R v Thomas - Leave to Make Subsequent Appeal Refused

R v Thomas [2026] QCA 70 (21 April 2026)

Last Updated: 21 April 2026

SUPREME COURT OF QUEENSLAND

| CITATION: | R v Thomas [2026] QCA 70 |
| PARTIES: | R v

THOMAS, Robert Graham

(applicant) |
| FILE NO/S: | CA No 226 of 2025 CA No 87 of 2019

SC No 559 of 2018 |
| DIVISION: | Court of Appeal |
| PROCEEDING: | Subsequent Appeal Leave Application |
| ORIGINATING COURT: | Supreme Court at Brisbane – Date of Conviction: 22 March 2019
(Jackson J) |
| DELIVERED ON: | 21 April 2026 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 11 March 2026 |
| JUDGES: | Boddice JA, Doyle JA, Crowley J |
| ORDER: | Leave to make a subsequent appeal refused. |
| CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF
APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL,
MATERIALITY AND
COGENCY – MATERIALITY AND COGENCY – ADMISSIONS BY CROWN WITNESS THAT
EVIDENCE FALSE – where the
applicant was convicted by jury of one count of
murder – where the applicant contends that a Crown witness recanted
her evidence
in a subsequent summary trial – where the witness gave
evidence at trial that she saw the applicant the morning of the murder
–
where the witness gave evidence in a subsequent summary trial that she had not
definitively seen the applicant that morning
– where the Crown did not
rely on that aspect of the witness’ evidence at trial – whether the
evidence of that
witness in the summary trial is fresh and compelling evidence
for the purposes of granting leave for a subsequent appeal CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF
APPEAL – FRESH EVIDENCE – OTHER MATTERS –
where the applicant
was subsequently acquitted of summary charges of stealing, relating to the
applicant’s withdrawal of money
from the deceased’s bank account
– where the applicant submits that the inclusion of that criminal conduct
within the
trial caused an irregularity – whether that legal conclusion of
the summary trial detracted from the factual circumstances
led at trial that the
applicant made withdrawals from the deceased’s bank account after the
murder – whether that acquittal
constitutes fresh and compelling
evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF
APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL,
MATERIALITY AND
COGENCY – AVAILABILITY AT TRIAL – EVIDENCE IN POSSESSION OF CROWN
NOT DISCLOSED TO DEFENCE – where
the applicant submits the prosecution
failed to disclose to defence the results of latent fingerprint impressions
taken from the
deceased’s mobile phone – where those results were
inconclusive – where the Crown disclosed to defence a statement
of those
findings prior to trial – where the Crown disclosed a memorandum detailing
that finding years after trial –
where that memorandum did not exist prior
to trial – whether that memorandum is fresh and compelling evidence that
would have
affected the jury’s reasoning to the verdict of guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF
APPEAL – FRESH EVIDENCE – OTHER MATTERS –
where the
prosecution tendered images at trial depicting injuries of the deceased at an
earlier, unrelated period of time –
where the applicant contends those
injuries were unrelated and could have enabled the jury to impermissibly
speculate as to his involvement
in those injuries, by virtue of other evidence
that demonstrated the applicant and the deceased were known to each other during
that
period – where this ground was determined in a previous appeal
– whether this evidence is new or compelling Criminal Code (Qld), s 671AB, s 671AC, s 671AE R v Thomas [2020] QCA
236, related |
| COUNSEL: | The applicant appeared on his own behalf C N Marco for the
respondent |
| SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions
(Queensland) for the respondent |
[1] BODDICE JA: On 22 March 2019, a jury found the applicant guilty
of murder.

[2] On 18 April 2019, the applicant was sentenced to life imprisonment.

[3] On 30 October 2020, the Court of Appeal dismissed the applicant’s
appeal against his conviction of the offence of murder.

[4] On 19 September 2025, the applicant applied for leave to make a
subsequent appeal in respect of that conviction. The applicant
also filed an
application for leave to adduce further evidence.

[5] The applicant’s grounds for a subsequent appeal are:

“Ground 1. Fresh and compelling evidence demonstrating witness Jenny
McPartland recanting a crucial part of her evidence given
at the trial
occasioning a miscarriage of justice.

Ground 2. Fresh evidence indicating allegations of separate criminal conduct
which were compounded by a misdirection of law on the
use to be made relevant to
the jury’s consideration caused an irregularity in the trial process.

Ground 3. New evidence will demonstrate the Court of Appeal erred in
dismissing ground two of the originating appeal, due to its failure
to assess
the whole of the evidence nor weigh and consider the competing evidence of
witness O’Dea.

Ground 4. Fresh evidence identifying the prosecution failed to disclose
evidence in its possession to the defence prior to the trial
or appeal had
occasioned a substantial miscarriage of justice.”

[6] The applicant submits that the cumulative effect of all of those grounds
challenges the reliability of his conviction and supports
the conclusion that
there is a reasonable possibility that the outcome of the trial would have been
different if the evidence had
been available and/or adduced at the time of
trial.

[7] The applicant identifies the fresh evidence as evidence indicating a
witness at trial, Jenny Leigh McPartland (McPartland) later recanted, on
oath, a crucial part of her trial testimony and evidence indicating alleged
criminal offences of stealing money
from the deceased through ATM withdrawals
were not possible at law. The applicant identifies the new evidence as evidence
of McPartland
indicating that the applicant had known the deceased for some
years prior to her death.

Subsequent appeal regime

[8] Section 671AC(2) of the Criminal Code (Code) provides that
a person may make a subsequent appeal to this Court, with the leave of the
Court, against the person’s conviction
on the ground that there is fresh
and compelling evidence or new and compelling evidence. Leave may be given at
any time the Court
considers necessary or desirable.

[9] Section 671AB of the Code defines fresh and compelling evidence and new
and compelling evidence. It provides:

“ 671AB Fresh and compelling evidence and new and compelling evidence
– meanings

(1) This section applies for the purpose of deciding under this chapter
division whether there is fresh and compelling evidence or
new and compelling
evidence.

(2) Evidence is fresh if –

(a) the evidence was not adduced in the proceedings in the court of trial before
which the appellant was convicted; and (b) either –

(i) the evidence could not have been adduced in the proceedings in the court of
trial with the exercise of reasonable diligence by
the defence; or (ii) the evidence could have been adduced in the proceedings in the court of
trial with the exercise of reasonable diligence by the
defence but was not
because of the incompetence or negligence of a lawyer acting for the
appellant in those proceedings.
(3) For subsection (2)(b)(i), the defence is taken not to have failed to
exercise reasonable diligence in relation to the evidence
if –

(a) the prosecution failed to comply with the prosecution’s obligation
mentioned in section 590AB(1) in relation to the evidence;
and (b) the defence did not discover the evidence only because of the failure to
comply with that obligation.
(4) Evidence is new if –

(a) the evidence was not adduced in the proceedings in the court of trial before
which the appellant was convicted; and (b) the evidence could have been adduced in the proceedings in the court of
trial with the exercise of reasonable diligence by the
defence.
(5) Under this chapter division, evidence that is both fresh evidence and new
evidence is taken to only be fresh evidence.

(6) Evidence is compelling if –

(a) the evidence is reliable; and (b) the evidence is substantial; and

(c) the evidence –

(i) is highly probative in the context of the issues that were in dispute in the
proceedings in the court of trial before which the
appellant was convicted;
or (ii) would have substantially weakened the case for the prosecution in the
proceedings in the court of trial.
(7) Evidence that would be admissible under this chapter division is not
precluded from being fresh and compelling evidence or new
and compelling
evidence merely because it would have been inadmissible –

(a) in the proceedings in the court of trial before which the appellant was
convicted; or (b) in earlier proceedings in the Court for an appeal or subsequent appeal
against the appellant’s conviction.
(8) In this section, the defence is the appellant or a lawyer
acting for the appellant in proceedings in the court of trial before which the
appellant was convicted.”

[10] Section 671AE of the Code provides for the determination of a subsequent
appeal. Relevantly, it provides that if the subsequent
appeal against
conviction is on a ground of fresh and compelling evidence, the Court must allow
the subsequent appeal if it is of
the opinion that there was a miscarriage of
justice, although the Court may, if it is of the opinion that the point or
points raised
on a ground of fresh and compelling evidence might be decided in
favour of the applicant, dismiss the appeal if the Court considers
that no
substantial miscarriage of justice has actually occurred. In the case of a
subsequent appeal against conviction on the ground
of new and compelling
evidence the Court must allow the subsequent appeal if on the balance of
probabilities, the Court is of the
opinion that in considering all of the
evidence the person was not guilty of the offence to which the person was
convicted.

Trial

[11] At the commencement of his trial, the applicant pleaded not guilty to
murder but guilty to manslaughter. That plea was not accepted
by the Crown in
satisfaction of the indictment and a jury was empanelled to determine the
applicant’s guilt.

[12] At trial, there was no dispute that the applicant had unlawfully killed
the deceased. The issue for determination by the jury
was whether the applicant
had, at the time of that killing, the requisite intent to kill or do grievous
bodily harm to the deceased.

[13] The Crown called 30 witnesses. The applicant elected not to give or
call evidence.

Evidence

[14] Formal admissions were made at trial that:

(a) On Thursday, 22 October 2015, at 7.33 pm a booking was made with Yellow
Cabs under the name of Thomas with a pickup address at
Annerley and
a mobile number given belonging to the applicant. (b) On 24 October 2015, at around 3.34 pm police attended the home address
of the deceased to conduct a welfare check.

(c) On 24 October 2015, at 5.46 pm a paramedic attended the
deceased’s home and upon observation of the deceased did not conduct
any
signs of life assessment and declared the deceased dead.

(d) On 26 October 2015, the applicant called his place of work to advise that an
operation had been brought forward to that day and
to ask whether a form could
be filled out so that he could have a month off work as leave.

(e) On 26 October 2015, a witness gave police a sworn statement stating that on
25 October 2015, the applicant visited her unit and
asked her if she could
book a room for him for one night at a motor inn. When she asked why he asked
her to book the motel for him
in her name rather than his own name, the
applicant responded, “Because I’m in trouble and I can’t go
back to Jenny’s”.
[15] The deceased was discovered by police, lying on her back on the floor of
her house. She was naked from the waist down. There
was hair on the floor near
the deceased’s head. Its removal was consistent with force being applied,
although no determination
could be made as to whether that had occurred before
or after death.

[16] An autopsy revealed that the deceased had injuries to her neck
consistent with strangulation as well as extensive rib fractures,
some of which
were consistent with attempts at resuscitation but others being consistent with
being independently inflicted, not
as part of any resuscitation attempt.

[17] Although it was not possible for the forensic pathologist to determine
the precise time of death, evidence was given as to the
likely cause of death,
having regard to the following findings on autopsy:

(a) The presence of pinpoint haemorrhages on the lining of the inside of the
deceased’s eye, such haemorrhages being caused
by the application of high
pressure to the small vessels in the eyes causing them to rupture. (b) A black left eye and an abrasion to the back of the right ear.

(c) Extensive bruising to the tip of the chin which extended from the back of
the ears to the underside of the chin and into the
inside of the lining of the
mouth which was consistent with strangulation.

(d) A large bruise on the front of the neck consistent with the application of
at least moderate force by an object or fingers or
hands. There were also
several bruises on the back of the neck which were distinct and independent from
the injuries on the front
of the neck which could have been caused by the back
of the neck being forced against an object by the pressure applied to the front
of the neck or by fingers being on the front or the back of the neck.

(e) The injuries to the neck extended deep inside to the base of the tongue,
again consistent with the application of pressure from
fingers using moderate
force and with those injuries having been recently inflicted.

(f) Extensive haemorrhaging to the muscle that extends from the root of the ear
to the collar bone, which is one of the strongest
muscles of the neck and would
have required mild to moderate force to produce such haemorrhaging.

(g) A fracture to the thyroid cartilage, an injury commonly associated with
pressure to the neck.

(h) Haemorrhaging surrounding the carotid sheath, an injury which can occur
towards the end of a struggle or strangulation.

(i) A fracture to the cricoid cartilage on the right of the neck consistent with
the application of force to the upper portion of
the neck.

(j) Extensive fractures to the ribs consistent with stomping, blunt impact or
resuscitation. There were also posterior fractures
to the ribs. Such fractures
are rarely reported as a result of resuscitation. Whilst they were possibly
consistent with resuscitation,
the other cause was likely to be blunt force
trauma. As all of the rib fractures were recent, it was impossible to
distinguish between
the application of blunt force trauma or resuscitation in
respect of the front rib injuries.
[18] The forensic pathologist opined that the presence of minimal
haemorrhaging suggested the haemorrhaging had occurred either at
around the time
of death or after death and, further, that the cause of death was due to
pressure on the neck by manual strangulation
or throttling using fingers, or
alternatively an arm lock using part of the arm to compress the neck. There
were signs of asphyxia
and the neck bruising supported the conclusion that the
pressure was not limited to one area with fingers probably moving around
the
neck.

[19] A search of the area adjacent to the deceased’s house located
various items that had belonged to the deceased, including
shorts and underwear.
Fingerprints found on some of those items showed a connection to the applicant.
DNA analysis of various household
items seized by police revealed results
consistent with the DNA of the deceased and of the applicant.

[20] A number of witnesses who previously had been in relationships with the
deceased gave evidence. Evidence was also led that the
deceased had been, prior
to her death, the applicant’s partner.

[21] The deceased’s ex-husband gave evidence that the deceased had a
history of excessive drinking and of depression. The children
from that
relationship were ultimately taken away from the deceased by the relevant
authorities. The ex-husband said that the deceased’s
excessive drinking
impacted on her behaviour. He agreed that photographs, dated as having been
taken in early 2014, which revealed
injuries on the deceased which had been used
in support of a domestic violence application, had been taken when he was
driving past
the deceased’s residence and saw her intoxicated and
staggering from the house. He believed she had stumbled down some stairs.
He
denied causing those injuries.

[22] Another ex-partner of the deceased gave evidence that they had lived
together after first meeting in 2013. He described the
deceased as drinking
excessively. There was an attempt at one point to engage in rehabilitation at a
detox centre. They stopped
living together after about a year. The ex-partner
said that about three or four weeks before the deceased’s death she had
come to stay with him telling him that she needed to get away. She did not
bring any personal items. She left after about a week.

[23] Another former partner said that he had met the deceased at a
rehabilitation clinic towards the end of 2014. They commenced
a relationship.
Whilst in that relationship he on occasions used the deceased’s bank card
to purchase items for her. He did
not keep the bank card. He returned it to
the deceased.

[24] Evidence was led that there had been unsuccessful attempts by the
deceased to FaceTime her daughter on four occasions on 22 October
2015; that the
daughter had unsuccessfully tried to call the deceased on 23 October 2015; and
that a friend had unsuccessfully attempted
to contact the deceased on both 22
and 23 October 2015.

[25] Telephone records recorded extensive calls and texts between the
applicant and the deceased over a period of at least five months
before the
deceased’s death. The latest records revealed messages and calls on 22
October 2015, including texts from the deceased
to the applicant on the evening
of 22 October 2015 as well as several unanswered telephone calls from the
deceased to the applicant’s
phone. At 7.51 pm the deceased had
texted the applicant, “Don’t expect me to talk to you again
then”. The records
reveal no further use by the deceased of her phone
after that missed call. There was a missed call by the applicant to the
deceased’s
phone at 8.07 pm that evening.

[26] Telephone records recorded that on the morning of 23 October 2015 the
landline at the deceased’s house was used seven times
between
10.40 am and 11.40 am. On each occasion, the landline called the
deceased’s mobile telephone number. The deceased’s
laptop was used
on 24 October 2015, shortly after 5.00 am to access websites connected
with Singapore Airlines. Between 10.40 am
and 7.42 pm the applicant
also sent text messages to the deceased.

[27] McPartland, who was living with the applicant in October 2015, gave
evidence that at about 6.30 am on 23 October 2015, she saw
the
applicant at the house. Later that morning, she noted that the applicant had
done some shopping. She next saw the applicant
on the evening of
24 October 2015.

[28] A Flight Centre employee gave evidence that on 24 October 2015, the
applicant booked a flight leaving Brisbane on 4 November
2015 and returning
on 4 December 2015. The applicant paid for the flight in cash.

[29] Bank account records as well as CCTV footage adjacent to an ATM revealed
that $1,000 was withdrawn from a bank account in the
deceased’s name at
about 8.00 am on 23 October 2015, with two further withdrawals of $1,000 on
23 and 25 October 2015. Friends
of the deceased gave evidence that the
deceased provided others her pin number to use her bank card.

[30] A friend of the applicant gave evidence that he had known the applicant
for about four years by 2015. He was aware that the
applicant had a partner in
the Philippines and the applicant travelled to the Philippines often. The
friend said that on 23 October
2015, the applicant repaid him $300. He
next saw the applicant on the morning of 25 October 2015. The applicant
arrived at his
door with a travel bag and a backpack. The applicant told him he
wanted to talk to him about something. The applicant led him into
a carpark and
said:

“What was the story that Rob told you then?---He went to see a woman.
He went to see a woman, and that she humiliated him.
Rob told me that she
– he’d never been so humiliated in all his life, ‘So
I grabbed her and I squeezed’
....

Was he just using his words?---No, he actually had a little action there for
that one.

Show us the action?---‘I grabbed her and I squeezed’.

You’ve got your two hands in front of you?---Yeah.

Is that how he had the hands, the two hands in front of – in front of
himself?---Yeah.

As he said those words?---Yeah.

‘I squeezed’?---Yeah.

Yes. Did he say anything else about the context of her humiliating
him?---No.

Did he say to you who this woman was?---No.

Did he say to you where it had happened?---No.

Did you ask him any further questions?---I asked him if she was okay.

Yes?---And he said, ‘No, she’s dead. She humiliated me’.
I said, ‘Holy shit, Rob’. Yeah. That was
our conversation.

Did he say anything else, apart from that she was dead?---‘She
humiliated me’. That was the third reference to that.”

The friend said the applicant did not tell him the period of time during
which he had “squeezed” the woman. The applicant
demonstrated,
using two hands when he made the second mention of being humiliated. The friend
said that it was “fairly graphic”.

[31] The friend also gave evidence that whilst the applicant was at his house
police called looking for the applicant. The friend
did not tell police the
applicant was at his house. Police asked him to call the applicant’s
phone, which he did, but the
phone was dead. Shortly after the police visit,
the applicant left his house. The applicant asked the friend if he would send
the
suitcase to his partner in the Philippines.

Crown case on intent

[32] The Crown relied on the circumstances of the deceased’s death and
on the conduct of the applicant before, at the time of,
and after he caused the
deceased’s death to support an inference, beyond reasonable doubt, of
requisite intention. The Crown
accepted that each of these matters was properly
to be described as circumstantial evidence.

[33] Evidence relied upon by the Crown in relation to the circumstances of
the deceased’s death included photographs showing
the extent of the
bruising to the deceased’s body, the physical findings at autopsy
including the extent of external bruising
to the deceased’s neck, the
extent of haemorrhages found to the internal tissues in the neck area, a
fracture of the distal
tip of the thyroid cartilage and a fracture of the
cricoid cartilage as well as the opinion of the pathologist who performed the
autopsy as to the cause of death being due to pressure on the neck either by
manual strangulation or an arm lock with signs of asphyxia
and the further
opinion of the pathologist that death by strangulation can occur fairly rapidly
but there was a minimum of 20 seconds
strangulation in the deceased’s
case.

[34] The conduct relied upon by the Crown was the applicant’s actions
in cleaning up by removing items that might identify him
as having caused the
deceased’s death; the applicant locking the house and taking the
deceased’s ATM card; the applicant
on 23 October making two ATM
withdrawals of approximately $1,000 each from the deceased; the applicant on 23
October making telephone
calls from the deceased’s landline in her home to
the deceased’s iPhone; the applicant on 24 October researching and
booking a flight to the Philippines, and the applicant on 24 October
sending messages to the deceased’s phone.

[35] In addition to those facts, the Crown relied on:

(a) On 25 October, the applicant made an ATM withdrawal at 2.00 am whilst
wearing a mask. (b) Early on the morning of 25 October, the applicant took a suitcase and
backpack to the home of a friend and told the friend, in
the carpark
conversation, that a woman had humiliated him and that the applicant had
squeezed the woman, whilst gesturing with hands,
and said that she was dead.

(c) On 25 October, the applicant asked the friend’s partner to book a room
overnight for him at a motel in Annerley.

(d) From 25 October onwards, the applicant did not return to his residence and
for a time may have camped outside or near a railway
station.

(e) On 26 October, the applicant called his workplace to say he was taking a
month off, and later wired $350 or $450 to his wife
in the Philippines from a
post office at Manly.

(f) On 28 October, the applicant gave a false name when police approached him at
the time of arrest at Stones Corner.
[36] In respect of the circumstances of the death, the defence case was that
the physical circumstances at or immediately after the
deceased’s death
had to be viewed in the context of evidence of chest injuries sustained by the
deceased including numerous
rib fractures consistent with the performance of CPR
at about the time or after death and the possibility that the deceased had
increasing
bruising and haemorrhaging as a result of liver disease and that
death could have resulted from stimulation of the nerves of the
neck over a
period shorter than 20 seconds.

[37] In respect of the conduct, the defence case was that as it was not clear
when death had occurred and that all of the conduct,
individually and together
taken with the other evidence, left a reasonable possibility that the applicant
caused the deceased’s
death without any intention to kill or do grievous
bodily harm. The defence also relied on evidence suggestive of CPR having been
performed on the deceased as supporting an inference that the applicant had
attempted to save her life, with such conduct being inconsistent
with an
intention to cause her death or grievous bodily harm.

Consideration

Is there fresh and compelling evidence?

Ground 1

[38] The applicant submits that evidence given by McPartland, on oath, at a
subsequent summary trial, substantially departed from
her evidence at trial,
such that it constituted a recanting of her evidence at trial.

[39] The relevant evidence given by McPartland at the trial was as
follows:

“Now, I’m interested in the timeframe of the 22 nd of
October, which is a Thursday?---Mmm.

Yes. Do you recall seeing him that evening?---Yeah. I – I seen him
all – most evenings anyway, yes.

But if I were to ask you about that specific day or evening, do you have an
independent recollection about that now?---Yeah, sort
of, yes.

You do. And what’s that? What’s your independent recollection
about that evening?---Me just seeing Robert after work.

On the Thursday?---Yeah.

Yes. Well, what time do you think you saw him on the Thursday?---It would
have been after work, so probably about 6, 6.30, around
about then.

And do you recall whether or not he stayed at the house or he went
somewhere?---He might have gone to the hotel.

Only if you saw it, Ms McPartland?---Yeah. Yeah. No. No. I’m not
sure.

That’s fine. Dealing with the next day, the Friday, being the
23 rd, you were working again that day?---Yes.

Is that correct?---Yes.

Did you see him in the morning?---I did see him in the morning.

On the Friday, the 23 rd?---Yes.

And what time do you say that you saw him in the morning at the house?---It
would have been about half past 6.

So 6.30 am?---Yep.

What do you remember him doing at the house?---He was making a cup of
coffee.

So that was 6.30 am?---Mmm.

What time did you leave for work that day?---I left about 7.

And so you didn’t see what happened to him after that?---No.

You come back home on the Friday, the 23 rd - - -?---Yep.

• - - in the evening after your job; correct?---Yes.

Was he at the residence, or not?---I think he came home after – after
he’d done some shopping - - -

Yes?--- - - - because he filled up the freezer.

With what?---Groceries.

So he did some shopping, filled up the freezer with groceries?---Mmm.

What time do you think you saw him on the Friday night that he did
that?---That would have been about 6.30.

Yes?---And then later I would have seen him about 8.30, 9.

And where did you see him later at about 8.30?---At home.

At home as well?---At home, yeah.

And then after that do you remember seeing him at all that evening, on the
Friday?---No. I wasn’t taking any notice because
once he goes to his room
- - -”

[40] In cross-examination, McPartland answered “no” when asked if
she could be mistaken about seeing the applicant on
the morning.

[41] The subsequent summary trial concerned six charges of stealing, brought
against the applicant, concerning a Mastercard of the
deceased (to which the
applicant pleaded guilty), and five separate occasions of withdrawing money, the
property of the deceased,
being the withdrawals that occurred on 23 and 25
October 2015 (to which the applicant pleaded not guilty).

[42] McPartland gave the following relevant evidence in that proceeding:

“Now, if l could take you to the 23 rd of October 2015. Do
you recall seeing Mr Thomas on that date?---Yes. I do.

What were your observations of Mr Thomas on that day?---He’d come over
after work and been shopping. He filled the freezer
up, and then he went to the
hotel.

Was he home that evening, do you recall?---Yes.”

[43] In cross examination, McPartland responded to the following questions
from the applicant, who represented himself at the hearing:

“DEFENDANT: ... in statement number 2, which was given on the
26 th of the 10 th 2015, you told police:

On Thursday, the 22 nd of October 2015, I recall that I went to
work that day. I left the unit which I share with Robert Graham Thomas and Joel
Flavin.
This is the usual time I leave, and don’t leave then I get stuck
in traffic. That morning, I didn’t see Joel before
I left, but I heard
him moving around in his room. Robert came out of the kitchen and made a
coffee, and I saw him. As per usual,
he said, ‘Hello, ugly
girl.’

Do you agree that that’s correct?---I agree.

Okay. And that was the Thursday?---Yep.

Okay. Do you also agree that – sorry, in the first statement, do you
also agree that you told police that, ‘I didn’t
specifically see Rob
on the morning of the 23 rd, I just assumed that him and Joel were
home, because nothing was out of the ordinary’?---Nothing was out of the
ordinary, and
I would have seen – if I had have seen you at all, it would
have been in the morning before I went to work - - -

Right?--- - - - as I said on the Thursday as well.

Okay.

HIS HONOUR: Mr Thomas, are you trying to suggest to her that she said
something different at a different time?

DEFENDANT: Yes.

HIS HONOUR: Okay. So if you could identify the two times and the two
different things just a bit more clearly for her.

DEFENDANT: Yeah. I just thought I had it marked. Can I just - - -

HIS HONOUR: Take your time. Take your time.

DEFENDANT: Can I just have a minute to read this?

HIS HONOUR: Yes. Take your time and sit down. Take your time.

DEFENDANT: I will be one minute.

HIS HONOUR: Thank you, Ms McPartland.

DEFENDANT: Sorry. I’ve just found it. So in paragraph 17, do you
recall saying:

The following morning, on Friday, I got up around - - -

HIS HONOUR: Sorry. Which statement are we talking about?

DEFENDANT: Beg your pardon. Statement 2.

HIS HONOUR: Okay.

DEFENDANT: Statement 2, paragraph 17.

HIS HONOUR: So that was the 25 th, was it?

DEFENDANT: I’ll just start again:

The following morning, on Friday, I got up around 6.30, which is the usual
time I get ready for work. When I awoke, I believe Joel
and Robert were home,
but I can’t recall seeing them definitely that morning. However, there
was nothing out of the ordinary
that made me think that they hadn’t been
home that night and were still in their rooms.

Is that correct?---Yep.

Okay. So I’ve got another question, but it’s just – taking
those two statements into account, one says that on
Thursday you clearly
remembered that I was making coffee in the kitchen and that you saw me, and then
on the Friday you said you
can’t definitively remember seeing if I was
there or Joel was home, but you just assumed that we were home in our
rooms?---Mmm.

Okay. Now, if I could just refer to the trial record, your Honour –
and I’m not accusing you of lying. I’m just
saying three years is a
long time to get things right. On day 3, page 259, paragraph 1 – line 1,
sorry:

All right. Now, you were asked about Friday morning whether you saw
him?---Mmm.

Could you be mistaken about seeing him on Friday morning?---No.

Do you now – do you now agree that that was probably incorrect?---Well,
I would have seen you nearly every morning, whichever
day it was. It was always
the same.

Okay. But you didn’t- - -?---Yeah.

• - - definitively see me that morning?---I don’t know.

Okay. Just at the trial you said you did - - -?---I thought I did.

• - - you did see me on Friday making coffee?---Well, I might have done that.

All right. So it was definitely a mistake?---Well, I would have seen you
other days, whether it was Thursday or Friday, same thing.

I don’t disagree, Jenny?---Yeah. No worries.

Like, five days a week we lived together – seven days a week, we lived
together?---Exactly.

Five days a week I went to work.

HIS HONOUR: So can we just – we get – we’ll ask questions
that will get us meaningful answers that I can use, okay?

DEFENDANT: Sorry, your Honour. I’m just, sort of, making a point that
– do you agree that we do see each other every
– did see each other
every day?---Sure. Sure.

And that most mornings I would be making coffee at that time?---Sure.
Exactly.

But on this particular day, the 23 rd – Friday, the
23 rd of October 2015, you didn’t see me definitively, and that
you could have been mistaken at the trial?---Well, I thought I seen
you.

Okay, but - - -?---As I did every other morning. That’s what I’m
saying.

But you’ve just said it was true what you said in your
statement?---Yep.

Okay. Yeah. I’m not calling you a liar - - -

HIS HONOUR: Just so I’m clear, Mr Thomas, in case it’s important
– I’m not sure if it is, but in case it’s
important, her first
statement then on the twenty - - -

DEFENDANT: Fifth.

HIS HONOUR: 25 th, she said that she assumed you were there. Is
that it?

DEFENDANT: One statement – sorry. I’ll just get this right. One
statement clearly says the – statement 2 clearly
says on the
22 nd, which is the Thursday.

HIS HONOUR: Can I have the dates? So give me the date of that statement,
okay. Just – I need to understand this.

DEFENDANT: That’s the 26 th of the 10 th.

HIS HONOUR: So the 26 th is statement 2. Yes.

DEFENDANT: And that says - - -

HIS HONOUR: You’ve just read that. Is that the one about making a cup
of coffee?

DEFENDANT: Yeah. It says on the Thursday that she definitely saw me making
coffee.

HIS HONOUR: Yes.

DEFENDANT: All right. And then statement 1 was given on the
25 th of the 10 th, as I’ve already said it.

HIS HONOUR: And that’s where she assumed you were there, but she
didn’t say she saw you?

DEFENDANT: But didn’t definitively see me. That’s correct.

HIS HONOUR: Yes. Okay. I understand.

DEFENDANT: All right. So with that being highlighted, what’s your
memory now of whether you saw him on the morning of the 23 rd?---The
third – the 23 rd was the Thursday, wasn’t it?

That was the Friday?---No. Saturday was the 25 th so it
couldn’t have been.

Saturday was the 24 th, Sunday was the 25 th?---Okay. I
don't know. I thought I did. I thought I’d seen you that day. It
might have been the day before.

I put it to you that on the day before you said that I was making coffee and
you saw me in the kitchen?---Yep.

Could you have been mistaken?---No. I seen you making coffee.

Yeah. A hundred percent, on the Thursday?---Thursday or Friday?

Okay?---Six years ago.”

[44] Contrary to the applicant’s submission, the evidence did not
involve a recanting of McPartland’s evidence at trial.
It was no more
than a witness conceding that, with the passage of time, her recollection may be
incorrect, whilst also conceding
that the statement to police was in a
particular form.

[45] Importantly, at trial the Crown did not rely on that aspect of
McPartland’s evidence. The Crown submitted to the jury
that McPartland
would be wrong in her recollection in relation to seeing the applicant on that
morning.

[46] The abovementioned factors render this evidence not compelling, even if
it be fresh evidence. The evidence is not highly probative
to the issues that
were in dispute at trial. The evidence could not have substantially weakened
the Crown case. As such, it provides
no support for a contention that there has
been a miscarriage of justice.

Ground 2

[47] A similar conclusion arises in relation to the fact that the applicant
was acquitted of the stealing charges at the subsequent
summary trial. That
acquittal was expressly on a legal basis, namely, that the prosecution had
failed to prove that a person owned
the stolen property. As the deceased was
dead at the time of the withdrawals, the property withdrawn was that of the
Estate of the
deceased, not the deceased.

[48] That legal conclusion did not detract from the factual circumstances of
the applicant having, between 23 and 25 October 2020,
withdrawn sums of
money from bank accounts in the deceased’s name. The legal ownership of
the money withdrawn was not highly
probative to the issue in dispute at trial
and legal ownership would not have substantially weakened the
prosecution’s case.
As such, this evidence forms no basis for a
conclusion that there has been a miscarriage of justice.

Ground 4

[49] The final ground relied upon by the applicant to found fresh and
compelling evidence is a failure on the part of the Director
of Public
Prosecutions to disclose evidence in its possession, namely, the results of
latent fingerprint impressions taken by police
during their investigation from
the deceased’s mobile phone.

[50] The applicant submits that both prior to and after his appeal, he sought
disclosure of this material and was advised by the Director
of Public
Prosecutions that he had been provided with the entirety of the evidence in
relation to the fingerprint analysis of the
deceased’s mobile telephone.
That evidence was that the developed latent impressions had either not been
identified, were
not identifiable, or had been identified to other persons, not
that there had been a positive exclusion of the applicant’s
fingerprint
from those latent fingerprint impressions.

[51] However, a statement disclosed on 5 May 2021 by the Queensland
Police Service recorded that a comparison had been undertaken
in 2016 between
the latent fingerprint impressions taken from the mobile telephone and the
appellant’s fingerprint form, which
returned “a negative
result”.

[52] The applicant submits that this is fresh and compelling evidence, and
that failure to disclose that evidence prior to trial,
violated his right to a
fair trial. Further, that evidence could realistically have affected the
reasoning of the jury to the verdict
of guilty to murder over manslaughter.

[53] A consideration of the trial record supports a conclusion that the
information contained in the memorandum is neither fresh nor
compelling.
Further, a failure to disclose it did not affect the applicant’s right to
a fair trial.

[54] First, the memorandum referred to by the applicant did not exist at the
time of trial. It therefore was not a document disclosable
at trial. Second,
its contents were not new. The statement that had been provided by the Crown
stated that with the exception of
a fingerprint impression on a wine bottle, can
box, medication packet and Shiels gift bag, “the remaining developed
latent
impressions appearing in the photographs have either not yet been
identified, are not identifiable, or have been identified to other
persons”. That statement was consistent with none of those fingerprints
being identified to those of the applicant. As the
statement specifically
recorded the existence of a developed latent fingerprint impression on the front
face of the phone, accordingly,
it is not new for the applicant to be
subsequently advised that that fingerprint was not identified to the
applicant.

Is there new and compelling evidence?

Ground 3

[55] The applicant submitted that at his earlier appeal, he became aware that
the prosecution, at trial, had put into evidence photographs
of the deceased,
consistent with the deceased having been assaulted in 2014, about one year prior
to her death (Exhibit 41). The
applicant further submitted that the Court
of Appeal in 2020 was asked to determine whether the trial judge “was duty
bound
to ensure the jury had sufficient knowledge and understanding of this
evidence to discharge their duty to determine the case on the
evidence in
accordance with the law”. However, the majority of the Court of Appeal
merely recorded that there was evidence
that the injuries related to a period in
November 2014 and therefore had no logical connection with the appellant at
all.

[56] The applicant submits that conclusion failed to address the use to be
made by the jury of this evidence, in circumstances where
the jury may have
impermissibly speculated as to his involvement in inflicting the injuries
depicted in those photographs. The connection,
according to the
applicant’s submissions, arose as a consequence of evidence given by
McPartland at trial (to the effect that
the applicant had borrowed money from
the deceased, a couple of years before her death) and another witness (to the
effect that the
applicant had told him a year before he had given a statement to
police in December 2015 that the woman had given the applicant her
PIN).

[57] Contrary to the applicant’s submissions, the Court of Appeal dealt
with the issue, finding that there was no basis to conclude
that the photographs
had any relevance to the jury’s deliberation of whether the applicant had
the requisite intention at the
time he unlawfully killed the deceased. An
application by the applicant for special leave to appeal to the High Court,
which included
as a ground the failure of the Court of Appeal to address the use
to be made of the photographic evidence, was refused.

[58] Having regard to those circumstances, there is no basis upon which it
could be concluded that the material is new or compelling.
As such, it would
not be in the interests of justice to grant leave to make a subsequent appeal on
that basis.

Conclusion

[59] The applicant has not established either that there is fresh and
compelling evidence, or that there is new and compelling evidence.

[60] It would not be in the interests of justice to grant leave to make a
subsequent appeal.

Order

[61] I would order:

1. Leave to make a subsequent appeal be refused.

[62] DOYLE JA: I have read and agree with the reason for judgment of
Boddice JA and with the order proposed by his Honour.

[63] CROWLEY J: I agree with the order proposed by Boddice JA for the
reasons stated by his Honour.