Agapis v The State of Western Australia

[2012] WASCA 132

AGAPIS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 132

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 132
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:148/2011	Heard:	7 FEBRUARY 2012
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	6/07/12
No of pages:	28	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	D
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Parties:	RAOUL AGAPIS THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application for leave to appeal against conviction and sentence Aggravated burglary Whether transcript of the trial edited Whether trial judge biased against appellant Whether the verdict of guilty unreasonable Whether appellant suffered a miscarriage of justice by reason of the appellant being kept in custody during trial Whether trial judge should have directed the jury as to mistake of fact
Legislation:	Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 30(3)(a) Criminal Code (WA), s 24 Criminal Procedure Act 2004 (WA), s 109(1), s 112
Case References:	Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 JRNT v The State of Western Australia [2011] WASCA 183 Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 R v Alexander [1979] VR 615 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297 Whitsed v The Queen [2005] WASCA 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AGAPIS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 132 CORAM : McLURE P

BUSS JA
MAZZA JA

HEARD : 7 FEBRUARY 2012 DELIVERED : 6 JULY 2012 FILE NO/S : CACR 148 of 2011

CACR 149 of 2011

BETWEEN : RAOUL AGAPIS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : BIRMINGHAM DCJ

File No : IND 349 of 2011

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Catchwords:

Criminal law - Application for leave to appeal against conviction and sentence

Aggravated burglary - Whether transcript of the trial edited - Whether trial judge biased against appellant - Whether the verdict of guilty unreasonable - Whether appellant suffered a miscarriage of justice by reason of the appellant being kept in custody during trial - Whether trial judge should have directed the jury as to mistake of fact

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 30(3)(a)

Criminal Code (WA), s 24
Criminal Procedure Act 2004 (WA), s 109(1), s 112

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

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Case(s) referred to in judgment(s):

Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
JRNT v The State of Western Australia [2011] WASCA 183
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v Alexander [1979] VR 615
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297
Whitsed v The Queen [2005] WASCA 208


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1 McLURE P: I agree with Mazza JA.

2 BUSS JA: I agree with Mazza JA.

3 MAZZA JA: The appellant was tried in the District Court before Birmingham DCJ and a jury between 10 and 13 May 2011, on a charge of aggravated burglary, as follows:

On 18 September 2010 at Kallaroo Raoul Agapis, entered or was in the place of Adam Griffin without his consent, with intent to commit an offence therein

And that Raoul Agapis threatened to kill Adam Griffin and Lauren Plummer

And that immediately before the commission of the offence Raoul Agapis knew or ought to have known that there was another person in the place

And that the place was ordinarily used for human habitation

4 Save for the circumstance of aggravation which alleged that the appellant threatened to kill the complainants, the appellant was convicted as charged.

5 On 31 August 2011, he was sentenced to 1 year and 3 months' imprisonment suspended for 2 years.

6 The appellant seeks leave to appeal against both conviction and sentence. The appellant has not provided any additional grounds of appeal with respect to the sentence. At the hearing of the appeal, he explained that his challenge to the sentence depended upon the outcome of the appeal against conviction: appeal ts 2.

The proposed grounds of appeal against conviction

7 The appellant is, in this appeal, self-represented. There are six proposed grounds of appeal. They are supported by lengthy written submissions.

8 The grounds, and the written submissions that support them, exhibit a good deal of confusion and repetition. As I understand them, they make the following contentions:

1. The transcript of the trial has been edited, giving rise to a miscarriage of justice (ground 1).

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2. The learned trial judge was biased against the appellant (ground 2).

3. The learned trial judge unfairly used his right to comment on the evidence in the course of his summing up to suggest that the appellant should be convicted (ground 2).

4. His Honour erred in law by declining to have a view of the crime scene (ground 2).

5. His Honour erred in law by not properly putting the defence case to the jury in his summing up (ground 2).

6. The verdict of guilty was, on the evidence, unreasonable and cannot be supported (ground 3).

7. The appellant suffered a miscarriage of justice by reason of the appellant being kept in custody during his trial (ground 4).

8. The appellant suffered a miscarriage of justice because the prosecution, it is said, failed to disclose evidence relevant to his defence (ground 5).

9. The appellant suffered a miscarriage of justice because the learned trial judge should have, but failed, to direct the jury as to mistake of fact pursuant to s 24 of the Criminal Code (WA) (ground 6).

9 Leave to appeal is required for each ground. Leave cannot be given in respect of a ground unless the court is satisfied that it has a reasonable prospect of succeeding. Unless the court gives leave to appeal on at least one ground, the appeal is taken to have been dismissed: s 27(1), (2) and (3) Criminal Appeals Act 2004 (WA).

10 In order to understand some of the proposed grounds of appeal it is necessary to say something about how the trial was conducted.

The conduct of the trial

11 On the morning of the first day of the trial, 10 May 2010, the appellant failed to answer his bail at 9 am. However, he was, at 10 am, outside the appointed courtroom. It appears that he refused to report, as required, to the detention area in the District Court building.

12 At 10.02 am, in the absence of the jury panel, the learned trial judge entered the courtroom. The appellant's trial counsel, Ms Boston, informed

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his Honour that the appellant was in an agitated state and that he had terminated her instructions to act. The learned trial judge, upon being informed that the appellant had not reported to the detention area at 9 am, but was outside the courtroom, issued a warrant for his arrest so that he could be put through the security procedures in the detention area.

13 The bench warrant was executed and, at about 11.15 am, the appellant was brought into the courtroom from the detention area. Attempts were made to identify him. The appellant took exception to being referred to by the name 'Raoul Agapis' or 'Mr Agapis'. He said that he was known as 'the Man': ts 19. The appellant did not acknowledge that he was the accused: ts 20. Despite this, he confirmed that Ms Boston had been 'sacked': ts 23. His Honour gave leave to Ms Boston to withdraw.

14 Issues were raised as to whether the appellant wished to apply for an adjournment to obtain legal representation: ts 41; and whether he was fit to stand trial: ts 64. In the end, the appellant did not seek an adjournment of the trial and acted on his own behalf. Ultimately, his Honour decided that the appellant was fit to stand trial.

15 On the afternoon of 10 May 2010, his Honour addressed the appellant at length, explaining to him his right of jury challenge, trial procedure and the elements of the offence: ts 68 - 82. At the conclusion of the day's proceedings, the appellant was granted overnight bail, with a surety. His Honour renewed bail at the end of each day of the trial, but the appellant remained in custody throughout the trial because he could not obtain a suitable surety. At various points in the trial, the appellant alleged that he had been mistreated while he was in custody and had not been given adequate writing facilities.

16 On 11 May 2011, the second day of the trial, prior to the empanelment of the jury, the learned trial judge held a voir dire in which the principal investigating officer, Detective Sergeant Mercer, testified, to the effect that the appellant was known as Raoul Agapis and that he was the accused man. His Honour ruled that he was satisfied that the man named in the indictment as Raoul Agapis was the person in the dock: ts 147.

17 Eventually, the appellant was arraigned and he pleaded not guilty: ts 163. Thereafter, the trial proceeded in a relatively orderly way. The appellant cross-examined, at some length, all of the prosecution witnesses and testified on his own behalf. At times, his Honour intervened when the

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appellant was cross-examining witnesses to ensure that his questions were comprehensible and to prevent him from making statements rather than asking questions. A reading of the transcript as a whole gives the clear impression that the appellant was confident, articulate and fully understood the details of the case.

The State's case

18 The State's case was as follows. The appellant is originally from Sydney and had not been in Perth for long prior to the alleged offence. The complainant, Adam Griffin, lived in rented residential premises in the Perth suburb of Kallaroo. The appellant's mother and Mr Griffin's mother both lived in Sydney and knew each other. When the appellant arrived in Perth, it was suggested that the appellant should get to know Mr Griffin, and it appears that the two men had socialised prior to the date of the alleged offence.

19 Some time in the early evening of 18 September 2010, the appellant drove to Mr Griffin's house, at Mr Griffin's invitation, for a social visit. Staying at the premises in a spare bedroom was a friend of Mr Griffin's, Lauren Plummer. The appellant had brought with him a bottle of Jack Daniel's whisky. The appellant, Mr Griffin and Ms Plummer sat around a table at the rear of the premises, chatting. The appellant and Mr Griffin drank some of the Jack Daniel's.

20 On the State's case, the appellant became verbally abusive, as a result of which Mr Griffin told the appellant to leave. The two men then went to the front of the house where they engaged in some wrestling. Mr Griffin broke away and re-entered the house through the front door, which he closed. He then closed some of the windows to the house and told Ms Plummer to call the police.

21 According to the State, the appellant walked from the front of the house, down the side and, in the process, he kicked the side gate off its post. The appellant then gained entry to the living area of the house by forcibly removing a flyscreen from a window, climbing through it, stepping onto a couch where he left a print from the thong he was wearing and then onto the floor.

22 The State alleged that the appellant moved towards Mr Griffin, intending to assault him. The State's case was that Mr Griffin, having armed himself with an aluminium baseball bat, hit the appellant in the legs in self-defence. The appellant kept coming at Mr Griffin, who then struck him to the head with the bat, gashing his head and rendering him

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unconscious. While this was occurring, Ms Plummer was speaking to the police, having dialled triple zero.

23 The police and an ambulance arrived shortly after. The appellant was taken to the Joondalup Health Campus, where he was treated for his injuries, including a cut to the head caused by the baseball bat.

24 Detective Sergeant Mercer, who was accompanied by First Class Constable Camp, travelled to the hospital where they saw the appellant. The appellant identified himself as Raoul Agapis.

25 The State case was that Mr Griffin and Ms Plummer were truthful witnesses and that the appellant broke into the house through the window, plainly without consent, with the intention of assaulting Mr Griffin.

The appellant's case

26 The appellant's case was as follows. The appellant agreed that he went to Mr Griffin's house for a social visit, and that he brought with him a bottle of Jack Daniel's whisky. While he was there, a number of things happened which he said he did not like. The most significant of these was that Mr Griffin suggested to the appellant that he should go with him to a house in Cottesloe to steal cannabis plants which were growing there. The appellant's case was that Mr Griffin then 'sort of lost it' and asked him to leave. The appellant said that he agreed to leave, and that the two men walked to the front of the house where Mr Griffin pushed and then punched the appellant. The appellant's case was that there was a physical altercation which led to him grabbing Mr Griffin's hands to restrain him from further aggression. After a short period of time, the appellant let Mr Griffin go. Mr Griffin then ran around to the back of the house. While doing so he knocked over the side gate.

27 The appellant then went around to the back of the house with the intention only of speaking to Mr Griffin. The appellant's case was that he told Mr Griffin that he was going to come inside to talk to him, in order to sort their problem out. His case was that he walked into the house through an unlatched door, with Mr Griffin's consent. He asserted that he never had any intention to assault Mr Griffin and that he only ever intended to peaceably resolve the situation. The appellant denied threatening or using violence towards Mr Griffin.

28 It was his case that Mr Griffin, without justification, assaulted him with a baseball bat. The appellant alleged that the triple zero calls were contrived to deflect the blame for the appellant's injuries away from

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Mr Griffin. Further, in order to cover up Mr Griffin's unlawful assault on the appellant, Mr Griffin forcibly removed the flyscreen and used one of the appellant's thongs to make a mark on the sofa below the window the appellant had supposedly used to enter the house.

29 The appellant said that the State's case was undermined by an absence of forensic evidence and by a failure to call neighbours who, it was said, would have heard the commotion described by Mr Griffin and Ms Plummer if it happened. The appellant noted that Mr Griffin was uninjured and that there was no damage to the fibro fence near where the appellant and Mr Griffin were supposed to have been wrestling.

Summary of the evidence

Evidence of Adam Griffin

30 Mr Griffin testified that on 18 September 2010, he agreed that the appellant could come over to his house for a barbecue. He said that the appellant arrived at approximately 7.00 to 7.30 pm with a bottle of Jack Daniel's whisky. Mr Griffin said that he, the appellant and Ms Plummer were sitting under the patio area in the backyard. He said that the appellant started 'going off' after Ms Plummer said that she knew his mother. As a result, Mr Griffin told the appellant that he had to leave. Mr Griffin said that the appellant did not want to go. He said that the appellant pushed him, and that eventually they got to the front of the house where Mr Griffin put the appellant into a headlock and got him to the ground. At this point, the appellant appeared to calm down and said, 'I'm sorry, sorry': ts 197. However, the appellant then 'shaped up' to Mr Griffin.

31 Mr Griffin said that at some point Ms Plummer offered to pay for a cab for him, but he told her to 'fuck off'. Mr Griffin said that he entered the house through the front door, locking it. He said that he then locked the windows in the bedrooms and that he then rang the police on triple zero. Mr Griffin said that he told Ms Plummer to go to one of the bedrooms.

32 Mr Griffin testified that he heard the appellant yelling out, 'Come on, come out and fight like a man', or words to that effect: ts 197. He testified that the appellant proceeded towards an open window in the lounge room. Mr Griffin testified that he told the appellant, 'Don't come into my house.' He said that the appellant ripped the flyscreen off the window, climbed into the house through the window, onto a lounge suite and then onto the floor. Mr Griffin armed himself with a baseball bat.

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Mr Griffin said that he warned him, as he got to some steps in the living area, but the appellant kept coming. Mr Griffin said that he then hit the appellant across the legs with the bat. Mr Griffin testified that there was a bit of a scuffle and that the appellant came at him again. Mr Griffin then hit the appellant across the left side of the head with the bat, knocking him out: ts 198.

33 Mr Griffin said that after he knocked him out, he rang the ambulance and rang triple zero again: ts 199. The police and an ambulance came to the house.

34 Two triple zero calls were played in the course of his evidence: exhibit 8. Both calls featured the voices of Mr Griffin and Ms Plummer, but were initiated by Ms Plummer. In the first call at 8.02 pm, Ms Griffin said a man named Raoul was 'punching the shit out of Adam'. In the second call at 8.09 pm, Ms Plummer said that a man 'smashed' into the house. Mr Griffin said that a man had broken into his house.

35 Among the photographs taken of the scene by the police Mr Griffin was shown three photographs of the lounge suite upon which he said the appellant had stepped when he came through the window: exhibit 6A, 6B and 6C. He pointed out what he said was a thong print left by the appellant when he entered the house through the window.

36 Mr Griffin said that he did not consent to the appellant coming into the house and that he hit him with the baseball bat because 'he [the appellant] kept coming at me': ts 212.

37 In cross-examination, Mr Griffin denied that the appellant had arrived at the house at around 6.30 pm: ts 218.

38 Mr Griffin accepted that he owned a BB gun, that is, a gun that fires plastic pellets.

39 Mr Griffin denied the suggestion put to him in cross-examination that he asked Ms Plummer to log into a 'porno' website. He also denied suggesting to the appellant that they go and steal hydroponic cannabis growing at a house in Cottesloe. Mr Griffin further denied that the appellant called him 'a criminal'.

40 Mr Griffin, when asked about the confrontation at the front of the house, confirmed that he put the appellant in a headlock: ts 240. Mr Griffin said that he did not suffer any injuries in this confrontation: ts 247.

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41 Mr Griffin denied that after the confrontation at the front of the house, he went down the side and knocked over the gate. He denied that the appellant entered the house through a rear door and that the appellant was trying to sort things out peaceably. Mr Griffin denied any suggestion that he had removed the flyscreen or that he had taken a thong from the appellant and used it to create the mark that was on the lounge suite.

Evidence of Lauren Plummer

42 Ms Plummer testified that initially when the appellant arrived 'things were okay', but after she commented that she knew his mother the situation changed 'quite dramatically' and the appellant 'went off'.

43 Ms Plummer said that she went inside and saw the two men pushing each other. She then went outside and offered to pay the appellant $50 for a taxi fare, to which the appellant told her to 'eff off': ts 283. She said she saw the two men pinning each other against the fence: ts 283.

44 She said that Mr Griffin came inside and asked her to ring the police because he was breaking through the window: ts 284. Ms Plummer said that she rang triple zero. She said that the appellant yelled out, over and over, 'that he was going to kill us both'.

45 Ms Plummer said that she did not see Mr Griffin hit the appellant with the baseball bat. She said that after that, she was on the phone again to triple zero. She said that she had never been so scared in her life: ts 285.

46 In cross-examination, Ms Plummer said that she had no recollection of using a BB gun or of walking away, because Mr Griffin mentioned a 'porn' website.

47 She said she saw the appellant and Mr Griffin wrestling out the front of the house, but she did not know when that was: ts 303.

48 She said that she saw the appellant pulling the flyscreen from the lounge room window and trying to jump through it. She said that she could see this from the door of the spare bedroom: ts 306.

Evidence of Detective Sergeant Mercer

49 Detective Sergeant Mercer testified that he and First Class Constable Camp were called to Mr Griffin's house and arrived there at approximately 8.12 pm.

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50 He saw that the side gate had been pushed over and that there was a bent flyscreen a few feet away from a window, leaning against a table: ts 342. He observed a partly open window with a couch pressed up against it. He said that the couch had a bit of a mark on top: ts 343. He testified that he went to the Joondalup Health Campus, where the appellant identified himself as Raoul Agapis. He said that he did not see any breakage in the fibro fence near where the appellant and Mr Griffin were said to have been wrestling. He did not observe any injuries on Mr Griffin. Nor did he see any shoeprint below the open window in which it was alleged the appellant had entered. He conceded that it would be possible for someone to have taken a thong off the appellant's foot and use it to leave the mark he saw on the couch: ts 360.

Evidence of First Class Constable Camp

51 He essentially confirmed the evidence of Detective Sergeant Mercer. The appellant cross-examined him at some length to suggest that Ms Plummer could not have seen, from the bedroom door, the appellant pulling off the flyscreen and trying to jump through the lounge room window.

52 The cross-examination is confusing and, in the end, inconclusive.

The prosecutor raises DNA testing

53 During First Class Constable Camp's evidence, and in the absence of the jury, the prosecutor, 'out of fairness to the accused', alerted the court to a forensic report which revealed that a T-shirt found outside Mr Griffin's house was found to have Mr Griffin's DNA on it. The report had been disclosed to the appellant's counsel, Ms Boston, by the State. The prosecutor indicated that he was willing to tender the report and the exhibit list prepared by a police officer to show that the police seized the T-shirt on the night in question. The evident forensic purpose for tendering the report would be to contradict Mr Griffin's testimony in cross-examination that the T-shirt did not belong to him. The appellant did not seek the tender of the report: ts 432.

Evidence of the appellant

54 The appellant testified that when he arrived at Mr Griffin's house, he sat down at a table with him and Ms Plummer. He said that there was a pistol on the table and that Ms Plummer was pointing it towards a neighbour's wall: ts 440. He said that he told Mr Griffin that he did not like guns, and that if the gun was not put away he would leave. As a

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result, Mr Griffin took the pistol inside: ts 441. The appellant said that Ms Plummer had a laptop computer, and that Mr Griffin asked her to log onto a website so that the appellant could see a picture of a girl Mr Griffin had dated. The appellant said that he was not interested in looking at the photograph. After this, according to the appellant, Mr Griffin tried to coerce him into robbing hydroponic cannabis plants from a house in Cottesloe. The appellant said that he told Mr Griffin that he was not a criminal and was not interested in doing anything like that.

55 The appellant testified that at this point Mr Griffin 'sort of lost it' and then asked him to leave. The appellant said he agreed to do so and that he walked around to the front of the house where his car was parked. The appellant said that when the two men got to the front of the house, Mr Griffin pushed him in the chest and punched him to head a couple of times, although these blows did not hurt: ts 442 - 443.

56 The appellant said that Mr Griffin pulled him over on top of him, at which point the appellant grabbed Mr Griffin's hands and said, 'I'll let go of you, Adam, as long as there's not going to be more violence': ts 443. The appellant let go of Mr Griffin, who got up and ran around to the back of the house.

57 A few minutes later, the appellant said that he went around the outside of the house and spoke to the appellant who, by this time, was inside. The appellant said that he told Mr Griffin that he wanted to sort out the problem. He said that Mr Griffin was 'carrying on, he was swearing': ts 444. Despite this, he told Mr Griffin that he was going to come inside to talk with him. The appellant testified that he opened an unlatched door, telling Mr Griffin that he just wanted to 'communicate' with him. The appellant said that when he walked in, Mr Griffin ran off and got the baseball bat. Upon his return, for no reason, Mr Griffin struck him to the leg with the bat. The appellant said that he fell to his knees and Mr Griffin then hit him over the head: ts 444.

58 The appellant testified that as far as he is concerned, Mr Griffin should have been the one charged with assault: ts 445. He denied intending to assault Mr Griffin at any stage. He said, 'My intention was to communicate with him': ts 444.

59 In cross-examination, he said that he believed that he could enter the property because he had been invited there, even though he had been told to 'fuck off': ts 453.

60 The appellant said:

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I decided that I'd like to talk with him and I decided that Adam saying f-off and all those other words, right, is just Adam: ts 454.

61 The appellant denied that Ms Plummer offered him $50 for a taxi: ts 455. He also denied entering the house through an open window, as alleged by the prosecution.

62 The appellant said that when he entered the house he was 'trying to be reasonable' and only wanted to talk to him, not assault him: ts 457.

63 The appellant denied damaging the flyscreen or the side gate. He agreed that he was wearing thongs on his feet, but said that if the impression on the lounge suite was made by a thong, he did not make it: ts 460. He said that he believed that the thong print was 'planted' by Mr Griffin and that Mr Griffin destroyed the flyscreen: ts 461 - 462. The appellant said that Ms Plummer had made up a 'false story' in the triple zero calls: ts 462.

Has the trial transcript been edited?

64 The appellant submits that the trial transcript was edited with the intention of disadvantaging him during the trial: written submissions, pars 1 and 2. The appellant does not say who edited the transcript. In his written submissions, the appellant asserts that the following things were not transcribed:

(a) his cross-examination of one of the detectives as to whether the appellant's fingerprints were found on the flyscreen;

(b) his cross-examination of Mr Griffin about the appellant being invited to the house; and

(c) his cross-examination of Mr Griffin about the BB gun.

65 An examination of the transcript reveals that:

(a) neither Detective Sergeant Mercer nor First Class Constable Camp were, apparently, asked by the appellant about his fingerprints being on the flyscreen. However, it is a matter of no moment. The trial was conducted on the basis that there were no fingerprints on the flyscreen. It appears that the flyscreen was not fingerprinted, a point to which his Honour alerted the jury in his summing up;

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(b) contrary to the appellant's submissions, he asked Mr Griffin in cross-examination about being invited to the house, although the question was disallowed by his Honour: ts 218; and

(c) contrary to his written submissions, the appellant cross-examined Mr Griffin about the BB gun: ts 232.

66 It is clear from the appellant's written submissions that he is relying on his recollection. That recollection is erroneous. The trial transcript is a written reproduction of the audio record of the proceeding. A transcript statement issued on behalf of the transcribers, which appears in the transcript itself, certifies that the transcript is complete. There is no basis to the appellant's assertion that the trial transcript has been edited so as to disadvantage him.

Was the learned trial judge biased against the appellant?

67 The appellant makes a general assertion that the learned trial judge was biased against him. He does not discriminate between actual or apprehended bias, although the flavour of his written submissions tends to suggest actual bias. The basis for the allegation is primarily that his Honour made the various errors which he has raised in his grounds of appeal and written submissions. Such errors, even if made, do not amount to bias, whether actual or apprehended. The appellant also alleges that on occasions his Honour made remarks which exhibited bias. There is no need to detail them. It is sufficient to say that none of them could arguably be seen as exhibiting any kind of bias against the appellant. There is nothing to suggest that his Honour was actually biased against the appellant, nor is there anything which could reasonably justify an apprehension of bias.

Did the learned trial judge comment unfairly on the evidence?

68 The appellant contends that during his summing up the learned trial judge sought to influence the jury to arrive at a verdict of guilty.

69 The appellant's submissions proceeded in this way. He contended that the role of a judge in a criminal trial was to be 'an adjudicator' and, as such, the learned trial judge should not have made any comments or given any opinion about the facts of the case. However, contrary to this role, his Honour did make comments on the facts with a view, the appellant says, to influencing the jury to convict. He further contends that, at times, the learned trial judge used a technique Neuro Linguistic Programming

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(NLP) to influence the jury. The appellant did not explain what NLP was, or how his Honour used it.

70 The submissions refer, at some length, to various parts of the summing up, often not in context, which, it is said, demonstrate the attempts made by his Honour to influence the jury. The examples cited are numerous, but it is unnecessary to mention them all. The following examples convey the flavour of the appellant's criticisms of the summing up:

19) Page 530 BIRMINGHAM DCJ 'No you can't come in' BIRMINGHAM DCJ suggesting to the jury in his summation that is what ADAM GRIFFIN said to Raoul Agapis. Linguistic programming. What ADAM GRIFFIN testified to saying was 'Fuck off' So BIRMINGHAM DCJ lied by saying that was ADAM GRIFFIN's direct evidence.

...

22) Page 534 BIRMINGHAM DCJ 'The issue is whether the words that you find were used by him and the context in which they were used by him and the context in which they were used constituted a threat to kill the complainant and Ms PLUMMER or to injure them.' BIRMINGHAM DCJ has repeated the idea here which is a NLP technique called NEURO LINGUISTIC PROGRAMMING. BIRMINGHAM DCJ is supposed to be an adjudicator not trying to influence and program a jury. Says the accusation twice again. They are not facts.

...

24) Page 535 BIRMINGHAM DCJ 'The CLERK OF ARRAIGNS will ask the foreman, 'Are you agreed upon your verdict'? He will say 'Yes' BIRMINGHAM DCJ 'And then he'll be asked then if that is the verdict of you all, for which the answer will be, 'Yes' these two excerpts are only one sentence away from each other no this page. BIRMINGHAM DCJ is clearly programming the jury here as he does not say No or Yes or NO whatever the case may be, BIRMINGHAM DCJ is linguistically leading the jury where he wants them to be.

...

28) Page 538 BIRMINGHAM DCJ 'That is just my observation. You can reject it if you wish and its entirely a matter for you but that's an observation which I have made which no-one else has.' BIRMINGHAM DCJ is an Adjudicator rather than set out to influence a jury. BIRMINGHAM DCJ been doing this job for a long time. He knows that PLUMMER stated that Agapis was

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yelling out the front that he was going to kill them, Agapis was yelling around the back that he was going to kill them and that Agapis was yelling inside that he was going to kill them. How come no-one else heard? Why did the DETECTIVES not interview the neighbours. Could PLUMMER by lying again? BIRMINGHAM DCJ is an Adjudicator and not purposely set out to influence a jury.

...

32) Page 541 BIRMINGHAM DCJ 'as to whether she had ever handled a gun or whether she knew of any gun, and it was one of surprise, saying that she had never touched a gun in her life.' Plummer on first being questioned page 288 about the gun 'Was it a toy or something' as well. BIRMINGHAM left that section out. PLUMMER who had fourteen 'Don't recalls', three 'Not exactly sure's', one 'I can't remember' and seven 'I am not sure' when cross-examined by Agapis. BIRMINGHAM DCJ keeps trying to influence the jury with limited aspects of PLUMMER'S testimony.

71 Contrary to the appellant's submissions, a judge may, in the course of the summing up 'make any observations about the evidence that the judge thinks necessary in the interests of justice': s 112 Criminal Procedure Act 2004 (WA), although ultimately the facts are a matter for the jury alone to decide. A trial judge must direct a jury that any observations made on the facts are not binding and that the jury is free to disagree with them: Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 [6] (Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ) and Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297 [155] - [157] (Buss JA). His Honour, in accordance with authority, gave clear and accurate directions about any observations of fact that he made in the course of the summing up. He said:

In the course of addressing you this morning, I may comment on the evidence if I think it will assist you in considering the facts; however, you're not obliged to accept any comment I make about the facts. You should ignore any comment I make about the facts unless it coincides with your independent view. If I speak to you about some facts and not others, that doesn't mean to say you should disregard the others. You shouldn't assume that anything I say, during the course of commenting on the fact[s], is in any way intending to signal to you what your verdict should be; that would be most improper of me.

The verdict in the case is your province; you are the sole judges of the facts, it is you who must decide what facts have been proved to the required standard and whether in this case the State has proved the charge against this accused person. The issue you have to decide is whether he's guilty or not guilty: ts 525.

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72 There is no merit to the contention that the learned trial judge was trying to influence the jury to convict the appellant. Nothing his Honour did could be reasonably construed in that way.

Did his Honour err by declining to have a view of the crime scene?

73 Towards the end of the trial, after the appellant's cross-examination, and in the absence of the jury, the appellant made an oral application to his Honour for 'someone' to go to the house in which the offence was allegedly committed to see if, as Ms Plummer claimed, it was physically possible for Ms Plummer to see from the bedroom door the window through which the appellant allegedly entered the house. The application was treated by his Honour as an application for a view by the jury and was refused. His Honour, in very brief reasons, said that he was not satisfied that it was appropriate: ts 488. He did so, having observed that the issue was one that the appellant may have considered prior to the commencement to the trial: ts 487. His Honour considered that the question of whether Ms Plummer could have seen the appellant entered the house through the window was a matter that the jury could decide on the evidence before them, including photographs of the house: ts 488.

74 Whether a view of an alleged crime scene is required is a matter for the discretion of the trial judge: s 109(1) Criminal Procedure Act; Whitsed v The Queen [2005] WASCA 208 [119] (Miller AJA); R v Alexander [1979] VR 615. Here, the application was made late in the trial. Further, the factual issue for the jury to resolve could properly be decided on the evidence which was before the jury. Finally, there is nothing before the court to indicate that the house was in the same state as it had been at the time of the alleged offence. It cannot be said that his Honour erred in the exercise of his discretion not to order a view of the scene.

Did his Honour properly put the defence case to the jury in his summing up?

75 Birmingham DCJ summarised the appellant's evidence, briefly but succinctly, in this way:

Now, it was the accused's evidence that after they had broken off out the front and he grabbed him by the arms and held him down, he let him up and he then ran off around the side of the house, hit the gate and knocked the gate down and then went into the house and around the back, that the accused went around to the back of the house looking for a blanket to stay because he couldn't drive, and then he wanted to effectively patch things up with Adam because of the relationship between their parents, and he

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says that he entered the house through the back door and approached him with his hands down in a - palm was facing forward and came towards him with no intention to do any harm to him and no threat: ts 537 - 538.

76 His Honour told the jury that the accused denied that he had placed the thong print on the lounge suite. His Honour said to the jury:

He [the appellant] says that it was done by Griffin with the assistance of Lauren Plummer in circumstances where the complainant, Griffin, had overdone it with a baseball bat. And, implicit in what he was saying, was fearful of the consequences to what he had done: ts 539.

77 His Honour summarised the defence case as follows:

BIRMINGHAM DCJ: On contrast, the accused says,'Well I just tried to talk to the guy. He went too far, too quickly. Had no intention to hurt him.'

ACCUSED: No.

BIRMINGHAM DCJ: There was plenty of opportunity to do that outside and you didn't. This is a man who, with a baseball bat, has no mark or injury on him for all the scuffles and fights outside which, if that occurred, you might have expected some marks or circumstances or some abrasions to be apparent. Nothing was readily apparent or required any medical attention.

Against that, was Mr Griffin who said he got him in a headlock and then he sort of gave up and stopped and they had a hug before he then shaped up to him. So the circumstances of the wrestling as to whether it's up against a wall and things such as that, and the extent to which it's got to that level, are matters for you. But as he said: the threats didn't happen; there was no physical assault; if there was, he could have done so, and he didn't; that he's a fit man, and significantly bigger, taller and obviously more powerful than Mr Griffin.

He says that it looks like the chair has been moved, when you look at exhibit 9, and that the evidence has been touched, although - and he also points to the fact that there's no fingerprints on the screen. Yes, it appears as though the screen wasn't fingerprinted, but that's inviting you to speculate as to whether or not that screen was pulled off.

He says that that was pulled off in that way by someone other than him, and I take it that he attributes that to Adam Griffin; namely, that he took the screen off to make it as though it had been twisted and broken, and placed the marks corresponding with his footprints on the settee through that window to cover up for the fact that he had been - that he had severely assaulted this man, the accused, and was then trying to cover up for the injury he had caused because he went too far and nearly killed him.

He also says that there was a firearm out the back and that Lauren had it and pointed it, I think the accused admitted that - sorry, the complainant

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admitted that he'd had a BB gun, but you saw and heard the evidence of Lauren Plummer as to what her reaction was to that, as to whether she'd ever handled a gun or whether she knew of any gun, and it was one of surprise, saying that she'd never touched a gun in her life. These are the differences that you'll need to resolve, but ultimately, the issue is you have to be satisfied beyond reasonable doubt in relation to each of the elements, and you have regard to the whole of the evidence to do that.

The accused says that it was an overreaction at a time when he was trying to build bridges, that it was an overreaction of Adam Griffin, that he panicked and then made up the story to cover up. That really is a matter for you when you consider all of the evidence. Can I just say, in relation to the evidence - and again, this is my comment on the evidence that you should not accept unless it coincides with your independent view, and you're at liberty to make your own findings of the facts and reject mine in their entirety - the best independent evidence we have in this case comes from the 000 calls: ts 539 - 541.

78 After the jury retired to consider its verdict, his Honour asked the appellant if there was any matter of fact that required correction. The appellant complained that his Honour had not been 'totally neutral and just a mediator': ts 546. He asked his Honour to make some further observations on the facts. His Honour agreed to do so. His Honour reminded the jury of the appellant's evidence about Mr Griffin inviting him to steal a cannabis crop in Cottesloe. His Honour also reminded the jury of the appellant's case that what was said in the triple zero calls was false and could have been contrived: ts 550.

79 It is a fundamental task of a trial judge to ensure that the accused received a fair trial and that requires the judge to put fairly before the jury the case which the accused makes: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41].

80 The evidence before the jury was not lengthy nor complicated. The factual issues for the jury to decide were straightforward. They were whether the State had proved beyond reasonable doubt that the appellant entered or was in Mr Griffin's house without consent and, if so, whether the appellant had an intention to assault him.

81 In these circumstances, his Honour's summation both of the appellant's evidence and the appellant's case, including the redirection, fairly and adequately put before the jury the case that the appellant wished to make.

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Was the verdict unreasonable?

82 This court must allow an appeal if in its opinion the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: S 30(3)(a) of the Criminal Appeals Act 2004 (WA).

83 In JRNT v The State of Western Australia [2011] WASCA 183 [59] - [61], I set out the relevant legal principles which must be applied when considering whether a jury's verdict of guilty is unreasonable and cannot be supported as follows:

The question which this court must ask itself is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen (1994) 181 CLR 487, 493. The word 'open' in this context is important. As Hayne J said in Libke v The Queen (2007) 230 CLR 559:

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (emphasis in original)

This court must undertake its own independent assessment of all of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen (2011) 85 ALJR 571. Full regard must be given to the considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.

The test laid down in M v The Queen must be applied in this way:


In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility

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that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).

See also Martinez v The State of Western Australia [2007] WASCA 143; and Scriva v The State of Western Australia [2010] WASCA 89.

84 The appellant submits that the principle prosecution witnesses, Mr Griffin and Ms Plummer 'lied consistently in their testimony'. Examples of these 'lies' are:

(a) Mr Griffin claimed that he rang triple zero. Ms Plummer said that she rang triple zero twice. If their evidence is correct there were in total three calls to triple zero while only two were played at trial. It was submitted that Mr Griffin's claim that he telephoned triple zero is false.

(b) In the first triple zero call played to the jury, Ms Plummer says that the appellant is 'punching the shit out of [Mr Griffin]' yet Mr Griffin himself testified that he had not suffered any injuries in the confrontation.

(c) Mr Griffin said in his evidence that on the day in question daylight saving applied. The appellant claimed that it did not.

(d) Mr Griffin testified that the t-shirt which was examined for DNA was the t-shirt the appellant was wearing on the night. Yet, the t-shirt had Mr Griffin's DNA on it and when the appellant woke up in hospital he was wearing the same t-shirt that he had worn while at Mr Griffin's house.

(e) Mr Griffin accepted that he had a BB gun but Ms Plummer had no recollection of it.

85 The appellant further submitted that in the absence of his fingerprints being found on the flyscreen, which had allegedly been removed from the window, and any footprint or other mark outside the window that could be attributed to him, the evidence of Mr Griffin and Ms Plummer that the appellant entered the house through that window cannot be accepted.

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86 Further, although Ms Plummer testified that she saw the appellant and Mr Griffin at the front of the house pinning each other against the fence there was no evidence of any damage to that fence.

87 The appellant repeated many of the arguments that he made at trial in support of this ground including the assertion that he had not left a thong mark on the sofa in the lounge room and that the triple zero calls were contrived.

88 He alleged that the police did not properly investigate the case.

89 There was in general terms some common ground between the prosecution and defence cases. It was not in dispute that:

(a) the appellant had been invited to attend Mr Griffin's house for a barbecue;

(b) there was a disagreement between the appellant and Mr Griffin which lead to the appellant being asked to leave the premises;

(c) there was a physical altercation of some kind at the front of the house at the conclusion of which it was clear that the appellant was unwelcome;

(d) shortly after this confrontation the appellant entered Mr Griffin's house. (Of course, the mode of entering into the house is disputed);

(e) while the appellant was in the house he was struck by Mr Griffin with an aluminium baseball bat, initially to the legs and then to the head, rendering him unconscious;

(f) at least two triple zero calls were made at or about the time of the incident; and

(g) the police officers who attended in response to the triple zero calls found the side gate damaged, a flyscreen which appeared to have been forcibly removed from the window and what appeared to be a thong mark on the lounge suite inside the house under that window.

90 A crucial part of the State case was that the appellant had entered the premises forcibly through the window in the lounge and that he had been the person who had forcibly removed the flyscreen and had then climbed through the window placing the thong mark on the sofa.

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91 The credibility of Mr Griffin, Ms Plummer and the appellant was critical to the resolution of this issue. In this regard, the jury had the very considerable benefit of having seen and heard these witnesses, a benefit this court does not have. It is clear the jury accepted the testimony of Mr Griffin and Ms Plummer and rejected the appellant's evidence as to his mode of entry into the house. The damaged flyscreen and the footprint on the sofa was powerful evidence that the appellant had, as Mr Griffin and Ms Plummer said, entered the house through the window. I have viewed exhibits 6A, 6B and 6C which show the window, the sofa and the alleged thong mark. The mark is clearly consistent with being left by someone wearing a thong. The sofa is positioned near the window in which it is said that the appellant entered. The mark is consistent with someone having entered the house through the window and then stepping onto the sofa.

92 There is no evidence of any footprint outside the window or fingerprints on the flyscreen, but the absence of these things does not, as the appellant seems to think, give rise to a reasonable doubt as to his guilt. There is nothing to indicate that footprints or fingerprints would normally be present in the circumstances alleged by the appellant.

93 The appellant's contention that Mr Griffin and or Ms Plummer contrived the entry appears to me far fetched.

94 In some respects the evidence of Mr Griffin and Ms Plummer is not consistent, but I do not consider the inconsistencies to be such that the evidence of either witness is unreliable or incapable of acceptance. It would appear that Mr Griffin did not himself ring triple zero, but he did speak to the operator. It is of no real moment that he did not in fact dial triple zero and speak first to the operator.

95 The points made by the appellant that the BB gun, the T-shirt and daylight saving are minor and of no material significance. It is true that Ms Plummer said in one of the triple zero calls that the appellant was 'beating the shit' out of Mr Griffin. Yet, Mr Griffin did not have any injuries consistent with such a beating. It is clear from the two triple zero calls which I have listened to and Ms Plummer's evidence that she was, at the time, in a state of fear. Her exaggerated account of what the appellant was doing to Mr Griffin can, in my view, be seen to be reasonably attributable to that state and a desire to get the police to attend the house urgently.

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96 The apparent lack of any damage to the fence where the appellant and Mr Griffin were wrestling is of no real importance. The photographs tendered at trial reveal that it was not in the best state of repair and appeared reasonably worn. But there is no evidence about the force which was applied to the fence to enable an inference to be drawn that the fence should have been damaged. In any event, what happened in the confrontation at the front of the house, was not particularly significant. What was significant is what occurred after the confrontation at the front of the house.

97 The appellant made the submission that none of the neighbours were called to give evidence. It is not known whether any of the neighbours in the vicinity of Mr Griffin's house was home at the time of the incident and even if they were, they may not have seen or heard the incident. Whether any of the neighbours could have given any relevant evidence is a matter of speculation.

98 There is no factual basis to the assertion that the police investigation was inadequate.

99 On the appellant's evidence, he had been told in clear terms by Mr Griffin that he was to leave the house. He and Mr Griffin then had a physical confrontation at the front of the house which must have reinforced that he was unwelcome. Notwithstanding this, the appellant then went to the rear of the house where, on his evidence, he tried to persuade Mr Griffin to talk. There is nothing in the appellant's evidence to indicate that Mr Griffin showed any interest in talking to the appellant. Yet, the appellant entered the premises. In these circumstances it is difficult to see how the appellant could credibly assert that he had Mr Griffin's consent to enter or be in the house. The appellant's evidence was that he had no intention of assaulting Mr Griffin but in light of the earlier confrontations, his denial is far from compelling.

100 Of course, the appellant's testimony is not to be considered alone. It needs to be weighed against the testimony of Mr Griffin and Ms Plummer as well as the photographs and the triple zero calls. In any opinion, it was well and truly open to the jury to conclude that the appellant entered the premises through the window without Mr Griffin's consent and that when he did so he had the intention of assaulting Mr Griffin. I do not have a reasonable doubt as to the appellant's guilt. Based on my review of the trial record, none of the matters relied on by the appellant either individually or collectively justify the conclusion that the verdict of guilty was unreasonable or cannot be supported.

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Did the appellant suffer a miscarriage of justice by reason of being remanded in custody during the trial?

101 The appellant's written submissions with respect to this ground are incoherent and, frankly, nonsense.

102 The appellant submits that there was no evidence that he was the person named 'Raoul Agapis' in the indictment and that his Honour placed him into 'involuntary servitude' for the duration of the trial.

103 Contrary to the appellant's submissions there was evidence from Detective Sergeant Mercer that the appellant was the accused person and that he was known by the name of Raoul Agapis.

104 The appellant was in lawful custody during the trial. Although his Honour granted bail, the appellant had not been able to obtain a surety. In these circumstances the appellant was not able lawfully to be released to bail.

105 In the appellant's written submissions, he asserts that the conditions in which he was held in custody at Hakea Prison were unsatisfactory. He states that while he was in the detention area of the District Court building, on one occasion, he was not given a pen and paper and generally he was not given a sufficient opportunity to read the trial transcript.

106 It may be accepted that, for an accused, especially one who is self represented, being in custody presents difficulties which are unlikely to be encountered while on bail. But such difficulties, which are reasonably common, could not ordinarily give rise to a miscarriage of justice. In the present case, there is nothing about the appellant's situation which could amount to a miscarriage of justice.

Did the appellant suffer a miscarriage of justice because of a failure of the prosecution to disclose evidence?

107 The appellant's complaint is that the State did not disclose to him photographs of the scene and a DNA report which were referred to earlier in these reasons.

108 An examination of the transcript reveals that the photographs and the DNA report had both been provided to the appellant's counsel, Ms Boston, at a time when Ms Boston was on the record as the appellant's counsel. In these circumstances it could not be said that the prosecution had failed to disclose these items to the appellant.

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Should the learned trial judge have directed the jury as to mistake of fact?

109 No direction on mistake of fact was sought by the appellant or by the prosecutor, nor did his Honour give such a direction. The issue raised in this ground of appeal is whether the appellant had suffered a miscarriage of justice as a result of this omission.

110 If there was a factual basis for the defence, the learned trial judge would have been obliged to put it to the jury even though he had not been asked to do so by the appellant: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, [117] - [118] (Barwick CJ); and Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83] (McHugh J).

111 Section 24 of the Criminal Code provides:

A person who does ... an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act ... to any greater extent than if the real state of things had been such as he believed to exist.

112 The appellant's submissions in this regard are brief and are to the effect that he believed that he had Mr Griffin's consent to enter the premises to discuss their differences peaceably.

113 At its highest the appellant's evidence was to this effect. After the confrontation at the front of the house, the appellant wanted to, in a reasonable way, sort out the problem. He went to the rear of the house and told Mr Griffin that was what he wanted to do. On the appellant's evidence, Mr Griffin was not of a like mind. As the appellant said, Mr Griffin reacted by 'carrying on'. Despite this he entered the house. Mr Griffin's next reaction was, according to the appellant to get the baseball bat.

114 It is very difficult to see how in these circumstances the appellant had the subjective belief that he had Mr Griffin's consent to enter or be in the house. However, assuming in the appellant's favour, that he had such a belief there is simply no basis upon which it could be said that such a belief was reasonable.

115 There is nothing in the evidence of Mr Griffin and Ms Plummer to suggest that once the appellant was told to leave the premises, he had their consent to enter the premises later. Moreover, even on the appellant's evidence there was nothing that either Mr Griffin or Ms Plummer did after he was told to leave which might enable the appellant's belief to be characterised as reasonable.

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116 A defence of mistake to adapt Windeyer J's statement in Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186, 202 'cannot be constructed out of speculation and suppositions about mere possibilities'.

117 There must be some evidence which supports the existence of reasonable grounds for the appellant's belief. In this case there was no such evidence.

118 There was no basis for his Honour to leave to the jury the defence of mistake of fact. The appellant has not suffered any miscarriage of justice because his Honour did not leave the defence to the jury.

Conclusion and Orders

119 In my opinion, none of the appellant's proposed grounds of appeal had a reasonable prospect of succeeding. Accordingly the appeal against conviction must be dismissed. As the success of the appeal against sentence depended upon the appeal against conviction succeeding, that appeal must also be dismissed.

120 In respect of each appeal I make the following orders:

1. Leave to appeal is refused on all grounds.

2. The appeal is dismissed.