TWO men convicted of killing Gold Coast father Shaun Barker and dumping his remains at forest nearby Gympie have had their murder convictions downgraded.
After two trials, Tin Can Bay fishermen Stephen John Armitage and his son Matthew Leslie Armitage and another man were convicted of Mr Barker’s murder.
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The Armitages appealed their convictions, with their defence barristers arguing there was a possibility Mr Barker could have been killed without the intention of a person to cause death or bodily harm.
They appealed the convictions on the basis the verdict was unreasonable and a miscarriage of justice after the trial judge failed to properly direct the jury about the alternative verdict of manslaughter.
Today, the Queensland Court of Appeal agreed, finding the jury got it wrong and the two men should have been convicted only of the lesser charge of manslaughter.
“I have concluded that their (the jury) verdict cannot stand because it was not open to the jury to conclude that an act or omission, which killed Mr Barker, was done with the required intent,” Justice Philip McMurdo said.
“But I have concluded, it was open to the jury to find Mr Barker was killed by an injury or injuries cased by the mistreatment and violence inflicted upon him.”
The court ordered the pair’s murder convictions be substituted for manslaughter convictions.
They will be sentenced by the Queensland Supreme Court at a later date.
Mr Barker’s skull was found in Toolara State Forest on April 10, 2014, about three months after being reported missing.
Mr Barker was kidnapped from the Gold Coast months earlier, then held hostage in an esky at a property at Cooloola Cove, after being accused of stealing drugs.
The month before he was reported missing, he told his partner he had to “take care of matters” before being captured on CCTV leaving Broadbeach in a car after being approached by two men.
Mr Barker was using drugs about eight times a day when he went missing, a jury previously heard.
Several people who knew commercial fishers Stephen and Matthew Armitage later told police they saw a man being kept in a large fishing esky at a property at Cooloola Cove, owned by one of the men.
Throughout the two trials, the court heard Mr Barker had a finger broken and possibly cut off, and had honey dripped on his genitals to attract ants before he was killed.
Another man named Kane Ostwald previously gave evidence he went with a group of men to the forest, where there was a large fishing esky and saw the body of a man “on his side and all kinked up”, today’s judgment explained.
He tried to perform CPR and checked the man’s pulse before passing out and waking up at the Cooloola Cover property later.
In September 2014, Mr Ostwald identified Mr Barker on a photo board as the man he had tried to revive.
The Armitages and another man, William Dean, were charged with murder, torture and interfering with a corpse.
In 2017, after two trials because a jury could not reach a verdict at first instance, Stephen and Matthew Armitage were convicted of murder, interfering with a corpse and torture.
The jury was told during the trials Dean was seen at the Armitage property at Cooloola Cove “talking to an esky” and telling it “sorry mate”.
Another man was told by Stephen Armitage “they had a bloke in an esky” and “they were trying to get information out of him”.
He claimed Mr Barker had stolen some of the drug fantasy.
The court heard during the trial that at a later date, when Mr Barker cried out from the esky that he was thirsty Stephen Armitage brought a bottle he claimed was half water, half the drug fantasy and told another man: “This will fix him”.
He later told another person to stay away from the eskies because there was someone “in there”.
Other witnesses during the trial said they heard “scratching or shuffling” inside the shed of the property.
Mr Barker’s body was burned and left in the forest, the court heard.
A new trial has been ordered for the torture convictions, which were today quashed.
The appeals against the charges of interfering with a corpse were unsuccessful.
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