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[2025] QCA 150
respondent. Appeal dismissed. Grounds 1, 2 and 3 were not made out.
The appeal court left the murder conviction in place. It accepted that the prosecutor improperly invited the jury to use the appellant’s past violence as support for finding murderous intent. But the judge warned the jury against that reasoning, and the appeal court considered the warning and the rest of the summing up adequate. The prior-violence evidence was admissible as background, not as proof of intent. The court also found no material error in the hearsay warning or the directions explaining the intent required for murder.
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2,398 words · generated 07/10/2026
The Court of Appeal dismissed Shaun Sturgess’s appeal against his conviction for murdering his estranged wife. Ryan J delivered the principal reasons, with Flanagan JA and Brown JA agreeing ([1]–[3]). The order was that the appeal be dismissed.
No linked legislation citations have been extracted yet.
Sturgess and the deceased separated at the end of 2019. On 28 April 2020, the deceased returned to their former home to collect a desk and jewellery. During an argument about their property split, Sturgess struck her in the back of the head with a sledgehammer. The Crown pathologist described four scalp lacerations in a pattern consistent with one blow delivered with severe force ([4]–[5]). The Crown did not allege premeditation. Sturgess admitted striking her, but the trial dispute was whether he had the intent required for murder: an intention to kill or, alternatively, to cause grievous bodily harm ([5]–[7]).
The prosecution relied on evidence about earlier violence towards the deceased, including an incident in which Sturgess tackled her and slammed her head into the floor. There was also evidence from their daughter, D1, about an alleged statement by Sturgess that he would have killed the deceased if she were not the mother of his children. In cross-examination, D1 said she had not heard the statement herself and that her mother had told her about it ([37]–[44]).
The appeal raised three issues: whether the prior-violence evidence was properly admitted and used; whether the judge should have specifically warned about the hearsay aspect of D1’s account; and whether the jury had been adequately directed on the intent required for murder ([8]). Ryan J also considered the consequences of the High Court’s intervening decision in MDP v The King, delivered after the appeal hearing. The court assessed the complaints about jury directions as potential errors of law under the second limb of s 668E(1) of the Criminal Code ([10]–[18]).
The judgment’s central distinction is between the relevance of prior violence as background and its impermissible use as proof that Sturgess must have acted with murderous intent. Ryan J held that the evidence was admissible and had a legitimate contextual role. It could help the jury understand the circumstances and make the fatal violence intelligible, particularly given other evidence that might suggest an extraordinary mental or emotional condition ([95]–[97]). But it did not bear on the critical question of Sturgess’s state of mind at the instant he struck the fatal blow ([100]).
The prosecutor nevertheless invited the jury to reason from a supposed pattern or propensity for violence to murderous intent. Ryan J said the prosecutor “plainly” did so, despite the Crown’s position on appeal to the contrary ([102]). The prosecutor should not have made that invitation ([110]). That finding did not, however, determine the appeal. The court considered the whole trial: the judge’s directions, the parties’ closing addresses, and the evidence relevant to intent.
The trial judge warned the jury that they could not infer murderous intent only from the fact that other acts had occurred. He added that it would be “quite wrong” to conclude that Sturgess was the sort of person likely to have intended to kill or cause grievous bodily harm ([78]). Ryan J considered that the final message was clear, notwithstanding the appellant’s argument that words such as “only” and “not enough” might have left room for propensity reasoning ([106]–[108]). The judge’s detailed summing up then focused the jury on the evidence relevant to intent: the weapon, the force and location of the blow, Sturgess’s conduct, and his statements ([80]–[82]). It did not treat past violence as evidence of his intent at the time of the killing ([111]–[113]).
The appeal court also examined whether the challenged direction could realistically have affected the jury’s reasoning. Under MDP, a decision about what directions to give may be a decision on a question of law, even if counsel did not object or request a different direction. But, subject to the proviso and the exception for a fundamental failure to observe the criminal process, an error must be capable realistically of affecting the jury’s reasoning to the verdict in the trial that occurred ([15]–[18]). Ryan J concluded that any possible deficiency in the directions did not meet that test. The prosecutor’s propensity argument was not the focus of the Crown case, was illogical in the context of the evidence, and was met by the defence address ([103]–[110]). The judge’s directions and emphasis on intent overwhelmed the improper invitation ([111]–[114]).
On the hearsay issue, D1’s evidence changed character during her evidence. She had initially described the alleged threat as something she heard, but later said her mother had told her about it. The judge discussed the proposed s 93C warning with counsel. Both sides asked the judge not to use D1 as an example because the hearsay status of her evidence was controversial ([118]–[120]). Ryan J found the warning about statements made by the deceased apt to cover D1’s evidence if the jury considered it hearsay. Expressly naming D1 could also have risked suggesting that the judge believed the threat had been made or simply reminding the jury of it ([120]–[125]).
Finally, the jury directions on intent were adequate. The judge explained that the prosecution had to prove beyond reasonable doubt that Sturgess meant to cause death or grievous bodily harm by his conduct, and that intent could be momentary and inferred from the circumstances ([79]). The judge then summarised the parties’ competing arguments and explained the circumstantial-evidence test and the burden of proof ([80]–[82]). The court found no legal error in that direction ([128]–[130]).
This judgment applies the common-form appeal provision in s 668E(1) of the Criminal Code. It distinguishes the second limb, concerning a wrong decision on a question of law, from the third limb, which concerns miscarriage of justice on any ground ([13]). Both are subject to the statutory proviso that allows the court to dismiss an appeal if no substantial miscarriage of justice actually occurred ([14]).
The principal statement of appellate approach came from MDP v The King. Ryan J explained that a wrong decision on a question of law requires a wrong determination or response by the trial judge that has legal effect in the trial. A ruling about the content of directions can qualify, and the judge’s responsibility to state the law correctly is not displaced by the absence of a request from counsel ([15]–[16]). But, apart from an error involving a fundamental failure to observe the requirements of the criminal process, the appellant must show that the error could realistically have affected the jury’s reasoning to the verdict in the trial that occurred ([15]).
The judgment does not purport to establish a new general rule about all domestic-violence evidence. Its treatment is tied to this record and the issue at trial. Section 103CB made relevant domestic-violence evidence admissible, but, as Ryan J stressed, the section did not prescribe the particular issue to which evidence was relevant or its permissible use ([53]). The evidence here was relevant to background and context, but not to whether Sturgess had murderous intent at the moment of the blow ([95]–[100]).
The court also considered ss 93B and 93C of the Evidence Act 1977 (Qld). The judgment describes s 93C as requiring a warning, upon request and unless there are good reasons not to give one, concerning evidence admitted under s 93B ([117]). It does not determine a broad rule for every situation in which a witness unexpectedly reveals hearsay during cross-examination. Instead, it holds that the particular warning given was apt to apply if the jury regarded D1’s evidence as hearsay, and that expressly identifying her evidence was not shown to be necessary in the circumstances ([118]–[125]).
The available judgment text provides no account of later courts’ treatment of R v Sturgess. It therefore supports explaining the decision and its application of MDP, but not making claims about subsequent appellate adoption, limitation, or development.
At [53], Ryan J said: “Section 103CB renders relevant domestic violence evidence admissible in a criminal proceeding. But it does not render evidence of domestic violence relevant in a particular way.” In plain English, the statute’s admissibility rule does not automatically make past violence proof of intent, propensity, or any other particular issue. The proposed use must still fit the issues in the case.
At [78], the trial judge told the jury: “It would be quite wrong for you to say, having heard that evidence, the [appellant] is the sort of person likely to have intended to kill or do grievous bodily harm.” Ryan J considered this a clear warning against using prior violence to infer that Sturgess had murderous intent on the occasion in question ([106]–[108]).
At [100], Ryan J observed that prior violence had “no relevance to the only question for the jury”, namely whether Sturgess had murderous intent when he struck the deceased. The judgment therefore separates evidence’s contextual relevance from its ability to establish the accused’s state of mind at a particular moment.
At [110], Ryan J stated: “The prosecutor should not have invited the jury to use evidence of the appellant’s prior violence in proof of his murderous intent.” The court did not excuse that argument. It separately assessed its effect and concluded that it did not realistically alter the jury’s reasoning ([110]–[114]).
At [15], the judgment summarises the applicable appeal threshold from MDP: absent a fundamental failure in the criminal process, an error of law must be capable realistically of affecting the jury’s reasoning to the guilty verdict in the trial that occurred. Put simply, identifying a possible direction error is not by itself enough under the second limb; the statutory test also concerns its potential effect on the verdict.
At [128], Ryan J concluded that the real issue of intention had been “thoroughly ventilated” and that “[n]othing more was required.” This conclusion rests on the directions as a whole, including the explanation of intent and the careful summary of both parties’ positions.
The most direct application is a criminal trial where prior violence is admitted for a contextual purpose, but the prosecution risks using it to argue that the accused had the charged intent because they had previously acted violently. Sturgess demonstrates that courts will distinguish the evidence’s admissibility and contextual relevance from the distinct question of whether it proves the accused’s state of mind at the time of the charged act ([95]–[100]).
The decision is also relevant where a prosecutor makes an improper propensity submission and the appeal concerns whether the trial judge’s directions adequately neutralised it. The court assessed not only the wording of the warning but also the closing addresses, the prominence and logic of the improper argument, and the focus of the summing up as a whole ([102]–[114]). Its result is fact-specific: it does not say that a general warning will always cure an improper submission.
The case may also be relevant where a witness’s evidence shifts from an asserted first-hand account to a report of what another person said. Here, D1 initially said she heard the alleged threat, then said she believed her mother had told her about it. The court considered how the judge handled the potentially hearsay evidence under s 93C, including the parties’ agreement not to use D1 as the example for the warning ([118]–[125]).
Finally, the appeal analysis is relevant where a complaint about jury directions is raised despite no request for a redirection at trial. MDP, as applied in Sturgess, makes the absence of a request relevant context but not a complete answer to whether the judge made a wrong decision on a question of law ([16]–[18], [98]–[100]). The appeal still turns on the applicable statutory tests, including whether any error could realistically have affected the jury’s reasoning.
The supplied judgment does not cite any decision that considered R v Sturgess after it was delivered on 19 August 2025. No conclusion about later treatment can therefore be drawn from this source.
The judgment itself applies MDP v The King, which was delivered after the Sturgess appeal hearing but before judgment. Ryan J used MDP to reassess the appellant’s direction complaints as potential errors of law under the second limb of s 668E(1), rather than treating the absence of a request from trial counsel as conclusive ([10]–[18]). It also refers to Brawn v The King, noting that MDP’s reasons were to be read with the unanimous reasons in Brawn ([12]). On the material provided, Brawn is not separately analysed in detail.
The judgment does not set out a comprehensive test for deciding when prior-violence evidence is relevant as background or context, or how detailed a trial judge’s explanation of that permissible use should be in different cases. It concludes that the evidence in this trial was relevant to context but irrelevant to intent, and that further explanation was not required on these facts ([95]–[101]). Other records may raise different issues about whether contextual relevance is clear, disputed, or likely to confuse the jury.
The judgment also does not establish that the same form of warning will always be sufficient after a prosecutor invites propensity reasoning. Here, the warning was explicit, the improper argument was not the focus of the Crown case, defence counsel answered it, and the judge’s remaining directions concentrated on the evidence relevant to intent ([106]–[114]). The significance of each circumstance may vary in another trial.
On hearsay, the reasons do not resolve every consequence of a witness unexpectedly changing an account from first-hand knowledge to something reported by another person. The court’s conclusion relied on the evidence’s emergence in this trial, the counsel discussion about the warning, and the assessment that a more explicit warning might have disadvantaged the appellant ([118]–[125]).
Finally, Sturgess applies the “could realistically have affected the reasoning” test to the direction complaints before it. It does not address every category of legal error under s 668E(1), particularly the limits of the exception for a fundamental failure to observe the requirements of the criminal process. Those questions remain outside the specific issues decided here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
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 Sturgess [2025] QCA 150
PARTIES: R / v / STURGESS, Shaun Robert / (appellant)
FILE NO/S: CA No 58 of 2024 / SC No 988 of 2023
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: Supreme Court at Brisbane – Date of Conviction: 29 February 2024 (Sullivan J)
DELIVERED ON: 19 August 2025
DELIVERED AT: Brisbane
HEARING DATE: 23 April 2025
JUDGES: Flanagan and Brown JJA and Ryan J
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of murder – where the issue at trial was whether the appellant had the requisite intent for murder (a “murderous intent”) – where the appellant struck the deceased in the back of her head with a sledgehammer – where evidence of the appellant’s prior violence towards the deceased was led at trial – whether admitting the evidence of prior violence occasioned a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of murder – where the issue at trial was whether the appellant had the requisite intent for murder (a “murderous intent”) – where the appellant struck the deceased in the back of her head with a sledgehammer – where evidence of the appellant’s prior violence towards the deceased was led at trial – where the prosecutor impermissibly invited the jury to use the evidence of prior violence in proof of the appellant’s murderous intent – where the trial judge directed the jury that the evidence of prior violence could not be used in proof of the appellant’s murderous intent – where the trial judge did not direct the jury as to how they might legitimately use the evidence of prior violence – where the appellant contended that the trial judge erred by not directly addressing the Crown Prosecutor’s impermissible submissions to the jury – whether the trial judge’s directions were inadequate to mitigate against the risk of misuse of the evidence and amounted to a wrong decision on a question of law / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of murder – where the issue at trial was whether the appellant had the requisite intent for the offence of murder (a “murderous intent”) – where the daughter of the deceased and the appellant told police that she heard the appellant threatening the deceased previously – where this evidence was elicited in her section 93A evidence in chief – where, under cross-examination, she volunteered that she did not hear the threat herself but her mother told her about – where the trial judge discussed with counsel a proposed section 93C Evidence Act 1977 (Qld) direction – where both counsel asked the trial judge not to use the daughter’s evidence as an example to which the section 93C direction applied – whether the trial judge made a wrong decision on a question of law by not expressly referring to the daughter’s evidence during his section 93C direction / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of murder – where the issue at trial was whether the appellant had the requisite intent for the offence of murder (a “murderous intent” – where the trial judge gave a standard direction about the intention required for murder – whether the trial judge’s directions amounted to a wrong decision on a question of law because they failed to adequately direct the jury as to the specific intent that the Crown was required to prove / Evidence Act 1977 (Qld), s 93B, s 93C, s 103CB, s 103Z, s 103ZC / MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, applied
COUNSEL: S C Holt KC for the appellant / M A Green for the respondent
SOLICITORS: Guest Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
FLANAGAN JA: I agree with Ryan J.
BROWN JA: I agree with Ryan J.
RYAN J: The appellant was convicted by a jury of the murder of his estranged wife.
The appellant and the deceased separated at the end of 2019. The deceased and their two daughters [D1 and D2] moved out of their house in January 2020 – leaving the appellant to live there alone.
On 28 April 2020, the deceased returned to the house to collect a desk and some jewellery. Whilst the deceased was turned away from the appellant, perhaps dismantling the desk, he struck the back of her head with a sledgehammer, fracturing her skull, causing a traumatic brain injury, and killing her. The Crown’s pathologist found four lacerations to the deceased’s scalp in a roughly rectangular pattern, in keeping with a single blow (rather than more than one blow), delivered with severe force. The Crown did not suggest that the killing was pre-meditated. The Crown alleged, and the appellant admitted, that he struck the deceased in a rage during an argument with her about their property split.
The appellant was charged on indictment with the deceased’s murder. His trial commenced on 26 February 2024. He pleaded guilty to manslaughter upon arraignment. His plea was not accepted by the prosecution in discharge of the murder indictment.
Although evidence was led at trial about the appellant’s mental health vulnerabilities, he did not raise the partial defence of diminished responsibility, nor any other partial or complete defence to murder. The only issue for the jury was whether, in the moment the appellant struck the blow which killed the deceased, he had an intention to kill her, or at least an intention to do her grievous bodily harm (a “murderous intent”). The appellant’s case was, in essence, that he struck his wife in an uncontrolled rage, either devoid of any thought process at all, or at least without a murderous intent.
The appellant appealed against his murder conviction, relying upon three grounds of appeal, framed as follows:Ground 1: A miscarriage of justice occurred because of the way in which the evidence of an earlier alleged episode of violence was placed before the jury:While the evidence was claimed to be led as “relationship evidence”, the specific use to which it was put under that head was not properly identified, nor could one rationally be identified;Notwithstanding the Crown Prosecutor’s concession that the evidence was not being used on a propensity basis, his submissions to the jury invited precisely that form of reasoning;The directions given to the jury by the learned Trial Judge were inadequate to mitigate against the risk of misuse of the evidence.Ground 2: A miscarriage of justice was caused by the absence of a warning about relying on hearsay evidence in relation to the evidence of [D1] as to statements said to have been made by the appellant to the deceased. A miscarriage of justice was caused by the learned trial judge failing to adequately direct the jury as to the specific intent that the Crown was required to prove.
“[109] … [W]hile the decisions of counsel will often provide the context in which a trial judge may make a decision on a question of law, for example, to admit evidence or to give a direction, whether the conduct of counsel caused or contributed to the decision by the trial judge being wrong is irrelevant to whether there is a wrong decision on a question of law. The trial judge has a responsibility to “be astute to secure for the accused a fair trial according to law” and this extends to “an adequate direction … as to the law”.
[110] Otherwise, even allowing for any conduct of counsel which caused, contributed to or even encouraged a wrong decision by the trial judge on a question of law, if it is nevertheless concluded that there is a wrong decision on a question of law which could realistically have affected the reasoning of the judge or jury to the verdict of guilty then, subject to the application of the proviso, the appeal should be allowed and the verdict should be set aside.”
Having regard to MDP, I approached the appellant’s arguments about the trial judge’s directions as if they were framed as complaints about wrong decisions on questions of law, rather than, as expressed in the grounds of appeal, complaints that they gave rise to a miscarriage of justice.
In MDP it was held that no decision on a question of law within the meaning of the second limb arose when inadmissible evidence was admitted without objection. It seems therefore that an aspect of the present appellant’s first ground – that is, the complaint in (a)(i) – does not assert a wrong decision on a question of law. I therefore dealt with it as contending that admitting the evidence occasioned a miscarriage of justice.
I would dismiss the appeal.
In my view, the admission of the evidence the subject of ground 1, about which there was no complaint, did not occasion a miscarriage of justice. Nor did the trial judge make any wrong decision on a question of law in directing the jury as he did in relation to any of the matters raised by the grounds. And even if I am wrong about that, and there was a wrong decision embedded in any of his Honour’s impugned directions, any such wrong decision could not realistically have affected the reasoning of the jury to their verdict of guilty of murder in the trial that occurred. My reasons follow.
The cases as opened
The parties made it very plain to the jury from the outset that the only real issue for them was whether the appellant had a murderous intent when he killed his estranged wife.
The evidence primarily relevant to the issue of intention included the appellant’s own statements as well as the circumstances of the killing.
Although there was evidence led in the prosecution case of the appellant’s prior violence towards the deceased, logically, it had no relevance to the question whether the appellant had a murderous intent in the moment when he – in his words – “lost his shit” and “clubbed” or “bludgeoned” the deceased in the back of the head with a sledgehammer, using severe force.
The prosecutor’s opening included the following (my emphasis):The trial would be all about intent.The appellant accused the deceased of “fleecing” him and that angered him so much he “went and got this sledgehammer, leapt and struck his estranged wife in the back of her head”.The appellant was “a domestically violent man in the past. You’ll hear that he abused [the deceased] and perhaps talked about killing her, which was witnessed by their eldest daughter [D1], prior to when [the deceased] and the children had moved out. You’ll hear specifically of a prior incident in the kitchen of the house perhaps two or three years before [the deceased] died. [D1], when she was about 11, witnessed her dad assault her mother after he took issue with how she put a piece of broccoli on his plate at dinner. He’d been consuming alcohol and accused [the deceased] of throwing vegetables on his plate. There’d been some verbal abuse and he told the kids to leave the room. I expect you’ll hear that [D1] saw her dad tackle her mum to the ground, slam her head into the floor, and [D2], the younger girl, was about nine at the time. And she, I expect you’ll hear, heard a big bang on the floor and later saw that her mum had a large bruise on her leg”.The deceased saw a solicitor “the very afternoon of her death about this attack”.[D1] heard the appellant verbally abuse the deceased. [D2] would describe the appellant as angry and mean.[D1] heard the appellant say that “[i]f she wasn’t the mother of his children, he would have killed her. She doesn’t say it in exactly those terms”. [This is what the prosecutor was referring to in (c) as the appellant “perhaps” talking about killing the deceased.]When you are looking at intent, it is about the appellant’s intention when the blow was delivered.The case for the Crown is that he used severe force and he intended to cause at least grievous bodily harm to [the deceased] when he struck her unsuspectedly in the back of her head.The Crown case was not one of pre-meditated murder. He was an angry man. He went and got his sledgehammer and leapt at his wife and killed her, having intent at that time..He went and got the hammer, which in itself you might think infers intent.
Trial evidence
The appellant had not been working in the year leading up to the killing. He had previously worked “fly-in; fly-out” on a mine site. Although the evidence about it was not precise, it seems that he had been in residential rehabilitation for drug and alcohol issues on three occasions in the 12 months before he killed the deceased and had previously been in inpatient mental health treatment for mental illness.
Before turning up to the house on 28 April 2020, the deceased told a friend [F1] that she had seen a solicitor that day and that she and the appellant had disagreed about the split of their property. The solicitor confirmed that the deceased had been to see him about the property split. During their consultation, the deceased told the solicitor that, in 2017, the appellant belted her in the kitchen of their home, and she retaliated by hitting him with a saucepan. She said the appellant then took himself up to the “back shed” and hanged himself. She followed him there and cut him down. Since then, the appellant had been in and out of mental health hospitals. He had been diagnosed with severe depression and anxiety and she believed he would not pass a medical examination if he had to go back to work. He was in receipt of “disability insurance” under his “super”.
After killing the deceased, the appellant went to a tavern, where he bought and consumed alcohol, and then travelled by taxi to a suburb of Brisbane. The taxi driver thought he was pretty drunk. While in the back of the taxi, he said, among other things, “I’m in trouble … It’s all over … My life’s fucked mate …”.
The appellant travelled to the house of a friend [A]. He arrived at [A’s] around 7.30/8 pm, “pissed”. He talked “rubbish” until about midnight/12.30 am on 29 April 2020. The appellant stayed with [A] that night. The next morning, he said to [A], “I’ve killed her”. He told [A] that he told the deceased not to come around. He was drunk and not in the mood. He said she rocked up out of the blue and was “in his ear”, and then “he just, fucking, fed it to her”. [A] thought the appellant might have “boxed” the deceased “or something, you know, to shut her up”, based on his gestures. The appellant did not mention a weapon to [A].
Police arrived at [A’s] house, just after midnight on 30 April 2020.
Whilst being transported by police to a police station on 30 April 2020, the appellant was asked whether he would like to tell his “side of the story” and he said, or made statements to the following effect (my emphasis):“I don’t have much to say … Apart from fucked it right up.”When asked what he could tell police about the suspicious death of the deceased, he said, “It, yeah, it just unfolded … It. I clubbed her, I, yeah … [Police: You clubbed her. What do you mean by that? Obviously, I wasn’t there] … I wasn’t there either, if you know what I mean. I just [indistinct]”.“I bludgeoned her … With a four pounder [a hammer] … it was down there because I had to knock a bit of bloody shelving around.”“I never wanted to do anything like that. It’s just fucked.”He hit the deceased on the back of her neck/base of her head.“I didn’t wanna kill her, hey.” [Police: Why did you hit her?]. “We b-, we been, we’ve been this way for ages. And , not that it’s gonna fuckin’ matter now. She’s a, yeah, she’s, ”
“I, this is fuckin’ horrible. That’s all. It’s just shockin’, it just should never have happened. Um, yeah that’s basically it. [Indistinct] Um, we’ve been carrying on for years now and we should have gone our own ways. I’ve been down the line of suicide, this, that and everything. In and out of [two Brisbane hospitals]. Um, yeah, th-, that’s, I can’t say much else apart from failing really, really bad. I’ve let a lot of people down ‘ey. It’s, it’s, it’s not me and --- … we started bitching and I had a, a four pounder that was in the house because I was knocking a bit of shelving around. And yeah, I just, just, everything’s unfolded like … tension was in the air and that was it. I, it yeah it’s just turned on. She turned away from me and it’s just. Like a say it’s just unfold-, all like that. I, I, I honestly don’t know why, what, when. Just like I say it seemed like that I’ve, you fuckin’ idiot …”
“… She come ‘round outta the blue and didn’t have the kids. And yeah, we just started sluttin’. Like I say she’s already moved out, she comes and goes only to just be a prick … To keep an eye on me basically … Grab a few goodies. She’s supposed to have moved out ... she’s a narcissist. That’s all I can say. And she’s an extreme narcissist.”
When she got to the house their “usual shit” happened, “just, grumping each other. Grunt and growl”. His biggest drama was asking her how to pay bills [he was unfamiliar with internet payments].
He’d had eight beers earlier in the day. He was an alcoholic and eight beers “barely touche[d] the sides”. He could still think clearly.
“ … we were arguing and sluttin’ at each other and she’s, she’s basically turned around and I’ve just, I, I hit her, I struck her. And, and, and even as I was doing, I’m just like, like pulling out of it and it just, it just happened so fucking quick and I just thought nuh, nuh.”
He had to walk over to the hammer. He said there were no thought processes going on when he was asked why he got the hammer.
After he hit her, “she just fell in a pool of shit. I thought you’re fucking joking. What happened. I haven’t done this surely … It was just horrible. It was really horrible”.
He thought – at the moment he saw her – that he wanted to die. He thought she was dead. He’d never seen that much blood. He panicked. He felt sick. He started gagging. He couldn’t believe it. It would haunt him until he died. He took money and his phone. He went to the bottle shop and then to see one of his best mates.
“ … the thought of what I’d done, even the body at the floor, seeing blood, it just um, fucken man. Just nuh. She didn’t deserve that ‘ey. But she’s a c**t. She’s probably driven me to it. But she didn’t deserve that.”
When he was asked whether the deceased worked, he said no, she was “out to hurt”. He said, “She wasn’t discarded, stitched me financially, it was going to be emotionally, physically, psychologically. It’s just like I say. She’s a narcissist and yeah. It’s, it’s just horrible. It’s, it’s really fucking, it’s so wrong”.
When he was asked how the deceased was going to hurt him financially, he said, “Screwed to the rafters, ‘cause I worked for so long. I’ve worked all me life and really really hard … we’re like asset rich I ‘spose …”.
He was asked whether he had struck the deceased before, and he said they’d had “a bit of a barney … when I was gonna take me life”. He did not otherwise condone “that shit”. He said his daughter was 11 or 12 and she was being bullied at school and she was going to take her life earlier in the week. On the night of the prior argument with the deceased, he thought he had a handful of the deceased’s hair eventually. He said she threw his dinner at him. He said she hit him with a pot or a pan or something in the leg. His eldest daughter saw him “towards the end”.
[Police: Did you want to kill her?] “No. I thought that, it just fucking.”
He was asked why he reacted, and he said:
“She’s, just I dunno. She’s just a narcissist, the way she talks to me. Every time I talk to her I gotta ask the things twice. She just continually fucks with my brain. And, and I’m the dickhead because I’ve let her tamper with my head and dead set look where it’s got me.”
He said he did not call an ambulance after he hit her because he/his whole life was “fucked” and he did not know what to do. Although the deceased lay there for almost a day, he could not tell anyone. He did not know who to tell.
He said he thought he used one hand to swing the mallet because it was short-handled. He used his right-hand (he was right-handed). He was standing and “Sort [of] like [leapt], sort of like [leapt] at her”. He thought he’d killed her at that point, from the way she fell – like she’d been shot.
He was asked whether he thought what he did was wrong and he said, “Fuck yeah. It was horrible”.
He was asked what he thought was going to happen if he hit her in the back of her head with a four pound hammer, and he said, “I thought she was gonna drop and”. He was asked what he thought the outcome was going to be and he said, “Not good. It just”. He was asked whether he thought that would have killed her and he said “Yep”.
He thought she was talking about child support and how the appellant would have to “cough up” just before he struck her. He could not remember specifically what she said but he described her as “vindictive”. She spoke about taking his Monaro off him. [This was supported by evidence of the solicitor, in the sense that his advice to the deceased was that the Monaro, which the appellant brought into their marriage, was part of their joint asset pool.] He said he felt like he was being fleeced.
He was asked whether he hit the deceased with the hammer to avoid the child support/the fleecing and he said, “All them sorts of things”. He talked about how hard he’d worked and continued, “So then all of a sudden she goes pear shaped and you know. She was talking about taking me for like seventy thirty with the house and all this. I’m thinking fuck off. I worked for too long hey. Way too long. It’s like I’ve missed that much of me children their lives”.
He was asked again whether he meant to kill the deceased when he hit her with the hammer and he said, “No, no, I’ve. She’s the mother of me children. I, ‘cause …”.
He was asked, “Then why did it happen?” and he said: “It, because I, I just, I lost me shit basically. I just, I snapped”.
“… I deserve to forfeit my own life for my pathetic, cowardly, psychotic actions. For two seconds of uncontrollable rage, so many lives have been changed forever. I am so sorry, but I could not have stayed with your poor mother and awaited for the law. It was horrible and it haunts me on a daily basis. I will take those shocking visions to the grave with me. You say that I have now shown my true colours. I am not that person, mate. I need hospital, not jail.
…
… Please never think that that was ever my intention to leave two gorgeous and beautiful girls in the land of the living without parents …”
[D1] and [D2] gave “93A statements”.
[D1] told police that the appellant was “quite aggressive and violent” with the deceased. She described an incident from 2017, when she was in grade 6. She said the appellant had been drinking alcohol:
“And we, Mum cooked dinner and I went down to the shed to let him know that dinner was ready. Um, we sat down and ate dinner. He came up later that night and um, he ate and my mum put more broccoli on his plate and he thought that she threw it at him. And he started yelling at her. Um, he began very, he became very violent with her. Um, my mum told us, me and my sister to leave the room. We went and had a shower to get ready for bed as it was a school night. And I hopped out of the shower and I saw through the bathroom mirror that he had tackled her to the ground and was slamming her head into the, the floor. And we, she was able to get back up. Um, the next morning we woke up and got ready for school ...
…
Yeah, like he was um, very verbal. He’s like you just like chucked it on my plate and stuff. He was very full on.
…
And then he, I don’t know what happened in between but I do remember her lying on the ground and he was slamming her head into the floor.”
“But we, before we left and moved out my mum and dad had, he was drinking and they had a heated conversation. That’s when my mum really knew it was time to get out. It was unsafe. She always knew it was unsafe but it was, we had to go**. He put a threat on her life. He said that if it wasn’t if you weren’t the wife (sic) of my children, he would’ve killed her.**”
The trial proceeded on the basis this threat was made in 2020.
She was asked whether she heard the appellant say those words to the deceased and she said she did. She said:
“I was standing in the kitchen. My mum was um, doing the dishes after we had dinner. Standing in the kitchen and that’s when he said that to her … I was standing on the other side of the kitchen bench … he was standing behind her at the sink … They were kinda facing each other …
…
I, I don’t really remember what the conversations were about. I do remember key bits like that -- … And the violence and everything because it was, it was really hectic, and it was, it was so much just for those bits just to like hold on to.”
She told the police that she could definitely remember, and never forget, the appellant saying that if the deceased were not the wife (sic) of his children he would kill her.
In her pre-recorded cross-examination, [D1] confirmed that she had seen the appellant slam her mother’s head onto the ground. But contrary to what she told police, under cross-examination, she said that it was her mother who told her that the appellant said that if she was not the wife (sic) of his children, he would kill her (questions by trial defence counsel, my emphasis):9
“Did [the incident you described to police when your mother was tackled to the ground] occur at a time when your father came home from having been away with work and discovered there’d been a hole in the wall of the house? --- I don’t remember.
All right. Do you remember there being a time when there was a hole in the wall of the house? --- Yes.
All right. And do you remember how that argument with your mum – between he and your mother started? --- It started over me going down to the shed, and he tackled me to the ground. And she’d gone in to ask him what had happened - - -
All right? --- - - - and then they’d come up to the house with a broccoli.
Did it start by her putting the plate in front of him onto the table, the dining table? --- I don’t know.
She put – you were in the bathroom, weren’t you, seeing this through the mirror? --- Afterwards. Afterwards.
All right. So I think you told the police that you didn’t see the beginning or in between, but you saw him slamming her head into the ground? --- Yes. But I did see the point where she put the plate in front of him for dinner.
All right. I’m going to suggest she put it in front of him in a way that meant the food went out of the plate onto the table onto him a little bit? --- No.
All right. He then got up and left and walked through the kitchen? --- I don’t remember that.
She was in the kitchen after she’d put the plate down? --- I remember – yeah. She went back to the kitchen.
All right. She then tried to hit him with a fry pan? --- No.
And - - - ? --- I don’t remember.
And missed and fell to the ground? --- I don’t know.
And then hit him on the leg with the fry pan? --- I don’t know.
And he kept going? --- I didn’t see any of that.
All right. And specifically, I put to you that he did not slam your mum’s head into the ground on that occasion. You - - - ? --- I did see him - - -
Did you see that? --- Yes.
…
… At one point, you told the police – do you remember telling them that he said these words, and this is in a fight or an argument they’d had shortly before they separated, “If it wasn’t – if you weren’t the wife of my children”, he would’ve killed her; do you remember telling the police that? --- Yes.
I’m going to suggest that he never said any words to that effect to your mum when you were – he never said any words of – to that effect to your mum at any time? --- I don’t remember him saying it.
All right? --- But I believe that my mum told me that.
All right. So this conversation was something your mum said he had said to her, rather than you hearing it yourself directly? --- Yes.”
In re-examination by the prosecutor, [D1] was asked whether she ever remembered hearing the “if you weren’t the wife of my children” threat. She said, “Not from my dad, I don’t remember”.
Thus, [D1] volunteered in cross-examination and confirmed in re-examination that she did not hear the “if you weren’t the wife of my children” threat herself – her mother reported it to her. It is this hearsay which is the subject of the appellant’s second ground of appeal.
[D2] told police that the appellant was a really nice man “apart from all the drinking and drugs and everything”. She said he and the deceased were sometimes mean to each other and “one time when Dad was drinking he tackled my Mum to the ground”. She explained that all she heard was a big bang on the floor (her mother had sent her to her room) and her mother told her she had been tackled. She saw a bruise on her mother’s leg. [D2] told police that the appellant was “severely frustrated” after the separation because “he didn’t get to have us … so he was drinking”.
Under cross-examination, [F1] agreed that the deceased told her about an incident in the kitchen where the appellant had pulled her hair, tackled her to the ground “and so on”. The deceased told her she had struck the appellant in the shins with a frypan to stop him.
Another friend/neighbour, [F2], said the deceased told her that she was too scared to go to the house alone after she separated from the appellant. [F2] and the deceased went together to the house to collect the deceased’s property on three or four occasions between February 2020 and her death (but not on the day of her death). Also, the deceased told [F2] that the appellant had mental issues, was not taking his medication, and was drinking the entire day.
Discussions about directions with the trial judge before closing addresses
After the evidence for trial day 1 concluded, the prosecutor provided the trial judge with a document entitled “Submissions in relation to the evidence of prior domestic violence” (MFI D).10 With respect, this document did not reveal a considered approach on the part of the prosecutor to the legitimate use of the evidence of prior violence.
In the document, the prosecutor wrote (my emphasis):
“5. The Crown relies on the evidence [of the incident in the kitchen; of the statement that if the deceased were not the wife of his children he would kill her and the evidence that the appellant was at other times verbally aggressive and angry towards the deceased] to show a relationship of escalating anger, which included violence and discussion of violence, by Mr Sturgess leading to his wife’s murder.
It also demonstrates (sic) Mr Sturgess’ alleged conduct in relation to the alleged homicide intelligible and not out of the blue. The absence of such context would appear make (sic) the alleged murder appear improbable or to have occurred out of the blue.
The evidence more explicable (sic) the otherwise surprising inference to which the nature of the fatal injuries gave rise namely, that they were deliberately inflicted.”
Paragraphs [5], [6] and [7], in their references respectively to “violence … leading to murder”; (implicitly) a desire to ensure that murder would not appear improbable; and a desire to render “explicable” the deliberate infliction of fatal injuries, convey that the prosecutor was intending to rely upon the evidence of prior violence as relevant to the issue of murderous intent. But one of the directions sought in the same document acknowledged that the evidence was not available for that purpose, namely, direction 12(b), which included a warning that “the jury must not take the evidence [of prior violence] into account in deciding whether the Crown has proved beyond reasonable doubt that the accused committed the specific offence charged in the indictment”.
The directions sought also included (but not only) directions “[g]enerally in relation to domestic violence” as per sections 103Z(1) and (2) and 103ZC(2)(a) – (d) of the Evidence Act 1977 (Qld).
The trial judge asked the prosecutor whether he was submitting that the evidence of prior domestic violence was “admissible as propensity for the offence” and how he was leading it.11 The prosecutor replied:12
“Well that’s what the section [section 103CB of the Evidence Act 1977] says for the domestic violence. It’s really both. So I’m not sure too much more needs to be said about this at this stage. I just wanted to bring it to your Honour’s attention about where we might end up. And those are the suggested directions from the Crown, at least, at the end.”
With respect, that is not what the section says. Section 103CB renders relevant domestic violence evidence admissible in a criminal proceeding. But it does not render evidence of domestic violence relevant in a particular way. Its relevance and its permissible use will depend upon the facts in issue at trial.13
The prosecutor told the trial judge that he would not be arguing that the trial judge ought not to warn the jury against the misuse of propensity evidence.14 But such a warning was contrary to the way in which the prosecutor foreshadowed that he wished to rely upon the evidence of prior violence as per [5], [6] and [7] and, as it turns out, he did rely upon the evidence.
Trial defence counsel told the trial judge that he was not prepared for a debate (about directions)15 that afternoon. He said he wanted to have a look at the then recent amendment to the domestic violence direction (that is, the relevant sections of the Evidence Act) before he addressed the trial court further on propensity and domestic violence.16
The matter of the directions concerning prior violence was raised again a couple of times before the summing up, including at the beginning of day 3, when the trial judge questioned counsel about potential directions, including those contained in sections 103Z and 103ZV of the Evidence Act. Trial defence counsel informed his Honour that he’d looked at the legislation and that the directions did not seem to be relevant. During his discussion with the trial judge about these directions, defence counsel acknowledged that the evidence of prior violence was “relevant background”.17
Closing addresses
Although not mentioned in the prosecutor’s “five points” document,18 which contained the arguments the prosecutor wished the trial judge to remind the jury of during the “rival contentions” part of his Honour’s summing up, and contrary to direction 12(b) in MFI D, in his closing address, the prosecutor relied upon the appellant’s prior violence towards the deceased in proof of his murderous intent.
In the earlier parts of his closing address, the prosecutor relied upon the evidence of the appellant’s prior violence in proof of his violent temper. He submitted that the appellant had been, at the relevant time, unable to come to terms with the breakdown of his relationship with the deceased; out of control; and doing stupid things. He said “He’d been domestically violent in the past. He was depressed. He was bitter”. He proposed that the appellant couldn’t handle things which were out of his control. He said (my emphasis):19
“You might think that the already volatile Shaun Sturgess, when he heard news that may mean that he was no longer to receive fifty-fifty split and heard news that his prized Monaro was now an asset to be considered in the split, set his temper off. You might conclude a temper was set off – a temper which he demonstrated an ability in the past to act on with significant violence …”
“The evidence has also demonstrated Mr Sturgess has been in a rage before. It was about two and a-half years earlier when he assaulted his wife over some broccoli, and you’ve heard how he slammed her head in the ground. You’ve also heard how he made a threat on his wife’s life in front of their daughter [D1], and that was probably in early 2020, not long before they moved out.
The evidence has demonstrated on the afternoon of the 28****th of April 2020, he was engaged (sic – ? enraged). As he said, he lost his shit, it seemed due to this breakdown of his relationship that he couldn’t deal with, discussions around property settlement, child support and perhaps his prized Monaro.
…
The evidence has also demonstrated, of course, that Mr Shaun Sturgess was the only aggressor to that state of rage he admits himself. Someone in that state of rage might not be thinking too far ahead. They might not be thinking beyond what they’re immediately focused on. They might just be thinking about what they’re immediately meaning to do, what they’re immediately intending to do, and, after they do it, then they think about something else.
… Mr Sturgess gets his sledgehammer, focused on what he means to do: seriously injuring or killing his wife. Not thinking about she’s the mother of my children and if I do this – what he says in his letter later. So it’s easy to say, “She’s the mother of my children”. It’s easy to say a day and a half later, “I didn’t intend to kill her”, but when he went and got his sledgehammer, you might think that that was – he wasn’t focused on his children at all. He wasn’t focused on anything but inflicting very severe injury or killing [the deceased]. He had to arm himself. This is a conscious act, as I say. He’s provided varying versions about where he got this sledgehammer from, but all of them have him going to get it. It’s not just – it’s just in his hand and it happens. He had to go and get it.
… He had to think to go and get it. So there’s a number of intentional acts there. The evidence has demonstrated that he decided to confront her and he decided to do it from behind, and I labour this point. He struck her at least once. The force was severe … And think about where she was. Perhaps crouched down, undoing something. She had that screwdriver in her hand. So the only rational inference you might draw from him using this weapon in that way is that he did so with intent to kill her, or, as the legal test is – or at least to cause her grievous bodily harm …”
But we – before we left and moved out, my mum and dad had – he was drinking and they had a heated conversation. That’s when my mum really knew it was time to get out. It was unsafe*. She always knew it was unsafe, but we had to go.* He put a threat on her life*.* He said if it – that if it wasn’t – if you weren’t the wife of my children, he would have killed her.”21
“[H]e was verbally aggressive and angry towards [the deceased] and at least one of the girls said he swore at her, and he used every name under the sun, things like that. She’d told a solicitor about that serious incident … Mr Sturgess … spoke about the incident himself. He admitted to pulling out a handful of hair on that occasion. But when [D1] was questioned here at court last year, she was asked this:
I put to you that he did not slam your mum’s head into the ground on that occasion.
And [D1] said, “I did see him”. So what this evidence in combination about their prior relations shows is a pattern – a pattern which he’s demonstrated that he had a propensity to commit acts of violence against her. And it seems, obviously, it’s not in context (sic) that he did use extreme violence against his estranged wife, to kill her. But you can conclude that this is not an incident in relation to some sort of unintentional killing**. There was that threat which I talked about** and indeed, [D1] did walk that back here at court. It was suggested that he hadn’t said that and she said, “I don’t remember him saying it”.”22
He encouraged the jury to accept [D1]’s 93A statement evidence that she did hear the threat and continued, “If you accept that that threat occurred, you might think that it demonstrates a pattern that he would go into a rage with thoughts of killing his wife**,** killing that you can infer can only have been with intent …”23
“So there’s perhaps two competing propositions in this case. And they’re not too different, but the first is this: did Shaun Sturgess act with extreme violence? Did he go and get his sledgehammer, sneak up behind [the deceased] as she’s taking apart that desk, strike her while she was unsuspecting, in the back of her head with a sledgehammer, and intend to kill her or at least cause her very serious injury – the law calls grievous bodily harm. The second proposition might be this: did Mr Sturgess go and get that sledgehammer, approach her from behind, swing the sledgehammer once with severe force … with the long heart (sic) and not mean – not intend to grievously injure her at all? So it’s for the Crown to prove the first proposition, of course, but those are perhaps the two competing propositions you’ll have to consider later. Obviously, it can’t have happened both ways.”
The prosecutor argued that, during the appellant’s admitted few seconds of uncontrollable rage, his intention to at least cause the deceased grievous bodily harm manifested. He referred to the appellant’s interview with police and submitted, “So this deep rage, this deep anger that he had that’s expressed during that interview, I (sic) might think. Not someone who’s thinking nothing; someone who’s driven by his oppressive situation that he thought he found himself in. Some of these other disparaging comments that you heard”. He argued that, at the relevant time, the appellant was not thinking about his children – he was thinking about the deceased fleecing him, with the Monaro “in play”. “Fifty-fifty is gone. I’m going to go get this hammer.” He’s not thinking, “Hey, my children.” He’s thinking, “I’m angry. I hate her. Look at what she’s doing to me.””
Defence counsel focused on the burden of proof and the appellant’s intention in his closing address. His arguments included those designed to: (a) minimise the relevance of the prior act of physical violence; (b) deploy the evidence of the appellant’s response to his prior act of physical violence (his attempt to hang himself) in support of his case that he did not have murderous intent; (c) minimise the impact of [D1]’s evidence of the threat as hearsay; and (d) (on the assumption that the jury accepted that the threat had been made by the appellant) demonstrate that it was not a threat at all because the deceased was the mother of his children.
His submissions were to the following effect (my emphasis):If you [the jury] accept what he said to police, “in its unadulterated form”, that he did not intend to kill her, you would find him not guilty. If you’re not quite persuaded by him, but you’re left in some state of reasonable doubt that in fact he might be telling the truth, you’ve got to give him the benefit of that doubt. Or worse, if you reject him, then the prosecution must persuade you that when he struck her, he had the specific intent to kill her or to do her an injury which the law defines as grievous bodily harm – not intend to hit her, not intend to hurt her, not intending to grievously or seriously injure her but intending the specific intent as defined by the Code.People when they do these things might have no intent at all. There might be nothing more in their mind than some expletive (“You …” insert the expletive); or nothing in their head at all.The grievous bodily harm in this case is almost indistinguishable from death, because if you are aiming a sledgehammer at the head, the line between acting with an intention to do grievous bodily harm (that is, intending permanent brain damage, or an injury that was likely to endanger her life) and acting with an intention to kill is so artificial as to be non-existent. He must have had a specific intention to do death/grievous bodily harm when he swung – not just a mindless, angry swing.You’ll find his interview raw and honest and believable and credible.The evidence of the acts of previous domestic violence are relevant as background but they do not really inform you greatly about intent.
“… You’ve heard acts of domestic violence referred to in this case. My submission to you, you’re allowed to hear all of that now. That’s all relevant as background, but it doesn’t inform you greatly about intent. What happened in 2017 – and it does sound like a very volatile incident, my learned friend says, “It was over a piece of broccoli**”. It’s not over a piece of broccoli. Listen to his interview. His daughter was suicidal**. There was a hole in the wall. His daughter gave evidence there was a hole in the wall. She doesn’t remember or said she didn’t remember what that was about. But the incident arose in those circumstances. He quite frankly tells police about what he did – grabbed a handful of her hair, took her to the ground. He admits all of that openly …
And he, so affected by that episode of violence which seems like an isolated one – that’s what [D1] says – there was no other physical violence, it was all verbal. But so affected by that, he goes down to the shed and hangs himself, and wishes he died, even when interviewed by the police in 2020, wishes he had, because then of (sic) this would have happened. You do put aside feelings of sympathy. I think the prosecutor said you shouldn’t have any sympathy. Well, you’d be inhuman not to. We are humans. We have sympathy. We care. This is tragic. Two children have lost their mother and effectively, their father. But… what you do have to do is put that to one side objectively and dispassionately determine whether you’re satisfied beyond reasonable doubt this man had that intent.”
He corrected the prosecutor’s argument at [61] above that the jury had to decide whether the appellant acted with a relevant intention or not, by contending (accurately) that if the jury could not decide between those two options, then they would not be at the point at which they could convict the appellant of murder.
He invited the jury to accept the appellant’s statements during his “raw and emotional” interview with police, in which he denied an intention to kill. He argued that the prosecutor was cherry-picking from the interview and misleading the jury by taking statements out of context. He argued that the appellant was at a loss to explain what thought processes were going on at the relevant time.26 He had no intention to kill his wife. He was not mentally there.27
“The so-called threat that he put on her life when she was leaving now turns out to be hearsay, something Mum told [D1] about and something I put to her he didn’t say. Now – which , by the way, she agreed with; she did not hear that said**.**”
He said later in his address that the statement referred to as a threat was in fact no threat – because the deceased was the mother of the appellant’s children. Nor did it inform the jury much about intent.
He explained the operation of the burden of proof when it came to the jury’s evaluation of the appellant’s denial of an intention to kill.29 He argued that the jury could not reject what the appellant said about his (lack of) intent and that was the only way they could convict him.30 He argued that the appellant was a man who was not coping. He was in a fragile state. In emotional turmoil, he acted without thought. He asked rhetorically, “Really, are we saying it’s that implausible that he wasn’t thinking straight?”.31 He said his ultimate submission was that the appellant’s “intention did not exist because he says it did not exist and he was being truthful. And you could not reject that, let alone beyond reasonable doubt, and you could not do it easily. But even if you did, you would be left in some doubt about it. The thing does seem to have unfolded spontaneously, instantaneously. She had no warning it was coming. She’s still got a screwdriver in her hand”.32
Defence counsel submitted that the correct interpretation of the appellant’s responses to police during his interview was that:33
“He’s saying, “No, I never intended it to”. I accept that that’s the probable result of hitting someone with a sledgehammer in the head, but I didn’t intend it to happen. I didn’t think it would happen. As I’ve said, did he think anything at all other than … reaction, rage, a name he might have had in his mind to call her, or something like that.”
Defence counsel submitted that if the jury could not accept what the appellant said about his lack of intention, then they should look at the circumstances. These included that he only hit her once with the sledgehammer which was consistent with both his having intent and not having intent. It could be nothing more than equal – it pointed to possible intent and possible non-intent. He also hit her with the side of the hammer which, defence counsel argued, meant it was not an intended lethal blow. The third circumstance which favoured there being no intent was that the blow was struck opportunistically and instantaneously. It was an instant angry reaction: rage. He continued, “You hear about the red mist coming down. People see nothing, think nothing, they’re just in a rage. It’s a rage. It’s mindless. Quite literally, no thought process going on in the head at all”.34
Defence counsel also invited the jury to consider the impact of intoxication on the appellant’s intention and the likelihood of his acting impulsively whilst in a spiralling, deteriorating state of depression.35 It was a hot blooded killing.
He argued that the appellant’s conduct after the killing was not consistent with an intention to kill – but rather consistent with a reaction to something he did not intend: “I’m buggered now. I’ve done something I didn’t mean. I’m screwed”.36
Discussion about directions after the closing addresses
After closing addresses, and having sent the jury home for the day, the trial judge spoke at length with counsel about his proposed directions to the jury, especially those concerning the evidence of prior violence, and whether the directions which the prosecutor sought in MFI D, including those contained in sections 103Z and 103ZC of the Evidence Act, were necessary.37
Defence counsel’s submissions were to the effect that the evidence of the prior act of domestic violence was “contextual”. The only issue was intention and the domestic violence directions referred to above would only confuse the jury. He said:38
“The escalating conduct – the fact there’d been violence before is before the jury. Its contextual. Your Honour would no doubt remind them off (sic) that and – and also, if necessary, give a warning that they shouldn’t act in a propensity-reasoning-type of way in that regard. But the issue is intent, and none of this really informs that greatly. So in my submission, the provisions – whilst very helpful in certain case (sic), haven’t been raised by the issues in this case or the way in which it’s been conducted.”
The next day, his Honour asked for further assistance in relation to “the form of the background evidence direction”.39 His Honour discussed in detail the direction he intended to give and secured support from both counsel for it. His Honour also discussed with counsel, and secured their agreement to, his selection of certain portions of the evidence to include in his directions (especially what [D1] said about the “threat”). During that discussion, defence counsel persuaded the trial judge to refer in his directions to a history of domestic violence, rather than to a pattern of domestic violence.40 It will be recalled that “pattern” was the word used by the prosecutor in his closing address.
His Honour made it plain that he would direct the jury that they could not infer from the fact that other acts of domestic violence occurred that the appellant had the requisite intent for murder. Even though the prosecutor had invited that sort of reasoning in his closing arguments to the jury, defence counsel did not ask his Honour to expressly correct the submissions of the prosecutor, nor did he raise them at all during this part of the discussion about the direction.41
Summing up
The trial judge’s summing up was methodical and balanced and ended with a detailed focus on the only real issue for the jury – intention.
As to the evidence of statements of the deceased led at trial (not all of which I have referred to in my overview of the evidence), his Honour said (my emphasis):42
“There is evidence from a number of sources about conversations with [the deceased] and, in particular, what she said; that is to say, the statements she made during those conversations. To give you a prompt in that regard, there was evidence from, you might recall, [F2] about a conversation with [the deceased] where [the deceased] told her various things which were said to have been said by Mr Sturgess. Now, while that evidence may be used by you, bear in mind that none of those statements were on oath and so [the deceased] was not then under the same imperative to speak truthfully as if she was testifying on oath in Court. No less importantly, what [the deceased] said was untested and, of course, remains untestable. Those statements cannot, for example, be examined to ascertain their reliability by the usual means for testing the honesty and reliability of witnesses via cross-examination. So I warn you to exercise caution when deciding whether to accept as reliable what you heard these various witnesses recount that [the deceased] said to them and, if you accept any of those statements, in forming a view about the weight that ought to be given to this evidence.”
“Can I then turn to the issues of background evidence? The Crown alleges that Mr Sturgess acted with murderous intent when he killed [the deceased]. There is evidence that in the past there was a history of domestic violence. In that respect, there was evidence of an assault that had taken placed in the kitchen of the home. You might recall the reference to broccoli. There was evidence on this topic by [D1], who was the eldest child, and also in the police interview of the [appellant]. There was evidence of a statement made by the [appellant] to the deceased. That evidence was given by [D1]. There was evidence that Mr Sturgess was verbally aggressive and angry towards [the deceased] over time.
In respect of the second topic that I referred to above, which was the evidence of a statement, I am going to now refer to some of the evidence that was given in the trial. I will start with the police record of interview with [D1] …
[His Honour set out the relevant part of [D1]’s 93A statement, during which she stated that she definitely remembered the appellant threatening the deceased; and her pre-recorded cross-examination and her pre-recorded re-examination, during which she said that she did not remember the appellant making the threat, but she believed what her mother told her.]
It is relevant to the Crown case as the Crown says it in part demonstrates that there was history of violence in the household. The Crown says that if you are satisfied that these other act or acts occurred they would assist your understanding of the background to the incident which is the subject of the alleged offences. It is for you to decide whether the evidence assists you in that way, but you cannot use the evidence at all unless you are satisfied that the other act or acts occurred. You cannot infer only from the fact that the other act or acts occurred that the [appellant] intended to kill or do grievous bodily harm to [the deceased]. It is certainly not enough that you consider that the [appellant] having been responsible for the earlier act or acts, is the sort of person who might or even would commit murder as alleged in the indictment. It would be quite wrong for you to say, having heard that evidence, the [appellant] is the sort of person likely to have intended to kill or do grievous bodily harm.”
“Now, I have not forgotten the note that you sent me earlier on in the trial, which said:
We discussed intent and have some different interpretations of the expression word. Is there a legal definition of the word intent that may help us?
So I am now going to seek to assist you with this notion of intent. Intent and intention are familiar words. In this legal context they carry their ordinary meaning. In ascertaining the [appellant’s] intention, you are drawing an inference from facts which you find established by the evidence concerning the defendant’s state of mind. Intention may be inferred or deduced from the circumstances in which the death eventuated and from the conduct of the defendant before, at the time of, and after he did the specific act which caused the death. And, of course, whatever a person has said about his intention may be looked at for the purpose of deciding what that intention was at the relevant time. Intent need not be long standing. It may be momentary. Intent may be formed immediately before the outcome of the relevant event.
In respect of the offence of murder, proof of intention is to produce a particular result (sic), either to cause death or alternatively to do grievous bodily harm. Accordingly, the prosecution must prove beyond reasonable doubt that the defendant meant to produce that result by his conduct. Intent does not necessarily involve premeditation. In this case, there is no suggestion of any significant premeditation. The prosecution must prove that Mr Sturgess had the necessary intention at the time the blow (sic) that caused [the deceased’s] death. It need not have been a long-standing intent. In other words, it may be an intent formed immediately before the relevant act of inflicting the strike.
The expression “grievous bodily harm” means any bodily injury of such a nature that, if left untreated, was likely to endanger life or likely to cause permanent injury to health and whether or not treatment was or could have been available.”
“Can I move on to this issue of deciding the real issue, assuming you agree that the critical element for you to focus on in your deliberations is intent, what I would like to do now is attempt to assist you further in your consideration of those elements, which you will need to be satisfied of beyond reasonable doubt if you were to convict. I will do so in part by seeking to refer back, in effect, to how each of the prosecution and the [appellant] have argued their case. So in this aspect of my summing up I am referring to what the Crown says and what the [appellant] says is their case.
So, in relation to the Crown, they say that, on the 28th of April 2020, Mr Sturgess was in a volatile headspace. He did not like the situation he found himself in and he was – what really set him off, the trigger for his killing [the deceased] … was a discussion about how he was going to lose more than half the family assets. The issue of child support assistance; that this angered him. And angered him to a point that he armed himself with the sole purpose of causing his estranged wife catastrophic injury or death.
Secondly, what the Crown has said is that, in relation to the intention which you must focus on, the relevant point is the moment or moments during which Mr Sturgess struck his unsuspecting former partner with the sledgehammer. The Crown has said that you, the jury, can infer his intent to kill or to do grievous bodily harm from a number of factors. Firstly, the Crown says that there was a motivation in relation to Mr Sturgess perceiving that he was being fleeced financially by [the deceased]. Secondly, the Crown directs you to the weapon itself, its size and its weight. Thirdly, the Crown directs you to Mr Sturgess’s physical action of going and getting the sledgehammer, regardless of where it was located. Fourthly, the Crown seeks to rely on the physical action required to deliver the blow or blows to the back of the deceased’s head.
Fifthly, the Crown seeks to rely on the area, which was aimed at, being the back of the head … Sixthly, they rely on the likely way the sledgehammer was used. They say it was with the long end of the head. By that they mean the flat side, not the round side of the head of the sledgehammer. The Crown … said that you can infer that this was a deliberate action to ensure that the most contact as possible was made with the weapon and [the deceased’s] head.
Seventhly, they point to the severe force used …Eighthly, they say the way [the deceased] was positioned in the room, namely that she was struck from behind, she was unsuspecting and she was [d]efenceless … Ninthly, they referred to the [appellant], what they have referred to as fleeing the scene, and that includes not calling emergency services and leaving [the deceased] for dead.
As part of their summarised case, they say that Mr Sturgess’s versions after he killed [the deceased] … [include] … statements consistent with Mr Sturgess having murdered his wife.
…
[His Honour then set out the statements of the appellant upon which the Crown relied as admissions to murder and continued:]
I am going back now to how the Crown has put their case to you. The Crown says that there are statements consistent with the [appellant] having intended to murder his wife. The Crown also says there are statements that may be inconsistent, but they are self-interested statements …
…
[His Honour reminded the jury of the Crown’s arguments about the appellant’s implausible statements; his credit lies; and evidence of his consciousness of guilt of murder; and continued:]
Finally, the Crown says that, once the untruthful statements of Mr Sturgess are put to one side, the jury should piece together the other evidence led by the Crown. And that supports Mr Sturgess consciously went and armed himself with a sledgehammer and then sort of leapt at … his estranged wife and struck her with severe force with an intention to kill her or at the very least cause her grievous bodily harm. The Crown said to you that they do not need to prove that that intention was held for more than a few seconds before Mr Sturgess delivered the blow.”
“… Firstly, you will recall the Defence case is the [appellant] did not intend to cause the death or grievous bodily harm when Mr Sturgess struck the deceased with the hammer. Or at least you, the jury, would not be satisfied beyond reasonable doubt that he had such an intent …
…
… [Trial defence counsel] said there was direct evidence… of intent47 … [which] came from the [appellant] himself in various statements, mainly to police, but also to others …
[His Honour then went through the evidence of the statements relied upon by the appellant as evidence of his lack of murderous intent.]
…
The Defence submitted to you that the direct evidence they seek to rely upon supports that no requisite intention existed. The Defence says it would need to be rejected to convict. The Defence then turned to circumstantial evidence regarding intent. The Defence said that a number of circumstantial matters may also be relevant to intent, and they sought to rely upon either favouring an acquittal, or at least equivocal, (1) that there was a single blow only … Secondly, the side of the hammer was used, not the end. It was to the base of the skull and neck area. Third, the strike was not premeditated, it was opportunistic. Fourthly, Mr Sturgess’s mental state was potentially affected by alcohol. He was unmedicated in respect of mental health issues and emotional issues such as separation and financial concerns at the time. Fifthly, the strike occurred during an argument. Sixthly, there was no plan either before or after. Seventhly, his reaction to having killed her was consistent with not intending it. Eighthly, the location of the hammer being in the room already. And the Defence finally says those circumstantial matters point towards an absence of the requisite intent, or, in any event, are equally referable to the absence of intent as to the existence of it.”
“It is not necessary for you to find all or any particular number of the matters the Crown puts as factors in order to draw a reasonable inference about intention. Consider the matters submitted by the Crown and decide if you accept the matters as facts that you find. Obviously, you will consider the matters put by the Defence in a similar way. Importantly, before you can be satisfied about the fourth element [murderous intent], it is necessary that an inference that Mr Sturgess intended to cause death or do grievous bodily harm to [the deceased] should not only be a rational inference, if you are drawing an inference from circumstantial evidence, but also it should be the only rational inference that can be drawn from the circumstances or facts as you find them.
If there is any reasonable possibility pointing away from guilt, you could not be satisfied about the proof of that element. This follows from the requirement that guilt must be established beyond reasonable doubt. And, even if you positively disbelieved Mr Sturgess’s statement to police as to the state of mind, as I warned you before, do not automatically jump to a finding that the relevant intention exists. Look at the evidence you do accept and ask yourself if you are satisfied beyond reasonable doubt as to the intention element.”
Consideration of grounds of appeal
Preliminary matter – the trial at which the appellant was convicted of murder was a re-trial
The trial at which the appellant was convicted was a re-trial – as this Court was informed by the Crown at the appeal and as was apparent from statements made by counsel to the trial judge.49
In fact, it was a second re-trial; that is, the appellant’s third trial. A review of the court files revealed that trial 1, on a single count of murder (as a domestic violence offence) (indictment 729/22), commenced on 6 June 2023 before Hindman J. On day 8, the jury were discharged because they were unable to reach a unanimous verdict. Trial 2 commenced before Wilson J on a new indictment charging murder (as a domestic violence offence), alternatively manslaughter (as a domestic violence offence) (indictment 988/23) on 25 September 2023 but mis-tried on day 2, before the Crown case closed. Trial 3, at which the appellant was convicted, also proceeded on indictment 988/23.
Counsel were the same at all three trials and it was plain from the transcript of trial 3 that they had discussions between themselves about evidence and necessary directions, as is entirely appropriate.
In this appeal, the respondent Crown did not invite the Court to consider the way in which the previous trials had been conducted. But it is reasonable to infer that defence counsel’s decisions at trial 3 were informed by the fact that he had “achieved” a hung jury at trial 1. Indeed, he conveyed that he was adopting the strategy he’d adopted at trial 1 when he provided the prosecutor with a copy of his “address points” document and said, “I’m happy for you to have it. You’ve heard my closing”.50
Ground 1
Ground 1 was expressed as follows:A miscarriage of justice occurred because of the way in which the evidence of an earlier alleged episode of violence was placed before the jury:While the evidence was claimed to be led as “relationship evidence”, the specific use to which it was put under that head was not properly identified, nor could one rationally be identified;Notwithstanding the Crown Prosecutor’s concession that the evidence was not being used on a propensity basis, his submissions to the jury invited precisely that form of reasoning;The directions given to the jury by the learned Trial Judge were inadequate to mitigate against the risk of misuse of the evidence.
Elaborating on ground 1 in his written submissions, the appellant said at [25]:
“The Crown Prosecutor’s submission [inviting propensity reasoning as to intention] needed to be called out and addressed by the learned trial judge. The jury needed to be told in unequivocal terms – and by explicit reference to the dangerously wrong submissions made by the Crown Prosecutor – that they could not reason in that way.”
At [27] of his written submissions, the appellant complained that the direction given was deficient including because (my paraphrasing): it did not adequately explain how the “relationship evidence” could be legitimately used;it did not call out and respond to the prosecutor’s invitation to the jury to apply propensity reasoning;in its use of the word “only” in the phrase “you cannot infer only from the fact that the other act or acts occurred that the defendant intended to kill …”, which suggested that the jury could use that evidence to “help reach that conclusion”, which was not protective at all;in its use of the phrase “it is certainly not enough”, which gave the jury permission to include the appellant’s propensity as a factor leading to a conclusion that he was the sort of person who might or could commit murder.
The appellant argued that the risk of misuse of the evidence of prior domestic violence was “very high” given that it had no legitimate relationship purpose. The appellant submitted that his Honour’s directions enhanced the risk of propensity reasoning and submitted that there was “every prospect that the misuse of the evidence could have been the difference between conviction for murder and conviction for manslaughter”.
The prosecutor submitted at paragraphs [6] and [7] of MFI D that the evidence of prior violence rendered the intentional killing intelligible or not improbable or surprising. Defence counsel accepted that evidence of the appellant’s prior violence was relevant “contextual” evidence. Neither counsel elaborated further on how it might be said that the evidence of prior violence rendered the intentional killing “intelligible”, or the sense in which it was “contextual”.51 Regardless, in my view, the relevance of the evidence was clear without any need for elaboration.
This was a vicious crime. By his own admissions, during an argument about their property, the appellant armed himself with a sledgehammer; leapt at his unsuspecting wife and bludgeoned her in the back of her head with severe force, before leaving her alone to die in a pool of blood, in what must have been an horrific scene.
Evidence led in the Crown case included statements by the appellant to police that he “wasn’t there” at the time, if they [police] knew what he meant; and statements by the appellant to [D2] that he acted with “uncontrollable” rage and “psychotically” and that he needed “hospital not jail”.
In my view, evidence that the appellant acted violently towards the deceased in the past was relevant not only as background and context for the killing, but also to dispel any suspicion on the part of the jury that the appellant’s vicious fatal act, and his callous conduct thereafter, was the product of an extraordinary, completely out-of-character, extreme mental or emotional pathology, for which he bore no criminal responsibility.
Ground 2
Ground 2 was expressed as follows: A miscarriage of justice was caused by the absence of a warning about relying on hearsay evidence in relation to the evidence of [D1] as to statements said to have been made by the appellant to the deceased.
The warning referred to in this ground is the warning set out in section 93C of the Evidence Act, which applies to evidence admitted under section 93B*.* It is a warning that must be given “upon request” by a party unless there are good reasons for not doing so.
Referring to section 93B of the Evidence Act, the appellant seemed to suggest, in paragraph [33] of his written outline, that the evidence of [D1] concerning the appellant’s “if you weren’t the wife of my children” threat was inadmissible because no application for its admission under that section was made. But [D1] presented the threat as something she heard (that is, not hearsay) in her section 93A evidence in chief. When it was put to her in cross-examination that the appellant did not make the threat, [D1] volunteered that she did not hear it, but her mother told her about it. It is therefore not surprising that there was no application to admit it – because neither party sought to elicit the evidence as hearsay from [D1].
Other statements of the deceased were admitted under section 93B. The trial judge discussed with counsel his section 93C direction. He told counsel that he planned to use [D1]’s evidence as an example of the evidence to which the direction applied. Both counsel asked his Honour to choose another example, because the status of [D1]’s evidence as hearsay was “controversial”. Counsel invited his Honour to choose, as the example witness, either [F2] or the solicitor.52 As set out above, his Honour used [F2] as the example witness.
Given the circumstances in which it emerged that the threat recounted by [D1] might be hearsay, it is arguable that no section 93C warning in relation to it was called for. But regardless, his Honour’s direction was apt to apply to the evidence of [D1] if the jury concluded that it was hearsay.
I do not conclude that any wrong decision on a question of law was made by his Honour in directing the jury as he did in this regard.
Additionally, it is difficult to see how giving a section 93C direction that expressly referred to that evidence would have assisted the appellant.
The appellant denied making the threat. If the trial judge had expressly referred to [D1]’s evidence in the course of his section 93C directions, there was a risk that the jury might think that the trial judge was persuaded that the threat had been made by the appellant. It would also have reminded the jury again of the threat.
Ground 3
Ground 3 was expressed as follows: A miscarriage of justice was caused by the learned trial judge failing to adequately direct the jury as to the specific intent that the Crown was required to prove.
In my view, the real issues in relation to intention were thoroughly ventilated by the parties and the learned trial judge in his summing up. The real issue would not have been lost on the jury. Nothing more was required. It could not sensibly be suggested that there was a risk that the jury convicted on the basis that the appellant held anything less than an intention to cause grievous bodily harm when he bludgeoned his wife, with severe force, in the back of her head with a sledgehammer.
In my view, there was no wrong decision on a question of law when it came to the way in which his Honour directed the jury about the intention required for murder.
Ground 3 is not made out.
1-9 Appeal hearing. ↩
Which states that the Court shall allow an appeal against conviction if it is of the opinion that the verdict of the jury should be set aside on the ground that the verdict is unreasonable, or can not be supported having regard to the evidence. ↩
Criminal Code, s 668E(1A). ↩
[2025] HCA 24 [3] footnotes omitted. ↩
Ibid [78] per Gleeson, Jagot and Beech-Jones JJ. ↩
Ibid [102] per Gleeson, Jagot and Beech-Jones JJ. ↩
Ibid [57] per Edelman J; [102] per Gleeson, Jagot and Beech-Jones JJ. ↩
Footnotes omitted. ↩
AB 111 – 112. ↩
AB 391 – 392. ↩
AB 199. ↩
AB 199/40 – 44. ↩
Section 103CB Evidence of domestic violence ↩
R
Sturgess [2025] QCA 150
(2025) 99 ALJR 969
Appeal dismissed. Grounds 1, 2 and 3 were not made out.
There was no complaint from the appellant’s trial counsel about the admissibility of the “relationship evidence” or the trial judge’s directions about the matters the subject of the grounds of appeal. Indeed, the trial judge spent a considerable period of time with trial counsel and the prosecutor discussing the directions he intended to include in his summing up; and trial counsel and the prosecutor had direct input into the directions the subject of grounds 1 and 2.
The appellant’s grounds of appeal as framed, and the appellant’s written outline of argument, were focused on the miscarriage of justice said to be occasioned by the directions the subject of the grounds. The appeal was heard on 23 April 2025. The appellant’s oral submissions anticipated the decision of the High Court in MDP v The King [2025] HCA 24 (MDP), which was delivered on 18 June 2025, and he alternatively contended that the alleged inadequate directions were wrong decisions on questions of law, because it was “quintessentially the job of the trial judge to make positive decisions about the way in which directions be given”.1
The written submissions of the respondent Crown and the oral submissions of Crown counsel at the appeal dealt with the grounds of appeal on a miscarriage of justice basis only. Crown counsel’s submissions focused on what he asserted was the forensic strategy of trial counsel and he contended, in effect, that the directions now sought on appeal would have undermined that strategy, so it could not be said that, without them, there had been a miscarriage of justice in the sense of an unfair trial for the appellant.
As noted, MDP was delivered after the hearing of the appeal. In it, Gageler CJ explained that its reasons were to be read with the unanimous reasons for judgment in Brawn v The King [2025] HCA 20, a judgment also delivered after the present appeal was heard on 7 May 2025.
What is known as the “second limb” of the common form appeal provision (set out in section 668E(1) of the Criminal Code) requires this Court to allow an appeal against conviction if it is of the opinion that “the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law”. What is known as the third limb of the common form appeal provision requires this Court to allow an appeal if it is of the opinion that “on any ground whatsoever there was a miscarriage of justice”. In MDP, Edelman J described the third limb as a “catch all provision” designed to ensure that the appeal provision captured every instance of miscarriage of justice not included within the first two limbs.
Those two limbs (as well as the first)2 are followed by a proviso that the Court may nevertheless “dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred”.3
In MDP, as Gageler CJ explained,4 the High Court was “unanimous in holding that: (1) a wrong decision on a question of law within the meaning of the second limb involves a wrong determination or response to a question of law by the trial judge that has legal effect in the trial; and (2) a wrong decision on a question of law, other than one that amounts to a “failure to observe the requirements of the criminal process in a fundamental respect”, cannot result in an appeal against conviction being allowed on the second limb unless the appellant can establish that the wrong decision could realistically have affected the reasoning of the jury to the verdict of guilty that was returned in the trial that occurred” (my emphasis).
MDP holds that a decision by a trial judge on a question of law for the purposes of the second limb is not confined to decisions made over the objection of a party. It is sufficient that the trial judge made some determination that has legal effect in the trial,5 such as a determination about what directions to give and their content. A trial judge bears responsibility for delivering a summing up that correctly states the law.6 A trial judge’s failure to give a direction required by law, or a trial judge’s misdirection, may constitute a wrong decision on a question of law even if there was no request for the direction which was not given nor a request for a re-direction. Such a failure to direct or a misdirection will involve an error of law if it permits a jury to engage in impermissible reasoning.7
In MDP, Gleeson, Jagot and Beech-Jones JJ dealt with the relevance of the conduct of trial counsel to an appeal based on the second limb. Their Honours said:8
While the opening included a reference to the appellant’s previous violence towards the deceased, its focus was on the appellant’s rage at the time he struck the deceased; and the murderous intent which the Crown asked the jury to infer particularly from the fact that he armed himself with a sledgehammer to strike her in the head.
The defence response to the prosecution opening was to emphasise that the only issue for the jury was whether the appellant had the intention, required by law, for murder, when he struck his wife.
He was formally interviewed by police between 1.58 am and 3.13 am on 30 April 2020. During his interview he said, or made statements to the following effect (my emphasis):As to what he could tell police about the killing of the deceased:
In that context, evidence that the appellant had a propensity to act violently towards the deceased rendered the offending “intelligible”. Indeed, in my view, even without the appellant’s statements (and the statements of others) which suggested there was something mentally wrong with him, the evidence was relevant to provide an intelligible context for the act of extreme violence.
I do not accept the appellant’s argument that there was no legitimate purpose to be served by the admission of the evidence of prior violence. It was relevant and admissible.
As to the adequacy of the directions, the Crown invited this Court to conclude that defence counsel made a deliberate choice not to request stronger or different directions from his Honour about propensity reasoning so as not to undermine the defence “strategy” at trial; and that the appellant was bound by the conduct of the trial by his counsel.
The appellant’s position in relation to the approach of defence counsel at trial was, in effect, that even if defence counsel made a deliberate choice not to seek different directions/redirections, that did not relieve the trial judge of the obligation to give the directions which were required by law. In the light of MDP, the appellant is right and, as indicated above, I have considered the appellant’s arguments in the way required by MDP.
I acknowledge that the learned trial judge did not in his direction about “background evidence” elaborate upon the way in which the jury might legitimately use the evidence of prior violence, beyond telling them that it might assist in their understanding of the background of the incident. But frankly, it is very difficult to understand how elaboration on the permissible use by the Crown of the appellant’s prior violence would be to the appellant’s advantage. Surely from the appellant’s point of view, the less said about his propensity to act violently towards the deceased the better. I cannot see how it can be said that any deficiency in this regard operated adversely to the appellant. Further, in my view, the evidence of the appellant’s prior violence towards his wife had no relevance to the only question for the jury – namely, whether the appellant acted devoid of any intention, or with murderous intent, when he bludgeoned his wife in the back of the head with a sledgehammer. Bearing in mind its irrelevance to the critical question for the jury, I do not conclude that his Honour made a wrong decision on a question of law by not elaborating further on the permissible use of the evidence of the appellant’s prior violence towards the deceased.
Even if I am wrong about that, and there was an error or wrong decision by his Honour in not elaborating further in his summing up on the permissible use of the evidence of prior violence, the lack of elaboration could not realistically have affected the reasoning of the jury to the verdict of guilty in the trial that occurred when the summing up made it plain that the evidence of prior violence was irrelevant to the only issue for them.
The respondent Crown did not accept that the trial prosecutor invited propensity reasoning as to intention – see [16] of the Crown’s written submissions. I consider that he plainly did.
However, in my view, the prosecutor’s arguments based on propensity reasoning in support of the appellant having a murderous intent were not the focus of his address. Nor were they logical. And they were well overtaken by his submissions as to intention.
The evidence about the prior act of violence from 2017 (including what the deceased had to say about it to her solicitor) revealed that the appellant was so overcome after his violence on that occasion that he tried to take his own life – not that he was likely to act with a desire to kill his wife on another occasion. That point was made by the appellant’s trial counsel during his address.
Viewed reasonably, the “if you weren’t the wife of my children” “threat” made in 2020 (hearsay or not), reported by D1, was more accurately a statement as to why the appellant would not act with a murderous intent towards the deceased. Indeed, that was a point made by the appellant himself in his interview with police as to why he did not/would not act with murderous intent towards her: see [34(u)] above. It was also a point made by his trial counsel during his address. Trial counsel submitted (my emphasis), “The evidence of [D1] can be almost dismissed. It was months earlier and it was probably not something she heard herself directly anyway, and it’s not in a threat in any event. It’s conditional. ‘If you weren’t the mother of my children, I would have’. Well, she is the mother, so there is no threat at all. It’s not going to happen”.
In my view, the trial judge’s directions to the jury about background/prior violence sufficiently “called out” the prosecutor’s invitation to the jury to apply improper propensity reasoning without expressly harking back to the prosecutor’s (illogical) submissions.
The prosecutor told the jury that they could rely upon the appellant’s propensity to commit acts of violence against his wife, and his threat to kill her previously, as a basis for concluding that he killed her with an intention to kill. Viewed reasonably and as a whole, the trial judge’s directions about the prior violence directed the jury that they could not reason in that way. His Honour concluded his direction about the prior violence with a statement that it would be “quite wrong” for the jury to reason that, because the appellant had been violent to the deceased in the past, he was the sort of person likely to have intentionally killed her. On one view, his Honour qualified the preceding sentences of his direction with the word “only” and the phrase “not enough”, but the ultimate message, that the jury was not permitted to use propensity reasoning to conclude that the appellant was guilty of murder, was clear. Further, I consider it extremely unlikely that the jury ignored the clear thrust of the direction, clung to the word “only” and the phrase “not enough”, and proceeded on the basis that they had permission to somehow apply propensity reasoning to conclude that the appellant had a murderous intent.
I do not conclude that his Honour made a wrong decision on a question of law by way of the content of this direction not “calling out” expressly the submissions of the prosecutor.
Even if I am wrong about that, and it was a wrong decision by his Honour not to expressly call out the prosecutor for his submissions, it cannot realistically be said that any wrong decision in this regard could have affected the reasoning of the jury to their verdict of guilty of murder in the trial that occurred.
The prosecutor should not have invited the jury to use evidence of the appellant’s prior violence in proof of his murderous intent but, as noted, his arguments were illogical and did not play a prominent role in his argument overall. And defence counsel’s address adequately met the prosecutor’s arguments in rebuttal and diffused the impact of the evidence of prior violence.
Further, the prosecutor’s invitation to the jury to apply propensity reasoning on the issue of intention was overridden by the shape and content of the learned trial judge’s summing up, not only because it included a direction that it would be wrong for the jury to reason in that way but also, and in particular, because of his Honour’s emphasis on the issue of intention and the evidence relevant to it, which did not include reference to evidence of the appellant’s prior violence.
It was made very clear to the jury that the only issue for them was whether they were satisfied, beyond reasonable doubt, that the admittedly enraged appellant acted with a murderous intent when he picked up a sledgehammer and bludgeoned his wife in the back of her head. His Honour’s summing up helpfully packaged for the jury the evidence properly relevant to that narrow issue and the competing arguments about it. His Honour emphasised the importance of the issue of intent not only by the length and content of his directions about it but also by concluding his summing up with it.
The prospect that the application of improper propensity reasoning, which the jury had been warned against, and which was well and truly overwhelmed by the directions about intention, might have made the difference between conviction and acquittal is, in my respectful view, unreal.
Obviously, trial defence counsel was present for the prosecutor’s address. It is reasonable to infer from trial counsel’s request that the trial judge refer in his summing up to the history rather than the pattern of domestic violence in the relationship between the appellant and the deceased that trial counsel was well aware of the prosecutor’s invitation to the jury to engage in propensity reasoning. Yet trial counsel asked for no different directions than those given by his Honour, consistent with his evaluation that the prosecutor’s improper arguments had been dealt with sufficiently. Indeed, it is difficult to see the benefit to the appellant in the trial judge repeating the improper and illogical (or as the appellant put it, “dangerously wrong”) arguments of the prosecutor in his direction. This provides another basis for my conclusion that, even if a wrong decision on a question of law was embedded into the content of the direction, it could not realistically have affected the jury’s reasoning to their verdict of guilty of murder in the trial that occurred.
Ground 1 is not made out.
Further, in relation to the evidence of [D1], the real contest between the parties was whether the appellant actually made the “if you weren’t the wife of my children” threat. Bearing in mind the evidence of the violence which preceded the threat, and the way in which the appellant spoke about the deceased in his interview with police, it was likely that, if the jury had been expressly invited under section 93C to consider the reliability of the evidence that the appellant threatened the deceased, the jury would have concluded that the appellant did make the threat to the deceased as described by [D1].
It follows that, in my view, even if there was a wrong decision on a question of law involved in the way in which his Honour directed the jury under section 93C, it did not operate to the disadvantage of the appellant and could not therefore realistically be said to have affected the jury’s reasoning to a verdict of guilty of murder in the trial that occurred.
Ground 2 is not made out.
AB 199 – 200. ↩
Including about directions concerning post-offence conduct. ↩
AB 201. ↩
AB 277. ↩
AB 509 – 510. ↩
AB 29/34 – 39. ↩
AB 33/8 – AB 34/8. ↩
AB 35/16 – 27. ↩
AB 35/32 – AB 36/2. ↩
AB 36/9 – 11. ↩
AB 29/46 – AB 30/9. ↩
AB 48/42 – AB 49/19. ↩
AB 54. ↩
AB 55. ↩
AB 53/10 – 13. ↩
AB 46. ↩
AB 56/40 – 43. ↩
AB 64/25 – 26. ↩
AB 64/37 – 41. ↩
AB 65/3 – 7. ↩
AB 66/36 – 38. ↩
AB 67/10 – AB 68/3. ↩
AB 68. ↩
AB 325ff especially at 337 – 354. ↩
AB 330/26 – 32. ↩
AB 337 – 354. ↩
AB 348. ↩
AB 351. ↩
AB 75/22 – 36. ↩
AB 80/8 – AB 83/25. ↩
AB 89/5 – 36. ↩
AB 90 – 97. ↩
AB 97 – 101. ↩
The transcript records his Honour saying “He said there was direct evidence – there was not direct evidence of intent”. However, it is clear from defence counsel’s address that he argued that there was direct evidence of a non-murderous intent including coming from the defendant himself. See AB 50/8 – 18. ↩
AB 101/23 – 40. ↩
For example, defence counsel informed his Honour that the appellant’s election (to give or call evidence) would “be the same as last time unless something untoward happens” (AB 269/38 – 46). Also, the parties gave the learned trial judge an extract from a summing up by Hindman J about the appellant’s post-offence conduct (AB 393). ↩
AB 280/7 – 9. ↩
The fact that this was the appellant’s third trial might explain the abbreviated way in which counsel dealt with the relevance of the evidence. ↩
AB 274 – 275. ↩