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[2025] QCA 211
respondent. The appeal was dismissed. The murder conviction was not disturbed ([67]).
The Court of Appeal dismissed Wright’s challenge to his murder conviction. It found that the jury had been adequately directed on provocation even though the judge did not repeat the evidence that Wright was angry. The jury knew he was angry; the contested question was what that anger meant. The Court also held that criminal-negligence manslaughter was not a proper additional option in the way this trial was run: the Crown alleged a deliberate act, and the defence argued that if the act was not deliberate Wright should be acquitted. Finally, although a warning about drug-related evidence could have been prudent, the evidence was introduced by Wright to explain his actions and there was no realistic risk that the jury used it improperly.
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2,034 words · generated 07/10/2026
The Queensland Court of Appeal dismissed Jonathan Wright’s appeal against his murder conviction. Hall AJA gave the principal reasons; Mullins P and Hindman J agreed ([1]–[2], [68]). The judgment was delivered on 31 October 2025. The appeal concerned three alleged omissions in the trial judge’s summing-up: the treatment of provocation, the omission of criminal-negligence manslaughter as an alternative, and the absence of a specific warning about evidence of drug use and dealing.
No linked legislation citations have been extracted yet.
The Crown case was that Wright deliberately pursued and ran down Paul Sia, intending to kill him or cause grievous bodily harm. Sia had arrived at Wright’s Rockville home in a Nissan with another man on 20 November 2022. Wright then drove after the Nissan for about 13 minutes. The Crown relied on CCTV and dashcam footage, among other evidence, concerning the pursuit and collision ([9]–[12]). Sia suffered serious head and brain injuries and died on 3 December 2022 ([15]).
Wright’s account was different. He said he had arranged to buy methylamphetamine from Sia for $40,000. According to Wright, Sia punched him and left with the money and Wright’s telephone. Wright said he pursued Sia to recover them, intending to force the Nissan off the road, but struck Sia accidentally ([18]–[24]). The Crown case was that the fatal act was deliberate; the defence maintained it was accidental.
The appeal did not ask the Court to decide the facts afresh. It asked whether the way the jury was directed, or not directed, caused legal error and a miscarriage of justice. The Court rejected all three grounds and dismissed the appeal ([40], [50], [66]–[67]).
Provocation. The trial judge explained the partial defence and the questions the jury had to consider: whether Sia provoked Wright, whether Wright was actually provoked, and whether he acted while still provoked. The judge also referred to Wright’s account of being punched and losing the $40,000, and to the Crown’s argument that the pursuit allowed time for any anger to subside ([27]).
On appeal, Wright argued that the judge also needed to remind jurors of evidence from witnesses describing him as angry, shouting, or acting aggressively, and his own evidence that he was very angry ([31]–[33]). The Court treated the key distinction as one between the fact of anger and the inference to be drawn from it. There was no dispute that Wright was angry. The issue was whether that anger showed revenge, as the Crown argued, or loss of self-control through provocation ([38]).
The Court applied the principle that a trial judge need not discuss all evidence. A specific reference is needed only where it is necessary to ensure jurors understand the evidence sufficiently to decide the case ([34]–[36]). The trial was short, the evidence was not lengthy or confusing, and the provocation issue was identified early ([37]). In that context, there was no perceptible risk that jurors forgot or misunderstood the anger evidence. A recital of it would not have helped them resolve the disputed inference ([38]–[39]). Ground 1 therefore failed.
Criminal-negligence manslaughter. Wright argued that the jury should have been given a further way to return manslaughter: that he caused Sia’s death through criminal negligence while in control of a dangerous thing, his vehicle, under s 289 of the Criminal Code (Qld) ([42]). The Court emphasised that the Crown had not advanced that case. Its allegation was that the running down was deliberate, and it did not rely on s 289 ([16]–[17], [44]).
The trial had been conducted on the basis that the jury could convict of murder or manslaughter only if satisfied beyond reasonable doubt that the running down was deliberate. Defence counsel expressly argued that if the jury were not satisfied of a deliberate act, Wright should be acquitted ([45]). Manslaughter was already left as an alternative if the jury did not find the required specific intent, or if it found that intent but accepted provocation ([46]).
R v Willersdorf did not require every imaginable pathway to manslaughter to be left. The availability of alternatives depended on the live issues and the fairness of the trial as conducted ([43], [46]). Given the Crown’s case and the defence’s deliberate-act argument, the Court held that criminal-negligence manslaughter would not have been consistent with the case as particularised and would have been inappropriate ([47]–[49]). Ground 2 failed.
Discreditable evidence. Wright’s evidence about drug use and the proposed methylamphetamine transaction was potentially discreditable, but he introduced it to explain why he was angry and pursued Sia. The Crown did not use it to argue that he was more likely to have committed murder because he used or dealt drugs, or to attack his credibility on that basis ([52]–[53], [60]–[61]).
The Court accepted the general value of directions preventing improper use of evidence, particularly where evidence admissible for one purpose could be used adversely for another. But whether a direction was necessary depended on the risk of misuse in the context of the whole trial. The assessment included how the evidence arose, how counsel used it, and how the summing-up dealt with it ([55]–[57]).
Here, the relevant use of the evidence was apparent. It formed part of Wright’s account of his state of mind and was addressed in the provocation directions. The judge also gave an orthodox direction to put prejudice aside ([62]–[64]). A specific warning might have been prudent, but the Court found no perceptible risk of misuse or realistic possibility that the omission affected the jury’s reasoning ([65]). Ground 3 failed.
The judgment applies existing principles rather than announcing a new general test. On jury directions, it relies on RPS v The Queen and Domican v The Queen: the judge must direct on the applicable law, identify the issues, and fairly put the parties’ cases, but is not required to summarise every item of evidence. Whether particular evidence needs to be recalled depends on what the jury needs in order to perform its task ([34]–[36]).
On alternative verdicts, the judgment applies R v Willersdorf. The judge’s obligation is governed by the duty to ensure a fair trial, and alternatives should reflect the live issues. Although manslaughter must be considered in the circumstances described by the judgment, that does not mean every legal route to manslaughter must be left in every murder trial ([43], [46]).
For discreditable evidence, the Court states that a warning is often appropriate where evidence may be misused, but there is no automatic rule that one must be given whenever evidence reflects poorly on an accused. The practical question is whether, in context, there is a perceptible risk of misuse ([55]–[57], [65]).
The “after” position is therefore an application of those principles to this trial. The judgment does not purport to alter the general law of provocation, s 289, or jury directions. Its significance lies in its explanation of how trial length, the way a case is put, the purpose for which evidence is introduced, and the disputed issues inform whether an omission amounts to error or miscarriage of justice.
At [35], the Court says: “The extent to which a trial judge reminds the jury of the evidence is a matter for individual judgment and will reflect the complexity of the issues, and the length and conduct of the case.” In plain English, there is no fixed checklist requiring the judge to repeat every important piece of evidence. The adequacy of the summing-up depends on the particular trial.
At [38], the Court explains: “The real issue was not whether the appellant was angry, but whether that anger had motivated him to run down the appellant as an act of revenge, or in contrast, whether he had been provoked and had lost his self-control.” The important point is that the jury already knew about the anger. The appeal concerned the meaning of that evidence, not whether it existed.
At [46], the Court says that the principles in Willersdorf “do not require that every alternative pathway to an available verdict must be left regardless of the circumstances of the particular case.” In practical terms, a judge does not have to put forward every conceivable legal route to a verdict. The route must fit the evidence, the live issues, and the way the prosecution and defence have conducted the case.
At [65], the Court states: “There is no rule of law that a direction as to discreditable evidence must be given.” This does not mean such directions are unimportant. The Court says a warning may be prudent, but whether it is necessary depends on the particular evidence and the realistic risk that jurors will use it improperly.
The judgment is relevant where an appeal alleges that a jury direction was inadequate because the judge did not repeat specific evidence. It indicates that the assessment is contextual: whether the evidence was disputed, the length and clarity of the trial, and whether jurors needed a reminder to understand the live issue all matter ([34]–[39]). It does not say that a judge can omit evidence whenever it is undisputed; the question remains whether the jury had sufficient understanding to decide the case.
It is also relevant where an appellant argues that a judge should have left an additional alternative verdict or a different legal pathway. The judgment directs attention to the prosecution case as actually advanced, the defence case, and the issues left live at trial. In Wright, the Crown alleged a deliberate act and the defence argued that a non-deliberate collision meant acquittal. Those circumstances mattered to the rejection of criminal-negligence manslaughter ([44]–[49]).
For discreditable evidence, the precedent is most relevant where evidence has a proper purpose but could also carry a prejudicial implication. The Court’s assessment looks at who introduced it, why it was relevant, whether the prosecution invited improper reasoning, how the judge addressed prejudice, and whether counsel sought a direction ([55]–[65]). The decision does not establish that defence introduction automatically removes the need for a warning. It was one factor in the overall assessment.
The judgment was delivered on 31 October 2025. The supplied judgment text contains no decisions after that date discussing or applying R v Wright. It is therefore not possible, from this source alone, to describe how later courts have treated it.
The judgment itself considers earlier authorities, including RPS, Domican and Willersdorf, and discusses cases about discreditable evidence, including Aston-Brien, Coombes and Banks ([34]–[36], [43], [55]–[59]). Those authorities are part of the reasoning in R v Wright, not evidence of later treatment of R v Wright. The judgment’s own stated conclusions should therefore be understood as an application of those cited principles to the particular trial record.
The decision leaves several matters to be resolved case by case. First, it does not specify a universal threshold for when evidence must be recalled in a summing-up. It says that the need depends on the jury’s understanding, the complexity of the issues, and the length and conduct of the trial ([35]–[39]). A different trial record could make a reminder necessary even where a fact is not disputed.
Second, the judgment does not exhaustively define when criminal-negligence manslaughter must be left as an alternative in a murder trial. Its conclusion is tied to the fact that the Crown did not rely on s 289 and that the defence expressly argued that absence of a deliberate act required acquittal ([44]–[49]). The judgment does not determine how the issue would arise where criminal negligence was part of the prosecution case, or where the parties conducted the case differently.
Third, the judgment does not prescribe a single form of warning for discreditable evidence. It stresses both the potential prudence of a warning and the possibility that a warning can draw attention to prejudicial reasoning ([64]–[65]). The trial judge must assess the risk in context, including the evidence’s purpose, the way it was introduced, and the parties’ treatment of it ([55]–[65]).
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Wright [2025] QCA 211
PARTIES: R / v / WRIGHT, Jonathan / (appellant)
FILE NO/S: CA No 29 of 2025 / SC No 37 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: Supreme Court at Toowoomba – Date of Conviction: 7 February 2025 (Bradley J)
DELIVERED ON: 31 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 14 October 2025
JUDGES: Mullins P and Hall AJA and Hindman J
ORDER: The appeal be dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of murder – where the Crown case was that the appellant deliberately ran down the deceased with his vehicle and thereby caused his death – where the Crown alleged that the appellant’s intention was to kill the deceased or cause him grievous bodily harm – where the defence case was that although the appellant was angry with the deceased and had pursued him, the fatal collision was an accident – where the appellant contends that the trial judge’s summing up in respect of the partial defence of provocation was inadequate – where it is submitted that the directions on provocation should have incorporated reference to evidence of the appellant’s anger – where there was no dispute as to the appellant’s anger – where the issue in dispute was what inference could be drawn from that anger – where the extent to which a trial judge reminds the jury of the evidence is a matter for individual judgment and will reflect the complexity of the issues, and the length and conduct of the case – whether the directions regarding provocation were adequate in the circumstances of this case – whether it was necessary to remind the jury of evidence relating to the appellant’s anger / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of murder – where the Crown case was that the appellant deliberately ran down the deceased with his vehicle and thereby caused his death – where the appellant contends that the failure of the trial judge to direct the jury as to an alternative pathway to manslaughter, being manslaughter by criminal negligence, was an error – where the Crown did not rely on s 289 of the Criminal Code to prove that the appellant had caused the death of the deceased by criminal negligence – whether there was a basis upon which a further alternative pathway to manslaughter by criminal negligence could properly have been left to the jury / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of murder – where the Crown case was that the appellant deliberately ran down the deceased with his vehicle and thereby caused his death – where the appellant contends that the failure of the trial judge to direct the jury as to the use that could be made of evidence of discreditable conduct of the appellant was an error – where the discreditable conduct referred to was that the appellant had met with the deceased on the day in question to purchase methylamphetamine – where the evidence was introduced by the appellant – where it is generally prudent for a trial judge to give a warning against any prejudice arising from evidence of this type – where there is no rule of law that a direction as to discreditable evidence must be given – whether a direction ought to have been given on the facts of this case – whether there was a perceptible risk that the jury misused the evidence – whether there is a realistic possibility that the failure to give a direction affected the reasoning of the jury / Criminal Code (Qld), s 289, s 328A / Banks v The State of Western Australia [2018] WASCA 130, considered / Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, cited / Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, followed / LNV v The State of Western Australia [2019] WASCA 180, cited / MDP v The Queen (2025) 99 ALJR 969; [2025] HCA 24, cited / R v Aston-Brien [2000] QCA 211, considered / R v Coombes [2012] QCA 157, considered / R v Dunrobin [2012] QCA 209, cited / R v McMullen [2011] QCA 153, cited / R v Willersdorf [2001] QCA 183, considered / Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, cited / RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, followed
COUNSEL: A M Hoare KC for the appellant / N W Crane for the respondent
SOLICITORS: Fisher Dore Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Hall AJA.
HALL AJA:
Summary
The appellant was convicted after a trial of the murder of Paul Sia. The Crown case was that the appellant deliberately ran down Mr Sia with his vehicle and thereby caused his death. The Crown alleged that the appellant’s intention was to kill Mr Sia or cause him grievous bodily harm. The defence case was that, although the appellant was angry with Mr Sia and had pursued him, the fatal collision was an accident. The appellant appeals his conviction.
There are three grounds of appeal. By Ground 1, the appellant contends that the learned trial judge’s summing up to the jury in respect of the partial defence of provocation was inadequate. It is submitted that the directions on provocation should have incorporated reference to evidence of the appellant’s anger. By Ground 2, the appellant contends that the failure of the trial judge to direct the jury as to an alternative pathway to manslaughter, being manslaughter by criminal negligence, was an error. By Ground 3, the appellant contends that the failure of the trial judge to direct the jury as to the use that could be made of evidence of discreditable conduct of the appellant was an error.
As to Ground 1, the directions regarding provocation were adequate in the circumstances of this case. The appellant accepts that the trial judge directed the jury on the relevant law and identified the issues that required determination. The trial was short and much of the evidence was not contentious. That the appellant was very angry was not in dispute. What was in issue was what inference could be drawn from that anger. There was no necessity to remind the jury of evidence relating to the appellant’s anger. There is no realistic possibility that the jury would have overlooked that evidence.
As to Ground 2, the Crown case was that the running down was a deliberate act. The Crown did not rely on s 289 of the Criminal Code to prove that the appellant had caused the death of the deceased by criminal negligence. Manslaughter was left as an alternative verdict in the event that the jury were not satisfied that the appellant had the specific intent to kill or do grievous bodily harm, or, if they found such intent proven and were satisfied on the balance of probabilities that provocation had been made out. There was no basis upon which a further alternative pathway to manslaughter by criminal negligence could properly have been left to the jury.
As to Ground 3, the discreditable conduct referred to was that the appellant claimed in evidence that he met with Mr Sia on the day in question to purchase a quantity of methylamphetamine for $40,000. The appellant said that he intended to use some of the drugs and sell the rest for profit. The appellant’s case was that Mr Sia had assaulted him and stolen the $40,000. This evidence was introduced by the appellant to explain why he had pursued Mr Sia. The limited relevance of the evidence was clear. There was no suggestion that the appellant was more likely to be guilty of murder because he had engaged in drug use or dealing. Nor was it suggested that this was relevant to his credibility as a witness. No direction was sought regarding any possible prejudice arising from the evidence. In these circumstances, there is no perceptible risk that the jury misused the evidence. Whilst it is generally prudent for a trial judge to give a warning against any prejudice arising from evidence of this type, the failure to do so in this case did not result in a miscarriage of justice.
The prosecution case
The Crown opened its case on the following basis. At approximately 2.45 pm on 20 November 2022, Mr Sia arrived at the appellant’s house in Rockville in a white Nissan Tiida.1 Mr Sia was with another man, Nathan Vae Vae, who was in the passenger seat.2 The appellant came out of his house and spoke with Mr Sia. A short time later Mr Sia and Mr Vae Vae drove away in the Nissan.
The appellant then entered the house shouting. He was very angry. He again left the house and got into his white Holden Rodeo utility and drove off at speed in pursuit of the Nissan. He continued to pursue the Nissan for some 13 minutes.3 At times he drove above the speed limit and manoeuvred around other vehicles on the road. This pursuit was recorded on CCTV footage taken at several points along the journey. Further, the driver of a Volvo prime mover activated the dashcam in his vehicle and was able to record the events at the point when the appellant’s Rodeo forced the Nissan off the road.
The appellant caused the Rodeo to ram the rear of the Nissan, resulting in extensive damage.4 He then rammed the Nissan a second time to the left passenger side, forcing it off the road. The Nissan crashed through a speed sign and collided with a fence running parallel to the road. Mr Sia got out of the Nissan and began picking up cash that had spilt onto the grass by the side of the road. The appellant, who had driven past the Nissan, turned around and drove the Rodeo back past the Nissan and Mr Sia.5 Mr Vae Vae got out of the Nissan and climbed over the fence.
The appellant then executed a U-turn against oncoming traffic, drove towards the Nissan and then veered to the right, where Mr Sia was standing, and ran him over. Mr Sia was hit with full force by the Rodeo, which was fitted with a bull bar.6 One of the wheels of the Rodeo also ran over Mr Sia’s head. Mr Sia suffered serious head and brain injuries.
The appellant stopped the Rodeo a short distance from the point of impact, got out and walked over to Mr Sia. He did not render any assistance to Mr Sia, who was still conscious.7 Rather, he began picking up cash that had fallen on the grass. He appeared to yell at the truck driver who was filming the events with his dashcam. The appellant then walked over to the Nissan, opened the rear door and recovered his telephone and more cash.
The defence case
The appellant gave evidence at the trial. The defence case was that as at 20 November 2022, the appellant was struggling with a drug addiction, as he had throughout periods of his life.10 He considered Mr Sia to be a friend who he had known for the previous 12 months. The appellant had arranged to purchase some methylamphetamine from Mr Sia.11 The arrangement was that Mr Sia would drive to the appellant’s house in Rockville and would provide a quantity of methylamphetamine in return for the sum of $40,000.
When Mr Sia arrived in the white Nissan, there was another man in the car that the appellant did not know. The appellant came out of the house with the $40,000 cash in a box, got into the back seat of the Nissan and began talking to Mr Sia.12 Unexpectedly, Mr Sia punched the appellant to the side of the head. The punch left the appellant dazed and he found himself out of the car and no longer in possession of the box. The Nissan was reversing at the time the appellant exited the vehicle, which resulted in the appellant being hit by the open back door.13 Whilst not badly injured, he was somewhat confused. The Nissan took off at speed and the appellant realised that Mr Sia and his passenger had left with the box of money and the appellant’s mobile telephone.14
The appellant believed he had been robbed and decided to pursue Mr Sia. He ran into the house to get his car keys and then returned to his Holden Rodeo utility that was parked outside and set off in pursuit.15 He knew where Mr Sia was likely to be driving because he knew they had travelled from Brisbane.
The appellant’s case was that his intention was to force the Nissan from the road and recover the money. His plan was to undertake a “pit manoeuvre” involving a collision with the back of the car being pursued in order to spin it from the road.16 Whilst this was the first time he had ever tried such a manoeuvre, it was something that he had learnt about whilst doing an advanced driver training course.
The appellant caught up to the Nissan, rammed it from behind, and forced it from the road and into a nearby fence. He then turned his vehicle around with the intention of pushing the vehicle against the fence and leaving the bull bar pressed against the side of the Nissan so that the occupants could not get out. As he turned the Rodeo around, he saw that Mr Sia had got out of the Nissan. This occurred in a split second, and he realised that he was going to run into Mr Sia unless he took evasive action. He swung the wheel of the vehicle hard to the right in an attempt to try to avoid Mr Sia. However, Mr Sia bent over, and he lost sight of him. Initially, the appellant thought that he had missed Mr Sia. He did feel a bump, but thought he had run over a traffic sign. He turned the car around again and it was at this point that he realised that he had run over Mr Sia. His case was that it was not his intention to hit Mr Sia. He stopped and walked over to Mr Sia who was on the ground, but conscious and able to speak words to the effect of “you’re fucked, cunt”.
Ground 1
Ground 1 is that the learned trial judge’s summing up to the jury in respect of the partial defence of provocation was inadequate and thereby occasioned a miscarriage of justice.
As noted, the defence case was that the fatal collision was unintended. It was not contended by the appellant that he had deliberately run down Mr Sia with intent to kill or do grievous bodily harm, but that his action was provoked. Nonetheless, it was accepted at the trial that the partial defence of provocation was open on the evidence and should be left to the jury.
The trial judge’s directions in regard to provocation were as follows:21
“I now want to say something to you about provocation. You have heard that word mentioned in the addresses this morning. If you are satisfied that the accused killed Paul Sia with an intention to kill him, or to do grievous bodily harm to him, then there is another subject that you will have to consider in this case, which is provocation.
Our law recognises that a person may be killed in circumstances where the accused was so provoked by something done by the other person as to lose their power of self-control such that this provides an explanation for their actions which should be taken into account. Under our law, if a person acts under provocation, they are not guilty of murder, but they are guilty of manslaughter only. Provocation is, therefore, something which operates only as a partial defence, not a complete defence, because it reduced what would otherwise be a verdict of murder to one of manslaughter.
In this context, provocation has a particular legal meaning. It consists of conduct which causes a loss of the power of self-control on the part of the accused and which might have caused an ordinary person to lose the power of self-control and to act in the way in which the accused acted.
So there are three questions of fact involved here for you to consider. First, was there any provocation by Mr Sia towards the accused? Secondly, was the accused actually provoked by Mr Sia’s actions? And, thirdly, was the accused acting while provoked when he did the things by which Mr Sia was killed?
Unlike the elements that we have been considering for these offences, provocation is different. It places an onus on the accused to satisfy you that it is more probable than not that there was provocation by Mr Sia towards him; that he was provoked by Mr Sia; and that he was acting while still provoked when he did the act or acts by which Mr Sia was killed.
Can we unpack each of those questions, briefly. As to the first question, you have to consider what the accused argues was the provocation by Mr Sia. The accused said Mr Sia punched him in the side of the head and robbed him by driving away in the Nissan Tiida with about $40,000 that the accused had taken into the back seat of the car.
Unless you understand the accused’s personal circumstances, and any history between the accused and Mr Sia, you may not understand how serious was the conduct of Mr Sia from the accused’s perspective. The accused says that he and Mr Sia had been friends for about a year. He said little about the nature of the friendship. It seems he thought he could source drugs from Mr Sia. Apparently a significant quantity of drugs.
He said, on the day, he drove down to Plainlands to meet Mr Sia but Mr Sia was running late. He said he told Mr Sia where to come and meet him near his house in Rockville. He said he willingly got into the back seat of the Nissan Tiida with Mr Sia in the driver’s seat and another person he did not know also in the car. The accused said that the $40,000 was not his money. He said he intended to use the money to buy methylamphetamine from Mr Sia with the idea of selling most of the drug at a profit. He said he intended to use the profit to buy a Mazda Six car for his then partner. He said he was angry or very, very angry.
He said he ran back into the house in Vanity Street, collected the keys to his Holden Rodeo and drove off in pursuit of the Tiida. You have to consider whether that conduct occurred in the way the accused described it. You have some assistance from the recordings that you have been shown that have been placed in evidence. You have to assess the conduct that you are satisfied occurred of Mr Sia from the viewpoint of the accused.
Now, with that understanding of the conduct of Mr Sia toward the accused, whatever you may find it was, you have to ask whether it could have caused an ordinary person to lose self-control and act in the way that the accused did. An ordinary person is simply a person who has the minimum powers of self-control that are expected of an ordinary citizen. An ordinary person has the ordinary human weaknesses and emotions which are common in the community and you are well-placed to make an assessment of that.
The accused bears the onus of proving that it is more likely than not that what Mr Sia did – and he says it was punching him in the side of the head and driving off with the $40,000 in the car – whether that could have caused an ordinary person to lose self-control and act in the way the accused did. The Crown says that the accused had about 13 minutes to consider his reaction to what Mr Sia did, whatever that was. The Crown says that the accused had particular opportunities to consider his reaction after he forced the Tiida off the road and after he rammed it into the fence.
Now, you must form your own conclusion as to what happened that could have provoked the accused and whether what you find happened could have caused an ordinary person to lose self-control and to act in the way that the accused did. If you are satisfied that it is more likely than not that what happened could have caused the accused and could have caused an ordinary person to lose self-control and act in the way the accused did, then you may not find the accused guilty of murder but you may find him guilty of manslaughter, that is, if you are otherwise satisfied of the first three elements.”
Trial counsel sought a redirection in respect of provocation, to direct the jury that Mr Sia’s actions in picking up cash from the side of the road could be viewed as a continuation of the stealing of that money. The trial judge expressed a concern that a direction in these terms would be directly contrary to the appellant’s own evidence (and his defence case) that the death of Mr Sia was an accident. In particular, such a direction would invite the jury to consider that the appellant saw Mr Sia picking up money and was provoked by that conduct. After a short adjournment to consider the position and take instructions, trial counsel said that, on reflection, he would not press the point and that he shared the same concerns as the trial judge.
The issue now raised on appeal was not raised by trial counsel. There was no suggestion that, in the circumstances of this case, it was necessary for the jury to be referred to any specific evidence in regard to provocation.
The jury did ask a question regarding the elements of provocation. The trial judge repeated his directions in that regard.
The appellant’s contention is that the directions on provocation were deficient because they did not specifically refer to evidence that was capable of establishing that the appellant was angry at the time of the fatal collision. It is submitted that such evidence was relevant to the second and third questions posed by the trial judge, that is, whether the appellant was actually provoked by the deceased’s actions and whether he was acting whilst provoked at the time of the fatal collision. It is also said to be relevant in negativing the submission of the prosecution that there was ample time for the appellant’s anger to cool.
The evidence referred to by the appellant is as follows:22
The witness Ms Gallagher described the appellant, whilst he drove past her vehicle in the Rodeo shortly before the fatal collision, as appearing angry and shouting profanities.
The witness Ms Howlett gave evidence that she saw the appellant aggressively punching the driver’s side door of the Nissan.
The witness Mr Johnson, after manoeuvring his vehicle in front of the appellant’s utility, had an exchange with the appellant in which Mr Johnson asked the appellant what he was doing and the appellant replied that “they robbed his house and took everything”.
The appellant testified that he had been assaulted and robbed of $40,000 by a person he considered to be a friend. The appellant described himself as being “pretty fucking – very unhappy” and that when he got out of his vehicle he was “very very angry”.
In essence, the appellant’s argument is that in determining whether the appellant had met his onus to establish provocation on the balance of probabilities, the jury may have overlooked the significance of the above evidence. In oral submissions, senior counsel for the appellant suggested that the jury may have confined themselves to the evidence of the appellant and overlooked other objective evidence relevant to his anger and state of mind. The appellant submits that the failure by the trial judge to refer to this evidence could realistically have affected the reasoning of the jury and thereby caused a miscarriage of justice.
The essential requirements of a summing up in a criminal trial were stated in RPS v The Queen.23 The fundamental task of a trial judge is to ensure a fair trial of the accused. That requires instructions about so much of the law as the jury needs to know in order to dispose of the issues in the case. This will include instructions about the elements of the offence, the burden and standard of proof, and the respective functions of the judge and the jury. Subject to any applicable statutory provisions, it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases, it will require the judge to warn the jury about how they should not reason or about particular care needed before accepting certain types of evidence. None of this should obscure the fact that it is for the jury, and the jury alone, to decide the facts.
The extent to which a trial judge reminds the jury of the evidence is a matter for individual judgment and will reflect the complexity of the issues, and the length and conduct of the case. The omission of a summary of salient parts of the evidence will not necessarily cause a trial to miscarry.24
In Domican v The Queen,25 the majority (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:
“In a criminal trial the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. … Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it ‘is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities’. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.” (emphasis added; footnotes omitted)
In the present case the trial was of short duration. The trial commenced on 3 February 2025. The Crown prosecutor raised the possibility of a defence of provocation in his opening address and the jury were aware that it was a potential issue in the trial from the outset. The evidence was heard over three days. The closing addresses and summing up of the trial judge commenced and concluded on day four. The evidence was not lengthy or confusing. After a brief period of deliberation, the jury returned their verdict on the morning of day five.
It is also relevant to note that there was no contest that the appellant was enraged. It was, in fact, a component of the prosecution case that the appellant had acted in a state of rage and that this is what had motivated him to act as he did. The evidence referred to by the appellant was not contentious. The real issue was not whether the appellant was angry, but whether that anger had motivated him to run down the appellant as an act of revenge, or in contrast, whether he had been provoked and had lost his self-control. It was not the existence of evidence of anger that was in issue, but how that evidence was evaluated. That evaluative exercise would not have been assisted by reciting the evidence.
The trial judge was not bound as a matter of law to give a direction on provocation that incorporated reference to the evidence of the appellant’s anger. Reference to that evidence was only required if it was necessary to ensure that the jurors had sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Having regard to the length of the trial and the clarity of the evidence, there is no perceptible risk that the jury overlooked the evidence or had any difficulty in understanding it. The fact that the evidence was not specifically referred to by the trial judge in the provocation direction did not result in a miscarriage of justice. That conclusion is supported by the fact that no direction of the type now said to be necessary was sought by defence counsel at the trial.
Ground 1 fails.
Ground 2
Ground 2 is that the failure of the trial judge to direct the jury as to an alternative pathway to manslaughter, being manslaughter by criminal negligence, was an error and thereby occasioned a miscarriage of justice.
The appellant contends that it was open to the trial judge to leave for the jury’s consideration the possibility that the driving, albeit dangerous, did not involve the intentional aiming of the vehicle at Mr Sia. This would leave an alternative pathway to manslaughter by criminal negligence based on breach of the duty of a person in charge of a dangerous thing to use reasonable care and take reasonable precautions to avoid endangering the life, health or safety of any person. Pursuant to s 289 of the Code, a person who breaches such a duty is held to have caused any consequences which result from the breach. The appellant submitted that he had been deprived of the opportunity for the jury to return a verdict of manslaughter on this basis. It was submitted that a direction on criminal negligence could realistically have affected the reasoning of the jury and thus the failure to give such a direction caused a miscarriage of justice.
In R v Willersdorf26 Thomas JA (with whom McPherson JA and Chesterman J agreed) said that the rules concerning presentation to the jury of alternative verdicts are not prescriptive. They are governed by the duty of the trial judge to ensure a fair trial according to law. A jury should be permitted to return any verdict available on the evidence that is consistent with justice to the accused. However, the availability of alternative verdicts should reflect the live issues in the case. Thomas JA noted that a stricter approach applied to murder cases, where the duty to allow manslaughter to be left to the jury, if there is any basis for such a verdict, is well recognised. For historical reasons, a person on trial for murder has sometimes been given the opportunity to receive a merciful verdict of manslaughter even when strict logic might suggest that such a verdict is not really open.
The prosecution did not open its case on the basis that the appellant could, as an alternative, be guilty of manslaughter by reason of criminal negligence. That possibility was, however, raised in the absence of the jury prior to closing addresses. In that discussion the Crown Prosecutor initially suggested that criminal negligence could arise for consideration if the jury were not persuaded that the appellant intended to harm Mr Sia. The trial judge noted that the s 289 duty was a means by which causation could be proven and queried whether it could serve any purpose in the circumstances of this case. The Crown Prosecutor then confirmed that the prosecution case was not based on recklessness, but had “always been that this was a targeted act whether by manslaughter or murder”. Defence counsel made no contribution to this discussion and did not seek, either at this time or subsequently, that a direction on a criminal negligence pathway be given.
“That’s just to remind you of some of the evidence relating to intention, whether the Crown can satisfy you that there was – beyond reasonable doubt, there was an intention here. Of course, our case is that there was no – there was not an intention to do grievous bodily harm or death at that time, and, in fact, what occurred was an accident. Intention, of course, as I said, looms very large. The Crown hasn’t said, for example, or hasn’t put their case to you on the basis that, look, it could have been reckless driving or reckless – a reckless manner of driving or negligent driving. It says no, it’s intentional – intentional driving. There’s a difference. But perhaps most important is, in your view here, is that you must consider whether you find Mr Wright guilty or not guilty on the particulars of the Crown case, that it’s intentional – not that it’s reckless and not that it’s negligent. It’s intentional driving. That’s what the Crown says – it was intentional. Also, our case is that it wasn’t – not only was it not intentional, it was an accident. So I’ll ask you to focus carefully on that.”
This is not a case in which manslaughter was not left to the jury as an available alternative verdict to murder. To the contrary, and consistent with the prosecution case, the trial judge told the jury that there were two possible pathways to guilt of manslaughter. The first of these was if the jury was satisfied that the running down was deliberate but were not satisfied to the requisite standard that the appellant had acted with the specific intent to kill or do grievous bodily harm. The second pathway was if the jury were satisfied that the running down was deliberate and the specific intent was proven, and the appellant established on the balance of probabilities that he acted under the influence of provocation. The principles outlined in Willersdorf relate to alternative verdicts, they do not require that every alternative pathway to an available verdict must be left regardless of the circumstances of the particular case.
What was not left was the possibility of a verdict of guilty of manslaughter by reason of criminal negligence. There is an obvious reason for this. The Crown did not allege that the appellant had unlawfully killed the deceased by failing in a duty to take all reasonable precautions whilst in control of a dangerous thing, namely the Rodeo. Furthermore, the appellant did not contend at the trial that such an alternative should have been left to the jury. To the contrary, defence counsel took advantage of the lack of an allegation of criminal negligence to submit to the jury that the appellant could only be convicted if the running down was a deliberate act. Defence counsel relied on the Crown case as particularised, as he was entitled to do.
In the circumstances of this case, the failure of the trial judge to direct on an alternative pathway to guilt of manslaughter by criminal negligence was not an error and did not occasion a miscarriage of justice. Indeed, given the particularisation of the prosecution case, it would have been inappropriate for such an alternative to have been left to the jury. If the jury were not satisfied that the appellant had acted deliberately in running down the deceased, then the appellant was entitled to be acquitted of murder and manslaughter. Leaving criminal negligence manslaughter to the jury would not have been consistent with the prosecution case or commensurate with a fair trial.
At the appeal hearing, senior counsel for the appellant suggested that the appellant was denied the chance of a merciful manslaughter verdict. The implication was that if the jury were minded to be merciful their options for returning a manslaughter verdict were limited. That argument is difficult to understand. A manslaughter verdict was open to the jury. Furthermore, the jury also had the option of returning a verdict of not guilty of either murder or manslaughter, but guilty of dangerous operation of a vehicle causing death contrary to s 328A of the Code.
Ground 2 fails.
Ground 3
Ground 3 is that the failure of the trial judge to direct the jury as to the discreditable conduct of the appellant was an error of law and thereby occasioned a miscarriage of justice.
The appellant gave evidence at the trial to the effect that he had arranged with Mr Sia for Mr Sia to attend at his house with a quantity of methylamphetamine which the appellant would purchase for $40,000. The appellant explained that he had had a recurring addiction to methylamphetamine and that he intended to use some of the drug himself but sell the bulk of it. He said that he intended to use the profit that he made from the sales to supplement money saved by his partner so that she could purchase a new car. He also admitted that he had used methylamphetamine while working as a truck driver.
The appellant submits that this evidence was susceptible to being used by the jury in a prejudicial manner. In those circumstances, directions should have been given limiting the way in which the jury could use the evidence. The appellant relies on the cases of R v Dunrobin,28 Roach v The Queen,29 and R v McMullen30 to support the proposition that where evidence of a propensity or other discreditable conduct is admitted for a relevant purpose, the jury should be given careful directions as the use to made of it. The appellant submits that in such a case the trial judge should give a clear and comprehensible warning about misuse of the evidence and explain the purpose for which it is tendered.
The appellant submits that the failure of the trial judge to give a satisfactory direction on this issue amounts to an error of law which will often, although not invariably, result in allowing the appeal and setting aside the convictions unless the court considers that no substantial miscarriage of justice has actually occurred. The appellant relies on MDP v The King31 and the principle that a wrong decision on a question of law which could realistically have affected the reasoning of the jury should result in an appeal being allowed subject to the application of the proviso. The appellant submits that this is a case where the likely deleterious effect of the discreditable conduct on the jury was not curtailed or modified by any direction. In those circumstances it is said that the appeal should be allowed and the verdict set aside.
Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the inadmissible purpose, at least where the use of the evidence for the inadmissible or irrelevant purpose would be adverse to the accused. Where evidence is relevant and admissible for other reasons, but incidentally discloses the accused’s propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required. That will be the more so if the prosecution invites propensity reasoning in circumstances where that use of the evidence is not properly open. Whether a direction is required, and if so, the kind of direction that should be given, will depend upon an evaluation of the risk of the evidence being misused. A trial judge will usually have a better appreciation of the significance of the evidence complained of, seen in context, than can be discerned from reading transcript.
The evidence was introduced by the defence and not the Crown.
The evidence was directly relevant to the defence case in explaining the appellant’s conduct.
The use to which the evidence could be put was made clear by trial counsel and by the trial judge in his directions on provocation.
The alleged offending was not of the same nature and the discreditable evidence could not have supported improper propensity reasoning.
The evidence was not relied on by the State to discredit the appellant on the basis that he was a drug user or dealer.
A direction of the type now suggested to be necessary was not sought by trial counsel. Further, there was no complaint in regard to the summing up, nor any request for a redirection.
There may be sound forensic reasons why a direction of this nature would not be sought. Such a direction could be counterproductive.
The prejudice arising from this evidence was said to be of a general nature in that it went to the character of the appellant. Such general prejudice was sufficiently dealt with by the ‘no prejudice’ direction.
Conclusion
The appeal should be dismissed.
HINDMAN J: I agree with Hall AJA.
Transcript of Proceedings (3 February 2025), page 5, lines 35-45. ↩
Transcript of Proceedings (3 February 2025), page 2, lines 35-45. ↩
Transcript of Proceedings (3 February 2025), page 5, line 5. ↩
Transcript of Proceedings (3 February 2025), page 6, lines 40-45. ↩
Transcript of Proceedings (3 February 2025), page 6, lines 40-45. ↩
Transcript of Proceedings (3 February 2025), page 6, line 45. ↩
Transcript of Proceedings (3 February 2025), page 7, line 5. ↩
Transcript of Proceedings (3 February 2025), page 9, lines 10-35. ↩
Transcript of Proceedings (3 February 2025), page 8, lines 15-35. ↩
Transcript of Proceedings (5 February 2025), page 2, line 20. ↩
Transcript of Proceedings (5 February 2025), page 2, line 30. ↩
Transcript of Proceedings (5 February 2025), page 54, lines 35-45. ↩
Transcript of Proceedings (5 February 2025), page 55, lines 10-20.
R
Wright [2025] QCA 211
(1996) 186 CLR 427
(1992) 173 CLR 555
(2025) 99 ALJR 969
(2011) 242 CLR 610
(2000) 199 CLR 620
(2016) 259 CLR 449
The appeal was dismissed. The murder conviction was not disturbed ([67]).
In my view, none of the grounds of appeal succeed and the appeal should be dismissed.
The appellant then returned to the Rodeo and drove away.8 He drove to a storage unit, parked the Rodeo and arranged for another man to collect him. The Rodeo subsequently went missing and has not been located. The appellant claimed not to know where it went.
Mr Sia was taken to hospital and treated for his injuries.9 The injuries included bleeding to the brain. The treatment was unsuccessful, and Mr Sia died on 3 December 2022. Mr Vae Vae was also injured and had no recollection of the events of that day.
The prosecution case was that the appellant was in a state of rage and deliberately ran down Mr Sia with the intention of causing his death or at least grievous bodily harm. The Crown also anticipated that provocation may be raised but said that this was not a case of provocation as the appellant had not lost his self-control. Rather he had used his vehicle as a weapon to pursue and run down Mr Sia because he was angry with him. That anger did not result in a lack of self-control because the appellant was able to drive in a purposeful manner during the 13 minute pursuit. Further, that period of time was said to be sufficient to overcome the effect of any rage caused by any incident at the appellant’s house.
On the prosecution case, this was a killing by a deliberate act. Manslaughter was only open if no specific intent to kill or do grievous bodily harm was established, or, if such intent was established, the appellant was acting under the influence of provocation. The prosecution did not allege that the appellant could be guilty of manslaughter on the basis of criminal negligence. A further alternative of dangerous operation of a vehicle causing death was, however, open and left to the jury (s 328A of the Code).
The appellant was concerned for his safety given the previous assault at his house and given that Mr Sia was a young, strong man. For those reasons, he walked away and tried to recover the cash and his mobile telephone.
In essence, the defence case was that the running down was not deliberate, and the death of Mr Sia was an accident.
In closing addresses and in the summing up the case was put on the basis that the jury could only convict of murder or manslaughter if they were satisfied beyond reasonable doubt that the running down was a deliberate act. Defence counsel stressed this point in his closing address and made it clear that if the jury were not satisfied that the appellant had caused the death of the deceased by a deliberate act, he was entitled to an acquittal:27
A ground of appeal that alleges that a miscarriage of justice has been caused by the failure to give a direction regarding discreditable evidence will depend on an assessment of the circumstances of the case and whether there is a perceptible risk that the jury could have misused the evidence. This will include an assessment of the significance of the evidence, how it was introduced, what submissions were made about it and how it was dealt with in the summing up. It is not enough to show that the evidence, viewed in isolation, could have reflected poorly on the appellant. When viewed in the context of the trial as a whole the risk of prejudicial use may not be a realistic possibility.
The cases relied on by the appellant relate to the need for directions to be given where evidence which may show a propensity is admitted for a different purpose. It is necessary in such a case for the trial judge to give a clear and comprehensible warning about misuse of the evidence for propensity purposes and to explain the purpose for which the evidence was tendered.34 This issue frequently arises in cases involving sexual offending where evidence of other sexual conduct is led as relationship or context evidence and the risk of improper propensity reasoning is very real.
There are other cases where the evidence of discreditable conduct was of a different nature to the alleged offence, and the absence of a direction has been held not to have resulted in a miscarriage of justice. In R v Aston-Brien35 the appellant was convicted of rape and there was evidence that immediately following the offence the appellant had provided the complainant with some methylamphetamine for her own use. The evidence was relevant because the prosecution alleged that the reason the appellant had supplied the drugs was to buy the complainant’s silence. This court held that, while it would not have been inappropriate for the trial judge to remind the jury that they should not use the fact that the appellant was engaging in the unlawful supply of drugs for concluding that he was guilty of rape, the failure to give such a direction “did not result in an error which vitiates the trial”.36 In R v Coombes37 the appellant was convicted of four counts of rape and the evidence included reference to drug dealing and other discreditable conduct. The evidence was led to explain why the complainant continued to see the appellant after the first offence. Trial counsel made no request for a direction and, accordingly, it was necessary for the appellant to demonstrate that a miscarriage of justice resulted. Margaret Wilson AJA, after reviewing the closing addresses and the summing-up, concluded that a direction ought to have been given to the jury, but that the failure to do so did not result in a miscarriage of justice.
In Banks v The State of Western Australia38 the appellant was convicted of two offences involving the use of violence. The appellant, who was a sex worker, lured the victim into a car where he was attacked from behind by a male co-offender who was concealed in the back of the car. The appellant had previously provided sexual services to the victim, and they had used illicit drugs together on numerous occasions. The prosecution case was that the appellant was angry with the victim because she believed that he was interfering with her work as an escort and her social life. On appeal the court accepted that a jury might think that drug use and prostitution reflect adversely on a person’s character, but the risk that the jury would think that the appellant was more likely to have committed the offences for these reasons was not substantial enough to require a warning on the basis of the evidence alone. However, the trial judge also made remarks in summing-up that, in effect, invited propensity reasoning and gave the evidence a prominence that it did not have in the State case. The court concluded that the combination of the trial judge’s inappropriate remarks and the absence of any corrective direction resulted in a miscarriage of justice.
The circumstances in which the evidence of the appellant’s drug use and his attempt to purchase a quantity of drugs were introduced were unusual. This evidence was not introduced by the prosecution or relied upon by the prosecution in any manner adverse to the appellant. Rather, it was introduced by the appellant to support his case that he was justifiably angry and to explain why he had pursued Mr Sia, albeit that he had no intent to run him down or do him any harm. Thus, the relevance of the evidence was readily apparent from the way in which it was led.
The discreditable conduct was not of the same nature as the charge that was the subject of the trial. There was no suggestion that the appellant was under the influence of drugs at the time of the incident. The only connection between drugs and the incident was the failed transaction with Mr Sia. The evidence did not incidentally disclose any tendency or propensity on the part of the appellant that was relevant to the allegation of murder. There was no risk that the jury would engage in improper propensity reasoning.
The appellant suggests that the prejudice to him was of a more general nature. The implication is that the evidence reflected on his character and, possibly, his credibility. In effect, the appellant suggests that there was a risk that the jury would be prejudiced against the appellant due to his involvement in drugs and this would affect their reasoning process. Any such risk has to be viewed in the light of the fact that the trial judge gave an orthodox direction to the jury to put aside any prejudice. Although there was no specific reference to the drug evidence in this regard, it is unlikely that the jury would have failed to appreciate that that was a matter encompassed by the direction.
The appellant suggests that the direction on prejudice did not alleviate the risk because it invited the jury to take into account the whole of the evidence, which necessarily included the drug evidence. It is important in this regard to recall the relevance of that evidence. It was relevant in assessing the appellant’s state of mind and whether he was acting in response to provocation. The trial judge’s directions on provocation, which have been extracted earlier in these reasons, referred to the drug evidence in that context. It would have been apparent to the jury from those directions that the relevance and the proper use of the evidence was confined to that issue.
Trial counsel did not seek a direction to the jury not to use the discreditable evidence in an improper way. Whilst the conduct of counsel is not determinative, the fact that counsel involved in the trial did not view such a direction as necessary supports a conclusion that there was no perceptible risk of misuse. Trial counsel may also have reasonably taken the view that such a direction would be counterproductive, in that it might have drawn attention to a line of prejudicial reasoning that would otherwise not have occurred to the jury. Rather than causing the jury to confine their use of the evidence, a direction may have unduly highlighted the evidence and increased the risk that it was intended to alleviate.
There is no rule of law that a direction as to discreditable evidence must be given. Whether such a direction is necessary is dependent on the facts of the case. It may have been prudent for the trial judge to give a direction in this case, even though no such direction was sought by defence counsel. However, the failure to give a direction has not occasioned a miscarriage of justice. There is no perceptible risk that the jury would have misused the evidence. Nor is there a realistic possibility that the failure to give a direction affected the reasoning of the jury. That conclusion is supported by the following factors:
Transcript of Proceedings (5 February 2025), page 55, line 35. ↩
Transcript of Proceedings (5 February 2025), pages 55-56. ↩
Transcript of Proceedings (5 February 2025), page 58, line 35. ↩
Transcript of Proceedings (5 February 2025), page 3, line 30. ↩
Transcript of Proceedings (5 February 2025), page 3, line 30-35. ↩
Transcript of Proceedings (5 February 2025), page 3, line 40. ↩
Transcript of Proceedings (5 February 2025), page 3, line 45. ↩
Transcript of Proceedings (6 February 2025), pages 15-17. ↩
Appellant’s Outline of Submissions at [14]. ↩
RPS v The Queen (2000) 199 CLR 620 at 637. ↩
Castle v The Queen (2016) 259 CLR 449 at 470. ↩
(1992) 173 CLR 555 at 560 - 561. ↩
[2001] QCA 183 at [17] - [19]. ↩
Transcript of Proceedings (6 February 2025), page 9, lines 25-35. ↩
[2012] QCA 209. ↩
(2011) 242 CLR 610. ↩
[2011] QCA 153. ↩
[2024] HCA 24 at [110]. ↩
LNV v The State of Western Australia [2019] WASCA 180, [103] per Beech JA, [78] per Buss P and Sofronoff AJA. ↩
Crofts v The Queen (1996) 186 CLR 427. ↩
Roach at [47], Dunrobin at [59] and McMullen at [85] - [86]. ↩
[2000] QCA 211. ↩
at [20]. ↩
[2012] QCA 157. ↩
[2018] WASCA 130. ↩