A Logan murderer serving a life sentence will be retried after winning an appeal of his conviction on the ground there was a miscarriage of justice.
Harley David Wegener was found guilty in 2022 of murdering a man by stabbing him in the neck in a dark park in Woodridge, south of Brisbane, in 2018.
On 14 May, the Court of Appeal in Brisbane found the introduction by the Crown of character evidence during Wegener’s cross-examination at trial, without seeking leave under Section 15 of the Evidence Act 1977 (Qld), constituted a miscarriage of justice.
In reasons published on Friday, Justice Boddice, with whom Justices Morisson and Davis agreed, stated that at the trial the prosecutor had begun his cross-examination of Wegener by establishing that on the night of the murder, Wegener had intended to leave his daughter with someone he knew to be a heavy drug user and dealer, and had known for less than two weeks, and his daughter had never met.
After an objection from defence counsel on the grounds of relevance, the prosecutor asked for a degree of latitude, which the trial judge was initially prepared to allow.
“Defence counsel maintained an objection, on the basis that the questioning breached s 15(2) of the Act, in that it allowed questions that tended to show that the appellant was of bad character, in circumstances where no application for leave to adduce such evidence had been made by the prosecution,” Justice Boddice said.
“The prosecutor’s response was that none of the questions asked and answered had run contrary to s 15(2), as the line of questioning was not directed to bad character. On the basis of that assurance, the trial judge overruled the objection.
“Later, the prosecutor contended that the line of questioning was relevant to credit and not directed to bad character, as it showed that the appellant “behaved inconsistently with the care for his daughter on that particular night”.”
Justice Boddice said the cross-examination breached s 15 of the Act, by calling into question the appellant’s character.
He said this conclusion was supported by the use of evidence in the prosecution’s address:
“… you may have thought that the accused has sought to say that part of his reaction was based on his concern for his daughter, D. But you know that there are a number of problems with his vaunted concern for his daughter. One is having her out at that hour of the night. Another is taking her through the park. As you saw, he could’ve just gone straight down Jen Street, a well-lit area, and on – into Defiance Road and up to 35 that way. Instead, he took her through the park. Next off, he was going to leave her with his partner, someone that he had not known very long; they’d only been intimate for about a week and a half. Someone he knew was using drugs and someone he knew dealt him drugs. And D had never met her. Now, you might think all of that’s no – I’m not trying to comment upon the accused as a father or his character generally, but when he says to you that one of the reasons – through his counsel, for his actions and his behaviours that night, one of the reasons why he did the things he did, one of the things that fed his reactions and constructs his narrative is his concern for his daughter. It doesn’t ring true. Because, you see, he wasn’t even there on the Saturday, and on Ms F’s account, D had been dropped off on the Friday. So you might think that that’s yet another example of the shapeshifting nature of both the accused’s narrative and his credibility…”
Justice Boddice said contrary to the prosecutor’s contentions, the address was a direct attack on Wegener’s character.
“The appellant’s knowledge of E’s drug dealing and his failure to be home on the Saturday, had nothing to do with the events in the park that night, or to any determination of a central issue in dispute at trial: intention,” he said.
Such evidence was not admissible, except with the leave of the court, and Wegener was entitled to a trial where the rules of procedure and evidence were strictly followed, he said.
He said a direction from the trial judge to the jury, that no inference of bad character was to be drawn from that evidence, did not overcome the miscarriage of justice.
“The evidence ought not to have been used for any purpose,” he said.
Justice Boddice said while the Crown case was strong, “there was a real risk that the impermissible undermining of the appellant’s character was used by the jury to reject the appellant’s sworn evidence as to intention”.
“It was not contended by the respondent that if the court concluded that the evidence was inadmissible, it was an appropriate case for the substitution of a verdict of manslaughter,” he said.
“As the appellant was deprived of a fair chance of acquittal of murder, the miscarriage of justice was substantial. The proviso has no application. Accordingly, the appellant is entitled to a re-trial.”
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