R v Cobby [2025] QCA 54

COUNSEL: The appellant appeared on his own behalf / P J McCarthy KC, with S L Dennis, for the respondent

SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P: The appellant was convicted after trial before a jury of one count of murder of his wife Mrs Cobby on 12 November 2017. It was a domestic violence offence. The case against the appellant was circumstantial. It was not in issue that Mrs Cobby’s death was caused by neck compression by manual strangulation. The issue at the trial was whether it was the appellant who murdered Mrs Cobby.

2. The appellant was represented by experienced lawyers for the trial. He is self-represented for the appeal. His grounds of appeal are:

The verdict is unsatisfactory or cannot be supported having regard to the evidence.

A miscarriage of justice resulted as the appellant was denied a fair trial as a result of the prosecution’s failure to present impartially all available credible evidence of witnesses capable of satisfying evidence or entertain such a doubt that a guilty verdict could not stand.

The learned trial judge erred by using the hammer as an example when explaining to the jury the process of drawing inferences.

A miscarriage of justice occurred as the evidence of Mr Popa about the hammer was wrongly admitted.

The fresh DNA evidence discloses significant scientific circumstances which raise serious ethical questions regarding the credibility and integrity of the forensic DNA profile analysis conducted by Queensland Health Forensic and Scientific Services.

Failure by the Queensland Police to disclose all relevant “iCARE” pre-interview material, interview transcript, notes and other associated material per iCare model obtained in association with the procurement of iCare s 93A statements relevant to witnesses, namely the appellant’s daughter, Mr Dey and Mr Nicholls.

3. Each of grounds 2-6 asserts a miscarriage of justice. The appellant’s written outline that included his oral address for the hearing of the appeal is 130 pages long and contains 708 paragraphs. Apart from addressing the six grounds in the notice of appeal, these submissions assert other irregularities in the trial which will be addressed as appropriate in these reasons. The appellant relies on each of the grounds but also the combination of more than one ground to establish a miscarriage of justice.

Summary of the evidence

4. The appellant and Mrs Cobby were married but had lived separately for many years. Mrs Cobby lived at 20 Arthur Payne Court with her mother and the two sons and daughter of her marriage to the appellant (who will be referred to as the elder son, the younger son and the daughter and were respectively aged 23 years, 17 years and 13 years). Mrs Cobby together with the three children and her mother lived at one end of the home. Mr Eden who was Mrs Cobby’s former brother-in-law lived at the other end of the home with a flatmate. Mr Eden had been married to Mrs Cobby’s sister.

5. As at 12 November 2017, the appellant had been living at Southport for two weeks with Mr Popa and his partner Ms Hernandez and also Mr Lamude for whom Ms Hernandez was the carer. Mr Lamude had a red Chrysler vehicle. Previously they all had resided together at Carrara for about eight months. The appellant had responded to Mr Popa’s advertisement for a flatmate. At an earlier time, the appellant had lived in accommodation with Mr Joshua Roberts and Mr Hector Bonelli.

6. On the evening of 12 November 2017 after 8.30 pm (and it could have been as late as 10.30 pm according to Mr Lamude’s statement), the appellant borrowed the Chrysler vehicle as he said to Mr Popa and Ms Hernandez he had to visit the daughter who was sick. The appellant left with a black backpack.

7. The table summarising Mrs Cobby’s telephone calls on 11 and 12 November 2017 (exhibit 180) was the subject of admissions and showed frequent contact between Mrs Cobby and the appellant. That showed that Mrs Cobby had called the appellant at 8.54 pm on 12 November 2017 and the call lasted two minutes 32 seconds. There were text exchanges between Mrs Cobby and the appellant on 12 November 2017 that were the subject of admissions (exhibit 179) that then followed:

Parties Time Message

Mrs Cobby to the appellant 21:03 I think we are being watched

The appellant to Mrs Cobby 21:06 Is your mum continuing to say “that she is going to get you / us all?”

Mrs Cobby to the appellant 21:07 Yes

8. In November 2017, the younger son was at high school. In the last few months before his mother died, when he would visit his father, about every fortnight, his mother would come with him or sometimes she would already be at the appellant’s place or she would pop in while he was there. His parents seemed to be getting along the same as always. About four weeks before his mother died, she said to the younger son that she was thinking of leaving the appellant but was not sure.

9. On the night his mother died, the younger son had dinner with his mother, siblings and grandmother and nothing seemed unusual. He was about to go to bed, when his mother passed him and said that she was going to take the bin out and would be back in a minute. She was dressed in her pyjamas. He was in his bedroom when he heard his grandmother’s telephone ringing and answered it. It was Mr Eden who asked him to check whether his mother was home. He ran down to Mr Eden. He called the elder son who drove down from their home in his car.

10. The younger son’s cross-examination included the following. His mother and Mr Eden had regular verbal arguments. His mother and grandmother also had regular arguments over many years. He had never seen his parents have any major fights or arguments. The appellant was not welcome at the home at Arthur Payne Court because of disagreements between the appellant and the rest of the family. His parents were in constant contact either personally or over the telephone. It was not until he conferred with the prosecutor in October 2021 that he mentioned what his mother had told him about thinking about a divorce. A family holiday had been planned for Christmas 2017.

11. The younger son had met Mr Bonelli through the appellant, possibly in 2016. The appellant and Mr Bonelli had lived in a share house for three to six months. Mr Bonelli gave the appellant a black eye over money he had given to the appellant to invest. The younger son had also seen Mr Bonelli and his girlfriend when they came to the Arthur Payne Court home looking for the appellant a month after Mr Bonelli had given the appellant the black eye. On that occasion Mrs Cobby told Mr Bonelli that the appellant was not there and she did not know where he was.

12. The younger son had also met another investor Josh who was a flatmate of the appellant. The younger son had dinner in 2017 with the appellant, Josh and his father Michael. The appellant moved in with Josh at Robina. The younger son saw Josh and Michael when he visited the appellant at that rental home. About two weeks before his mother died, the younger son saw a white utility that he had seen parked in the driveway at the Robina house with two men looking at the Arthur Payne Court home. He identified the two men as Josh and Michael.

13. The daughter’s s 93A interview that was recorded on 13 November 2017 (exhibit 75) was played for the jury. The daughter’s evidence included the following. She saw the appellant on 12 November 2017 when she was with her mother and the elder son on their way to Pacific Fair and they stopped at a street where the appellant was waiting for them. She only spoke to the appellant for about five minutes. Her parents were talking together and she did not observe any problems between them. Both parents had told her sometime in 2016 or 2017 that they were trying to get back together. On the night of Saturday 11 November 2017, Mrs Cobby went out to catch up with friends and she told the daughter that she was taking the appellant with her. She returned home at 10 pm. On Sunday 12 November 2017, the daughter was with Mrs Cobby and the elder son at Pacific Fair from 10.45 am to 2.45 pm. They returned home. Mrs Cobby made dinner. The elder son and the younger son did not come to the dinner table. Her mother and her grandmother were fighting about the “usual stuff” which included Mrs Schultz saying that Mrs Cobby was going out too much on the weekend. They all had showers. The daughter went to bed about 9 pm. In 2015 or 2016, the appellant lived with “this guy named Hector”.

14. The daughter’s s 21AK evidence was recorded on 20 May 2021 and played for the jury. The daughter clarified that when she visited her father on 12 November 2017 with her mother and the elder son, the appellant met them on the footpath when they pulled up and they went inside the place in which he was then living. They all went into her father’s bedroom. While the daughter was on the bed, her father gave each of her mother and the elder son a massage. Her parents were getting along well. She did not see them arguing. After the massages were finished, they went to Pacific Fair. They had probably visited the appellant for an hour or so. The daughter had thought her parents were divorced but found out shortly before November 2017 that they were not divorced, when her mother told her that she wanted to get a divorce from the appellant. That conversation happened a couple of months before her mother passed away. When she told the police officer during the s 93A interview that her parents were trying to get back together, she was referring to a time before her mother had spoken to her about getting a divorce. She witnessed an argument between her parents at Emerald Lakes where she heard her mother say that the appellant needed to get his act together, because otherwise she would leave him. That happened a month before she told the daughter she wanted to get a divorce. Her mother had appeared angry when she got back into the car.

15. The daughter knew a person by the name of Josh, as the appellant had rented with him and Hector. The daughter had seen Josh drive past the house at Arthur Payne Court about two or three times. On one occasion, he stopped his car across the street and sat there for a few minutes. The daughter could see that it was Josh and his father in the car wearing hats and sunglasses. It happened a year or a year and a bit before her mother passed away. There was another occasion on which the daughter saw Josh and his father sitting in their car near her home. There were other times in which Josh just did a “drive-by”. She also saw Josh when he and Hector were dumping her father’s stuff onto the driveway at Arthur Payne Court. Apart from when he dumped her father’s stuff onto the driveway, there were another two occasions when she saw Hector near the family home at Arthur Payne Court. One occasion was early in the evening when he came looking for her father. Her mother went towards the garage area to speak to him. The other occasion was when Hector attended with his girlfriend and spoke to her mother on the roadway and then, when he went to use the bathroom in their house, he spoke to Mrs Schultz. After Hector’s visits, her mother told the daughter that she was worried about the family’s safety.

16. The cross-examination of the daughter in her pre-recorded evidence included the following. Before she started in year 7 in 2017, she would see her father “every once in a while” and not weekly but she also spoke to him on the telephone. She was aware her parents were in regular contact and that continued after she started in year 7. They used to meet up and contact each other by telephone or by text. The argument at Emerald Lakes occurred between 2016 and 2017, but the daughter could not remember the actual month. The argument lasted a short period of time. For most of her life, her parents never lived together and the daughter thought they were divorced until a few months before her mother passed away when her mother told her she wanted to get a divorce from the appellant. When the daughter spoke to the police officer on 13 November 2017, she did not remember that conversation. She remembered it only recently and that was why she told the prosecutor about it. When the daughter told the police officer on 13 November 2017 that her parents were getting back together, she was referring to the time before her mother told her that she wanted to divorce the appellant. When her mother got back into the car after the argument at Emerald Lakes, she did not say anything to the daughter about a divorce at that stage. When pressed on when the conversation about the divorce had occurred, the daughter ultimately said that it was a couple of years before 2017 and confirmed that there had only been one occasion when her mother ever said anything about a divorce. The daughter could remember her parents telling her about a family trip proposed for the end of 2017 and the start of 2018.

17. Mr Eden did not have a good relationship with Mrs Cobby and did not like her. Mr Eden did not have any relationship with the appellant. On the evening of 12 November 2017, Mr Eden was working as a security guard and finished at 9.30 pm. He stopped at the hotel in Mudgeeraba on the way home and had a drink and a gamble on the pokies. CCTV from the hotel (exhibit 148) showed that Mr Eden drove out of the car park at 11 pm. Arthur Payne Court is a cul-de-sac and motor vehicle access is via Harry Mills Drive. On the evening of 12 November 2017, Mr Eden drove up Harry Mills Drive into Arthur Payne Court and saw a person lying on the ground. He stopped his car next to the person, left the lights on and got out. Where he pulled his vehicle up when he saw the body was where his vehicle was shown in the photograph (exhibit 17). There was nobody else around at all. He had not seen any other vehicle in either direction as he drove along Harry Mills Drive. He observed that the top of the body was on the nature strip and the rest of the body was a bit onto the road. He did not move the body. (The photographs of Mrs Cobby’s body that were taken when police arrived (exhibits 1 and 2) showed her head against the concrete gutter and her body lying on the roadway next to the gutter in front of the driveway for 6 Arthur Payne Court.) He checked for breathing and a pulse. There was neither breath nor pulse and he did CPR. At first he did not recognise the person, but when he rang triple-0 after he did CPR for a couple of minutes, he recognised that the person was Mrs Cobby. There was a fair bit of blood around and Mr Eden could not see any actual injury. The body was outside 6 Arthur Payne Court. It was about 400 to 500 metres from the home where Mrs Cobby lived. There was an admission that Mr Eden’s triple-0 call was made at 11.12 pm and lasted six minutes. Mr Eden telephoned Mrs Cobby’s mother’s phone number and that phone was answered at 11.21 pm when Mr Eden spoke to the younger son.

18. Mr Eden’s evidence in cross-examination included the following. He did chest compressions for a couple of minutes before he rang triple-0. He did not feel any breath. He was still on his knees looking over the body when he telephoned. He conceded that the distance to the home could be measured and accepted that it was 300 metres. After a couple of hours, Mr Eden went home and then went with the police to the police station to provide a statement. Mrs Cobby’s head was on the edge of the concrete and the rest of the body was on the road. Mr Eden was cross-examined on the conversation that he had with the triple-0 operator by reference to the transcript of that call (that had been disclosed to the appellant’s lawyers). He did not get along with Mrs Cobby. He had seen Mrs Cobby and her mother fighting over the years prior to Mrs Cobby’s death. Mr Eden had regular arguments with Mrs Cobby. He did not agree with much that Mrs Cobby did. He had never had a physical fight with her. He had separated her and her mother from fighting. That would happen once a year. He could not recall saying to the police on 2 December 2017 that he remembered “often telling [Mrs Cobby] that karma would get her because she was so nasty and deceitful” but conceded that he must have made the comment as it was in his statement.

19. Mrs Cobby’s mother owned a business that provided security and traffic control. Mrs Cobby worked in the business mainly doing office work and some traffic control. Mrs Cobby moved into the home at Arthur Payne Court in 2003. The appellant may have visited the home once or twice. Mrs Cobby’s mother had very little to do with the appellant. She had arguments with Mrs Cobby about the appellant and money. In 2017 those arguments would have been nearly every week. At the beginning of 2017, Mrs Cobby’s mother had followed Mrs Cobby one day to the place where the appellant lived. Mr Bonelli had come to the Arthur Payne Court home in May 2016. Mrs Cobby’s mother spoke to him and he explained to her that he had given the appellant money and that the appellant owed him money.

20. The only time that Mrs Cobby’s mother had spoken to Mr Bonelli was when she met him in May 2016. He probably gave her his telephone number on that occasion. She does not recall how she got Mr Bonelli’s girlfriend’s telephone number. At 1.33 pm and 2.48 pm on 11 November 2017, Mrs Cobby’s mother tried unsuccessfully to telephone Mr Bonelli and at 2.49 pm on the same day tried unsuccessfully to telephone his girlfriend to talk to them about the money owed by the appellant to them.

21. At 5 pm on 12 November 2017, Mrs Cobby’s mother tried again unsuccessfully to call Mr Bonelli’s girlfriend. Mrs Cobby, her children and her mother then ate dinner together around 5.45 pm. Mrs Cobby’s mother did not see Mrs Cobby after dinner, as Mrs Cobby’s mother went off to her bedroom. She received a call from her son at 7 pm which lasted 46 minutes. The elder son telephoned Mrs Cobby’s mother on the landline around midnight to tell her what had happened to Mrs Cobby.

22. When they ate dinner on 12 November 2017, Mrs Cobby did not say she was worried about people being around the house and did not appear to be worried. Every window and door at the home was fitted with security screens.

23. Mrs Cobby’s mother’s evidence in cross-examination included the following. Mrs Cobby’s mother made it clear to Mrs Cobby that she disapproved of the appellant and wanted Mrs Cobby to have nothing to do with him. Mrs Cobby would tell her lies about where she was going. Contrary to her evidence in chief, Mrs Cobby’s mother said it was prior to her meeting Mr Bonelli in May 2016 that she had followed Mrs Cobby to the appellant’s place. Mrs Cobby’s mother was concerned Mrs Cobby could be attacked by hanging around with the appellant. Mrs Cobby’s mother was not telling Mr Bonelli about the movements of Mrs Cobby and the appellant. In the period leading up to 12 November 2017, Mrs Cobby’s mother had not made threats to her daughter.

24. The elder son’s evidence included the following. His parents lived together briefly while the house at Arthur Payne Court was under construction in early 2003 and also sometime in December 2012 when they resided with the appellant’s sister. On 12 November 2017, the elder son had visited the appellant’s home with Mrs Cobby and the daughter between 11 am and midday. Mrs Cobby, the elder son and the daughter then went shopping at Pacific Fair. They returned home between 2 pm and 3 pm. There was nothing unusual about the evening meal shared that night by Mrs Cobby, her mother and the children. Mrs Cobby was acting normally. During 2017, the elder son would go to the appellant’s house two to three times per week for a massage. He had a spinal operation in June 2016 but needed further surgery. The purpose of the visit to the appellant on 12 November 2017 was so that the elder son could have a massage. On that day, the elder son heard his parents talking and Mr Cobby asked whether the money was coming in shortly to pay Mr Bonelli and Mr Roberts. The elder son had met Mr Bonelli at a shopping centre car park around mid 2016 when the appellant was moving out from the accommodation where he had been living with Mr Bonelli. The elder son took the appellant’s personal belongings out of Mr Bonelli’s car and put them into his car. After that, Mr Bonelli contacted the elder son and told him about the appellant losing the money and wanted to meet but the elder son made an excuse not to. The next contact he had with Mr Bonelli was prior to June 2016, when the elder son arrived home to find Mrs Cobby, her mother, Mr Bonelli and another woman seated at the dining table and having a conversation about money. The elder son sat down at the table for about 10 minutes.

25. The elder son’s telephone records were tendered by admission (exhibit 53). The call from the younger son came through at 11.23 pm that provided information about Mrs Cobby. The elder son drove out of the driveway down the street to the scene in his black Holden Barina. He remained at the scene for a couple of hours. The text messages sent by the elder son were set out in a schedule that was subject of further admissions (exhibit 54). The elder son tried to call the appellant unsuccessfully at 11.30 pm. At 11.32 pm, the elder son sent the appellant a text “Can you call me”. There were further unsuccessful attempts to telephone the appellant at 11.33 pm and 11.34 pm. There was another text sent at 11.42 pm stating “You need to answer”. A similar text was sent again at 11.43 pm.

26. The appellant telephoned the elder son’s mobile at 12.13 am for five seconds on 13 November 2017. That call was not answered. The elder son tried unsuccessfully to telephone the appellant at 12.33 am and 12.40 am. The elder son and the younger son returned home in the company of police. The appellant telephoned the elder son at 1.55 am and that call was on loudspeaker and recorded. One of the police officers, Detective Senior Constable Wilkinson, took the elder son’s phone and took over the conversation with the appellant. That recording (exhibit 32) was played for the jury.

27. The appellant’s call included the following statements. He was bleeding. He was on the rocks. He tried to protect Mrs Cobby. A guy laid into them. He had something hard. He should have stayed to protect Mrs Cobby. He asked the elder son how she was and the elder son responded that she was in the hospital and they had not given them any information. He had just come to and asked what was happening. He should have stayed. He was sorry he did not stay when they were attacked. He tried to protect Mrs Cobby and then he ran. He went down the hill. They had not organised to meet up with anyone. Mrs Cobby was scared and asked the appellant to come up. She had sent him texts. They ran and the appellant tried to get back to his car. (The red Chrysler vehicle was shown in exhibit 22 as being parked on the nature strip on the opposite side of Arthur Payne Court to where Mrs Cobby’s body was found and facing in the direction to leave the cul-de-sac.) He tried to hide. The elder son encouraged the appellant to make his way back up towards the streetlight. The appellant repeated that he should have stayed but he panicked.

28. Detective Wilkinson then took over the conversation with the appellant which included the following. The appellant was not badly injured but was shaken and had blood on his head. His lower back was sore. He had run and ducked in somewhere to hide and “just collapsed and passed out”. The appellant made his way to Harry Miles Drive crawling on his side and was found by the police lying in the driveway of number 87. The appellant was in possession of his mobile phone and the key to the Chrysler vehicle. The telephone conversation ended and the appellant’s conversation with Detective Wilkinson and the paramedics continued to be audio recorded. The appellant complained of left shoulder pain and lumbar back pain radiating into his right leg. The appellant was hit with “something hard and a fist” by a male whom he did not know who was wearing dark clothing. He was struck in the face and the back of the head.

29. The conversation between Detective Wilkinson and other police officers and the appellant continued and was recorded by audio and video (exhibit 33). The statements made by the appellant included the following. He rolled over Mrs Cobby, as he tried to protect her. A threat had been made to the appellant and Mrs Cobby and their children and that was why she had called him. Detective Wilkinson travelled in the ambulance with the appellant to the Gold Coast University Hospital. The appellant repeated that they had been receiving threats and that it was Mrs Cobby’s mother who had been “part behind it”. Someone was trying to extort millions of dollars from them and the police knew all about it. People had been coming up to the property and Mrs Cobby tried to report it to the police but they would not talk to Mrs Cobby. He had got a call and text from Mrs Cobby that night. She was worried and concerned and she asked the appellant to come up. He had come up at night previously because she had been sure that someone was watching her through her bedroom window. When he came up tonight, they did not see anyone. He was walking back to the car to leave when “this guy just came at us”. He got Mrs Cobby first, because the appellant was by the car. He tried to protect her and the male “just laid into us” and Mrs Cobby took the brunt of it. He did not have the strength to stop the male. He got hit on the back of the head and panicked and went down the hill. He had met Mrs Cobby that evening at the driveway of the Arthur Payne Court home. She had told him to park down the road and walk up. They met outside the home on the street. They did not see anyone and after a while, Mrs Cobby walked the appellant down to the Chrysler when someone came up behind them and Mrs Cobby screamed. The male attacker was hitting Mrs Cobby with his hand or something. She was putting her hands up trying to protect herself. The appellant tried to hit the guy. Mrs Cobby fell to the ground. The appellant got hit on the back of the head and the appellant did not remember a lot more after that. The attacker had a big build and was four to five centimetres taller than the appellant. He had fair skin with a tan, a long face and short black straight hair. He was wearing a dark top with long sleeves. The appellant could not remember whether the attacker was wearing long or short pants or what he was wearing on his feet. The appellant ran down the hill and fell several times. He did not remember much after that. When he got his phone out, there were missed calls from the children and he called the elder son. When he ran off, he could hear Mrs Cobby yelling. When he stepped in between the attacker and Mrs Cobby, the appellant was pushed by the attacker from behind. Mrs Cobby was on the ground and the appellant was standing up when he got hit and went down and was over Mrs Cobby, trying to protect her.

30. Detective Thomas followed the ambulance that took the appellant to the hospital and activated a digital recorder placed in the treatment room that recorded the conversations that Detective Thomas and other officers had intermittently with the appellant while he received treatment. The recording (exhibit 141) was played to the jury and included the following. Detective Thomas informed the appellant that Mrs Cobby had died. The appellant said repeatedly he should have protected her. The appellant advised that Mrs Cobby had gone to the Mudgeeraba police station about being threatened and that Mrs Schultz was the one behind it. He said that Mr Bonelli, Ms Christie, Mr Michael Roberts and Mr Joshua Roberts were trying to extort $30m out of him and they had been to the Arthur Payne Court property and threatened his children. He gave his version of his dealings with those four persons. He said that Mrs Cobby had called him on the evening of 12 November 2017 and said she was worried that she was being watched. He parked down the road and walked up quietly. When he went up to 20 Arthur Payne Court, Mrs Cobby had walked down to the end of the driveway. They hugged and kissed and he had his arm around her most of the time when she walked him down to the car. They walked further down the street, conversed for about 10 minutes, then walked back to the car, and the appellant was about to unlock the car door when he heard Mrs Cobby scream and yell out. He could not remember what she yelled out. The appellant turned and there was “a guy”. Mrs Cobby was on his left and immediately behind him and the man was on his right. He did not get a good look at the man who was hitting Mrs Cobby, the appellant went for him and the man pushed the appellant back. They stumbled across the road. The appellant was pushed two or three times and punched in the back of the head. The man had something hard in his hand. Mrs Cobby took “the brunt of everything”. The appellant stepped between Mrs Cobby and the man. Mrs Cobby and the appellant went down on the ground and the appellant was lying over her and that was when he got hit on the back of his head. The appellant and Mrs Cobby “were up and down two or three times” and Mrs Cobby came down on top of the appellant at least once. The appellant ran to get away from the attack. Mrs Cobby was on her back on the ground but the appellant could not remember exactly where. The appellant ran back across the road and in front of the car, across the grass and down the hill. He tripped and fell several times. He did not remember a lot after the last fall until he telephoned the elder son. He could not say that he had seen the attacker before. The appellant was running down a slope, went down and landed on his hands.

31. Constable Helfert was one of the first police to arrive at Arthur Payne Court in response to the triple-0 call. As the police car drove up Harry Mills Drive into Arthur Payne Court, Constable Helfert did not recall passing any vehicle going the opposite way. Another police officer, Mr Roberts, who was a forensic photographer used a drone on 13 November 2017 to record video (from which still images were taken) of Arthur Payne Court and the terrain of the properties in the vicinity. The recording (exhibit 27) was played for the jury.

32. The police officer from the Gold Coast dog squad who arrived at the scene in Arthur Payne Court at 11.25 pm on 12 November 2017 was accompanied by police dog Viper. From shortly after 12.30 am on 13 November 2017, the officer deployed Viper in an area search which commenced at the northern driveway of 87 Harry Mills Drive. There was no indication from Viper by growling or barking that there was any human being in the area. The officer and Viper searched down the northern driveway and then came back around the rear of the dwelling and out the southern driveway and proceeded on the footpath to search into the bush area. They then searched the bushland which was below 87 Harry Mills Drive. By reference to exhibit 6, the officer indicated the search area to the jury. At no stage did Viper indicate that he picked up human scent. They moved in a zig-zagging pattern through the bush until they popped out in the clearing under the powerlines and moved towards the intersection of Arthur Payne Court and Harry Mills Drive. They then moved under the powerlines through the bushland until they came back to their starting point in Arthur Court Drive. The total time spent searching with Viper was close to 45 minutes. Subsequent to that, the officer with Viper accompanied Detective Wilkinson back towards 87 Harry Mills Drive to the gravel driveway where they had originally searched and Viper was growling and barking and there was a male person lying down in the driveway.

33. Ms Lee was residing at 87 Harry Mills Drive on 12 November 2017. There are two driveways to the property (shown on exhibit 31). The first driveway, which is the gravel driveway, leads to the northern end of the house and shed and the lower driveway is the entrance to the southern end of the house. Ms Lee had two Great Danes and fences prevented them from moving out onto the gravel driveway. She retired that evening at about 10.30 pm and was woken at 1.30 am by the dogs barking. She looked out the front straight on to Harry Mills Drive and saw someone run past the house. She called out and he responded he was the police and to stay inside. He ran up towards her shed with a dog. Ms Lee put the spotlight on that lights up the whole side gravel area between the house and the shed. Ms Lee then saw another police officer with a dog down the bottom side of her property at which her dogs were barking. Ms Lee did not see anyone on the gravel driveway at this time. About 20 minutes later, Ms Lee heard a bang which felt like something had hit the house. This was followed by two quieter bangs which were more like knocking. She could hear a groaning sort of murmuring noise as if the person was in pain, followed about five minutes later by a male voice talking. She then saw a person on the corner of her gravel driveway and she phoned the police at 2.20 am.

34. Officer Hubbard arrived at Arthur Payne Court at 3.20 am on 13 November 2017. He inspected the red Chrysler vehicle which was locked and observed the blue towel covering the driver’s seat like a temporary seat cover (exhibit 4). He could see a backpack (shown in exhibit 48 on the front passenger seat). Officer Hubbard located a claw hammer on the grassed area in front of the vehicle (shown in exhibit 10 next to position marker number 1). The photograph of the hammer against a measurement tape that showed it was 20 cm long was exhibit 49. The hammer was exhibit 50. It had a black grip covering a metal handle. Officer Hubbard was present when the Chrysler vehicle was inspected at the Coomera vehicle examination area. Photographs were taken of the contents of the backpack: sunglasses, screwdrivers, a white towel, a white polo shirt and a black zip tie or cable tie. There were droplets of blood on the front passenger guard and the driver’s side door of the vehicle.

35. Sergeant Finigan who is a fingerprint expert attended the crime scene at Arthur Payne Court on 13 November 2017 to conduct a fingerprint examination of the crime scene. No prints were developed from the cream-coloured steel fence outside 6 Arthur Payne Court, the fence that separated 6 Arthur Payne Court and 2 Arthur Payne Court, or the wooden fence in front of 1 Arthur Payne Court. No fingerprints were located on the hammer found at the scene. No prints were developed from the steering wheel of the Chrysler vehicle. There was a fingerprint on the rear left passenger door handle that was unable to be identified.

36. Ms Bagent was a scenes of crime officer and scientific officer with the police who attended Arthur Payne Court on 13 November 2017 for the purpose of examining the scene and undertaking blood pattern analysis and presumptive testing in respect of the presence of blood. Before Ms Bagent commenced her evidence, the jurors were provided with their own copies of the parties’ summary of the DNA analysis of samples by forensic biologist Mr Hunt who was employed by Queensland Health Forensic and Scientific Services (FSS) (exhibit 81). The summary document had a column “U/K contributor?”. Mr Hunt’s evidence did not endorse that column, so the parties subsequently agreed that the column should be deleted from exhibit 81. The jurors were provided with a substitute document (exhibit 81A) but permitted to keep their copies of exhibit 81 on which they had made notes and instructed to ignore the impugned column in exhibit 81.

37. Ms Bagent examined the location of Mrs Cobby’s body which was still in the same position that it was when the photograph that was exhibit 2 was taken. The photograph (exhibit 82) showed the area of staining around Mrs Cobby’s body above her head and along the guttering and there was also a pattern of staining that went through the grassed area of the footpath. Approximately three metres to the east of Mrs Cobby’s body there were drip stains on the gutter (shown in exhibit 83). The larger blood stain on the corner of the gutter where it meets the driveway entrance above Mrs Cobby’s right hand was a voluminous blood stain that was a transfer stain (which was also shown in exhibit 83). A transfer stain is where a blood source comes in contact with another surface and is deposited there. It is different from projected blood which would have to fall or have been projected from a blow to a person and been cast off that person’s body. There must have been some contact wherever the blood was coming from on Mrs Cobby’s body and the roadway to form the transfer stain that was above Mrs Cobby’s right hand. It was not blood that would have fallen onto the roadway if she had been in the standing position. Mrs Cobby had either moved or was moved from the point at the right shown on the photograph that was exhibit 1 and then been dragged from that position to the position where her body was shown in that photograph.

38. Ms Bagent conducted a sampling of the claw hammer found near the Chrysler vehicle. No overt blood stains were detected on the hammer. A DNA tape-lift was undertaken across the black grip portion of the hammer which was Item B2 (shown in exhibit 84). Even though the results of the DNA testing were given later in the trial by Mr Hunt, it is convenient to refer to the DNA results at the same time as summarising Ms Bagent’s evidence identifying the location of the items that were tested. No DNA was detected within the sample that was Item B2. The sampling of the face of the claw of the hammer by a DNA tape-lift was identified as Item B3 (exhibit 85). DNA was not detected in Item B3. A DNA tape-lift was also undertaken at the claw end of the hammer and identified as Item B4 (exhibit 86). The presence of DNA was detected in Item B4. The DNA profiling produced a complex mixed DNA profile. Because of the uncertainty as to the number of contributors to that DNA profile, that profile was not suitable for meaningful interpretation. There was an area of staining at the top of the white metal fence at the front of 6 Arthur Payne Court (Item B5) which Ms Bagent classified as a transfer blood stain (shown in exhibit 87B). The DNA profile obtained from Item B5 indicated the presence of DNA from a single contributor and it was estimated that it was greater than 100 billion times more likely to have occurred if Mrs Cobby had contributed the DNA, rather than if she had not. (When it was estimated that the DNA was greater than 100 billion times more likely to have occurred if an identified person had contributed the DNA rather than if the person had not that will be referred to in these reasons as “a very high probability”.)

39. Ms Bagent identified by reference to forensic marker numbers shown in photographs that were tendered as exhibits the location of stains that had the appearance of blood which were swabbed for analysis. Those locations were given an “ST” number and an aerial photograph of Arthur Payne Court in the vicinity of 6 Arthur Payne Court was annotated with the approximate locations of Items ST1 to ST10 (exhibit 90). The three areas ST1, ST2 and ST3 located on the northern side of the east pillar of the front gate to the driveway of 6 Arthur Payne Court were transfer stains. The DNA analysis recorded in exhibit 81 showed that there was a very high probability that Mrs Cobby contributed DNA at each location. In respect of ST1, the analysis was done on three contributors and the only definitive result was for Mrs Cobby’s contribution to the DNA profile. ST4 to ST8 were taken from the fence separating 2 and 6 Arthur Payne Court. The locations of ST4, ST5 and ST6 were shown in exhibit 89C. Ms Bagent described Items ST4 and ST5 as transfer bloodstains. The DNA analysis of ST4 and ST5 was undertaken on the basis of a single contributor and it was a very high probability that the contributor was Mrs Cobby. The stain at Item ST6 was on the vertical pole. The DNA analysis was undertaken on the basis there were two contributors and there was a very high probability that Mrs Cobby was one of those contributors. While Mr Hunt was giving evidence, the jury had a question about the results of the DNA analysis recorded in exhibit 81 for Item ST6 and asked what did the result for ST6 mean, as there were two contributors but four matches in the billions. The latter was a reference to a result of 25 billion for the appellant, 100 billion for the elder son and 57 billion for the younger son. Mr Hunt explained that the mixed DNA profile obtained for Item ST6 indicated the presence of DNA from two contributors and an assumption of two contributors was made for the statistical analysis. On the basis of the information obtained at the gender indicator, Mr Hunt was able to ascertain that at least one of the contributions must be male and the other contribution was likely to be a female. The mixed DNA profile was what Mr Hunt expected to see if it were the appellant and Mrs Cobby who had both contributed their DNA. He was able to state that it would not be possible to obtain this mixed DNA profile if the elder son and Mrs Cobby had both contributed DNA or if the younger son and Mrs Cobby had both contributed DNA. It would not be possible to obtain the mixed DNA profile if the younger son and the appellant had both contributed their DNA, if the elder son and the appellant had both contributed DNA or if the elder son and the younger son had both contributed DNA.

40. ST7 and ST8 were located on the logged timber fencing outside 1 Arthur Payne Court (exhibits 92, 93-ST7 and 93-ST8). ST8 was a transfer bloodstain. There was a very high probability that Mrs Cobby’s DNA had contributed to each of ST7 and ST8. There was a gateway into 1 Arthur Payne Court with a yellow chain across and a sign that said “PRIVATE! KEEP OUT” (shown in exhibits 94 and 94A). ST9 was a bloodstain on the sign that Ms Bagent determined was a swipe pattern. A swipe falls under the category of a transfer bloodstain. It is where a blood-bearing source has come in contact with another surface, but with a swipe, as it shows a motion between the two surfaces. The passing of a bloodied hand over the sign or brushing against the sign with bloodied clothing would cause a swipe pattern. There was a very high probability that Mrs Cobby was the single contributor to ST9. ST10 was taken from the gated area facing from 2 Arthur Payne Court to the roadway (as shown in exhibit 91) and no DNA was detected.

41. Forensic marker 4 was placed on the roadway outside 6 Arthur Payne Court to show the location of a clump of hair (exhibit 95). The clump of hair was identified as Item B22. Ms Bagent placed stickers with identifying numbers where DNA tape-lifts were taken from Mrs Cobby’s body. Item B7 (shown in exhibit 96-B7) was taken from the left wrist. A mixed DNA sample was obtained that indicated the presence of three contributors. Mrs Cobby was assumed to be one of the contributors. The results showed very small numbers for the likelihood for the contribution or non-contribution from many of those who had given reference samples, including the appellant for whom it was estimated that the mixed DNA profile was approximately five times more likely to have occurred if the appellant had not contributed DNA rather than if he had. Item B8 was taken from the right wrist (exhibit 97-B8). A mixed DNA profile that indicated the presence of two contributors was obtained from the sample that was Item B8. It was estimated that there was a very high probability that the appellant had contributed DNA rather than if he had not contributed to the mixed DNA profile obtained from Item B8. DNA tape-lifts were taken from the left ankle (Item B9) and from the right ankle (Item B10). It was assumed for the analysis of Item B9 that there were three contributors, one of whom was Mrs Cobby. There were low numbers for many from whom the FSS had reference samples which did not suggest that the DNA was from any of those persons. The analysis for Item B10 was done on the basis that there were two contributors of which it was assumed that Mrs Cobby was one. The result was that all the persons from whom reference samples had been obtained were excluded, except for the appellant. Even though the appellant was not excluded, the result was 1 which meant an equal probability for inclusion or exclusion for the appellant.

42. Item B11 was fingernail scrapings from Mrs Cobby’s left hand obtained by using a small stick with a cone swab on the end that is forced underneath the fingernails and scraped. The sampling was therefore done of all the fingers and the thumb on the left hand. Item B12 was the fingernail scrapings from Mrs Cobby’s right hand. In respect of both Items B11 and B12, it was estimated that there was a very high probability that the appellant had contributed DNA to the mixed DNA profile obtained. Ms Bagent did some sampling in relation to the shirt worn by Mrs Cobby. The photograph which is exhibit 109 shows the location of Items B25, B26 and B27 from which Ms Bagent excised material to sample the bloodstaining. It was assumed that Mrs Cobby was a contributor to the DNA and the results of the analysis did not indicate any DNA contribution by the appellant.

43. Ms Bagent took a sample from the transfer stained area on the guttering to the right and at the edge of where the driveway met the gutter outside 6 Arthur Payne Court. It was item B34 (shown in the photograph that was exhibit 112-B34). Item B35 was from the transfer stain further along on the guttering (exhibit 112-B35). Ms Bagent described this curving linear pattern of staining as comprising two distinct areas of transfer staining where both had a volume of blood that flowed down the gutter. Further to the east of those transfer bloodstains were the drip stains (shown in exhibit 112-B36) from which Item B36 was sampled. Because of the two separate areas of transfer stains, it was consistent with Mrs Cobby having been moved or she moved from one position to another. Ms Bagent considered that given Mrs Cobby’s body’s proximity to the transfer stains on the guttering, it was likely that the blood source that created those patterns was from Mrs Cobby.

44. Item B19 was hair that was entwined within Mrs Cobby’s left fingers. Item B20 was hair that was entwined within the right fingers. Item B21 was hair from the outer front of her shirt.

45. Ms Bagent’s evidence in cross-examination included the following. She could not exclude the possibility that Mrs Cobby was dragged from the grass into the position where she was found with her head against the gutter. Without classifying the bloodstaining in the grassed area, it was possible that Mrs Cobby’s head had contact with the grass and she was dragged to that position where her head was against the gutter.

46. Ms Bennett is a scientific officer within the police. Ms Bennett conducted an examination of the Chrysler vehicle on 14 November 2017. She did presumptive tests for the presence of blood inside the vehicle and did not locate any blood. She found two bloodstains that were identified as Items RB6 and RB7 (shown on the photograph that was exhibit 114) on the front driver’s side door below the window. It will also be convenient to refer to the DNA results given later at the trial in evidence by Mr Hunt at the same time as summarising Ms Bennett’s evidence. The DNA analysis was that each of Items RB6 and RB7 was from a single contributor and it was of a very high probability that the contributor was Mrs Cobby. The blood located at RB6 was circular in shape and did not have any directionality. The blood located at RB7 was 1 mm by 4 mm and had a directionality going downwards. Item RB8 was a blood spot on the front passenger side door towards the front passenger side wheel arch. The shape of blood was a teardrop with the tail of the teardrop facing downwards which indicates downwards directionality. The DNA analysis was also that it was a very high probability that the single contributor was Mrs Cobby. Blood spots were also located at RB11, RB12, RB13 and RB14 and all were from a single contributor and it was a very high probability that was Mrs Cobby. DNA tape-lifts were undertaken on the front passenger seat of the Chrysler (RB21), the front passenger side door handle on the interior (RB25) and the back seat on the passenger side (RB33). Each of RB21 and RB33 was assessed as being too complex due to too many contributors. RB25 was assessed as a complex mixed DNA profile unsuitable for comparison due to the relatively low-level nature of the mixed DNA profile.

47. Ms Bennett examined the shirt and blue jeans which had been seized from the appellant on 13 November 2017. The central area of the front of the shirt had saturation bloodstains all over it (which could be seen in the photograph of the shirt which was exhibit 8). DNA tape-lifts were taken on the shirt to avoid the bloodstained areas, as the purpose was to pick up DNA rather than test the blood. The DNA analysis of the tape-lift at Item AC2C (shown on exhibit 8) based on two contributors of which it was assumed the appellant was one showed that there was a very high probability that the second contributor was Mrs Cobby. Ms Bennett excised a small part of the fabric at Item AC2I (from the front left side of the outside of the shirt) for the blood to be tested. The result of the DNA analysis based on a single contributor was a very high probability that the contributor was Mrs Cobby. The DNA analysis of the blood on the piece of fabric that was excised by Ms Bennett at Item AC2J (from the front right side outside of the shirt) (where there was saturation of blood) gave the result based on two contributors of a very high probability that both the appellant and Mrs Cobby were the contributors.

48. In respect of the appellant’s jeans (shown in exhibit 7), Ms Bennett observed blood present on the front and the back of the jeans. The larger stains were on the right side of the front of the jeans around the top area. Ms Bennett did DNA tape-lifts from the front and back of the jeans, avoiding the bloodstained areas. There were saturation stains over the front of the jeans. Ms Bennett explained that “saturated” means that the blood is saturated through the fabric and comes through to the other side and that means it is not a transfer stain. The location of Item AC4A was shown on exhibit 127-AC4A and the DNA analysis was based on three contributors of which it was assumed the appellant was a contributor. The result was a very high probability that one of the other contributors was Mrs Cobby. Items AC4C and AC4D were fabric samples taken respectively from the front upper right side of the jeans and the front inside of the right knee of the jeans for the purpose of analysing the bloodstains. The DNA analysis based on a single contributor showed in each case there was a very high probability that the contributor was Mrs Cobby. Item AC4E (shown on the photograph that was exhibit 130-AC4E) showed where fabric was excised from the right shin area of the jeans where there was a bloodstain. The DNA analysis based on two contributors of whom it was assumed that the appellant was one showed there was a very high probability that the other contributor was Mrs Cobby. The same result was obtained from the DNA analysis of the blood on the piece of fabric excised at Item AC4F on the front upper left area of the jeans (shown on exhibit 131-AC4F).

49. Ms Bennett examined the hair samples that had been collected by Ms Bagent. B19 comprised two straight hairs only one of which was determined by Ms Bennett to be suitable for DNA analysis. B20 comprised three hairs of which two were long, straight and light brown in colour and the third hair was shorter and grey in colour. Only one of the longer hairs was suitable for DNA analysis. B21 comprised a number of hairs, the majority of which were long, straight and light brown in colour. Only two of them were suitable for DNA analysis. There was one hair which was straight, shorter and unpigmented (that therefore appeared grey) that was also sent for DNA analysis. Most of the hairs that comprised B22 were long, straight and light brown in colour. A sample was taken from one of those hairs for DNA analysis. The result of the DNA analysis for the shorter hair included in B21 was a very high probability that the single contributor was the appellant.

50. In cross-examination, Ms Bennett agreed that if there was “skin on skin” holding onto another person very tightly, the first person could potentially transfer their trace DNA to the other person and/or potentially get some of the other person’s trace DNA on them. It was possible if one person was holding tightly enough, that person might get trace DNA under their fingernails. In re-examination, Ms Bennett qualified that possibility and explained that, if a person had a large quantity of DNA under their fingernails, it was usually from a physical altercation of some sort, but she could not discount the fact that it was possible to get trace DNA under fingernails from physical contact in general.

51. Mr Hunt explained the technical aspects of DNA to the jury and identified all the persons from whom FSS had reference samples. Apart from Mrs Cobby, the appellant, their children, Mrs Schultz and Mr Eden, reference samples were obtained from Mr Gaunt, Ms Hernandez, Mr Popa, both Mr Roberts, Ms Christie, Mr Bonelli and paramedic Mr Hatchman. Mr Hunt explained the transfer of DNA within cells from a person to an object or from a person to another person and the variables of cellular transfer. He explained the DNA profile report of Item B12 (exhibit 151), the process of working out the minimum number of people who contributed to the DNA profile and the matching process of the reference samples using a computer program for that purpose. He explained that in reporting the relativities of contribution or non-contribution the most conservative number is chosen. He explained that when the result is around the number 1, it means that it is even whether it favours contribution or non-contribution for the person who provided the relevant reference sample, subject to the limitation that when there was not much information for a particular contribution, even the true source of DNA may not get a particularly large number. Mr Hunt also explained that the asterisk for an item in the summary document (exhibit 81) noted there was an indication of possible low DNA within the profile that was below the FSS reportable threshold and therefore not used for comparison purposes. The asterisk therefore represented that there was presence of low-level DNA which may or may not have been DNA or an artefact of the profile.

52. Mr Hunt outlined the results from the DNA analysis of the samples taken from the appellant’s hands. There was a mixed DNA profile from the swab taken from the left hand of the appellant identified by the letter “B” that indicated the presence of DNA from two contributors. It was assumed that one of the contributors was the appellant and all other reference samples were excluded, except for Mrs Cobby. There was a very high probability that Mrs Cobby had contributed DNA. That DNA profile also indicated the presence of possible low-level DNA below FSS’s reportable threshold but, in Mr Hunt’s opinion, that did not interfere with the interpretation he had given of the DNA analysis of that sample. A mixed DNA profile was obtained from the scrapings from underneath the fingernails on the appellant’s right hand and designated with the letter “C”. It was estimated that there was a very high probability that Mrs Cobby had contributed to the mixed DNA profile that was obtained and all other reference samples were excluded as possible contributors of DNA. The letter “D” was applied to the fingernail scrapings obtained from under the left fingernails of the appellant. A mixed DNA profile was obtained from this sample that indicated the presence of DNA from three contributors. It was assumed that the appellant was one of the contributors. There was a very high probability that Mrs Cobby had contributed DNA rather than if she had not. The other significant result that was obtained was that it was estimated that the mixed DNA profile obtained was approximately 1.7 million times more likely to have occurred if the elder son had contributed DNA rather than if he had not. There were lesser results for each of the other reference samples.

53. In cross-examination on the DNA profile of the sample from Item B12 (fingernail scrapings from the right-hand fingernails of Mrs Cobby) (exhibit 151), Mr Hunt could not say whether the DNA obtained from under Mrs Cobby’s right fingernails came from blood or skin. Mr Hunt’s view was that if the number that was reported as to the likelihood or not of contribution to the DNA profile was a number in the tens or even the hundreds, it was still a number around the number 1 and a small change in profile could result in moving from non-contribution to contribution (or vice versa). It was the numbers from the thousands upwards that became more meaningful.

54. Ms McGinley was a forensic scientist employed by the police who attended the post-mortem examination of Mrs Cobby’s body. In respect of the injury on Mrs Cobby’s scalp (shown in exhibit 12), Ms McGinley made a cast of the injury using a casting medium called Mikrosil. The cast was shown in the photograph that was exhibit 152. It reproduced the fine detail of the injury. Ms McGinley also did a trace DNA tape-lift of Mrs Cobby’s neck (Item DH2). On analysis, the DNA was from a single contributor and effectively matched Mrs Cobby’s DNA.

55. Retired Senior Sergeant Piper had been in charge of the ballistics unit of the Forensic Services Group with experience in the forensic field of tool mark identification. He did a comparison with the cast taken of the injury on Mrs Cobby’s scalp with the hammer that was found at the scene. Mr Piper took photographs of the cast being placed against the hammer (exhibits 172, 173 and 174). There was a similarity between the mould and the hammer, although one of the photographs indicated that parts of the hammer were not consistent with the curving in the cast. He was narrowing down the similarity to the type of tool (a hammer) but not the particular tool.

56. Mr Gaunt’s wife was a friend of Mr Popa’s partner, Ms Hernandez. Prior to 12 November 2017, Mr Gaunt had met the appellant at Mr Popa’s house three or four times and also met Mrs Cobby there once or twice. At 6.30 pm on 10 November 2017, Mr Gaunt borrowed the red Chrysler from Mr Popa. He had seen his wife and Ms Hernandez clean out the vehicle with a vacuum cleaner and wipe and clean the inside down. When Mr Gaunt borrowed the vehicle, he only saw some paint tins, paint brushes and toilet paper in the vehicle. He used the car between 6.00 am and 6.00 pm on 11 November 2017 and returned the car to Mr Popa at 6.15 pm on that day. The blue towel (shown in exhibit 4) was not in the car when he borrowed it.

57. Mr Popa’s evidence included the following. He worked as a painter, in maintenance and had a cleaning business. When Mr Cobby borrowed the Chrysler on the evening of 12 November 2017, he said he would probably be two hours. His eyes were very red and he looked like he had been “crying or something” when he left the house. Mr Popa had never previously seen the blue towel over the driver’s seat of the Chrysler. He told the police when they came to his home on 13 November 2017 that he owned two hammers which he kept on a shelf in the shed. One hammer was located in the shed that was shown on the photographs that were exhibits 80D and 80E. (These photographs show that the hammer in the shed had a red handle and was not a claw hammer.) His other hammer was not in the shed. When the shed was locked, the keys were on the bench in the kitchen. The hammer that was missing was 20 cm and a claw hammer with “a little bit bent on top”. The colour of the handle was black. He could remember exactly what way the handle was bent but he thought that it was on the claw side. Mr Popa used his hands to demonstrate for the jury how the head of the hammer was bent which was described for the record as the head of the hammer was bent to a slightly downward facing angle from the perpendicular of the handle. Mr Popa had last seen that hammer before they moved to the Southport address. The rest of the body of the hammer was normal metal.

58. Mr Popa’s evidence in cross-examination included the following. Mrs Cobby did not come to Mr Popa’s house every day to visit the appellant. Even though he said in his statement to the police that Mrs Cobby came to their house every day to see the appellant, he explained that when he read his statement he was “not good in English”. On 11 November 2017, Mrs Cobby and her two sons were at Mr Popa’s house in the appellant’s room for about an hour. When the appellant borrowed the Chrysler on the evening of 12 November 2017, he could have said that he would only be an hour. When they left the Carrara address for the Southport address, the appellant helped Mr Popa pack up his tools. Mr Popa had said in his statement to the police that the last time he had used the black hammer was a couple of months to 12 months ago. The hammer that was in the shed was the normal sized hammer. Mr Popa had said in his statement that one hammer was about 20 cm long and had a red handle and did not have a claw on the end of it and described that hammer in the statement as the small hammer. He described the other hammer in his statement as about 30 cm long with a black handle and a claw on the back side to remove nails and a minor bend on the head hammer area and referred to that hammer in his statement as the big hammer. In respect to the question had Mr Popa been saying that it was the claw part of the hammer that was bent down, Mr Popa agreed but then said “Probably – yeah. I can’t remember exactly in which side”.

59. The prosecutor attempted to clarify Mr Popa’s evidence about the hammers in re-examination. Mr Popa said that it was the hammer with the red handle that was in the shed (and that was verified by the photograph (exhibit 80E) which showed that hammer). He said that the description of the hammer with black handle being 30 cm long in his statement was incorrect as the hammer with the black handle was the small one and he should not have described it as the big hammer. He ultimately agreed that the way he described the hammers in his statement was correct except for the fact that the one that was described as big and the one that was described as small should have been the other way around. He explained (correctly) that the red handled hammer was the one that was 30 cm.

60. It is convenient to refer at this point to the appellant’s criticism of the conduct of the prosecution case in seeking the jury to draw an inference that the hammer found at the scene which had a “silver” handle and not a black handle belonged to Mr Popa when Mr Popa described the hammer that was missing from his shed as having a black handle. First, the jury had the hammer that was found at the scene in evidence and would have seen for themselves that it was a metal hammer with a black grip on the handle. Secondly, it was for the jury to make any allowances for Mr Popa’s admitted lack of English when he read over his statement at the time it was given and the obvious limitations in his grasp of English when he gave his evidence. Thirdly, it was a question of fact for the jury whether Mr Popa’s evidence that he was missing a black handled claw hammer was, in fact, a reference to the metal claw hammer with a black grip (exhibit 50), particularly when Mr Popa described the downward bend of the head of the hammer in relation to the perpendicular of the handle and that it was a normal metal hammer. The appellant’s criticism of the prosecution case on the inference it sought to be drawn that exhibit 50 was the hammer missing from Mr Popa’s shed is misconceived.

61. The last time Ms Hernandez had used the Chrysler was the day before the appellant borrowed it. She had never seen a blue towel positioned over the driver’s seat. Ms Hernandez had seen the appellant use the Chrysler before but had never seen him use it with the blue towel over the seat. Mrs Cobby would visit the appellant every week at the Carrara address. She also visited the appellant at the Southport address almost every day at different times of the day and night. She visited the appellant during the day on 11 November 2017. When Mrs Cobby left on that day, she was happy. On one occasion Mrs Cobby and the appellant discussed with Ms Hernandez a holiday cruise planned for the family at Christmas 2017. Ms Hernandez had never heard Mrs Cobby and the appellant argue at the Carrara or Southport addresses. Ms Hernandez trusted the appellant with the car and did not watch him leave. On the night of 12 November 2017, the appellant said he would only be an hour.

62. On 12 November 2017 Mr Moore was living at number 11 in the street that runs off Arthur Payne Court which was above and adjoined the back boundary of 6 Arthur Payne Court. There is a gravel driveway from the street to the house. The house was fitted with CCTV that faced down the driveway towards the street. The camera had audio and was constantly recording. The recording was overridden automatically after about nine days. Even though Mr Moore did not hear anything on 12 November 2017, the police attended on 13 November 2017 and, as a result, Mr Moore reviewed his CCTV footage and found that it had recorded noises just after 11.00 pm on 12 November 2017. That footage was downloaded and given to police and the extract from the footage became exhibit 62. Mr Moore was able to confirm that the CCTV accurately recorded the time which was from the camera. The footage that was played for the jury was between 11.00 pm and five seconds and 11:15 pm. A voice (which must have been Mrs Cobby) is heard on that audio to scream something which could be “Andrew, please”. (The prosecutor urged the jury in his address to focus on the tone in which Mrs Cobby said “Andrew, please”. The appellant’s trial counsel told the jury (as was the case) that it was a matter for them what they heard. By way of comment, the voice on the audio sounded frantic and it was difficult to make out the words she was yelling.)

63. Ms Ruygrok’s family home also is in the street that runs off Arthur Payne Court but on the opposite side to Mr Moore’s residence. On 12 November 2017, Ms Ruygrok had gone to bed at 9.30 pm. There is a walkway that connects her street to another street called The Spur. Her dogs bark if people walk along that walkway. (This evidence was relied on by the prosecution to exclude access to Arthur Payne Court by a person via the walkway immediately prior to the incident.) At about 10.30 pm, she heard a male voice moaning in the distance. She did not look at her watch. She estimated the time she heard the moan. It was hard to determine whether it was coming from below her home or from the direction of The Spur. She heard the moan twice. The first time it lasted about 45 seconds. There was a break of about 30 seconds and then a second moan of another 45 seconds. She went back to sleep.

64. Ms Hart and her brother Mr Hart were in the family home which was in the same street and on the same side of the street as Ms Ruygrok’s home and two homes closer to Arthur Payne Court. They were watching television in the lounge room on the evening of 12 November 2017. The program finished at about 11.00 pm. Ms Hart went to her bedroom and was scrolling through her Instagram. She heard two screams roughly after 11.00 pm. The first one was not very clear but might have sounded like “Help”. It sounded like a male voice. The second scream sounded more like a muffled noise. There was a delay of 10 seconds or so between the screams. The first scream lasted for five seconds or so and the second scream was a bit shorter. The screams were coming up from towards Arthur Payne Court. Ms Hart thought it was the same person who made the screams. Between 11.00 pm and 11.05 pm, Mr Hart heard what sounded like a terrified high-pitched scream that sounded like a female’s scream. It lasted for about two seconds.

65. Ms Fitzgerald resided at 5A Arthur Payne Court on 12 November 2017. Ms Fitzgerald went to sleep at about 9.30 pm. She was woken by a loud thumping that was like running coming past her house from further up the hill. She then heard a loud scream which came from a woman. Not long after that her dog and all the dogs in the neighbourhood were barking. She heard the woman say “Don’t hit me” or “Don’t hit me again” and then “a muzzled blood-curdling sound” after which there was silence.

66. Ms Tracey who resided at 1 Arthur Payne Court on 12 November 2017 had retired to bed at about 9.30 pm. She was woken by her two dogs barking at about 10.30 pm. She got up to stop them barking and returned to her bedroom upstairs. On the way when she was on the landing, she looked out the stained glassed window and saw what looked like brake lights of a car. She also heard some people talking. She was woken again by her dogs barking at about 12.45 am.

67. Mr Dey was 15 years old when the police recorded his s 93A interview. That was played for the jury. Mr Dey was at home at 9 Arthur Payne Court on 12 November 2017 when he heard a noise. He was in bed watching a movie on his computer. He paused his computer. He heard someone scream outside. He turned off his computer. He sent a text to his brother who was in another bedroom in their home at 11.06 pm after he heard the screaming. It sounded like a woman and that it came from the top of the street. The woman’s scream was quick but then he could hear a man yelling outside for about five minutes. It sounded like the man was in pain. The man’s voice seemed to come from the same location as the female voice. The next day the crime scene was set up in the street down from his house. He had heard a dog barking at the same time that the man started yelling. After the man stopped yelling, he heard a car starting but did not hear it drive off. When the woman screamed, there was a bang and then the man started yelling. He did not know what the bang was. On the night it seemed that the voices were coming from in between 10 and 12 Arthur Payne Court. The bang was like the sound of a car door and it sounded like it was down the road a little around number 5A and not where the man and woman were yelling and screaming. They “sounded like they were up the road”.

68. Mr Nicholls was 14 years old when his s 93A interview was recorded by the police on 13 November 2017. He resided at 6 Arthur Payne Court. On the previous evening at about 11 pm, he was in bed and could not sleep. His dog was barking. He then heard nonstop screaming for around five to seven minutes that sounded like a teenage girl. She was screaming for help and for Mum as well. All the dogs in the neighbourhood were barking. It then went silent for a minute or two minutes and the woman screamed once (or twice) “get off me”. It all went silent and the dogs stopped barking. After a couple of minutes, Mr Nicholls saw the lights of a car, the car pulled up and he heard a man’s voice on the phone. Mr Nicholls looked out. The man looked to be calling triple-0. Mr Nicholls saw the man kneel down to the body and it looked like he checked the pulse on the neck. The man was agitated, pacing back and forward. After the call, the man moved his car onto the nature strip at the driveway to the Nicholls home. Mr Nicholls’ bedroom was at the front of the house. There was a long driveway, so that it was between 20 to 30 metres from the house to the road. At first, his dog was on the deck and barking and then his dog was running to the fence at the front of the house. The woman was screaming out something like “Help”. He thought she was a teenager because she screamed “Mum” in a high pitched voice more than once and possibly three or four times. She was screaming “Help” in conjunction with “Mum”. She screamed “Get off me” at the end. There was a two minute break before Mr Nicholls heard the engine of a car and saw the headlights through the blinds of his window. When he looked out of his blinds (after the car had pulled up) he saw the body to the right of the driveway and it “looked like” half on the nature strip and half on the road. The headlights of the car were facing up the street further and enabled Mr Nicholls to see “something on the floor”. The interviewing officer clarified that the body was to the right of the driveway, if one was looking at Mr Nicholls’ house from the street. The only lighting at the time was the headlights of the car that pulled up and a couple of lights from a house that stay on all the time but there were no streetlights close to the front of Mr Nicholls’ house. Mr Nicholls could not tell which way the body was facing. Mr Nicholls stopped looking out his blinds and moved away to sit down on his bed to try to comprehend what was going on. This was while the man was talking on the phone. Mr Nicholls got up and looked out after 30 seconds or so when the man was speaking again and pacing up and down. The man was busy with the body or on the phone for about 10 minutes before the authorities arrived. When the man first pulled up, the car was parked in the middle of the road. Part of the way through the triple-0 call, he went back into his car, reversed back and then drove forward onto the driveway/nature strip for 6 Arthur Payne Court.

69. During cross-examination at the trial, Mr Nicholls said the following. When Mr Nicholls first heard the noise, he thought it might be coming from the house at 2 Arthur Payne Court. When he got up and looked out the window in the direction of that house, it sounded like the noise was coming from Arthur Payne Court. When the car first arrived, it stopped just before the driveway for his house. He heard the car pull up possibly 10 minutes after the screaming stopped. He only heard the one voice screaming and it was female.

70. There was a discrepancy between Mr Nicholl’s evidence about Mr Eden moving his car and Mr Eden's evidence to the effect that he did not move his car after he stopped the car when he saw the person lying on the ground. It is apparent on the appeal this discrepancy may have been resolved by a reference to the statement made by Mr Eden to the triple-0 operator that he would move his car off the road. It was not necessary for that discrepancy to be resolved before the jury, as it was not of consequence for the appellant's case at the trial that the unknown assailant must have departed the scene before Mr Eden had even arrived.

71. Forensic pathologist Dr Olumbe did the postmortem examination of Mrs Cobby. Dr Olumbe’s opinion on the cause of death was neck compression by manual strangulation. Dr Olumbe observed petechiae or pinpoint bleeding in Mrs Cobby’s eyes that he described as “quite florid” as they were abundant and in the right eye they joined together to form an area of haemorrhage. A period of time was required for the petechiae to be formed and a greater period of time (such as minutes) for them to join together. There were also petechiae on the facial skin. There was evidence within the brain of petechial haemorrhaging which suggested to Dr Olumbe that the precise mechanism which caused Mrs Cobby’s death was blockage of the blood vessels and the airway after sustained application of force to the neck. On the right hand side of the upper section of the neck there were three distinct red bruises – two were small measuring 2 mm and 3 mm across and there was a broader bruise measuring 15 mm by 8 mm. Those bruises were consistent with the application of force at pressure points from fingers. There was a smaller area of bruising on the left hand side of the neck. On an internal examination, Dr Olumbe observed bleeding in the muscle where the thyroid gland sits, there was some bleeding in the left thyrohyoid muscle (about 25 mm by 10 mm) and also some bleeding below the mandible. There was anatomical symmetry in relation to the bleeding observed by Dr Olumbe particularly in the area around the thyrohyoid that was consistent with restrictive force to the neck. Dr Olumbe observed a fracture of the hyoid bone on the left-hand side. The amount of force required to fracture the hyoid bone is moderate to severe. Dr Olumbe’s opinion was that there had been some period of minutes of neck compression prior to Mrs Cobby’s death being caused.

72. Other observations made by Dr Olumbe included the following. There was a deformity that was diagonally orientated on the back of the skull. The injury was curvilinear. It was a laceration without accompanying bruising and abrasion and would have been caused by a blunt object with a curved surface, such as a hammer. The length of the diagonal laceration was 45 mm. It had a distinctive shape that was shown in the photograph of the scalp laceration (exhibit 153). When asked whether the injury could be caused by a fall, Dr Olumbe considered that Mrs Cobby would have had to fall against the edge of a surface that had a similar nature to the shape of the injury on the scalp. Scalp injuries bleed profusely because the scalp has a lot of blood vessels. One would expect blood to be there almost immediately. In response to the question of the prosecutor as to whether there was potential for no blood to be placed on the item used to strike Mrs Cobby with a quick blow, Dr Olumbe explained that because the blow was sudden, the blood vessels could be stunned and retract and it would not be until the muscles and blood vessels relaxed that the blood would start flowing. He could not be specific about the period of time before the blood would flow in those circumstances.

73. There were three injuries similar to the injury to the scalp that were around both the right eye and the left eye. The curvilinear laceration in the left eyebrow measured 25 mm by 5 mm. There was a curvilinear laceration on the inner aspect of the right eyebrow measuring 10 mm by 2 mm. There was another curvilinear laceration on the outer lower right eyebrow measuring 20 mm by 2 mm. All three lacerations were caused by the application of some blunt force trauma such as the edge of a hammer. There was a curvilinear abrasion on the right side of the nasal bridge measuring 10 mm and a similar sized abrasion on the right nostril which would have been caused by some movement across the skin’s surface. There was circumferential bruising on the upper lip that would have been caused by either blunt trauma such as a fist to the mouth or by smothering causing the mouth and then the lips to impinge hard on the teeth. There were two imprint abrasions measuring 5 mm and 8 mm on the right-hand side of the chin and on the left hand side there was a bruise and abrasion measuring 40 mm by 10 mm. The imprint abrasions suggest that they were grip marks which were the anchorage to cause pressure on the mouth.

74. Dr Olumbe observed a blue to red coloured circular bruise in the middle section of the left collarbone measuring 30 mm across with a central area of abrasion that measured 10 mm by 5 mm. Underneath that injury, there was a faint but similar kind of ill-defined purple bruise measuring 25 mm by 15 mm. The cause of the first bruise was an implement such as the head of a hammer. There was a linear abrasion on the back of the left elbow. The injury to the elbow had a laceration and had abrasions with linear marks tapering downwards. Dr Olumbe considered that the injury to the collarbone and elbow could have been caused by a single blow if Mrs Cobby had her arm positioned up in a protective pose. There was another circular bruise measuring 20 mm across on the back of the middle section of the forearm that had a laceration within it. Dr Olumbe opined that the laceration was not necessarily associated with the same mechanism as the abrasion. The abrasion could have been caused by Mrs Cobby being dragged along a rough surface such as a roadway. There was a red abrasion measuring 15 mm by 10 mm at the base of the left little finger which was also consistent with that part of the hand passing along a rough road. Other injuries to the hand were also consistent with the hand being dragged across a bitumen road. There were similar injuries to the right hand. There were abrasive injuries to both knees and the lateral area of the left leg. These injuries were caused when there was still circulation. Dr Olumbe considered that neither the laceration to the scalp nor the laceration to the eyebrows was the cause of the death of Mrs Cobby. During the post-mortem examination, fingernail clippings were taken from Mrs Cobby’s hands and sent for DNA analysis.

75. Dr Olumbe’s evidence in cross-examination included the following. Mild to moderate force would have been required for the injuries that Dr Olumbe identified were the result of a blow from an object such as a hammer. These injuries were the laceration to the scalp, the two bruises on the left collarbone, the bruise on the inner aspect of the left elbow and the bruise on the middle section on the back of the left forearm. The three curvilinear lacerations on the eyebrows could possibly have been caused by the edge of a hammer. Each of these injuries was caused by an individual application of force. Dr Olumbe identified the injuries that were consistent with Mrs Cobby’s body being dragged as the ones on the back of the left elbow, the ones on the left hip coming to the left knee, the lateral left shin and on the left ankle and the phalanges of the back of the hands. Dr Olumbe conceded that the injury to the back of Mrs Cobby’s head could have been caused by her falling back on the edge of the gutter where she was found.

76. Mr Morgan was the experienced paramedic who assessed the appellant when he was lying flat on his back on the gravel driveway of 87 Harry Mills Drive. He noted there was no significant injury to the appellant’s head. The appellant was complaining of some hip pain. He had some minor abrasions to both hands and an abrasion to his right hip.

77. Dr Van Buuren who has postgraduate qualifications in forensic medicine examined the appellant on 13 November 2017 at 6.20 am. She described the injuries that she observed and made diagrammatical notes on drawings of a person (exhibit 72). The photographs that she took of the injuries were tendered (exhibit 73) and to which she referred as she described the injuries. There were no injuries to be seen on the back of the appellant’s head and there was no tenderness or swelling. There was a 6 cm curvilinear abrasion on the right side of his neck. A possible mechanism that could have caused that abrasion was a scratch of a fingernail passing across the skin’s surface. There was a very small abrasion and some dried blood above his left nasolabial fold (which is the line going from the edge of the nostril down to the corner of the mouth). There was a 2 cm abrasion that started on the back of the appellant’s right arm and extended across under the armpit. In line with that abrasion, there was another 1 cm abrasion on the appellant’s back with a collection of abraded skin that suggested the direction of movement that caused the abrasions was from right to left.

78. There were injuries on both the palm and outer surface of each of the appellant’s hands. They were represented on p 5 of exhibit 72 as lines to indicate the linear nature of those injuries and their association. The right hand was swollen. The nail on the fourth finger on the right hand was partly avulsed (or torn away). There was a small abrasion on the middle joint of the little finger of the right hand. There was also a 1.5 cm abrasion on the outer surface of the right hand and a collection of skin towards the wrist area of the hand on that abrasion below the space between the thumb and index finger. That meant the direction of the movement of the object that caused the abrasion was towards the wrist. One possibility for causing that injury was a fingernail passing across the area of the hand towards the wrist. In the palm area of the right hand, there was a foreign body in the pulp of the thumb (that looked like a splinter or prickle) and there was a brush or scuff abrasion on the pulp of the palm underneath the thumb. A scuff abrasion was more typical where the skin surface had contact with a broader surface such as a bitumen roadway or some gravel. There were multiple abrasions on the outer surface of the right hand that were 2 to 3 cm in length that curved around the side of the hand and Dr Van Buuren described them as parallel linear abrasions as, even though they were angulated at different angles, there was a parallel appearance of many of them and they were joined by other areas of abraded skin. One explanation for them would be a number of fingernails passing across that area of the hand.

79. Dr Van Buuren then described in detail her observations of the left side of the appellant’s body. On the outer aspects of the appellant’s left hand, there were three roughly parallel very short abrasions (about 1 cm or less) above the fourth finger, a very short horizontal abrasion on the base of the little finger, and three abrasions above the index finger that were less than 1 cm. There was a collection of abraded skin where the linear abrasions were above the fourth finger that suggested to Dr Van Buuren that the linear injury was in the direction of the object moving from the wrist towards the fingers. One explanation for them would be the running of a series of fingernails together across that area of the hand. The three abrasions above the index finger were curved in appearance. A possible cause of those abrasions was a fingernail digging into the hand. There were brush or scuff abrasions on the pulp of the thumb on the palm of the left hand. At the bottom of one of the abrasions there was a collection of skin that suggested that the object relative to the hand moved from the wrist towards the fingers. There were three abrasions each approximately 1 cm on the inside of the left forearm.

80. There was a 1 cm abrasion on the inner aspect of the right arm just below the elbow crease. There were abrasions towards the edge of the right shoulder at the top of the arm and one had a collection of abraded skin towards the front of the appellant. On the right side of the front of the appellant’s body above his underpants (as shown in photograph 71 in exhibit 73), there were four very short roughly parallel abrasions which were less than 1 cm. In front of them, there were three roughly parallel linear abrasions that appeared to almost converge towards those four abrasions. In front of those three converging abrasions, there were several smaller abrasions angulated towards one another. Shown in that same photograph to the right of these three sets of abrasions were “four really small abrasions …which are roughly parallel and appear to converge towards the four shorter abrasions”. One possible explanation for those injuries was the movement of a series of fingernails to one hand across the area of the skin surface.

81. Above the right knee there were a series of abrasions in which there was some dirt which Dr Van Buuren considered was possibly consistent with the impact of that area with the surface of the ground. The right knee was slightly more swollen than the left knee. On the left leg there were some abrasions above the knee, below the knee and towards the inside of the leg. It was possible those injuries were consistent with an impact between that area and a ground surface, as there was some dirt or discolouration over that knee. The abrasions to the knees were more diffuse than those across the hands, to the neck and to the side of the appellant’s body. There was an 8 to 10 cm curvilinear abrasion on the outside of the appellant’s left lower leg. That type of injury is common from moving through bushland or vegetation.

82. Dr Van Buuren’s evidence in cross-examination included the following. Where she had expressed the possibility that injuries to the appellant were caused by fingernails, it was also possible those injuries could be caused by contact with bush or scrub. Dr Van Buuren could not exclude the possibility that the swelling of the appellant’s right hand was caused by his being struck by a hard object to his hand. In that case, Dr Van Buuren could not explain the swelling on the palm and the fingers. No bruising was evident. An explanation for the injuries on the appellant’s knees could be his falling down and landing on his knees and that would also explain the scuff injuries on his palms. A degree of force would have been required to remove the nail of the fourth finger on the right hand off the nail bed. There was no bruising when Dr Van Buuren examined the site of the multiple abrasions shown in photograph 71.

83. Another forensic medical officer, Dr Lincoln, examined the appellant at 9.30 am on 16 November 2017. She observed a healing abrasion 1 cm by 1.5 cm on the right side of the forehead about 1 cm above the eyebrow. There was no physical injury to the scalp or tenderness of the scalp or any other visible injury to the other areas of the head. There was no recent visible injury to the chest, shoulders or back. There was an elongated 5 cm by 1.5 cm purple, grey, yellow bruise lying horizontally on the bony prominence of the right hip. There were striated or linear patterns within that bruise which were areas that were accentuated in a linear pattern. That sort of patterning within a bruise indicated some sort of an attack with an object that either had protruding elements to it or some sort of patterned surface or it could relate to the application of force and movement to an area of the body. A possible explanation for that could be the scraping of three or more nails across that area of the appellant’s body. There were four parallel 0.5 cm healing linear abrasions arranged in a vertical line on the right hip which were 4.5 cm behind the bruise and between 0.5 cm and 1 cm apart from each other that were suggestive of abrasions from the fingers of a hand (exhibit 135). In cross-examination, Dr Lincoln conceded this was a possible explanation and that those abrasions could have occurred from contact with a stick that had regular protrusions at these spaces. There was mild swelling predominantly on the back of the right hand (exhibit 136). There was a 1.5 cm healing curvilinear abrasion at the base of the right thumb on the outer right hand. One possible explanation was that it was caused by a curved object, such as a fingernail, moving along the surface of the skin. Some force applied to the under surface of the nail would have been required to lift the upper half of the nail from the little finger side of the fourth finger (exhibit 137). Dr Lincoln accepted in cross-examination that significant blunt force to the margin of the nail could cause it to be lifted. There was a 3 cm by 2.5 cm brush abrasion on the right palm at the base of the thumb. There were three healing scabbed abrasions on the inner aspect of the front surface of the appellant’s forearm which were about 1 cm apart with the abrasion closest to the wrist being 4 cm above the wrist (exhibit 138). One explanation for them would be contact with fingers of a hand. Dr Lincoln accepted that the bruises on the appellant’s right hip, right arm and left arm with yellow discolouration indicating they were older than 18 hours may or may not be related to the incident on 12 November 2017. It was also not possible to age the numerous healing (scabbed) abrasions on the appellant’s hands, forearms, knees, right hip, right side of his forehead and right chin but causation on 12 November 2017 could not be excluded. (In relation to those abrasions, even though Dr Lincoln could not age them, the jury had the benefit of Dr Van Buuren’s evidence as to which injuries were likely to have occurred on 12 November 2017.)

84. Scenes of crime officer Drage formed the view from the bloodstains on the kerb and the grassed verge next to the kerb and from the positioning of Mrs Cobby’s clothing that Mrs Cobby had been dragged a certain distance.

85. Evidence was adduced by the prosecution for the purpose of excluding the possibility that the appellant and Mrs Cobby were attacked by an unknown assailant. Department of Home Affairs’ records showed that Mr Bonelli was not in Australia on 12 November 2017, as he departed Australia on 26 September 2017 and returned on 20 February 2018. Mr Bonelli’s evidence included the following. He first met Mr Cobby when they were both renting bedrooms in the same house. Mr Cobby said he was trading in the stock market and Mr Bonelli invested some money with him. The appellant told him he could help Mr Bonelli and his friend Ms Christie, as the appellant had “risk-free bonuses” on his brokerage account and his broker would match the money that was deposited and Mr Bonelli and Ms Christie could withdraw their money after six months. The second transaction required Mr Bonelli to leave his money in the account for six months and that when it would be returned to him it would have doubled. The third transaction was a Christmas bonus for 30 days. Mr Bonelli and Ms Christie got other people to invest with Mr Cobby, including Michael and Josh Roberts. Mr Bonelli and Ms Christie invested on the third occasion about $40,000-$50,000. Altogether in that transaction about $160,000 was invested with the appellant which included around $40,000 from the Roberts. A meeting was held on 10 May 2016 at which Mr Bonelli, Ms Christie, Mr Michael Roberts, Mrs Cobby and the appellant were present. The meeting was recorded by Mr Bonelli partly on his computer (video and audio) and partly on his telephone (audio). Those recordings together with another three recordings made by Mr Bonelli were on a USB that was tendered (exhibit 175). The recordings of the meeting on 10 May 2016 were played for the jury. The appellant had prepared a handwritten document that was signed on 10 May 2016 (exhibit 176).

86. Mr Bonelli went to Mrs Cobby’s home a couple of times. On one occasion, he went to talk to Mrs Cobby’s mother and another occasion he went to talk to Mrs Cobby to see if he could find out where the appellant was living. He also spoke on the phone a couple of times to Mrs Cobby’s mother. Ms Christie accompanied him to Mrs Cobby’s home on one occasion. On another occasion, Josh Roberts drove Mr Bonelli to Mrs Cobby’s home, so they could drop off Mr Cobby’s furniture after they had vacated the property that they were renting. Mr Bonelli never threatened Mrs Cobby or her family. He did not make any threats against the appellant. He and Ms Christie spoke to the appellant on Skype twice on 14 June 2017. These calls were recorded and also on exhibit 175 and were played for the jury. In those calls the appellant had requested a letter of demand from Mr Bonelli and Ms Christie. That was prepared by Ms Christie. It was dated 10 May 2016 with a series of question marks and included an acknowledgement that the appellant would pay Mr Bonelli the sum of $2,200 for a return airfare from Malaysia to Australia and his expenses while in Australia (exhibit 177). There was a further call on Skype between the same parties on 15 June 2017 that was also on exhibit 175 and played for the jury. A handwritten letter of demand was drafted on 16 June 2017 that was signed by Ms Christie on behalf of Mr Bonelli and herself (exhibit 178). There was a further Skype call on 22 June 2017 that was also on exhibit 175 and played for the jury. No money was paid to Mr Bonelli and Ms Christie by the appellant and on 16 August 2017 Mr Bonelli made his complaint to the police about the appellant. Mr Bonelli never made a threat to Mrs Cobby that he was prepared to take the daughter away.

87. Ms Christie gave evidence of her dealings with the appellant and that she invested about $25,000 with him and did not get back any money. Ms Christie had met Mrs Cobby two or three times and one of those occasions was at the Arthur Payne Court home when Mr Bonelli and Ms Christie were trying to find out where the appellant was which would have been after meeting with him in May 2016. Ms Christie prepared the handwritten document that was exhibit 178. Ms Christie never threatened Mrs Cobby or the appellant. On 12 November 2017, Ms Christie had been in Brisbane and returned to her home on a Moreton Bay island. She did not visit the Gold Coast at all on that day. In cross-examination, Ms Christie was not sure whether the visit to Mrs Cobby’s home was before or after the May 2016 meeting. During that visit, Mrs Cobby was angry and abusive towards her mother. Subsequently, Ms Christie talked on the phone with Mrs Cobby’s mother a couple of times. After finding out that the appellant had made a complaint to the police alleging that she and Mr Bonelli and Mr Michael Roberts were threatening him, she and Mr Bonelli made the complaint of fraud to the police against the appellant. Ms Christie had some missed calls from Mrs Cobby’s mother including one at 5 pm on 12 November 2017 but Ms Christie did not speak to her.

88. Mr Michael Roberts was a friend of Mr Bonelli and met the appellant through Mr Bonelli. The appellant was prepared to teach Mr Roberts’ son Joshua how to trade on the stock market. Mr Roberts gave the appellant money to invest, as the appellant told him he would give back double each month because he was a net worth trader. Mr Roberts and his son gave the appellant about $40,000 to invest. They did not get any money back from the appellant. Mr Roberts was concerned that their dealings with the appellant might cause difficulties for his son in getting a security clearance for joining the Army. After the meeting on 10 May 2016, Mr Roberts never saw the appellant again. Mr Roberts and his son did visit Mrs Cobby at home, as they were trying to find out where the appellant was. His son had lived in the same house as Mr Bonelli and the appellant and the lease was in Joshua’s name. After the lease ended in June 2016, Mr Roberts and Joshua took some furniture up to Mrs Cobby’s mother’s place and left the furniture on the nature strip. On 4 September 2017, Mr Roberts went to the police to make a complaint about the dealings he had with the appellant. Mr Roberts did not have anything to do with the killing of Mrs Cobby. He was not in Arthur Payne Court on the evening of 12 November 2017.

89. Mr Michael Roberts’ evidence in cross-examination included the following. He became aware in 2017 that the appellant had made a complaint to the police against him in relation to threats or extortion. Subsequent to finding out about that, Mr Roberts and his son made a complaint to the police of fraud against the appellant. He maintained contact with Mr Bonelli after the meeting on 10 May 2016. He never met Mrs Cobby’s mother. The last time he went to the premises in Arthur Payne Court was to drop off the furniture. He denied the suggestion that he at least had some knowledge that something was going to happen to the appellant and Mrs Cobby that evening of 12 November 2017.

90. Mr Joshua Roberts had met Mrs Cobby on one occasion at the house where he resided and then spoke to her on another occasion at her property. Mr Bonelli and the appellant lived with Mr Roberts and he met Mrs Cobby when the appellant, Mrs Cobby and their children were at the house watching a film. He and his father visited Mrs Cobby’s home looking for the appellant shortly after he disappeared from the house where he had been living with Mr Roberts. They told her that he had taken their money and “done a runner”. The appellant had left some furniture behind at the house and Mr Roberts, his father and Mr Bonelli took the furniture and left it on the nature strip outside Mrs Cobby’s mother’s house. Mr Joshua Roberts had never threatened the appellant nor Mrs Cobby. In cross-examination, Mr Roberts explained that after dropping the furniture off, he drove back to Arthur Payne Court two days later to see if the appellant’s car was in the driveway. Mr Roberts did not stop. He drove around the cul-de-sac and, when he could not see the appellant’s car, he drove off.

91. It was conceded by Detective Thomas that consent was never sought from Mr Bonelli, Ms Christie or both Mr Roberts to do a Cellebrite download of their phones and the police never sought the call charge records for their phones.

92. It was essential to the prosecution case to call Mr Bonelli, Ms Christie, Mr Michael Roberts and Mr Joshua Roberts and thereby disclose the allegations of fraud against the appellant from those witnesses to deal with the innocent hypothesis advanced on the appellant’s behalf at the trial that it was an unknown assailant who had a grudge against the appellant who attacked both the appellant and Mrs Cobby. The appellant’s trial counsel addressed the jury, in fact, by reference to the appellant’s past dishonesty. The appellant’s written submission that a miscarriage of justice was caused by the prosecutor in his address to the jury referring to “the background of dealings of [the appellant] in avoiding those he defrauded” was misconceived when the evidence to which the prosecutor was referring was adduced because of the manner in which the appellant’s case was conducted at trial.

93. The prosecution also called Mr Schultz who was Mrs Cobby’s brother. He denied ever threatening to harm Mrs Cobby, but conceded he may have said in anger at one stage that he was surprised no one had hired a “hitman” to kill the appellant.

94. The appellant did not call or give evidence.

Ground 1 – Unreasonable verdict

95. The prosecution relied on the following circumstances to prove that it was the appellant who murdered his wife:the appellant was present at the location where Mrs Cobby was killed after she had sustained a bloodletting injury;the appellant’s jeans and shirt were heavily bloodstained with Mrs Cobby’s blood consistent with prolonged contact between the bloodletting injuries and the appellant’s clothes;there was material under the fingernails of Mrs Cobby that, to a high probability, contained the DNA of the appellant;the appellant sustained injuries, including those consistent with fingernail scratches, which the jury would infer were caused in an altercation with Mrs Cobby;the appellant had possessed the hammer that had been abandoned on the grass at Arthur Payne Court near the Chrysler vehicle which had been used to inflict injury upon Mrs Cobby and this was supported by Dr Olumbe’s evidence that an implement like a hammer was used to inflict injuries to Mrs Cobby’s head and face;the appellant made no effort to use his mobile phone to contact his family, emergency services or others to obtain assistance for Mrs Cobby, when he had the opportunity to do so;the appellant’s flight from the crime scene involved his hiding deliberately from others (and it was suggested that the jury would infer from the scientific evidence that the appellant moved away from the roadway and hid behind the fence of 6 Arthur Payne Court until he could move across and down into Harry Mills Drive and they would infer that he was not in the driveway of 87 Harry Mills Drive when it was first searched by the police);there were no other persons seen by Mr Eden or the arriving police or heard by the neighbours consistent with a person in addition to the appellant having been there at the time that Mrs Cobby was killed and then that person leaving Arthur Payne Court;the tone and manner in which Mrs Cobby is heard to scream “Andrew, please” on the CCTV audio (exhibit 62);Mr Nicholls heard Mrs Cobby scream out “Help, Mum” and did not hear her call out for help from the appellant;there was only ever one male voice heard by the neighbours which excludes the possibility of some other unidentified man attacking Mrs Cobby;the appellant deliberately covered the driver’s side seat of the Chrysler with the blue towel; andthe appellant deliberately packed a spare shirt and a towel in his backpack.

96. The prosecutor submitted that the jury would infer from the evidence that the appellant attacked Mrs Cobby near the Chrysler with the hammer and that the appellant lost control of the hammer which landed in the grass. It was at that point that Mrs Cobby ran across the road and the jury would infer that, as the appellant tried to restrain her, a clump of her hair fell to the ground, he caught her by the gutter, and she was brought to the ground, dragged and strangled. With respect to the appellant’s flight from the scene, the prosecutor suggested the jury would infer that the transfer stains on the fence railing adjacent to 6 Arthur Payne Court came from the appellant’s bloodied clothes, as he climbed over the fence and hid there.

97. The following arguments were advanced on behalf of the appellant at the trial. The prosecution could not suggest a motive for the appellant to have killed Mrs Cobby on that night or at all. The prosecution had to exclude beyond reasonable doubt that Mrs Cobby was “collateral damage” arising out of the debts owed by the appellant in circumstances where Mrs Cobby’s family members had a real concern that Mrs Cobby would be attacked because of hanging around with the appellant. (In other words, the innocent hypothesis advanced at trial on behalf of the appellant that had to be excluded by the prosecution was that an unknown assailant had committed the murder following a surprise attack upon the appellant and Mrs Cobby.) The evidence of the younger son and the daughter was to the effect that there had been no change in the relationship between Mrs Cobby and the appellant during 2017. Even though the daughter mentioned in her pre-recorded evidence that she had a conversation with her mother a couple of months before she died to the effect that her mother told her she wanted to get a divorce, the jury should take into account that was not raised in her police interview on 13 November 2017 and was only raised with the prosecutor before the pre-recording of her evidence which was three and one-half years after Mrs Cobby died. In addition, in cross-examination the daughter then said that the conversation with her mother about the divorce was a couple of years before 2017. The argument between her parents witnessed by the daughter sometime between 2016 and 2017 when her mother seemed angry and frustrated was the only argument the daughter had witnessed. The younger son’s evidence about the regular cordial contact between his parents was consistent with the daughter’s evidence to that effect. Their regular cordial contact was also confirmed by Mr Popa and Ms Hernandez. There was extraordinarily frequent contact between the appellant and Mrs Cobby over 11 and 12 November 2017.

98. It was not consistent with the appellant meticulously planning to kill Mrs Cobby that he told his flatmates, when he borrowed the Chrysler, he was going to see his children whom they knew resided with Mrs Cobby. If the appellant’s intention had been to kill Mrs Cobby, why did he not take a sharp kitchen knife? There were no bloodied gloves found nor any box of gloves in the Chrysler or in the appellant’s room. The appellant’s primary mode of transport was a pushbike and most of the things that were in the backpack were things that may have been kept there for the purpose of riding his pushbike. In any case, the backpack with contents was left in the Chrysler which was locked. Why would the appellant have worn jeans, if he intended to murder Mrs Cobby? Mr Popa mixed up the descriptions of his two hammers, as he referred to the one that he was missing as the big hammer. The confused evidence from Mr Popa in relation to his missing hammer and the forensic evidence that indicated there was nothing to suggest that Mr Popa had ever handled the hammer found at the crime scene was not sufficient for the jury to infer that the hammer with the black grip found at the crime scene belonged to Mr Popa. The lack of DNA or fingerprints from the hammer suggested that the person who used the hammer on Mrs Cobby was wearing some type of covering on their hands to conceal their identity.

99. The appellant’s trial counsel submitted to the jury that there were different groupings of the evidence of the residents of Arthur Payne Court and the nearby streets as to what they heard, when they heard it, and where they thought the sounds came from. It was suggested that whatever happened from the time of silence (after the screams) until Mr Eden arrived, the appellant had left the scene and so had the assailant. It was suggested that the jury should not treat the numbering of the bloodstains (ST1 to ST10) as the order in which they were left. The jury’s attention was drawn to Dr Olumbe’s evidence as to which of Mrs Cobby’s injuries were caused by the hammer, by being strangled and by being dragged. The fact that there was no DNA of the appellant (or anybody else) on Items B2, B3 and B4 (from the hammer) or on the tape-lift from Mrs Cobby’s neck (Item DH2) was emphasised. The DNA result of the very high probability that the appellant contributed to the DNA lifted at Item B8 (on Mrs Cobby’s right wrist where there was no injury) and the fingernail scrapings of the right hand that were Item B12 (where the fleshy part of the fingers and thumbs may have been touched during the collection of the scrapings) could have resulted from the appellant and Mrs Cobby being in each other’s company that day. There was no DNA of the appellant on any areas, such as the lower part of Mrs Cobby’s body, from where one would have expected Mrs Cobby to have been dragged. There was no DNA of the appellant but there was the DNA of an unknown contributor at Items B26 and B27 which were the fabric from the outer front shirt on both the lower right side and the lower left side. Even though Dr Van Buuren expressed the possibility that the injuries to the appellant were caused by fingernails, she conceded that it was possible that they were caused by a different mechanism such as contact with brush or scrub. Consistent with Dr Lincoln’s evidence that a significant blunt force to the margin of the nail could cause it to be lifted, the partially avulsed nail on the appellant’s fourth finger may have been caused by the use of the claw end of the hammer being wielded down on the appellant’s hand. Even though Mr Eden had not seen a vehicle or person as he travelled to Arthur Payne Court, there was a period of 10 minutes that elapsed between when Mr Nicholls heard the last scream and when he heard Mr Eden’s vehicle arrive. With respect to his flight from the scene, the appellant did end up contacting the elder son and the police were able to find the appellant.

100. The appellant’s trial counsel took the jury to the detail of the evidence concerning Mr Bonelli, Ms Christie and Mr Michael Roberts and his son and reminded them the police did not seize their phones for investigation or obtain the call charge records. The chronology of the visits to the Arthur Payne Court home or its vicinity by these four people was inconsistent with their denials of any involvement in any threats or harm to the appellant or anyone.

101. Even though the appellant was a person who had been involved in dishonest acts in the past, the prosecution had been unable to show that what the appellant told the police during his interviews on 13 November 2017 was wrong.

102. On the appeal, the appellant advances two hypotheses which were not advanced by his counsel at trial and to which he refers as “Index one” and “Index two”. The appellant submits that either hypothesis should have precluded the jury being satisfied beyond reasonable doubt that he was guilty. The appellant expresses Index one in these terms:

“It was not open upon the evidence for the jury to be satisfied beyond a reasonable doubt that the act of manual strangulation was inflicted prior to Mrs Cobby having moved of her own ability; unassisted; on the first occasion from the bitumen roadway to the nature strip. Or on the second occasion from the nature strip to the bitumen roadway at a point in time at least eight minutes after the Crown’s inference that Mrs Cobby was already deceased prior to the arrival of Mr Eden.”

103. The appellant explains Index two in these terms:

“It was not open upon the evidence for the jury to be satisfied beyond a reasonable doubt that the act of manual strangulation was inflicted prior to Mrs Cobby having moved on the second occasion; after Mr Eden completed his telephone call to the triple zero operator. On this occasion Mrs Cobby moved from the nature strip to the bitumen roadway, a distance of several metres at a point in time at least eight minutes after the Crown’s inference that Mrs Cobby was already deceased prior to the arrival of Mr Eden.”

104. The period of eight minutes was selected by the appellant as covering the two minutes for which Mr Eden estimated he did compressions plus the six minutes he was on the phone on the triple-0 call.

105. The problem with the appellant’s hypotheses is that they are based on evidence which would have been considered by the jury in the context of all the evidence adduced at the trial but the appellant treats the small portion of the evidence on which he relies to postulate his alternative hypotheses as incontrovertible facts. The fact that these hypotheses were not seriously in contemplation at the trial was reflected by the express statement by the appellant’s trial counsel in his address to the jury that whatever happened from the time of silence (after the screams heard by Mr Nicholls and others) to the time Mr Eden arrived, the appellant had left and “so had, who we’d suggest, the other person who was there”. If these hypotheses now advanced by the appellant had been pursued on the appellant’s behalf at the trial, his counsel would have cross-examined relevant prosecution witnesses (particularly the scientific witnesses) to see if there was any evidence that supported one or both of the hypotheses. That would also have had the consequence of the prosecution testing the hypotheses by exploring them in drawing out evidence from all relevant witnesses.

106. A fundamental problem for the appellant in advancing these two new hypotheses is that an assessment of the evidence as a whole, including the expert evidence as to the drip stains and transfer stains on the gutter and the blood on the grass outside 6 Arthur Payne Court points to only one conclusion that Mrs Cobby had not moved or been moved after the arrival of Mr Eden. In any case, Mr Nicholls’ evidence about the location of Mrs Cobby’s body when he looked out of his blinds after Mr Eden’s car had pulled up was that he saw the body on the eastern side of the driveway and only said that it “looked like” half on the nature strip and half on the road and then stated that he could not tell which way the body was lying. Even though Mr Eden had attempted CPR by doing compressions, it was apparent from his evidence that any assumption made about Mrs Cobby being alive when he commenced CPR was soon displaced when he did not feel any breath or pulse. The appellant focuses on Mr Eden’s evidence that when he observed the top of the body, it was on the nature strip and the rest of the body was a bit onto the road. That had to be reconciled with his evidence that he did not move the body and the location of Mrs Cobby’s body was shown (in exhibits 1 and 2) as not on the nature strip but with her head against the concrete gutter and her body lying on the roadway next to the gutter at the eastern end of the driveway for 6 Arthur Payne Court.

107. Without being referable to a specific ground of appeal, the appellant's written submissions criticise the prosecutor and the trial judge for respectively failing to address or sum up on the possibility that the jury could not exclude beyond reasonable doubt that Mrs Cobby moved unassisted and of her own ability after Mr Eden arrived. That possibility was not traversed during the trial as the case was conducted by both the prosecution and defence (reasonably in the context of all the evidence) that Mrs Cobby was killed during that period of a few minutes from 11 pm when she was heard to scream followed by the period of silence for a few minutes or so before Mr Eden arrived and eventually realised during the triple-0 call that she was not breathing and had no pulse.

108. Despite the appellant’s reliance on the two alternative hypotheses that he advances on the appeal, his reliance on the ground of appeal that the verdict is unreasonable or cannot be supported having regard to the evidence requires this Court to consider the whole of the evidence before the jury and decide whether it was open to the jury as a question of fact to be satisfied beyond reasonable doubt that it was the appellant and no one else who attacked and strangled Mrs Cobby: M v The Queen (1994) 181 CLR 487 at 494-495. The joint judgment of Mason CJ and Deane, Dawson and Toohey JJ in M noted (at 492-493) that in undertaking the independent assessment of the evidence, the court on appeal must not disregard or discount the jury’s role of determining guilt or innocence and that the jury had the benefit of seeing and hearing the witnesses. In undertaking this assessment, it must be taken into account that the jury rejected the appellant’s version that he and Mrs Cobby had been attacked by an unknown assailant.

109. This was a strong circumstantial case. It was the type of circumstantial case that was analogous to the circumstances being strands of a rope: proof of guilt beyond reasonable doubt did not require the prosecution to prove each circumstance (or strand) on which the prosecution relied but sufficient circumstances that persuaded the jury of the appellant’s guilt beyond reasonable doubt.

110. Even on the statements made by the appellant in the recorded telephone conversation and interviews, the appellant was present when Mrs Cobby was attacked and the details he provided of the locations of the attack accorded with the scientific evidence that the assault of Mrs Cobby commenced in the vicinity of the Chrysler vehicle and then moved to the opposite side of Arthur Payne Court. In addition, no other witness saw any other person who may have been the attacker described by the appellant in the vicinity of, or leaving, the crime scene.

111. Although the prosecution relied on 13 circumstances in seeking to prove the appellant’s guilt beyond reasonable doubt, some of these circumstances were more important or compelling than the others.

112. It was apparent from Dr Olumbe’s evidence and those of the scientific officers that the quantity of blood from Mrs Cobby’s injuries, particularly the scalp wound, was significant. The description by the prosecutor used at the trial of “bloodletting injuries” was apt. Exhibits 7 and 8 show the extent of the saturation bloodstaining of the appellant’s jeans and shirt with Mrs Cobby’s blood which was more consistent with prolonged contact between his clothes and blood from her bloodletting injuries than the description he gave to police of Mrs Cobby falling on him and his falling on her a couple of times and then getting up again.

113. It was a matter for the jury what they made of the injuries sustained by the appellant that were consistent with fingernail scratches in conjunction with the very high probability that it was the appellant’s DNA that was under the fingernails of Mrs Cobby. Even though the appellant’s trial counsel ensured that other possible causes of the appellant’s injuries were conceded by the forensic medical practitioners and other explanations suggested for the detection of the appellant’s DNA in the scrapings taken from under Mrs Cobby’s fingernails, it was open to the jury to conclude that the injuries observed on the appellant by Drs Van Buuren and Lincoln and photographed for the jury to view themselves were consistent with fingernail scratches as that accords with the appearance of those injuries in the relevant photographs.

114. It was a compelling circumstance that the appellant fled the scene through the yards of 6 and 2 Arthur Payne Court and did not seek help from any of the residents at 6 Arthur Payne Court or at any other house property which he passed or traversed. In Arthur Payne Court, there were residents at home at the time at 1, 5A, 6 and 9. He had his mobile phone with him and made no call to seek the assistance of others that was answered until almost three hours after the attack on Mrs Cobby.

115. Mrs Cobby’s body was found against the gutter of the driveway of 6 Arthur Payne Court which was the Nicholls’ family home. Mr Nicholls’ bedroom was at the front of the house and he was awake at 11 pm when he heard the screaming and the dogs barking and was able to discern that the female voice was screaming for help and for mum and at the end he heard her say “Get off me”. Mr Nicholls did not get up to look until after Mr Eden’s car had pulled up. It was a most relevant circumstance that Mr Nicholls did not hear the female voice call out for help to anyone other than “Mum”.

116. It was open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt that Mr Bonelli and the other investors may have orchestrated the attack on Mrs Cobby on 12 November 2017. Apart from their denials of any involvement in attacking the appellant and Mrs Cobby, it was fanciful that the four investors would do so when they had made complaints to the police in August and September 2017 about the frauds they alleged the appellant had committed with their funds. They also had recordings of their May 2016 meeting and June 2017 Skype calls with the appellant that negated the allegations of the appellant made to the police on 13 November 2017 that he was the victim of extortion. Despite harsh words spoken by Mrs Schultz and Mrs Cobby’s brother about the appellant, it was even more fanciful on the evidence adduced at the trial that either or both were responsible for the fatal attack on Mrs Cobby.

117. It was not surprising that the jury rejected the appellant’s version of the attack on Mrs Cobby by an unknown assailant which was inconsistent with the scientific evidence as to what was revealed by the bloodstains, the DNA analysis and Dr Olumbe’s evidence of the nature of Mrs Cobby’s injuries and how they were inflicted. There were no signs of the head injury that the appellant alleged he sustained in the attack or any reason for the alleged loss of consciousness for two hours or so. As the appellant’s trial counsel ably raised for the jury’s consideration, there were some inconsistencies, discrepancies or unanswered questions in the evidence but they were very minor in comparison with the circumstances that were relied on to prove guilt. The lack of a motive for the appellant to kill Mrs Cobby was a relevant circumstance to be taken into account with all the other relevant circumstances. The preponderance of evidence pointed in the one direction that this was not a case where there was a significant possibility that an innocent man was convicted. The conclusion, as a matter of fact, from the independent assessment of the evidence is that it was not unreasonable for the jury not to have entertained a reasonable doubt as to the proof of the appellant’s guilt.

118. The appellant therefore fails on ground 1.

Ground 2 – Failure of the prosecution to present all available credible evidence

119. The focus of the appellant’s submissions on ground 2 was on the inconsistencies in Mr Eden’s evidence which the prosecution failed to pursue at the trial. The problem with this submission is that it is based on a small part of Mr Eden’s evidence that was ambiguous when considered in the context of all his evidence and the other evidence that the police had gathered which verified the timings of Mr Eden’s movements and made it reasonable for the prosecution to conduct the case on the basis that, when Mr Eden stopped his vehicle when he saw Mrs Cobby’s body, she was already dead. To the extent that the appellant’s submissions on the appeal were made in ignorance that the audio and transcript of Mr Eden’s triple-0 call had been disclosed to his legal representatives pre-trial, those submissions can be disregarded. There were forensic reasons for why the appellant’s trial counsel would have chosen to cross-examine Mr Eden on the contents of the triple-0 call rather than require the prosecution to tender and play the audio of the call as otherwise the jury would also have been able to take into account his manner of speaking to the operator in deciding whether to accept his evidence. The transcript of the triple-0 call was adduced on the hearing of the appeal to assist the appellant in advancing ground 2. The appellant contends that the triple-0 call showed that Mrs Cobby was alive when Mr Eden first attended to her. Despite what Mr Eden initially said to the triple-0 operator, the overall conclusion from the triple-0 call was that Mr Eden did not, in fact, see Mrs Cobby breathe or find a pulse.

120. Although not relevant to ground 2, the appellant in dealing with that ground made submissions critical of the prosecutor’s opening address at the trial. The appellant extracted passages from the opening address where the prosecutor informed the jury to the effect that the prosecution would prove that the appellant was responsible for the murder of Mrs Cobby. The appellant’s assertion that this was an error of law misunderstands the criminal trial process. The opening was the prosecutor’s opportunity to outline the prosecution case against the appellant and how it proposed to prove beyond reasonable doubt that it was the appellant who killed his wife. There was no misconduct or contravention of the law in any aspect of the prosecutor’s opening address to the jury.

121. The appellant does not succeed on ground 2.

Ground 3 – Use of the hammer as the example to explain to the jury the process of drawing inferences

122. The appellant complains about the instructions the trial judge gave to the jury on the process of drawing inferences, as the example that was used was whether the jury could infer that the hammer at the crime scene belonged to Mr Popa. The impugned directions were as follows:

“I am going to use the presence of the hammer in this trial just as an example because it is an obvious but important example of the process that is said to be engaged. There are a number of individual circumstances. Now, they include the propositions that the hammer was found at the scene. You have seen the photo of it on the neatly manicured lawn, which is pointed out to you, it is not the type of object that you see lying in a place like that. You have the evidence of the injuries to [Mrs Cobby’s] head and scalp, which have been described as being consistent with the – with having been inflicted by the hammer, and you can see the comparison between the shape of the scalp wound and the claw of the hammer. So from those circumstances, you would infer that the hammer was used in the attack.

Then, the prosecution adds in further circumstances. They say, well, [the appellant], at the time, was living with Mr Popa. Mr Popa said he owned a hammer. Back in – on 13 November 2017, Mr Popa gave a description of that hammer. You will recall [defence counsel] cross-examined about that. And you might think [defence counsel] did demonstrate that there was confusion in the mind of Mr Popa as to the relative size of each of his hammers, but the description given that – at that time was of a hammer that was about 30 centimetres long, it has a black handle, and it is a claw hammer. It has the claw on the backside to remove nails. The hammer has a minor bend in it on the head hammer area. It is bent slightly downwards, and it is not straight/flush. And in his evidence here, he added that the body of the hammer was normal metal.

Now, you can examine the hammer for yourselves, and it is a matter for you to see – to form your own conclusion as to whether the hammer has a minor bend in it. You might think that if you examine the claw side of the hammer – and what I will call the ‘neck’, which is between the head and the shaft – there is a very slight gap between the head and the neck, which reflects the fact that there is a slight bend of the kind that you might think – or it might have been of the kind that you might think Mr Popa was describing. You then add in the circumstance that, on the 13th of November 2017, Mr Popa could not find the hammer he was describing, although he found another one. And you have photos depicting the search. From all of those circumstances, you are asked to infer that [the appellant] took the hammer to the scene, where it was used during the attack on [Mrs Cobby]. That is an example of an inference that you are asked to draw. And you will have the exhibits in the forms of photographs, exhibits 11, 12, 13, 44, 49, 50, 152 through to 154, and 171 through to 174, which are the exhibits relevant to the propositions I have just been discussing.

So that is an example of the way in which you are being asked to draw an inference from facts that have been proven. Some special considerations apply to the drawing of inferences during the course of your deliberations. Please keep these three particular directions firmly in mind. First, you may only rely upon reasonable inferences based upon facts that you find to be proven by the evidence. So you would need to find the facts proven – which may not be difficult, for example, in the case of a photo of the hammer at the scene, but from them, you may draw only reasonable inferences. Second, there must be a logical and rational conclusion between the facts you find proven and the inferences you draw. You are not to indulge in intuition, speculation, or guess work. And third, if more than one inference is reasonably open, one or more which may be adverse to the [appellant] – that is to say, pointing to his guilt – and one or more which may be in his favour – that is to say, one consistent with his being not guilty – you must draw the inference that most favours the [appellant]. This means rejecting any inference adverse to the [appellant] and, instead, drawing the inference which is consistent with raising any reasonable doubt about his guilt.”

123. There was no attempt at trial to ask Mr Popa whether he could identify the hammer found at the scene as his missing black hammer. The prosecution relied on Mr Popa’s evidence for the contention that the hammer left abandoned at the scene fitted the description of the hammer owned by Mr Popa and it was a hammer to which the appellant had access. It was left to the jury as a matter of inference for them.

124. It is open to a trial judge to explain the process of drawing inferences by reference to one of the circumstances that arises for consideration during the trial. Because any inference to be drawn from evidence is a question of fact for the jury, the trial judge must be careful not to encroach on the jury’s task and should be fair to both the prosecution and the defence in using the example from the trial. It was explicit in the above direction as to what inference the prosecution was asking the jury to draw from the evidence which was that the hammer left at the scene was Mr Popa’s missing hammer. It was implicit in the trial judge’s pointing out that they might think the appellant’s counsel’s cross-examination of Mr Popa demonstrated there was confusion in Mr Popa’s mind as to the relative size of each of his hammers that they would not act on Mr Popa’s evidence as to the description of his missing hammer and therefore not draw the inference that the prosecutor sought to be drawn. Even though the trial judge did not spell out expressly the consequences of Mr Popa’s confusion about the size of the missing hammer for the drawing of any inference from his evidence, it was clear enough from what the trial judge said that the jury had to consider whether they could draw the inference the prosecution was asking them to draw or not. The trial judge did accompany the direction with a strong warning about drawing only reasonable inferences, not indulging in intuition, speculation or guesswork and, if there were more than one inference reasonably open, they must draw the inference most favourable to the appellant. There was no error by the trial judge in using the evidence about the hammer as the example to explain to the jury the process of drawing inferences.

125. The appellant does not succeed on ground 3.

Ground 4 – Evidence of Mr Popa about the hammer was wrongly admitted

126. The appellant had been unsuccessful in obtaining a pre-trial ruling that all evidence concerning the hammer be excluded from the appellant’s trial on the basis that its admission would be unfairly prejudicial. The trial judge excluded only the evidence of identification by Mr Popa of the hammer as his hammer from a photograph of the hammer at the crime scene that was on Detective Amey’s phone that was shown to Mr Popa by Detective Amey on 13 November 2017. The prosecution therefore did not at the trial ask Mr Popa whether he could identify the hammer found at the scene as his hammer.

127. The result of the pre-trial ruling was that Mr Popa in his evidence described his hammers and stated that the black handled claw hammer that was a little bit bent on top was missing. It was a matter for the jury to compare the evidence given by Mr Popa in relation to the missing hammer, including his confused evidence about the respective sizes of his two hammers, in deciding whether they could draw the inference that the hammer found at the scene (exhibit 50) was Mr Popa’s hammer. It was appropriate that Mr Popa was not asked whether he could identify the hammer found at the scene as his hammer as, even though Mr Popa was able to describe the slight bend in the top of his hammer, the hammer was after all a very common mass-produced tool and, on Mr Popa’s own evidence, his black handled claw hammer had been missing for up to 12 months.

128. There was no error by the trial judge in permitting Mr Popa to give the evidence about his missing hammer because of the coincidence of a hammer being missing from the house where the appellant was living. That evidence had probative value as it identified that the appellant had access to a damaged hammer similar to that which was found abandoned at the crime scene. Even if there were an error to admit that evidence, the appellant cannot show that resulted in a miscarriage of justice. The test for whether a miscarriage of justice has been occasioned when there has been a wrongful admission of evidence is whether that evidence may have affected the verdict: R v SDQ [2022] QCA 91 at [72]. This was a strong circumstantial case against the appellant without the inference that the hammer found at the scene was Mr Popa’s hammer. Even without Mr Popa’s evidence about his missing hammer, there was still admissible evidence from which the jury could have inferred that it was the appellant who brought the hammer with him that was used on Mrs Cobby to Arthur Payne Court on that evening. The hammer was abandoned near the Chrysler vehicle. The photographs of the streetscape of Arthur Payne Court made it apparent that it was not the sort of neighbourhood where one would expect to find a hammer lying on the neatly maintained grass footpath. The backpack that the appellant brought with him from the house could have concealed the hammer. (The appellant’s explanation to the police for bringing the backpack was unconvincing, and it was unconvincing, when his only reason for using the Chrysler was to drive himself to meet Mrs Cobby, that he would bring the backpack with him and then leave it in the Chrysler while he went to meet or check on Mrs Cobby’s safety.) Where there were at least 10 of the circumstances relied on by the prosecution for proving the circumstantial case against the appellant which were compelling in combination in establishing the appellant’s guilt, any error in the admission of Mr Popa’s evidence about his missing hammer did not have the significance that would have made a difference to the verdict.

129. The appellant does not succeed on ground 4.

Ground 5 – Fresh DNA evidence may have resulted in an acquittal

130. Fresh evidence of DNA testing by FSS was adduced on the hearing of the appeal. Prior to the trial, Mr Hunt had prepared a statement dated 22 February 2019 and an addendum statement dated 12 February 2020 that were the basis of his evidence at the trial. As a result of the criticism in the interim “Report Concerning Use by Queensland Health Forensic and Scientific Services of Certain Evidentiary Statements” issued by Commissioner Walter Sofronoff KC on 15 September 2022, additional analysis was carried out on DNA samples that had been previously incorrectly noted as “DNA Insufficient for Further Processing” or “DNA was Not Detected”. Mr Hunt’s statement dated 31 October 2022 was issued to replace the two earlier statements. A second replacement statement dated 14 December 2022 was issued to replace all three earlier statements as the second replacement statement was noted as containing updated statistical analysis results for two samples from the appellant’s jeans following a change to the settings of the statistical program used by the laboratory that had been implemented after the first replacement statement.

131. A further addendum statement dated 17 July 2023 (the fifth report) was prepared by Mr Hunt to replace the four previous statements. The fifth report notes that it includes updates to the sample results reported in the previous statements following further process and analysis and the reassessment was carried out in acknowledgement of relevant recommendations of the “Final Report – Commission of Inquiry into Forensic DNA Testing in Queensland” (Final Report) issued by Commissioner Sofronoff on 13 December 2022. One difference in the results reported in the fifth report compared to the previous four statements was that the reference sample for Mr Gaunt was no longer available for comparison.

132. The fifth report also deals with the results of further samples from the hammer found at the crime scene that were received by FSS on 17 April 2023. Item B1a was a swab taken from the rubber handle grip of the hammer. According to the fifth report, the mixed DNA profile obtained from that sample indicates the presence of DNA from three contributors and an assumption of three contributors was made for the statistical analysis. The DNA profiles from the reference samples were compared to the mixed DNA profile. The results included the following. It was estimated that the mixed DNA profile obtained was approximately 23 times more likely to have occurred if the appellant had not contributed DNA, rather than if he had. Relevantly, it was estimated that the mixed DNA profile obtained was approximately 610 million times more likely to have occurred if Mr Popa had not contributed DNA, than if he had. Mr Eden, the elder son and the younger son were excluded from having contributed DNA to the mixed DNA profile. An incomplete contribution of DNA was able to be resolved from this mixed DNA profile which did not match any of the reference DNA profiles available for comparison and was designated as having originated from “Unknown Male 2”.

133. The further testing of the swab from the rubber handle grip of the hammer effectively excluded Mr Popa from contributing to the mixed DNA profile obtained from that swab. That was favourable for the appellant, as the result at trial was that DNA was not detected on the handle. The new result (although more definitive in excluding Mr Popa from the DNA analysis of the handle swab) does not otherwise alter the argument that the appellant’s trial counsel had advanced at the trial that there was nothing to suggest from the forensic evidence that Mr Popa had ever handled the hammer found at the scene. The prosecutor’s submissions to the jury had also been based on the evidence adduced at trial that there were no fingerprints or trace DNA on the hammer. The evidence presented at the trial in respect of the hammer was never capable of excluding that a third unknown person held the hammer or proving that either Mr Popa or the appellant held the hammer. The fifth report has not altered either of these propositions.

134. The fifth report also reported on Item B1c which was a swab from the claw of the hammer head as follows:

“The incomplete DNA profile obtained from this sample indicates the presence of DNA from a single contributor and matches the reference DNA profile of [Mrs Cobby] at all areas where information is present. In order to interpret this DNA profile an assumption of DNA from a single contributor has been made. Due to the partial nature of this DNA profile, each of the reference DNA profiles associated with this case has been compared to this profile separately, to assess whether or not any of them may have contributed DNA. Based on statistical analysis, the results are as follows:

It is estimated that the DNA profile obtained is greater than 100 billion times more likely to have occurred if [Mrs Cobby] had contributed DNA, rather than if she had not.”

Those persons (including the appellant) who had provided reference samples were all excluded from having contributed DNA to the DNA profile obtained from Item B1c. This further analysis only confirmed what was already advanced at the trial by the prosecution that the hammer was used to injure Mrs Cobby.

135. The respondent facilitated the introduction into evidence on the appeal of the five statements of Mr Hunt and a report by another scientist, Ms Finch, dated 25 January 2024 of Forensic Science Queensland (FSQ) which is the successor to FSS. The report of Ms Finch provided updated results following a reassessment and further processing and analysis of the results reported in the five statements of Mr Hunt. The report also noted that the reassessment was carried out in acknowledgement of the relevant recommendations of the Final Report.

136. Mr Hunt gave oral evidence at the hearing of the appeal which included the following. Where his first statement had used the words to the effect “insufficient DNA to be suitable for analysis”, it meant that a low level of DNA was detected which was below the threshold values that applied at FSS between February 2018 and 6 June 2022 for further processing. Those samples were submitted for reanalysis and DNA profiling. The reanalysis was undertaken without applying any cut-off threshold. The reanalysis also implemented changes to the interpretation methods used by FSS. There had previously been an over-reporting of the number of contributors where there were multiple potential DNA contributors. A DNA profile is a series of peaks on a graph. Previously there may have been a peak at a level below the threshold that was still treated as a potential additional contributor, but now the threshold for treating a peak as an additional contributor is strictly applied. In addition, there has been a change in the way a stutter peak neighbouring a strong peak is treated. Artefact peaks are a byproduct of the process in all DNA profiles. Previously the threshold was applied strictly to a stutter peak so that if it was above the threshold, a contributor would be added to the mixture interpretation. That is now not done if there is not confidence about the significance of the stutter peak as indicative of an additional contributor. On the reanalysis, the application of these two aspects of the changed interpretation methodology had the effect of changing the assumption in some instances from three contributors to a mixed profile to the assumption of two contributors to a mixed profile.

137. Mr Hunt illustrated how the changed interpretation methodology had affected the results by reference to Item B4 which was a tape lift from the claw end of the hammer. In the first statement, Mr Hunt reported on this item as follows:

“Due to the complex nature of this DNA profile, including uncertainty as to the number of contributors, in my opinion this DNA profile is not suitable for meaningful interpretation.”

A different result was obtained on the reanalysis undertaken for the fifth report:

“The Incomplete DNA profile obtained from this sample indicates the presence of DNA from a single contributor and matches the reference DNA profile of [Mrs Cobby] at all areas where information is present. In order to interpret this DNA profile an assumption of DNA from a single contributor has been made. Due to the partial nature of this DNA profile, each of the reference DNA profiles associated with this case has been compared to this profile separately, to assess whether or not any of them may have contributed DNA. Based on statistical analysis, the results are as follows:

It is estimated that the DNA profile obtained is greater than 100 billion times more likely to have occurred if [Mrs Cobby] had contributed DNA, rather than if she had not.”

Those who had provided reference samples (including the appellant) were excluded from having contributed DNA to this DNA profile.

138. Mr Hunt explained the change in the interpretation of Item B4. It was a partial profile and there was an indication of some low-level unconfirmed peaks below the reportable threshold. Those low-level peaks were taken into account in conjunction with not having information across the whole profile and the cautious approach adopted of not being confident of how many contributors to the DNA were present. After further instruction from Dr Taylor who developed the statistical analysis software used by FSS called STRmix who explained that the system was robust in being able to deal with partial profiles, this DNA profile was reassessed.

139. Mr Hunt was also asked to explain the change in the interpretation of Item ST1 which was a swab of a stain on the northside of the east concrete pillar of the driveway gate at 6 Arthur Payne Court. In the first statement, the analysis proceeded on the basis that the mixed DNA profile obtained from the sample indicated the presence of DNA from three contributors. It was a very high probability that Mrs Cobby had contributed DNA to the mixed DNA profile obtained rather than if she had not. It was also estimated that the mixed DNA profile obtained was “approximately 130 times more likely to have occurred if [the appellant] had contributed DNA, rather than if he had not”. The first statement also included estimates of the likelihood of contribution of DNA from each of the persons who had provided reference samples. In the case of the elder son, the younger son, and the daughter, it was estimated that the number of times more likely the mixed DNA profile obtained from the sample would have occurred, if any of them had contributed DNA, rather than if he or she had not, was less than 100 times. In relation to the reference samples from the remainder of the persons (other than Mr Gaunt), it was estimated that the mixed DNA profile obtained was less then 100 times more likely to have occurred, if any of those persons had not contributed DNA, rather than if he or she had. It was estimated that the mixed DNA profile obtained was approximately 580 times more likely to have occurred, if Mr Gaunt had not contributed DNA, rather than if he had.

140. On reanalysis, the fifth report noted that the mixed DNA profile obtained from the sample for Item ST1 indicated the presence of DNA from two contributors. The statistical analysis revealed the same result for the contribution of DNA from Mrs Cobby, but the report noted in relation to the appellant:

“It is estimated that the mixed DNA profile obtained is approximately 200 million times more likely to have occurred if [the appellant] had contributed DNA, rather than if he had not.”

The fifth report excluded the other persons from whom the reference samples had been obtained from having contributed DNA to this mixed DNA profile from Item ST1. The instrumentation had been updated and was more sensitive by the time of the reanalysis and some edits were made to the profile because the version of STRmix that was used for the reanalysis had been updated numerous times since the software that was available in 2018, when the testing was first undertaken. From the location of Item ST1, the prosecutor had addressed the jury to the effect they would infer that when the appellant fled the scene, he hid in the yard of 6 Arthur Payne Court. That argument was further strengthened by the result from the reanalysis of Item ST1.

141. Mr Hunt was cross-examined extensively by Mr Cobby on the appeal and his evidence elicited in cross-examination included the following. By reference to Mr Hunt’s report in the first statement on Item B7 which was a tape-lift from the left wrist of Mrs Cobby that was the basis for Mr Hunt’s evidence at the trial, Mr Cobby asserted that the forensic analysis put to the jury was unreliable. He pointed to the report in the first statement for Item B7 that it was estimated that the mixed DNA profile obtained was approximately 35 times more likely to have occurred, if Ms Schultz had not contributed DNA, rather than if she did, but in the fifth report Ms Schultz was excluded from having contributed DNA to the mixed DNA profile obtained from Item B7. Mr Hunt explained that the figure of 35 times more likely to have occurred if Ms Schultz had not contributed DNA was “more of a neutral figure”. The results are always described as “approximately”. If the analysis was run again, keeping everything the same, even the same STRmix version, there would still be some variability in the number generated. When 35 times is compared against a number that is greater than 100 billion times, the outcome is “much closer to being unsure”. Orders of magnitude are significant. If a number is “bouncing around in the tens or the hundreds”, it is still relatively low-level. It is close to that neutral range where there is some variation in the results. It demonstrates that there is not actually very much information that is subject of the comparison. The reason why Ms Schultz was able to be excluded in the fifth report was due to the change in the number of contributors. When it is a three-person mixture being analysed, there are a lot more options, and even if a person does not match all the lower information, the analysis may still favour contribution or be a low level favouring non-contribution. If the assumption is made that it is a two-person mixture, there are less options that are viable and the system will exclude a reference sample that does not have nearly all the peaks in common. Exclusions result from the change in the assumption of a mixed DNA profile indicating the presence of DNA from three contributors to an assumption that the mixed DNA profile indicates the presence of DNA from two contributors. The lower level results that change slightly between reports are “probably less meaningful” than the larger numbers. It would be concerning if the larger numbers were changing greatly.

142. The appellant put to Mr Hunt that he had admitted that he overestimated the number of contributors to forensic samples in the first statement that was the basis of the evidence that went to the jury for their consideration. Mr Hunt explained that he was doing “the best job of trying to work out the minimum number of people that could reasonably explain everything within the profile”. That may be an underestimation or an overestimation. The second independent scientist who was equally qualified who then does a peer review comes to their own conclusions and the results are released only if those two experts have come to a consensus position and agreed on a correct number of contributors for that profile. That may change as things are improved in the system and interpretations are updated. It is not to say that the interpretations were not correct at the time the first statement was prepared but some of the results have been improved by the changes that FSS has since made. Whenever the analysis was done, it would not result in giving a person a large figure for inclusion, if that person was not well represented within the profile.

143. FSQ had provided the appellant in the week prior to the hearing of the appeal the source documents for the reports of Mr Hunt and Ms Finch. More than 2,000 pages of material were provided. The appellant sought to cross-examine Mr Hunt on three of those pages, namely 2005, 2015 and 1948. Copies of those three pages were exhibit 1 on the appeal. The profile analytical detail on p 2005 was for Item B7. Mr Hunt explained what the profile interpretation covered. It became apparent that what the appellant thought he would achieve in cross-examination was based on his misunderstanding of the significance of some of the columns on the page and the cross-examination on the source documents was not pursued by the appellant.

144. There was no issue on the appeal that the further reports of Mr Hunt and Ms Finch and the oral evidence of Mr Hunt on the appeal constituted fresh evidence. The decision of the High Court in Gallagher v The Queen (1986) 160 CLR 392 remains authoritative for the test to be applied as to whether the receipt by an appeal court of fresh evidence demonstrates a miscarriage of justice. The members of the Court were divided on the exact formulation of the test but the judgment of Gibbs CJ and the joint judgment of Mason and Deane JJ endorsed the test formulated by Rich and Dixon JJ in Craig v The Queen (1933) 49 CLR 429 at 439:

“A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.”

145. After referring to the statement of Rich and Dixon JJ in Craig, Mason and Deane JJ in Gallagher at 402 stated:

“The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial. Obviously, that question can only be answered in the context of, and by reference to, ‘the probative force and the nature of the evidence already adduced at the trial’: Craig, per Rich and Dixon JJ.” (footnote omitted)

146. Gibbs CJ’s observations on this formulation were set out in Gallagher at 399:

“It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ. who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.”

147. The results of the further DNA testing revealed in the fifth report and explained by Mr Hunt’s further evidence on the appeal confirm that the evidence of the DNA analysis put before the jury remained relevantly intact, added to the case for the prosecution in some respects, and where there was a favourable result for the appellant on Item B1a that excluded Mr Popa’s DNA from the handle of the hammer (when previously no DNA had been detected) and attributed an incomplete contribution of DNA to the mixed DNA profile based on three contributors to an Unknown Male 2, that did not have a significant consequence for the arguments that were advanced at the trial based on the scientific evidence about the handle grip of the hammer. That favourable result for the appellant must also be considered in the context of an otherwise strong circumstantial case that it was the appellant who strangled Mrs Cobby. The appellant has failed to demonstrate that the fresh evidence of the results of the further DNA testing since the appellant’s trial gave rise to a significant possibility that a jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been adduced at the trial.

148. The appellant does not succeed on ground 5.

Ground 6 – Failure of the police to disclose iCare material

149. The respondent informed the Court that all material that could fall within the material described in ground 6 had been disclosed other than the “pre-interview” to the iCare material which was a document created by the police officer as preparation for the interview and was not the result of any interview or conversation with the child witness.

150. Any notes made by a police officer for internal purposes as preparation for conducting a s 93A interview that are not a record themselves of any interview or conversation with the child are not disclosable by the prosecution. It appears that the appellant has misunderstood the ambit of the iCare pre-interview material. There is no substance to ground 6.

Order

151. The appellant has failed to show the verdict of guilty was unreasonable and not succeeded on any of the other specific grounds of appeal. None of the appellant’s incidental submissions suggest that there is any other ground of appeal that can be formulated, so that the appeal could succeed in showing that there had been miscarriage of justice. The order which should be made is: Appeal dismissed.

152. FLANAGAN JA: I agree with the President. Having made my own independent assessment of the whole of the evidence, I agree that it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant.

153. As this was a circumstantial case I have weighed all the circumstances in deciding that it was open to the jury to draw the ultimate inference that the appellant’s guilt had been proved beyond reasonable doubt and that the prosecution had excluded any reasonable hypothesis consistent with his innocence.

154. I otherwise agree with the President that the appellant has failed to establish any miscarriage of justice arising from the other grounds of appeal.

155. BRADLEY J: I have assessed the sufficiency and quality of the whole of the evidence, in the context in which the appeal was brought, and reviewed and assessed the features of that evidence that support the appellant’s case and the Crown’s case on appeal as advanced in their respective written and oral submissions.

156. I agree with the President’s analysis of the evidence and with her Honour’s conclusion that it was open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt that another or others may have orchestrated the attack on Mrs Cobby that resulted in her death. For the reasons stated by her Honour, I agree that, on the whole of the evidence, it was not unreasonable for the jury to have decided there was no reasonable doubt as to the proof of the appellant’s guilt.

157. I also agree with the reasons and conclusions of the President with respect to each of the other grounds of appeal raised by appellant.

158. It follows that I concur with her Honour’s conclusion that the appeal should be dismissed.