure to so direct entitled Aboud to have verdict set aside / CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – STANDARD OF PROOF – CIRCUMSTANTIAL EVIDENCE – REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE – DIRECTION TO JURY – where evidence of calls made to deceased by Stanley prior to death – where call records showed cell sites through which calls were relayed – where Stanley sought to draw inference that he was at another location at time of incident – where other circumstantial evidence existed – where directions given as to effect of evidence of telephone billing origins and possibility of reasonable inference consistent with innocence being drawn – where appellant claimed such evidence was intermediate fact – where trial judge treated evidence as one element of circumstantial case – whether correct in so treating – whether direction needed that such evidence was an intermediate fact needing to be proven beyond reasonable doubt by prosecution – whether verdict unsafe and unsatisfactory / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – where joint trial of co-accused– whether separate trials should have been ordered – whether potential for unfairness – whether such resulted in substantial miscarriage of justice or improper prejudice against the Stanley / APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCELLANEOUS GROUNDS ON WHICH A NEW TRIAL IS GRANTED OR REFUSED – whether on above bases verdicts unsafe and unsatisfactory / Criminal Code 1899 (Qld), s 606 / Chamberlain v The Queen (No 2) (1984) 153 CLR 521, cited / Edwards v The Queen (1993) 178 CLR 193, applied / Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414, applied / R v Davidson [2000] QCA 039; CA No 369 of 1999, 28 July 2000, applied / R v Rehavi [1998] QCA 28; (1999) 2 Qd R 640, cited / R v Willersdorf [2001] QCA 183; CA No 333 of 2000, 15 May 2001, cited / Shepherd v The Queen [No 5] 1990 170 CLR 573, applied / Webb & Hay v The Queen (1994) 181 CLR 41, applied
COUNSEL: M J Byrne for the appellant in Appeal No 98 of 2003 / J R Hunter for the appellant in Appeal No 99 of 2003 / M J Copley, with D R Mackenzie, for the respondent
SOLICITORS: Legal Aid Queensland for the appellant in Appeal No 98 of 2003 and Appeal No 99 of 2003 / Director of Public Prosecutions (Queensland) for the respondent
McPHERSON JA: I agree with the reasons of Mackenzie J. The appeal by Aboud against her conviction is allowed; the verdict is set aside, and a new trial ordered.
As to the appellant Stanley, the appeal against conviction is dismissed.
MACKENZIE J: The appellants were convicted of murder. The victim, who had been in a relationship with Aboud, was found with a bullet wound to his head in a shed at Gracemere near Rockhampton in the early hours of 16 February 2001. The Crown case was that the appellant Stanley and one John Allen Bell were involved in the actual killing and that Aboud was a counsellor or procurer. Bell was tried jointly with Aboud and Stanley but the jury was discharged in respect of him when reference to material, prejudicial to him but which had been excluded from evidence, was inadvertently referred to by counsel for Aboud in his address.
Aboud’s appeal
In addition to a ground that the verdict of murder against her was unsafe and unsatisfactory, two specific grounds were argued. One was that the learned trial judge failed to direct the jury adequately upon alleged lies told by the appellant. The second was that the learned trial judge erred in not leaving a verdict of manslaughter to the jury in her case.
(a) Lies as evidence of guilt
To put this ground in a proper setting, the evidence established that prior to the killing the appellant not infrequently had conversations with friends and people with whom her acquaintanceship was more remote with a reoccurring theme that the deceased may be killed. On occasions she presented herself as trying to gain reassurance that what was being said to her about that possibility was untrue. She recorded, on occasions, an exculpatory explanation of these conversations. There was evidence that she and the appellant Stanley had had conversations about the subject. It was submitted on her behalf that it was Stanley rather than she who was the instigator of the conversations. There was also evidence that Stanley apparently harboured affection for her. One aspect of the defence case was that while the appellant Aboud may have engaged in conversations of this character, she was not desirous of about bringing about the death of the victim.
The issue of lies and their effect was referred to by the Crown Prosecutor in his final address to the jury. He said there were lies which simply affected credibility and lies which in themselves were an admission of guilt because of an inference that may be drawn that the person, because they told a lie, “…may well be guilty of the offence…”. He identified three lies of the latter character. One was that Stanley had said that he had not been to Gracemere on the night in question. Another related to Bell. The third was expressed in the following terms in his address:
“…Ann Aboud’s statement where she said, ‘I can’t be of any assistance to you. I’ve got no idea,’ when she’s got tape-recordings of herself talking to someone planning or stopping the planning of a killing of a de facto husband…”
Although the formulation of the alleged lie is in quotation marks in the transcript of the address it actually appears to represent a paraphrase of the substance of what the appellant Aboud said in a conversation with police officers on the occasion when they were breaking the news to her that the deceased person had been found. In the summing up, the learned trial judge said the following:
“Now, Mr MacKenzie for the prosecution urged you to have regard to what he said were lies told by each defendant. He urged you to consider carefully what each defendant said when first spoken to by the police. I’ll deal with each in turn, that is each defendant in turn.”
He then stated that the point being made by the Crown Prosecutor was that lies told when each was first questioned could be used by the jury as evidence of the guilt of each of the defendants. He then directed them about the nature of the lie alleged against Stanley and gave a direction, about which no complaint is made, setting out the steps required to be taken by Edwards v The Queen (1993) 178 CLR 193. The context of the direction makes it plain that he was discussing the principles with regard to the case against Stanley.
There was no reference immediately following that discussion to the lie relied on as evidence of consciousness of guilt in the case of Aboud. During the course of his directions about the case against Stanley, the learned trial judge referred to “…the lies told by Mr Stanley” as “…the most significant part of the prosecution case…”. He then reminded the jury in some detail of the defence submissions on the subject.
After he had finished his direction with regard to the case against Stanley he gave the jury directions with regard to the case against Aboud. No direction was given as to the lie relied upon in the Crown address as a lie told by her. No direction specific to the case of Aboud was given as to the use to which lies could be put. As the matter stood at the end of the summing up, the learned trial judge had said that the prosecution urged the jury to have regard to alleged lies told by each accused and, in particular, what each accused had said when first spoken to by the police. He had said that he would deal with each in turn. However no direction was given on that subject by the learned trial judge in respect of Aboud. The fact that he said that he would deal with each accused person in turn suggests an oversight in not giving directions as to the use to which the alleged lie against Aboud could be put and factors specific to her case that the jury should consider in that context rather than a deliberate decision that it was not a lie that could be relied upon as evidence of guilt. There is no direction that it could not be used to establish consciousness of guilt. If, as appears to be the case, the direction was omitted by oversight, the issue is what consequences flow from the omission.
There was no application for a redirection. However that is not fatal if there has been a fundamental omission from the summing up. As the matter stood at the end of all of the directions, the lie relied on by the prosecution in relation to Aboud was never defined by the learned trial judge. Nor was there any discussion of matters specific to Aboud’s case that were appropriate for the jury to take into account in assessing whether to treat what Aboud had said as an indication of consciousness of guilt.
The jury was reminded by the learned trial judge that the essence of Aboud’s case was that she was never serious about being a party to the victim’s death despite her many references to the prospect of his death to other people. The defence submission that it was unlikely that there was a plan between her and the other accused to bring about his death because no one would include her in such a plan because of her propensity to discuss the subject widely with other people was repeated. Those propositions would be relevant to the issue of whether there was a lie at all in her initial conversation with the police, but the direction was not focused in that way. There was also reference to her reaction to the news of the victim’s death, but not with particular reference to the issue whether the statements allegedly to the effect that she knew of no one who might harm him were in fact lies.
Regrettably, in my view the omission of specific directions as to lies and consciousness of guilt in relation to Aboud is a fundamental flaw in the summing up. Unfortunately the case is another example of one where the prosecution case was unlikely to be greatly advanced by relying on an alleged lie as consciousness of guilt. To prove that the appellant had lied when she said that she knew of no one who might wish to harm the deceased, it was necessary for the jury to accept that she had engaged in conversation with her co-appellant which was seriously concerned with bringing about the deceased’s death. In reaching that point in their reasoning, the jury would have effectively rejected the defence case that she was never serious about the killing of the deceased. There was then no need to resort to the question whether the lie was told out of consciousness of guilt to reach this conclusion. It is implicit in the finding about the true nature of her conversations that the lie was told to hide the nature of the association. To consider separately whether the lie was told out of consciousness of guilt at that point would be otiose.
One issue remains. It is whether, notwithstanding the omission of a direction specific to Aboud’s case on the subject, no miscarriage of justice occurred. Because of the logical process of reasoning referred to above, it may be thought that the concept of lies as consciousness of guilt may not have played a prominent part in the jury’s verdict. However, it is not possible to be confident that the absence of specific directions relating to factors to be taken into account in relation to the issue, which had not been excluded from their consideration, did not affect her chances of acquittal. The fact that the concepts involved were properly explained in the direction with regard to Stanley does not suffice to remedy the defect. The proviso cannot apply. The appeal must succeed on this ground.
(b) Manslaughter not left to jury
The learned trial judge did not expressly leave the alternative verdict of manslaughter to the jury in the case of Aboud. He had, with respect to Stanley, given a conventional direction as to the elements of murder and manslaughter. With regard to Aboud he told the jury that she was charged as a person who counselled or procured one or other of the other accused to kill the victim and that she was not charged on any other basis. If they found that one of the other accused had committed the murder they needed to be satisfied beyond reasonable doubt that she was serious about having him killed. That involved finding that she intended that the plan to kill him be carried out, or that she procured one or other of the other accused to kill the victim knowing they intended to do it.
The case was conducted on the basis that so far as the appellant Aboud was concerned the only verdicts open on the evidence were murder or not guilty. Because of the way the case was conducted, it is not obvious that there was any basis upon which a verdict of manslaughter could be returned against Aboud if Stanley was convicted of murder. While it is not necessary now to decide the question in view of what has been said about the need to allow the appeal on another ground, in my view the failure to direct the jury as to an alternative verdict of manslaughter in the case of Aboud would not have entitled her to have the verdict of murder set aside. R v Rehavi [1998] QCA 28; (1999) 2 Qd R 640, as explained in R v Willersdorf [2001] QCA 183, supports this conclusion.
(c) Unsafe and unsatisfactory
Since I am satisfied that there is a prima facie case against Aboud, it is undesirable to express the reasons for the conclusion in detail since there must be an order for a retrial rather than an acquittal in her case.
Stanley’s appeal
The appeal by the appellant Stanley was argued within the framework of grounds that he should have been separately tried from Aboud, that the verdict was unsafe and unsatisfactory and, by leave, that the learned trial judge had failed to direct the jury properly about certain evidence relating to telephone calls at around 8.30pm because the summing up did not include a direction that unless the jury could exclude beyond reasonable doubt the hypothesis that the appellant was in Yeppoon at about 8.30pm, they ought to acquit.
To understand the submissions it is necessary to summarise the evidence against Stanley. The basis upon which the prosecution case was conducted was that the killing of the victim with a firearm occurred at about 8.30pm on 15 February 2001. That time was fixed by the evidence of residents of Gracemere who said that they had heard a “gunshot” or a “small explosion” at about 8.30pm or a little later. The man Bell and the appellant had acquired a white Falcon Sedan earlier that day in Rockhampton. A vehicle of that description with an unknown number of occupants was observed driving slowly past the shed where the victim was found at about 6.40pm on the evening of 15 February.
On the morning of 16 February the appellant approached a scientific officer at the scene of the killing. He said that the deceased was a friend of his and was in a relationship with Aboud. He said that the victim had travelled by bus to Gracemere from Yeppoon the previous evening. The appellant said that he had had a conversation with the deceased at about 6.00pm in which the deceased told him that he was experiencing trouble with the radiator of a vehicle and that he would see him the next day.
A statement was given to the police in which he described his friendship with Aboud and his observations of apparent difficulties in her relationship with the deceased. He described his movements on the morning of 15 February to them. He said that he had picked the deceased up from Aboud’s house in Yeppoon and dropped him at the bus stop so that he could catch a bus to Gracemere. He and Bell went to Rockhampton to purchase a vehicle. He had returned to Yeppoon with Bell after which the appellant returned to Rockhampton in his own vehicle. He had attempted to telephone the deceased but received no answer. He rang again either at 5.45pm or 6.15pm and offered to come to Gracemere and pick him up to drive him back to Yeppoon. The deceased declined because he was proposing to work all night on a radiator. The appellant then went back to Yeppoon with Bell. After dropping him off at about 7.00pm he visited Aboud staying at her home for some time. After that he went home.
Later on 16 February he gave another statement to the police. In it he admitted that he had been to Gracemere on the evening of 15 February. (There was other evidence from the proprietors of a fish and chip shop tending to support the fact that the appellant had been in Gracemere on that evening about 6.00pm). He said that he and Bell had driven to Rockhampton in Bell’s newly acquired vehicle. The appellant had rung the deceased at around 6.00pm. When the deceased declined the offer of a lift back to Yeppoon, Bell had told the appellant that they and someone called Mario had to go see the deceased. When asked by the appellant what was going to happen, Bell said that they were going to go in and advise the deceased to treat Aboud properly and leave her alone, otherwise he would have an accident. The appellant said that he knew of Mario as someone who was involved in “straightening people out” and that he was an expert in “lingual persuasion” rather than physical violence.
The appellant told the police that he went with Bell to Gracemere and was dropped off at about 6.45pm about 1.5 to 2km from the shed where the victim was found with instructions to keep a look out for a particular vehicle and call Bell if he saw it. By this time it was dark. (There was independent evidence that on that evening sunset was at 6.33pm). After about 20 to 25 minutes Bell returned and told him that the deceased had “agreed to it”. They went back to Yeppoon which took about 35 minutes. He told the police that he loved Aboud as a friend or like a sister but was not infatuated with her. (Certain writings identified as his were located and indicated antipathy toward the victim and affection towards the appellant Aboud).
According to the call records relating to the appellant’s mobile phone, calls were made to the deceased at 17.57.20, 17.59.12 and 18.00.18. According to the records all of these calls made a connection. The first lasted 16 seconds, the second 5 seconds and the third 49 seconds. The first two were relayed through the Rocky East cell site. The third was relayed through the Rockhampton cell site. Then at 19.32.22 there was a call relayed through the Rockhampton cell site to Aboud but its status is recorded as “no answer/busy”. At 20.19.11 there was another call, which had the same result, relayed through the Yeppoon cell site. There was then another call at 20.28.11 to a number which has no significance for present purposes; the cell site which relayed the call, which dropped out, is not ascertained. Then at 20.29.07 there was another call relayed through the Yeppoon cell site to Aboud’s phone but, once again, the status is recorded as “no answer/busy”.
There was evidence that calls were made from Aboud’s mobile to the appellant’s at 15.11 for 12 minutes and at 19.10 for 16 seconds on 15 February. The appellant’s mobile phone was a digital GSM phone, the signals of which travel by line of sight. The maximum operating range from a base station is 35.5km subject to reduction if weather conditions are not favourable.
An employee of Optus gave evidence without objection that the names of the cell sites were descriptions for billing purposes not a definitive description of the locality from which the call was made. “Rockhampton” refers to sector 1 of a tower on Mt Archer. “Yeppoon” could refer either to sector 2 of the station on Mt Archer or one on a hill at Yeppoon. “Rocky East” was one of three Rockhampton CBD sectors situated at Rockhampton Hospital in the Rockhampton city area.
The witness said that the nearest available base station would be sought out by the call. If all channels at that station were in use the signal would attempt to connect with another available base station within range. Once that connection was made the call was directed to the number called.
In cross-examination the witness said she expected that the Mt Archer stations would have a more extended coverage area than those in the CBD because of Mt Archer’s elevation and clearer line of sight. It was apparent that the witness did not profess to have technical expertise to explain precisely the orientation of the particular sectors on Mt Archer. She confirmed that the Yeppoon antenna had a bearing of 250 degrees although she could not say precisely what that implied, particularly with respect to the likelihood of a call from Gracemere being received by that cell. However, she said that as a matter of logic she assumed that the Rockhampton sector would be principally directed towards the city and Yeppoon towards Yeppoon. The question whether a signal from Gracemere would only be picked up by a base station at Mt Archer or Yeppoon if the base stations at Rocky East, Rockhampton, Rockhampton CBD 1 and CBD 2 were congested was raised but not answered definitively. So was the question whether 8.30pm on a Thursday night was likely to be a peak operating period for mobile telephones. It is difficult to see how the witness’ answer that it was unlikely had any higher status than the jury’s own view on that subject.
The learned trial judge gave a comprehensive direction as to the effect of this evidence. He concluded by telling the jury that because of the evidence of the telephone billing origins it was a reasonable inference consistent with innocence that the appellant was in or near Yeppoon at the time of the killing, unless the jury rejected the evidence as to when the sounds relied on by the Crown as these of the shooting were heard, or the jury found the remainder of the prosecution’s circumstantial case so overwhelmingly indicative of guilt that the mere possibility that the call came from Gracemere was elevated to the level of “a relative certainty”. He concluded by saying that all other things being equal, it seemed on the evidence that the probabilities were that the call was made from Yeppoon or somewhere on the Yeppoon side of the range. He repeated what he had said about the only basis upon which the hypothesis consistent with innocence could be rejected.
(a) “Intermediate facts”
It was submitted that there had been a failure to give a direction that the evidence regarding the telephone calls was an “intermediate fact” which had to be proved beyond reasonable doubt by the prosecution. It was accepted that if the learned trial judge, who was not asked to redirect on the issue, was correct in acting on the basis that it was one element of the circumstantial case against Stanley rather than an intermediate fact, the direction could not be criticised.
In Edwards at 203, Brennan J referred to a passage from the judgment of Dawson J in Shepherd v The Queen [No 5] (1990) 170 CLR 573, 583 in which the observation was made (after an analysis of Chamberlain v The Queen (No 2) (1984) 153 CLR 521) that various items of evidence upon which the prosecution relies to establish an intermediate fact are not required to be proved beyond reasonable doubt but an intermediate fact, if it is to be the basis of an inference or inferences leading to a verdict of guilty, is required to be proved beyond reasonable doubt. Brennan J then said:
“Chamberlain [No 2] requires that no element of the offence be inferred adversely to an accused unless the intermediate facts, from which the inference is drawn be proved beyond reasonable doubt. But, as Shepherd holds, Chamberlain [No 2] imposed no requirement that the jury accept beyond reasonable doubt every piece of inculpatory evidence relevant to the existence of an intermediate fact. The evaluation of evidence is a matter for each juror to approach in the light of his or her experience of life but the standard of proof beyond reasonable doubt governs the finding of facts essential to the guilt of the accused on the offence charged. The pieces of evidence are ‘strands in a cable’ tending to establish a material fact, but intermediate facts established by evidence are links in the chain of proof of the fact to be inferred. The standard of proof applies to links; it says nothing about the strands.
If the ultimate facts – those which constitute the elements of the offence charged – are to be inferred from intermediate facts, the standard governs both the finding of the intermediate facts and the drawing of the inference from them.”
Deane, Dawson and Gaudron JJ at 210 made observations that are not inconsistent with that statement of principle. In this case there was a body of circumstantial evidence including the presence of the appellant at Gracemere early in the evening of the killing, the fact that he had lied about his presence there, which the Crown submitted betrayed consciousness of guilt, other evidence tending to suggest that he harboured an affection for the co-accused Aboud, that he felt antipathy towards the deceased for the way he believed he was treating her and that he had on more than one occasion in the past engaged in conversations that contemplated the death of the victim. In this setting it is in my view wrong in principle to elevate the evidence which the defence relies on as tending to suggest that the appellant was in the Yeppoon area at the time relied on by the Crown as the time of the killing to the status of an intermediate fact. It is merely one piece of the circumstantial matrix relied on by the Crown to prove beyond reasonable doubt that the appellant was involved, at Gracemere, in the killing of the victim. It was therefore correct to direct the jury in the terms referred to in [28] above.
“Unsafe and unsatisfactory”
On the basis that the learned trial judge was correct in approaching the matter in that manner the verdict was not unsafe or unsatisfactory. There was a sufficient evidentiary basis for the jury to draw an inference to the exclusion of other inferences consistent with innocence that the appellant Stanley was a party to the murder of the victim.
Separate trials
At appellate level the test is whether by reason of the joint trial there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused (Webb & Hay v The Queen (1994) 181 CLR 41, 89).
The categories of cases where it is appropriate to order separate trials are not closed. When making the decision at trial, typically, cases where separate trials are allowed are ones 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. There is nothing to suggest that the learned trial judge misapprehended his function in that regard.
When the evidence as it turned out is analysed, the case against Aboud depended on what she said about her interaction with the appellant, what she said to others and ultimately what inference the jury drew about her intentions and the extent of her involvement in encouraging the killing. One particularly important piece of evidence was that of Mrs Sheppard, which, if accepted, was strong evidence of Aboud counselling or procuring of the appellant. It also necessarily implied that he may be implicated.
With regard to the case against him, the jury had before it, amongst other things of more marginal relevance to the present question, evidence that he had approached a police officer about a taped conversation in which Aboud had asked him about how she might go about killing the deceased and evidence that he had said to another person that he himself thought that the deceased should be done away with. There was evidence of him harbouring romantic designs on Aboud and of expressing antipathy towards the deceased for his perceived mistreatment of her. There was also a taped conversation between the two, some months after the killing, in which it was referred to in a somewhat cryptic way. It was for the jury to assess what interpretation should be placed on it in the context of the other evidence. There was also the initial false denial that he had been at Gracemere on the night of the killing.
Analysis of the respective cases against the two appellants does not lead me to think that the decision to try the appellant together with Aboud created improper prejudice against him or led to a miscarriage of justice in his case.
The learned trial judge informed the jury both during the evidence and in the summing up in terms that were appropriate that statements made out of the presence of another accused were inadmissible in evidence against anyone but the person making the statement. In Webb v The Queen, Toohey J (with whom Mason CJ and McHugh J agreed) said the following:
“… there are ‘strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. …What King CJ referred to as ‘strong reasons of principle and policy’ were discussed by his Honour in R v Collie, (1991) 56 SASR 302 at 307-11. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts … There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (R v Harbach (1973) 6 SASR 427 at 433).”
It was repeated in R v Davidson [2000] QCA 039 by de Jersey CJ and Davies JA “…that there are strong reasons of principle and public policy why joint offences should be tried jointly and the mere fact that one result of joinder will be that evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials.” They pointed out further that the exercise by the trial judge of the discretion conferred by s 606 of the Criminal Code 1899 (Qld) is rarely interfered with. It was however observed that that was not to say that the facts may never disclose such potential for unfairness that separate trials should never be ordered.
The agreement of both majority and minority judges in Gilbert v The Queen (2000) 201 CLR 414 that the system of criminal justice as administered by appellate courts requires the assumption that as a general rule juries understand and follow the directions that they are given by trial judges must not be overlooked. There may be unusual cases of which Gilbert v The Queen is an example where it is appropriate, as the majority did, to reject the assumption that prejudice may never occur in the process of the jury’s decision making. However, in my view, this is not such a case. This ground is therefore not made out. The appeal by the appellant Stanley must therefore be dismissed.
Orders:
Aboud:
The appeal is allowed;
The verdict of guilty is set aside and a new trial ordered;
Remand the appellant in custody until further or other order of a court with jurisdiction to grant bail.
Stanley:
The appeal is dismissed.
WILSON JA: I agree with the reasons for judgment of Mackenzie J and with the orders he proposes.
(1984) 153 CLR 521
(1993) 178 CLR 193
(2000) 201 CLR 414
(1999) 2 Qd R 640
(1994) 181 CLR 41
(1990) 170 CLR 573
(1991) 56 SASR 302
(1973) 6 SASR 427
Appeal No 98 of 2003, Aboud: appeal allowed, verdict of guilty set aside, new trial ordered, and Aboud remanded in custody until further or other order of a court with jurisdiction to grant bail. Appeal No 99 of 2003, Stanley: appeal dismissed.