A murderer who yelled “Die, c—! Die c— sucker!” as he choked his apparently random victim to death in an unprovoked attack in Cairns has had his appeal against his conviction rejected.
Lawyers for Jake Desmond Livingstone pointed out the trial jury was told, through a damning recording of a phone conversation Livingstone had with a friend, that the then-19-year-old had been out on parole at the time of the 2015 attack.
That admission of evidence, that Livingstone was on parole when he murdered Philip Quayle, it was argued, caused a miscarriage of justice.
The phone call went as follows:
Livingstone: “Yeah, you seen me on the news?”
Livingstone: “(laughs) Yeah, bro.”
Friend: “F—in’ naughty c—. (laughs)”
Livingstone: “How’s that? Get out for two days, go kill someone, come back.”
Friend: “Yeah, two days. Is that all, how long it was? F— that.”
Livingstone: “Yeah, two days. Get out on parole, I got my parole back, got smashed, went to roll this c— for his money, and then bashed him and choked him.”
Livingstone: “Yeah. (laughs)”
Mr Quayle, 27, was walking home with his girlfriend, Samantha Lievesley, after a night out in Cairns about 2.30am on February 26, 2015, when their paths crossed with Livingstone’s.
It was an attack as sudden as it was unprovoked.
Mr Quayle was king hit and, in the ensuing struggle, was put into a headlock until he suffocated to death.
All the while, Livingstone yelled at the stranger, a young chef who had moved to Cairns from New Zealand.
“Die, c—; Die, c—sucker,” he yelled as he was on Mr Quayle’s back, his victim in a fatal chokehold.
“Die, motherf—er die. Die, grub.”
Livingstone had handed his sunglasses and phone to a female companion prior to the attack
Livingstone was found guilty of Mr Quayle’s murder in April 2017 and sentenced to life in prison.
Queensland’s Court of Appeal dismissed Livingstone’s application in a published majority decision on Tuesday.
“There is no doubt that ordinarily it is prejudicial to have a jury know that the accused had just been released from jail, or on parole, when the particular offence was committed,” Justice Philip Morrison, Judge Philip McMurdo and Justice Debra Mullins wrote in their decision.
“The learned judge trial recognised as much. But defence counsel took a particular tactical step based on his assessment that those references could not be severed from the rest without causing the particular context to be lost.
“He wished to exploit that context before the jury, to portray whatever was said to be the distasteful boasting of an immature youth, egged on to do so by the prison atmosphere.”
Judge McMurdo went further in his disposition.
“In hindsight, (Livingstone’s) case may have been assisted if, having failed to have the evidence excluded, (Livingstone) had admitted the content of the conversation apart from the references to his having been in prison,” he said.
“That would have had the advantage of his imprisonment not being revealed to the jury.
“On the other hand, it may have been considered to be helpful to (Livingstone’s) case, if the jury was to be told of this conversation, for the jury to hear the conversation in the hope that they would treat it as unreliable bravado.”
While Livingstone’s appeal was dismissed based on the majority of the Court of Appeal, Judge McMurdo said he would “allow the appeal, set aside the conviction of murder and substitute a conviction of manslaughter”.
“It would be for the trial judge to sentence the appellant for that offence,” he said.