A NSW pensioner has successfully appealed his conviction for murdering a 43-year-old man who was found in a pool of blood by his mother.
Trevor Spencer was convicted by a Brisbane Supreme Court jury of murdering Gary Ryan, who was stabbed to death at a property east of Maryborough on August 23, 2016.
At the start of the trial Spencer pleaded not guilty to murder, but guilty to manslaughter. However, that plea was not accepted by the Crown.
The Dubbo man, then aged 70, was accused of accompanying Mark Crump - who pleaded guilty to murdering Mr Ryan - to the Mundubbera property following a custody dispute.
The wounded Mr Ryan was discovered by his mother who called paramedics.
A pathologist found he sustained 59 injuries, mainly to his head, including a stab wound to the front of his neck that penetrated the jugular vein.
Spencer told police Crump gave him a large Crocodile Dundee knife in case he needed it just before entering Mr Ryan's property, according to a Queensland Appeal Court judgment published on Tuesday.
Spencer denied any involvement in the killing or being party to a plan to assault Mr Ryan.
But he told police Crump swung a "sword or lump of steel" at Mr Ryan, pointed a crossbow at his head and pummelled him when he fell.
Spencer and Crump were also injured in the attack.
"The prosecution's case put to the jury was that Mr Crump and Mr Spencer engaged in a frenzied attack on the deceased and, in the course of that attack, which was a dynamic situation where both were using knives, they struck each other which accounted for the injuries to their hands," Justice Mullins said.
Spencer appealed the conviction saying a miscarriage of justice occurred due to reasons given to the jury about using evidence contained in his recorded and written statements made to police.
"No redirection was sought at the trial in relation to the directions given by the trial judge on how the jury could use the exculpatory statements made by Mr Spencer in the out of court statements," Justice Mullins said.
He ordered Spencer's conviction be set aside and a new trial ordered.
Justices Hugh Fraser and Philip McMurdo agreed with Justice Mullins.
