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[2026] QCA 10
respondent. Appeal dismissed. The Court held that the trial judge did not err by failing to give the proposed specific warning concerning the severance of Ms Graham’s trial.
No linked legislation citations have been extracted yet.
Roser argued that the jury might have taken Ms Graham’s removal from their trial as a sign that his case was being conducted improperly or that they should think adversely of him. The Court of Appeal considered what the jury had been told, the directions given about the evidence, and the rest of the trial. It concluded that the judge’s explanation for separating the trials did not invite that reasoning and that the possible risk was not real in the circumstances. The conviction appeal was dismissed.
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2,258 words · generated 08/10/2026
Gregory Lee Roser appealed his conviction for the murder of Mr Saunders. His sole ground, as described by Mullins P, was that the trial judge’s failure to give an appropriate direction about the separation of Ms Graham’s trial from his own had occasioned a miscarriage of justice [1].
Mr Saunders was killed on a rural property near Gympie on 12 November 2017. He had been tree clearing with Roser and Mr Koenig. After the killing, Roser and Koenig partially fed Mr Saunders’ body into a woodchipping machine and fabricated a story that the death was accidental [2]. Ms Graham was not present when Mr Saunders was killed. She had been in relationships with Roser, Saunders and Koenig, and was the major beneficiary of Saunders’ estate [2].
The prosecution’s case at the joint trial was that Roser killed Saunders and Graham counselled or procured him to do so. Graham denied asking either Roser or Koenig to kill Saunders. Roser’s defence was that he did not kill Saunders or aid or encourage anyone to kill him. He did not dispute helping Koenig dispose of the body [4].
The trial began on 19 September 2022. On the fifth day, 26 September, Graham renewed an application to be tried separately. The application followed cross-examination of three witnesses that produced evidence inadmissible against Graham but highly prejudicial to her. The trial judge asked the parties to identify evidence inadmissible against Roser that might prejudice his trial if the jury continued without Graham. Roser’s counsel said there was not much evidence in that category and agreed with the prosecutor that it could be identified in the transcript and excluded from the jury’s consideration against Roser [5].
On 27 September, the judge discharged the jury from returning a verdict in Graham’s case. He told the jury that it had become too difficult to give separate consideration to the cases because of the evidence, including evidence highly prejudicial to Graham. The judge said that expecting the jury to separate the cases would require “impossible mental gymnastics” [7]. Roser’s trial continued. He did not apply at that point for the trial to start again or for further directions about the severance [9].
The trial judge used transcript markings and directions to distinguish categories of evidence. The jury were told to ignore struck-through evidence because it was not admissible against Roser. Highlighted passages could only be used against him if the jury were satisfied that the relevant statement or act furthered a common purpose to kill Saunders, applying the Tripodi principle described by the judge [10]-[12]. Other evidence concerning Graham or Koenig, not struck through or highlighted, could be used in Roser’s favour but not against him [12].
The jury convicted Roser. On 3 February 2026, the Queensland Court of Appeal dismissed his appeal. Mullins P gave the reasons, with Bradley J and Crowley J agreeing [38]-[40].
The appeal focused on two related warnings. The first was a conventional direction not to speculate about why an alleged co-offender was not on trial with the accused. The Court considered the suggested wording in the Supreme and District Courts Criminal Directions Benchbook, which refers to there being “all sorts of reasons” why alleged co-offenders might not be tried together [30]. It held that this direction was superfluous here because the judge had told the jury why Graham’s trial was being separated [31].
The second proposed warning was more specific. Roser argued that the jury should have been told not to draw an adverse inference against him from the severance. His suggested concern was that jurors might think the way his case had been conducted was “highly prejudicial” to Graham, or that the severance meant Graham needed protection from him [26]-[27].
The Court did not accept that this risk followed from the judge’s explanation. In context, the phrase “highly prejudicial” described the effect of particular evidence on Graham’s case. The judge’s explanation was that the jury could not fairly keep the evidence in the respective cases separate. It did not suggest that Graham needed protection from Roser [33]. Nor did the Court see the suggested reasoning as a reasonable inference from facts the jury had been asked to determine. The trial judge had repeatedly explained that the jury’s fact-finding must be based on evidence and reasonable inferences [33].
The Court also assessed the proposed warning in the context of the full trial, rather than considering the moment of severance in isolation. At that stage, less than one-third of the evidence in the case against Roser had been heard. There were ten further days of evidence during which counsel could have considered whether a further direction was needed [34]. The lack of a request for a direction was not determinative, but the Court considered it relevant. It also noted that Roser’s counsel had said there was not much evidence already given that was inadmissible against him [34].
Finally, the summing up was detailed about which evidence the jury could use and how it could use it [35]. The Court’s central conclusion was that the possible risk identified by Roser was “not a risk at all” in the circumstances of this trial and in light of the thorough directions [36]. It therefore held that the judge did not err [37].
The judgment addresses a narrow jury-direction issue. It does not set out a broad new test for severing criminal trials or comprehensively review the law about miscarriages of justice. Its stated approach is case-specific: whether the omission of a warning was error depended on the circumstances of the trial, “including all the directions given” [29].
The judgment records a conventional form of no-speculation direction from chapter 30 of the Supreme and District Courts Criminal Directions Benchbook [30]. It does not say that the direction is generally unnecessary. Rather, it found that this direction was unnecessary in Roser’s trial because the judge directly explained the reason for the severance [31]. The distinction is important: the decision concerns the practical adequacy of the explanation given in this trial, not a general rejection of directions concerning absent co-offenders.
The judgment also distinguishes between the usual warning about why a co-offender is not present and the more particular warning Roser sought. The latter concerned a possible adverse inference arising from the circumstances of Graham’s severance [32]. The Court held that the proposed inference did not arise from the judge’s explanation and that the asserted risk was not real in the trial context [33], [36].
The Court refers to Tripodi v The Queen (1961) 104 CLR 1 in describing the evidence directions given at trial [12]. The appeal reasons do not undertake a fresh analysis of Tripodi or state a new formulation of its principle. They explain that the jury had been directed about when statements or acts made outside Roser’s presence could be used against him, and that the trial judge would say more in the summing up [12], [19].
The text does not describe a change in the law before or after this decision. It supplies the Court’s application of existing jury-direction concepts to the particular circumstances. Any wider account of the state of the law would require legal sources beyond this judgment.
At [29], Mullins P states that Roser could succeed only if he showed error “in the circumstances of the trial, including all the directions given”. In plain English, the Court assessed the alleged omission against the whole trial, rather than asking whether the proposed warning could have been given in the abstract.
At [31], the Court says the ordinary no-speculation direction “was superfluous” because the judge had explained why Graham’s trial was separated. The reasoning is that the jury had not been left to guess about the reason for her absence from the continuing trial.
At [33], the Court rejects the idea that the judge’s explanation raised the possibility that Graham needed protection from Roser. It also says the proposed adverse-inference reasoning did not fit the kind of reasonable inference the jury had been directed to draw from proved facts. In plain English, the Court saw no proper evidential path from the severance explanation to an adverse conclusion about Roser.
At [34], the Court notes that less than one-third of the evidence had been heard at severance and that ten more days of evidence followed. The lack of a request for another direction was “not determinative”, but was relevant. This passage shows the Court treated trial counsel’s response as one contextual consideration, not as an automatic bar to the appeal.
At [35], the Court describes the summing up as detailed in identifying the evidence relevant to the verdict and instructing the jury how to use it. That assessment matters because the appeal concerned whether the omission of one warning created a risk despite the other directions.
At [36], Mullins P concludes that the asserted risk was “not a risk at all” in the context of the directions and circumstances. At [37], the Court states its holding: “The trial judge did not err by not giving the specific warning.” The appeal was dismissed [38].
The decision is most relevant to a case where co-accused begin a joint trial, one accused’s trial is later separated because evidence creates difficulty in keeping the cases distinct, and the remaining accused argues that the jury needed a further warning about the separation. Its reasoning is particularly connected to a situation where the trial judge explains the reason for the severance to the jury rather than leaving the circumstances unexplained [7], [31].
The case also concerns a proposed warning against an adverse inference that the severance reflected badly on the continuing accused. The Court’s analysis would be relevant where that argument depends on the jury interpreting prejudicial evidence or the conduct of the defence as a reason to think adversely of the accused. In Roser, the Court found that the judge’s explanation did not invite that interpretation [32]-[33].
Other features formed part of the assessment: the amount and nature of evidence already heard, the time remaining in the trial, whether counsel raised the need for further directions, and the detailed directions given about admissibility and use of evidence [34]-[35]. The decision does not establish that any one of these factors is decisive. It considers them together in the circumstances of Roser’s trial.
The judgment does not support treating the result as an automatic rule that a no-speculation warning is unnecessary whenever a judge explains severance. Its holding is expressly tied to the explanation and other directions in this trial [31], [36]. If a different explanation, evidentiary context or set of directions were involved, the judgment itself does not determine whether the warning would be required.
The supplied judgment contains no discussion of later cases applying, distinguishing or otherwise treating R v Roser. It was delivered on 3 February 2026, and the text provided identifies no subsequent decisions. Accordingly, no claim about its later treatment can be made from this source.
The judgment does identify Tripodi v The Queen (1961) 104 CLR 1 as a source relevant to the trial judge’s evidence directions [12]. In recounting those directions, Mullins P explains that certain statements or acts made outside Roser’s presence could be used against him only if the jury were satisfied they furthered the alleged common purpose to kill Saunders [12]. This is a reference to the trial’s evidentiary directions, not a detailed appellate examination of Tripodi’s continuing scope.
The appeal judgment also refers to the Supreme and District Courts Criminal Directions Benchbook for a suggested co-offender direction [30]. It treats the suggested wording as a useful point of comparison but decides the appeal on the basis that the judge’s actual explanation made the direction superfluous in this case [31]. The source does not say how courts later used that reasoning.
The judgment leaves open how the same issue would be resolved if the judge gave no explanation for severance, or gave an explanation that could reasonably lead jurors to associate the severance with blameworthy conduct by the accused. The Court decided only that the explanation given here did not raise the suggested concern [31]-[33].
It also does not determine when a separate warning against drawing an adverse inference would be required in another case. The Court rejected the asserted risk in this trial, considering the judge’s explanation, the evidence directions, the summing up, the remaining evidence and the absence of a request for further directions [34]-[36]. It does not prescribe a universal checklist or say which circumstances would make such a risk real.
The decision does not resolve what effect a timely request for a warning, or an application to restart the trial, might have had in different circumstances. It notes that no such request was made when Graham’s trial was severed and that the absence of a request was not determinative [9], [34]. The judgment does not decide the consequences of a different procedural response.
Finally, the appeal reasons do not examine the Tripodi principle beyond describing the directions given to the jury [12], [19]. Nor do they provide a comprehensive account of how severance decisions should be made. Those matters should not be treated as resolved by this narrow holding.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Roser [2026] QCA 10
PARTIES: R / v / ROSER, Gregory Lee / (appellant)
FILE NO/S: CA No 251 of 2022 / SC No 527 of 2020
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: Supreme Court at Brisbane – Date of Conviction: 21 October 2022 (Burns J)
DELIVERED ON: 3 February 2026
DELIVERED AT: Brisbane
HEARING DATE: 14 March 2025
JUDGES: Mullins P, Bradley J, Crowley J
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty after trial of one count of murder – where the trial commenced as a joint trial of the appellant and his co-offender – where the appellant and his co-offender were in a romantic relationship at the time of the offence and the prosecution case was that the co-offender counselled or procured the appellant to kill the victim – where the trial judge previously dismissed an application by the co-offender to be tried separately to the appellant – where the co-offender renewed the application to be tried separately on the fifth day of the trial after the some of the evidence adduced in the cross-examination of witnesses by the appellant’s counsel was inadmissible against the co-offender but highly prejudicial towards her – where the appellant’s counsel identified there was not much evidence which had been adduced to date that was inadmissible against the appellant – where the trial judge discharged the jury in respect of giving a verdict against the co-offender – where the trial judge explained to the jury some of the evidence against the co-offender was “highly prejudicial” and the point had been reached where the jury was being asked “to perform impossible mental gymnastics” in respect of the co-offender’s case – where the trial continued against the appellant – where there was no application made by the appellant at the time of the severance of the co-offender’s trial for the appellant’s trial to start again or for further directions to be given about the severance – whether the trial judge erred in failing to give a further direction to mitigate the effect of using the expression “highly prejudicial” when explaining the severance of the co-offender’s trial / Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, cited
COUNSEL: N A McGhee for the appellant / M A Green for the respondent
SOLICITORS: Bamberry Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
Background
Mr Saunders had been killed on a rural property near Gympie on the evening of 12 November 2017. He had been tree clearing with the appellant and Mr Koenig. After he was killed, his body was partially fed into a woodchipping machine by the appellant and Mr Koenig. They fabricated a story that his death was accidental. Ms Graham was not at the scene at the time Mr Saunders was killed. She was in a relationship with the appellant and had been in a relationship with each of Mr Saunders and Mr Koenig. She was the major beneficiary of Mr Saunders’ estate and stood to gain substantial wealth upon his death.
The appellant, Mr Koenig and Ms Graham were originally jointly charged with the murder of Mr Saunders on 12 November 2017. On 12 July 2022, the prosecution presented a new indictment against Mr Koenig charging him with accessory after the fact to murder. He pleaded guilty to that charge. The prosecution entered a nolle prosequi on his murder charge on the joint indictment and he then became a prosecution witness against both Ms Graham and the appellant.
The trial
The joint trial of Ms Graham and the appellant commenced on 19 September 2022. The prosecution case at the joint trial was that the appellant killed Mr Saunders and it was Ms Graham who counselled or procured him to do so. Ms Graham’s counsel had outlined to the jury at the commencement of the trial that Ms Graham did not ask either the appellant or Mr Koenig to kill Mr Saunders. Her case was that she was told that Mr Saunders died as a result of an accident and she believed what she was told because she was not there when it happened. The appellant’s counsel also made opening comments to the jury. They were to the effect that the appellant did not dispute that Mr Saunders was murdered but the appellant did not murder Mr Saunders nor did he aid or encourage anyone to murder him. The appellant’s counsel identified the pivotal question in the trial of the appellant would be whether Mr Koenig was responsible for the murder of Mr Saunders. The appellant did not dispute assisting Mr Koenig in the disposal of Mr Saunders’ body in the woodchipper.
Even though the trial judge had previously dismissed an application by Ms Graham that she be tried separately to the appellant, Ms Graham renewed that application on the fifth day of the trial (26 September 2022). The application was prompted by the evidence of three witnesses given in cross-examination which was not admissible against Ms Graham but was highly prejudicial to her. Those witnesses were Ms Grills, Ms Watts and Mr Collins. The trial judge requested the parties to identify what evidence had been adduced in the trial to date which was not admissible against the appellant and which had any prejudicial effect on the trial proceeding against the appellant, if the jury were discharged from giving a verdict against Ms Graham. During the hearing of the application the appellant’s counsel identified that there was not much evidence in the category that was not admissible against the appellant and the appellant’s counsel and the prosecutor agreed that those parts of the evidence could be “highlighted” in the transcript given to the jury and they could be directed not to use that evidence against the appellant.
On 27 September 2022 the trial judge discharged the jury from returning a verdict with respect to Ms Graham. The trial judge then raised with the appellant’s counsel and the prosecutor that rather than highlighting the evidence in the transcript that was inadmissible against the appellant, those parts should be struck through. The trial judge proposed giving a direction to the jury when the transcript was given to them and in the summing up that they were not to use the parts that were struck out because they were not admissible against the appellant. The appellant’s trial continued on and from 27 September 2022.
On 27 September 2022, the primary judge informed the jury of his decision that Ms Graham should be tried separately to the appellant and that they were discharged from delivering a verdict in the case against her:
“Ladies and gentlemen, you will recall at the start of the trial that I explained we are dealing with two trials in one and it is necessary for you to give separate consideration to the cases against the accused. In particular, I directed you that you must confine your consideration of each case to the evidence admissible in that case and so the barristers have been working behind the scenes on an evidence only transcript marked up to assist you in that regard.
However, sometimes it is asking too much of a jury to expect that you can give separate consideration to the respective cases. That will be where there is just so much evidence that you need to put out of your minds, especially where some of that evidence is highly prejudicial, that to ask you to give the cases separate consideration would be asking you to perform impossible mental gymnastics. So far as the case against Ms Graham is concerned, that point has been reached.
After hearing argument from counsel this morning, I decided that Ms Graham should be tried separately to [the appellant]. I therefore discharge you from having to deliver a verdict in her case. I will ask that you retire, only for five minutes, so that I can attend to some formal steps regarding Ms Graham and when you return, we’ll continue the trial – well, we’ll continue [the appellant’s] trial.”
As a result of that trial not proceeding in respect of Ms Graham, the prosecution requested the trial judge to re-visit an earlier ruling made on 12 September 2022. That application was supported by the appellant’s counsel and was successful on 28 September 2022. The reasons for the rulings by the trial judge made on 12, 27 and 28 September 2022 were subsequently provided to the parties: R v Graham & Roser [2022] QSCPR 12 (the reasons).
There was no application by the appellant at the time of the severance of Ms Graham’s trial for the appellant’s trial to start again. Mr Koenig’s evidence commenced on 27 September 2022 and continued the next day.
During the trial, the jury were provided with the evidence-only transcript for each day’s evidence, commencing with the transcript for the second day of the trial. The first of those transcripts was not provided until 4 October 2022 when the jurors were provided with the evidence-only transcripts for days 2, 3 and 4 of the trial. The trial judge then explained the strike outs and highlighting in the transcripts by taking them to examples. In relation to the evidence that was struck out, the trial judge stated:
“Now, some of the evidence that was previously admitted concerned only Ms Graham, and it has been struck through in the transcript, so that’s why it’s struck through. So if you see any striking through, you must ignore that evidence completely. So the transcript’s not evidence, but it’ll remind you of what the witness has said. You must ignore what the witness said in relation to those passages. That evidence is not admissible against [the appellant], and therefore cannot be used in any way in your consideration of the case against him.”
The striking out was done by a red line drawn through each line of text. The underlying words were still visible and there is no complaint on this appeal about that. In fact, as jurors tend to make their own notes and may recall, when deliberating, evidence without the benefit of a transcript, it was important that the jury could identify those relatively small numbers of passages in respect of which they were told to “ignore that evidence completely”. The striking out applied only to the transcripts for days 2 to 5.
The trial judge explained that the highlighted passages in the evidence-only transcript were in a different category. He described the principle in Tripodi v The Queen (1961) 104 CLR 1 in lay terms and then gave the following directions:
“So if you were satisfied, beyond reasonable doubt, [the appellant] was acting in common purpose with Ms Graham, and later Mr Koenig, to kill Mr Saunders, and that something was said or done by Ms Graham, or by Mr Koenig after he joined in the plan, in the absence of [the appellant], and that what was said, or what was done, was in furtherance of their plan to kill Mr Saunders, then that statement or act may be used as evidence against [the appellant], even though he wasn’t there. Otherwise, you cannot use that evidence against [the appellant]. I’ll say a little more about this topic in my summing up, but the point for now is that wherever you see a highlighted passage in the transcript, you need to ask yourselves whether you are satisfied beyond reasonable doubt that what was said or done was said or done in furtherance of the plan to kill Mr Saunders. It’ll only be if you are so satisfied that you may use that evidence against [the appellant].
Now, for completeness, the balance of the transcript has not been struck through or highlighted. You’re not obliged to do so, it’s entirely a matter for you to decide what evidence you accept or reject, and what weight you give that evidence, or what weight you give the evidence that you accept. You’ll notice, however, that there’s quite a bit of evidence that concerns acts done or statements made by Ms Graham or Mr Koenig that were not done or said in the presence of [the appellant], but which have not been struck through or highlighted.
That evidence is available for you to use, but you can only use that evidence in [the appellant]’s favour. You must not use it against him. The only evidence in that category that you could use against [the appellant] is in the highlighted passages, and when you are considering evidence represented by those highlighted passages, you need to be satisfied beyond reasonable doubt that [the appellant] is acting in common purpose with Ms Graham, and later Mr Koenig, to kill Mr Saunders, and that what was said or done was said or done in furtherance of that purpose.”
At the conclusion of the prosecution case, the appellant elected to give evidence and did so on 13 October 2022 (day 15). The appellant’s counsel addressed the jury on 17 October 2022. The prosecutor commenced his address to the jury in the afternoon of 17 October 2022 and completed the address the next day. The trial judge then summed up on 18 October 2022.
After the jury had been discharged from giving a verdict in the trial against Ms Graham, there were a further ten days of the trial in which witnesses gave evidence.
The summing up
At the outset, the trial judge identified the critical issue for the jury as whether they were satisfied beyond reasonable doubt that the appellant murdered Mr Saunders. It was not for them to decide whether Mr Koenig was the person responsible but it was emphasised that their focus must be on the appellant and whether, on all the evidence, the prosecution had discharged the burden of proving beyond reasonable doubt that it was the appellant who murdered Mr Saunders. The trial judge suggested to the jury that the real issues for determination were:whether they were satisfied beyond reasonable doubt that the appellant struck the blows that killed Mr Saunders from the nature of the weapon used and the manner in which the blows were delivered; andwhether the plan involved Mr Saunders dying because there could be no recovery by Ms Graham under the will or the life insurance policy if there were any outcome other than Mr Saunders’ death from which plan the jury could infer that the appellant intended to cause Mr Saunders’ death.
The trial judge then stated:
“You could only reach such a conclusion if you are satisfied beyond reasonable doubt of the truthfulness and accuracy of Mr Koenig’s evidence in these essential respects. If you are not satisfied beyond reasonable doubt about that, you must acquit [the appellant].”
The trial judge gave the usual directions about the jury’s task of determining the facts of the case based on the evidence placed before them in the courtroom. The trial judge identified what was the evidence adduced at the trial.
The trial judge repeated the directions that had been given throughout the trial to the jury about the evidence-only transcript. He reminded the jury about the directions he had given in relation to all transcripts that the evidence was not the transcript but what the jury heard the witnesses say and that the evidence-only transcript was an aid to assist the jury to recall that evidence. The trial judge gave a specific direction on the evidence admitted early in the trial that concerned only Ms Graham:
“Some of the evidence that was previously admitted in this trial concerned only Ms Graham when she was still an accused in this trial, and for that reason, it has been struck through in the transcript. In the case of all passages that are struck through, you must ignore that evidence completely. That evidence is not admissible against [the appellant] and therefore cannot be used in any way in your consideration of the case against him.”
Apart from the highlighting of passages in the evidence-only transcript, the same device of highlighting evidence admissible on the basis that it was evidence of the appellant, Mr Koenig and Ms Graham combining in a common purpose to kill Mr Saunders was applied to the transcripts of some of the recordings and other exhibits admitted in the trial. The trial judge gave specific directions about the conditions of which the jury had to be satisfied before they could use the highlighted evidence against the appellant under the Tripodi principle. There was also a specific direction given about evidence of acts done or statements made by Ms Graham or Mr Koenig that were not done or said in the appellant’s presence but which had not been struck through or highlighted in the transcript. It was explained to the jury that evidence was available for them to use in the appellant’s favour but they were not to use it against him.
The jury were given the usual directions about drawing reasonable inferences based on the facts they found proved by the evidence and that they must, as the jury, “act impartially, dispassionately and fearlessly, deciding the facts and arriving at your verdict upon the whole of the evidence and only on that evidence”. A Liberato direction was given. The usual direction about approaching the assessment of Mr Koenig’s evidence “with considerable caution” was given in view of the reduced sentence he received on pleading guilty to being an accessory after the fact to murder on account of his undertaking to give evidence against the appellant.
Apart from one lie told by the appellant that was identified (the consciousness of guilt lie), the prosecution only relied on the lies told by the appellant as relevant to his credibility. The trial judge gave the usual directions in relation to any lies the jury found that the appellant told that were relevant to his credibility and warned them about not following the process of reasoning that, because the appellant may have lied, it was in some way evidence of guilt of the offence. The trial judge dealt comprehensively with three categories of post-offence conduct, namely (1) that the appellant took the lead in telling the false story about an industrial accident; (2) the series of calls made by the appellant to Ms Graham and triple 0 on the night of 12 November 2017; and (3) the consciousness of guilt lie. The consciousness of guilt lie was that made by the appellant in the early part of his interview with the police in January 2018 when he initially said that he did not have his mobile phone with him when he was working at clearing the property on the day of the accident. He later said in the same interview he must have had his mobile because he used it to light his way around the site after dark. These directions as to the use of lies that affected the appellant’s credibility and post-offence conduct were detailed and clear in explaining to the jury how to use this type of evidence about which no complaint is made on this appeal.
“There must be a logical and a rational connection between the facts you find proved and the inferences you draw. You are not to indulge in intuition, speculation or guesswork, and that if one – more than one inference is reasonably open, one that is adverse to [the appellant] and one or more which are in his favour, you must draw the inference that most favours [the appellant]. That means rejecting an inference adverse to him and, instead, drawing an inference which is in his favour.”
The trial judge then summarised the addresses of counsel, noting that both counsel had “focused on the central question, that is to say, whether you can be satisfied beyond reasonable doubt about the essential features of Mr Koenig’s evidence”. The summary highlighted the aspects of the evidence relied on respectively by the appellant’s trial counsel and the prosecutor on the critical question.
There were some questions from the jury towards the end of the first full day of their deliberations. One of the questions was “Could you please repeat the three things you must consider for making an inference on the available evidence?”. The trial judge answered that question as follows:
“In addition to facts directly proved by the evidence, you may also draw reasonable inferences from facts which you find to be established by the evidence. In other words, if you are satisfied that certain things happened, it might – it might be right to infer that something else occurred. That is the process of drawing an inference from facts. But whenever you are considering doing that, please keep these three directions firmly in mind: (1) you may only rely on reasonable inferences based on the facts you find to be proved by the evidence; (2) there must be a logical and rational connection between the facts you find proved and the inferences you would draw. You are not to indulge in intuition, speculation, or guesswork, and (3) if more than one inference is reasonably open, one of which is adverse to [the appellant], pointing to guilt, and one of which is in his favour, pointing – or consistent with his innocence – you must draw the inference that most favours [the appellant]. That means rejecting any inference adverse to [the appellant] and instead drawing the inference which is in his favour.”
Appellant’s submissions
The appellant’s submissions on the appeal include the following. The trial judge was required to give a warning to the jury that they should neither speculate about the separate trial being ordered for Ms Graham and the reasons behind it nor draw any inference against the appellant on account of the separate trial being ordered for Ms Graham (the specific warning). They were not told that they could make no use of the severance of Ms Graham’s trial. They were told by the trial judge that the reason for the separate trial being ordered for Ms Graham was that some of the evidence was “highly prejudicial” and that the point had been reached where it was asking the jury “to perform impossible mental gymnastics” so far as the case against Ms Graham was concerned and that Ms Graham should therefore be tried separately to the appellant. The use of the expression “highly prejudicial” to describe evidence required the trial judge to ensure that no adverse inference was drawn by the jury against the appellant. It would not have been lost on the jury that the severance of Ms Graham’s trial followed days of effort by the appellant’s counsel to discredit Ms Graham during the cross-examination of witnesses when the “highly prejudicial” evidence emerged. The only conclusion that the jury could have drawn was that the appellant’s case was being conducted in a “highly prejudicial” way against Ms Graham so that her interests required protection against him.
The appellant concedes that his trial counsel did not seek a direction of the type which is now submitted should have been given. Because so many directions were given by the trial judge in respect of the evidence to ensure that the trial was fair to the appellant, the appellant submits that the failure of the trial judge to give the specific warning to the appellant exacerbated the risk that the jury may have placed weight on that development or made some improper use in their deliberations adverse to the appellant of the act of severance of Ms Graham’s trial from the trial of the appellant.
Respondent’s submissions
Should the trial judge have given the specific warning?
The appellant can succeed on this appeal only if he can show that in the circumstances of the trial, including all the directions given by the trial judge, there was an error in the trial judge not giving the specific warning.
There are two aspects to the specific warning. The first aspect is based on the direction that is commonly given when one co-offender is not on trial at the same time as another co-offender. The suggested direction in chapter 30 of the Supreme and District Courts Criminal Directions Benchbook is:
“You have heard about [the existence of/role of co-offender] to give full context to the evidence in this case. Obviously, [he/she] is not on trial here. There are all sorts of reasons why alleged co-offenders are not tried together. You must not speculate about why [he/she] is not here. As I have said, you are to decide this case only on the evidence before you.”
Such a direction was superfluous in the appellant’s trial, when the trial judge explained to the jury why he decided to order the separate trial for Ms Graham at the time he did so.
The second aspect is based on a process of reasoning that depends on an inference by the jury that, despite the trial judge’s explanation for the severance of Ms Graham’s trial, either the conduct of the appellant’s case at the trial required Ms Graham to have a separate trial to be protected from the appellant or that otherwise the conduct of the appellant’s case that resulted in the “highly prejudicial” evidence reflected adversely on the appellant, and any such inference possibly influenced the jury deliberations.
This suggested process of reasoning is not obvious from the apt description of “highly prejudicial” to Ms Graham in respect of the evidence which emerged in the cross-examination of the three witnesses which underpinned the trial judge’s decision that it was unfair to expect the jury to give separate consideration to the respective cases against the appellant and Ms Graham. The trial judge’s explanation to the jury did not in any way raise the idea that Ms Graham had to be protected from the appellant. This suggested process of reasoning did not fall within the type of reasonable inferences drawn from facts proved by the evidence to the satisfaction of the jury which the judge had explained repeatedly to the jury as a permissible process of fact finding.
At the stage when the jury was discharged from giving a verdict in respect of the trial of Ms Graham, less than one-third of the evidence in the case against the appellant had been adduced. There was ample opportunity over the next 10 days’ of evidence for reflection by the appellant’s trial counsel on the circumstances of the severance of Ms Graham’s trial and on whether any further direction was required about the severance. It is not irrelevant that no further direction such as the specific warning was sought. Even though not determinative, it is also of note that the appellant’s trial counsel considered that there had not been much evidence adduced in the trial to the date of severance which was not admissible against the appellant.
The summing up was detailed in identifying for the jury the evidence on which they had to base their verdict and in instructing the jury on how to use the evidence in undertaking their task of reaching a verdict, including the process of fact finding required of the jury in doing so.
The nub of the appellant’s argument is that the trial judge’s directions throughout the trial and the summing up were so comprehensive that the trial judge’s failure to give the second aspect of the specific warning left open the risk that the jury may have drawn an inference adverse to the appellant from the severance of Ms Graham’s trial. The risk which the appellant now asserts the second aspect of the specific warning would have addressed was not a risk at all in the context of the thoroughness of the directions given by the trial judge and in the circumstances of this trial.
Order
The order which should be made is: Appeal dismissed.
BRADLEY J: I agree with the reasons of the President and with the order her Honour proposes.
CROWLEY J: I agree with Mullins P.
R
Roser [2026] QCA 10
(1961) 104 CLR 1
Appeal dismissed. The Court held that the trial judge did not err by failing to give the proposed specific warning concerning the severance of Ms Graham’s trial.
The prosecution had relied on a motive for the appellant’s actions in that he might share in the windfall with Ms Graham that might come to her on Mr Saunders’ death from his will and life insurance policy. In giving the usual direction as to the relevance of motive, the trial judge noted that if the jury decided that the evidence relied on by the prosecution did not support an inference as to the motive for the appellant to kill Mr Saunders, that did not necessarily mean the prosecution had failed to prove guilt because of lack of motive as the jury “would have to base [their] verdict on the evidence that [they] do accept”.
When directing the jury on the elements of the offence of murder and the alternative offence of manslaughter, the trial judge drew the jury’s attention to the second and third elements of the offence which were described as critical, namely that the appellant killed Mr Saunders or, in other words, caused his death and that the appellant did so intending to cause Mr Saunders’ death or at least to cause grievous bodily harm to Mr Saunders. The trial judge emphasised that the jury could only find the second and third elements proved, if they were satisfied beyond reasonable doubt of the truthfulness and accuracy of the essential features of Mr Koenig’s evidence regarding the killing of Mr Saunders. Specific directions were given about drawing inferences as to the appellant’s intention at the time he struck Mr Saunders (if the jury found that the second element had been proved beyond reasonable doubt). The trial judge repeated the usual direction about the drawing of reasonable inferences based on the facts the jury found to be proved by the evidence, reminding the jury:
The trial judge did not err by not giving the specific warning.