Ammoun v The State of Western Australia - [2009] WASCA 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AMMOUN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 182

CORAM: OWEN JA
WHEELER JA
MILLER JA

HEARD: 1 SEPTEMBER & 1 DECEMBER 2009

DELIVERED : 1 DECEMBER 2009

PUBLISHED : 10 DECEMBER 2009

FILE NO/S: CACR 102 of 2008
CACR 156 of 2008

BETWEEN: ALI RACHID AMMOUN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BLAXELL J
File No  :INS 67 of 2007

Catchwords:

Criminal law - Appeal against conviction - Adequacy of trial judge's summing up - Whether proper separate consideration direction given - Whether propensity warning required

Criminal law and procedure - Appeal against conviction - Retirement of jury late on sixth day of trial - Whether appellant had a fair trial - Alleged inadvertence and/or negligence of defence counsel - Whether any error or negligence on counsel's part

Criminal law and procedure - Application to reopen appeal and call further evidence

Criminal law - Appeal against sentence - Convictions for burglary, deprivation of liberty, with intent to maim, disfigure, disable or do grievous bodily harm, unlawfully doing grievous bodily harm, threat to unlawfully kill, attempted murder - Aggregate term of 16 years' imprisonment - Whether manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 40
Criminal Code (WA), s 283(1), s 294(1), s 333, s 338B, s 401(1)
Criminal Procedure Act 2004 (WA), s 112
Evidence Act 1906 (WA), s 31A

Result:

CACR 102 of 2008
Application for leave to reopen appeal refused
Leave to appeal refused
Appeal dismissed

CACR 156 of 2008
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms M M in de Braekt
Respondent: Mr D Dempster

Solicitors:

Appellant: Megan in de Braekt
Respondent: Director of Public Prosecutions (WA)

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

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Beamish v The Queen [2005] WASCA 62
Butera v Director of Public Prosecution for the State of Victoria [1987] HCA 58; (1987) 164 CLR 180
Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318
Garlett v The State of Western Australia [2009] WASCA 44
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Jarvis The Queen (1993) 20 WAR 201
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
Pezzino v The State of Western Australia [2006] WASCA 131
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Armstrong (1983) 35 SASR 356
R v McMahon (1984) 15 A Crim R 289
R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159
R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Re Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 214 ALR 422
Rinaldi v The State of Western Australia [2007] WASCA 53
Roberts v The Queen [2002] WASCA 64; (2002) 25 WAR 501
Roffey v The State of Western Australia [2007] WASCA 246
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Stevenson v The Queen (Unreported, WASCA, Library No 960039, 29 January 1996)
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Pollock [2009] WASCA 96
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Walgar v The State of Western Australia [2007] WASCA 241

OWEN JA: I agree with Miller JA.
WHEELER JA: I agree with Miller JA.
MILLER JA: These appeals against conviction and sentence were heard on 1 September and 1 December 2009. At the conclusion of the second hearing, the court unanimously refused leave to appeal in each case and also refused leave to reopen the appeal against conviction for the purpose of adducing new evidence. The court undertook to publish reasons for its decision and these are my reasons.

Applications for leave to appeal

The appellant applies for leave to appeal against both his conviction and sentence. He was convicted after trial by jury of one count of burglary; two counts of deprivation of liberty; one count of, with intent to maim, disfigure, disable or do grievous bodily harm, doing grievous bodily harm; one count of threatening to unlawfully kill; and one count of attempted murder. He was sentenced to an aggregate term of 16 years' imprisonment.
The appeal against conviction contained six grounds. At the hearing of the appeal, counsel for the appellant accepted that the appeal turned on two main grounds. First, the appellant argued that the trial judge's summing up was unfair, unbalanced and not impartial because the trial judge essentially referred to the evidence-in-chief of the two main prosecution witnesses without any reference to their cross-examination. In my opinion, there is no substance in any of the matters which the appellant contended should have been referred to by the trial judge and it was consequently unnecessary for his Honour to advert to these aspects of cross‑examination. Leave to appeal must therefore be refused in relation to this ground. Second, the appellant contended that because of the 'inadvertence and/or negligence of defence counsel' the appellant did not receive a fair trial. The thrust of this ground of appeal was that the appellant was prevented by his trial counsel from giving evidence in his defence, in circumstances in which he had expressed a desire to do so. Both the appellant and the appellant's junior trial counsel gave evidence on this point at the hearing of the appeal. I accept the evidence of junior counsel that the appellant accepted the advice of his counsel that he should not testify and that it was ultimately the appellant's decision not to do so. Leave to appeal is therefore refused in relation to this ground. Leave to appeal is also refused in relation to the remaining four grounds.

The appeal against sentence contained two grounds. The essence of the appellant's argument was that the overall sentence of 16 years' imprisonment was manifestly excessive and breached the totality principle. In my opinion, the sentence appropriately reflects the total criminality involved in the appellant's conduct and could not be said to be manifestly excessive. Leave is therefore refused in relation to the two grounds of appeal against sentence.

Background

The appellant was tried before Blaxell J and a jury in the Supreme Court at Perth on an indictment which contained six counts. Count 1 alleged the offence of aggravated burglary, the circumstance of aggravation being an allegation that the appellant was armed with offensive weapons, namely, a knife and a hammer (Criminal Code (WA) s 401(1)). Count 2 and count 5 alleged the offences of deprivation of liberty (Criminal Code s 333). One offence related to Pamela June Kepic and the other to Tanya Joy Ammoun. Count 3 alleged the offence of, with intent to maim, disfigure, disable or do grievous bodily harm to Mrs Kepic, unlawfully doing grievous bodily harm to her (Criminal Code s 294(1)). Count 4 alleged a threat to unlawfully kill Mrs Ammoun (Criminal Code s 338B). Count 6 alleged the attempted unlawful killing of Mrs Ammoun (Criminal Code s 283(1)).
The appellant was convicted after trial on counts 2 to 6 on the indictment. He was convicted of burglary in relation to count 1, the jury finding him not guilty of the circumstance of aggravation alleged.
The appellant was sentenced on 25 July 2008 to an aggregate term of imprisonment of 16 years, which was backdated to commence on 21 January 2007. He was ordered to be eligible for parole. The sentences imposed were as follows:
Count 1:6 years 8 months' imprisonment
Count 2:4 years' imprisonment
Count 3:6 years 8 months' imprisonment
Count 4:2 years' imprisonment
Count 5:3 years 4 months' imprisonment
Count 6:10 years' imprisonment
The sentences imposed on counts 1 and 3 were ordered to be served concurrently with each other. The sentence imposed in relation to count 2 was ordered to be served concurrently with all other sentences. The sentences in respect of counts 4, 5 and 6 were ordered to be served concurrently with each other and to commence at the expiration of six years from the commencement of the sentences imposed in relation to counts 1 and 3.

The evidence

The appellant was 48 years of age at the time of trial. He was born in Lebanon and came to Australia between 14 and 15 years prior to the trial. He then had two children by his first marriage. In Australia, the appellant met his second wife, Mrs Ammoun. He married her in 1993. From this marriage, there were seven children, the youngest of whom was born in late 2006.
The appellant and Mrs Ammoun were separated from time to time. They were ultimately divorced in September 2006. After that divorce, the children of the appellant and Mrs Ammoun lived with Mrs Ammoun. Also living with Mrs Ammoun was the appellant's daughter by his first marriage. His son by his first marriage lived with him.
Soon after the appellant's divorce from Mrs Ammoun, he married again. The name of his third wife was Julie Chambers.
There was a deterioration in the relationship between the appellant and Mrs Ammoun.
There was an incident in December 2006 outside a shop occupied and run by the appellant in Huntingdale. Mrs Ammoun and her mother, Mrs Kepic, went to the shop and there was a confrontation with Ms Chambers.
On 21 January 2007, Mrs Kepic, Mrs Ammoun and Mrs Ammoun's children attended a picnic at Point Walter. They returned to their homes at about 5.00 pm. Mrs Ammoun and Mrs Kepic lived in separate residences. Mrs Kepic lived at a house at 4 Steinbeck Place, Spearwood. When she returned to that address on the evening of 21 January 2007, she parked her vehicle in her garage and entered the house through a door that went into the laundry. As she did so, she was assaulted.
The prosecution case was that the appellant had broken into Mrs Kepic's house during the course of the day. It was alleged that he had broken in through the laundry window, breaking the glass in that window. This was the allegation of burglary. It was alleged that he had come armed with offensive weapons, but, as I have pointed out, the appellant was acquitted of that circumstance of aggravation. Having regard to the verdicts in relation to the other counts, the acquittal in relation to the circumstance of aggravation must have been on the basis that the jury was not satisfied that the appellant had come to Mrs Kepic's house armed with the weapons, as opposed to finding and making use of them during the course of the events which followed.

Evidence of Mrs Kepic

The evidence of Mrs Kepic was that as she entered the laundry she was grabbed and thrown face down on the laundry floor. She said that her face was repeatedly 'smashed on the floor'. The person who was doing this was swearing at her, calling her a 'fucking bitch'. Mrs Kepic said that she did not know at that point who it was who had attacked her. Whilst she was on the floor, her hands were tied together behind her back and then her feet were tied together. The person who did this to her told her repeatedly not to look.
Mrs Kepic said that she could not look because her face was on the floor and she had her eyes closed. She was injured and thought she had blood on her face. Her assailant was sitting on her back.
Mrs Kepic said that her assailant said to her that she had $250,000 in the house and that he wanted it. He said 'Tanya says you've got it in the house'. It was when he said this that she realised that the voice was that of the appellant. At this time, she was on the floor and could not breathe properly. She said that a hood which felt like hessian was put over her head. She was asked about telephones and she revealed where they were. She was asked whether it was likely that anybody would come to the house or call her that evening, and she answered both questions in the negative.
Mrs Kepic said that she was taken by the 'scruff of the T‑shirt' and the 'seat of her pants' to her bedroom, which was upstairs. She was placed on the bed, where she said that she was struck very hard on the right side of her face. She also remembered being punched in the abdomen, chest, stomach and back.
Mrs Kepic said that the hood was eventually removed from her head, but that her hands were still tied behind her back. Her head was hurting and she asked for a Disprin, which she was given. She asked to go to the toilet and she was allowed to do so. She thought that her hands must have been untied or tied in front of her to enable her to do this. Later, she was given a cigarette.
Mrs Kepic was told to ring her daughter, Tanya (Mrs Ammoun), and to tell her to come over. The number was dialled by the appellant and the telephone was put to Mrs Kepic's ear. Mrs Kepic first spoke to her grand‑daughter, Sofia, and then to her daughter, telling her to come to the house.
Mrs Kepic testified that she did not hear Mrs Ammoun arrive, but heard her at what she called the 'top front door'. Mrs Kepic was not sure whether she heard a doorbell, or heard the door open, but she heard Mrs Ammoun come in. Mrs Kepic then heard 'screaming, shouting and thumping' and it sounded to her as though a fight was going on at the front door. The fight seemed to go on for a long time. She also heard voices which at times seemed close, but at other times further away.
Mrs Kepic said that she lapsed in and out of consciousness. At one stage, she noticed a hammer alongside her on the bed. She managed to get her hands untied.
At one time, Mrs Kepic heard her daughter scream, 'He's saying he's killing me' and she heard much yelling about killing. She thought that her daughter was dying. Mrs Kepic had got her hands untied, but her feet were still tied. She went to the balcony and tried to look out and scream for help. Nobody responded. She then went back into the bedroom and managed to hop down the stairs, whilst holding the balustrade. She got to the bottom of the stairs and into the laundry. She thought that she heard running upstairs. She managed to get out the laundry door and slammed it shut, locking it behind her. She hopped along behind the store room, along the side of the house to the side gate and through the gate. She got about halfway down the driveway and realised that she could not get any further. She dropped down onto her bottom and tried to wriggle her way along on her bottom. She went down the driveway towards the street and then eventually somebody in the street came to her assistance.

Evidence of Mrs Ammoun

Mrs Ammoun gave evidence that on 21 January 2008, in response to her mother's telephone call, she went to her mother's house. There she went up the external stairs to the front door. She found the door open and went straight in. She called out, 'Where are you, mum?' and then, out of the corner of her eye, she saw a sudden movement. She said that it was the appellant and that he was wearing a white singlet. She said that he jumped on her and threw her to the ground, where he held a knife to her throat. She said that the appellant told her to shut up, and said 'We've got your mum ... We're going to kill your mum. We're going to kill you'. She said that the knife was digging into her throat and that she was on the ground, 'half pulled up'. She described being pushed and dragged towards the toilet and pushed into the toilet. There, the appellant told her that he had her mother and that she (Mrs Ammoun) had to comply with him, or else she would die. It was Mrs Ammoun's understanding that the appellant had an associate.
Mrs Ammoun said that whilst she was in the toilet the appellant slashed at her throat with a knife. He used a knife and a hammer to attack her. He said, whilst attacking her with the knife, 'I'm going to kill you. I'm going to kill your mum'.
Mrs Ammoun said that her hands and feet were tied with rope. Her hands were tied with rope which crossed over her thumbs and tangled into her bracelets. Her feet were tied around the ankles. She suggested to the appellant that they should go and sit in the lounge room and she tried different ways to calm the appellant and, effectively, to talk her way out of the trouble she was in. These attempts on her part made the appellant even more angry and she said that he tied up her mouth with her bra so she could not talk.
Mrs Ammoun said that the appellant then went between her mother and herself. Sometimes it sounded as if her mother was asleep because she could hear her snoring. Sometimes she could hear groaning noises from her mother.
Mrs Ammoun said that the appellant said to her at one point that she had not let him see the children for a period of 10 months. He brought the telephone to Mrs Ammoun and asked her to ring her daughter, Sofia. Mrs Ammoun gave the appellant the number and he rang it and spoke to his daughter, Sofia.
At one point when the appellant went to her mother, Mrs Ammoun made a decision to 'make a run for it'. She had managed to free her feet, but her hands were still tied. She started walking and then running. She went through a wire door, but it made a clicking sound and she heard the appellant coming after her. She grabbed the handrail to the steps and started screaming and sliding down it. She said she was 'stumbling and sliding and screaming all at once'. She said that the appellant came at her fast, with a knife in his hand, and went straight at her eye. She said that he stabbed her in the eye. At that stage, she believed that she 'was murdered'. She said that the appellant stabbed her more than once, but all she could do was scream. She said that she bit the appellant's finger and tried to kick him down the stairs, but she was grabbed and the appellant came at her. She said that there was a struggle and she ended up on the stairs face down. The appellant grabbed her by the hair and threw her to the bottom of the stairs. She said that he followed her and started to 'stab [her] like a maniac'. She described being stabbed everywhere, including the face, head, chest, arms and body. She said she was screaming and blood was 'squirting and gushing in all directions'.
Mrs Ammoun said that the appellant then put his hand over her nose and mouth in an attempt to smother her, and then tried to strangle her with the bra that had been tied over her mouth. At the same time, he grabbed her head and slammed it hard against the concrete. She thought that she would die. She reasoned with herself that if she fought against him, it would take longer to die and so she lay still. She said that he then got up and went back up the steps. She started staggering down the driveway and she went to the only house in the street that had a light on. She knocked on the door, but there was no answer. She lay down on the porch of the house, from where she could hear her mother screaming. Later, she saw lights from a vehicle. Eventually she was rescued.

Cross‑examination of Mrs Kepic and Mrs Ammoun

The evidence of each of Mrs Kepic and Mrs Ammoun was the subject of very extensive cross‑examination. Their respective versions of events were challenged in a number of different respects and a scenario was advanced by defence counsel which suggested a different version of events. To Mrs Kepic, it was suggested that all of her evidence about being assaulted by the appellant and being tied up by him was a dream. This she denied. It was then put to Mrs Kepic that the appellant had been at the house before she returned and he had sat down in the kitchen area and made himself sandwiches. It was put to Mrs Kepic that she had lost her temper with the appellant and had run at him. This was alleged to have occurred in the laundry. It was put to Mrs Kepic that she had slipped and hit her head on a sink. She denied all of this. It was put to her that because she was bleeding from her fall onto the sink, she had gone into the lounge room with the appellant and there was an attempt made to clean up her wound, using some cloths and water from a jug. It was suggested that they had then gone upstairs, where Mrs Kepic had started to clean herself up and that the appellant had got her a strip of Panadol and a glass of water. It was also suggested that there was some discussion about an Islamic magazine and the appropriate schooling for Mrs Ammoun's children. All of this was denied by Mrs Kepic.

It was put to Mrs Kepic that she had made a call to her daughter to get her around to the house. It was suggested to Mrs Kepic that when the appellant had brought her a glass of water, she had gone to hit him with the hammer and that there was a bit of a struggle in which the appellant got the hammer from her. All of this she denied. It was then put to Mrs Kepic that because the appellant could not trust her, he had got some cord from the garage and tied her up. It was also put that, after tying her up, he had undone the rope around her feet because she had complained that it was hurting. Again, she denied all of this.
It was put to Mrs Kepic that Mrs Ammoun arrived at the house and called out and asked her mother if she was all right. It was suggested to Mrs Kepic that she had asked for a cup of tea and that Mrs Ammoun had said that she was going to get 'mugs' for that purpose. Mrs Kepic denied all of this and said that there were no mugs in the house.
It was then suggested to Mrs Kepic that as the appellant had gone upstairs, she had 'managed to ... sneak out' whilst he was not looking. To this question (or proposition), she answered in the affirmative.
The cross‑examination of Mrs Ammoun about the events of 21 August initially concentrated upon Mrs Ammoun's statement that she had been pushed into the toilet soon after her arrival. She was cross‑examined about her assertion that she was slashed and stabbed a number of times. She said that there was blood on the left‑hand side of the wall. She said that she was slashed in the throat. She was asked why the medical evidence made no reference to her throat being slashed and the forensic evidence made no reference to her blood being found in the toilet area. She said that she did not know why there was no medical evidence about an injury to her throat and that she was unaware of what the forensic examination revealed.
It was put to Mrs Ammoun that she had 'taken what occurred and ... twisted it around and ... amplified it and added things', but she denied this. She was asked whether she had attacked the appellant and she said that she had not. It was put to her that she was not tied up for a large part of the time that she was inside the house and that she was walking around 'quite freely'. She denied this. It was put to her that she had armed herself with a knife, but she denied this. She was questioned about the stabbing that had occurred and she agreed that she meant that a knife had been plunged into her repeatedly.
It was put to Mrs Ammoun that the appellant had not said that he was going to kill either her or her mother, but she said that he had. It was put to Mrs Ammoun that there was an 'altercation' on the stairs. It was also put to her that she had been tied up in the kitchen and not the toilet. Mrs Ammoun was challenged on the assertion that she had been 'gagged' with a bra. It was put to her that there were no marks on her throat and, in particular, no strangulation injuries. Mrs Ammoun said that she was unaware whether she had any such marks.
A version was then put to Mrs Ammoun in which it was suggested that whilst the appellant was checking on Mrs Kepic, at Mrs Ammoun's request, Mrs Ammoun ran out of the kitchen towards the outside door. It was put that the appellant had given chase and, as he grabbed hold of her, Mrs Ammoun had lunged at him with a knife that she had obtained from the kitchen. It was put that there was a struggle for the knife and that Mrs Ammoun stabbed it in the appellant's direction, with the result that he got a cut hand. It was then suggested that the appellant and Mrs Ammoun had got to the landing and there was a struggle down the stairs, following which they eventually both fell down the stairs. Mrs Ammoun denied all of these contentions and said that, at the bottom of the stairs, she was stabbed repeatedly all over her body and thought that she was going to die.
No evidence was adduced by the appellant and no evidence was called by the defence to substantiate any of the assertions that were put to either Mrs Kepic or Mrs Ammoun.

Other prosecution evidence

The evidence of Mrs Kepic and Mrs Ammoun was only part of the prosecution case. There was much additional evidence, including that of witnesses who observed the very distressed condition of Mrs Kepic and Mrs Ammoun in the aftermath of the incident, forensic evidence, medical evidence and evidence of investigating detectives.
One particularly telling piece of evidence was that of a triple zero telephone call, made by the appellant at 11.09 pm on 21 January 2007. It was a call which lasted 9 minutes 48 seconds. The initial two questions and answers were as follows:
Operator:         Police emergency go ahead caller.
Accused:          I want to report a murder.
Operator:         You want to what?
Accused:          I tried to kill my wife and my mother‑in‑law.
Operator:         Yeah.
Accused:          Yeah, I'm in Spearwood.
Operator:         You're in Spearwood are you?
Accused:          Yeah.
Although there was dispute at the hearing of the appeal as to the use of the word 'kill' (it being contended that the word was 'call'), the recording of the triple zero also reveals the following:
Operator:         What's what's going on?
Accused: My wife, with her mother, she took my kids from me.
Operator:         She took your kids from you?
Accused: Yes. I tried to kill them. (my emphasis)
Operator:         Yeah. You tried to kill them and? (my emphasis)
Accused: I stabbed them.
Operator:         You stabbed them did you?
Accused: Yeah.
The trial judge was satisfied upon hearing the recording of the triple zero call that the appellant used the word 'kill'. I have heard the recording and I, too, am satisfied that the word used is 'kill', not 'call'. In any event, the context in which the words were used indicates that the word was 'kill', rather than 'call', because immediately after using that word, the appellant said that he had 'stabbed them'.
At the trial, there was no contest about the use of the word 'call', rather than 'kill'. In any event, the jury had the triple zero recording to assess for itself.
The appellant engaged in a video record of interview with investigating detectives which commenced at 6.49 am on 22 January 2007. In the course of that interview, he told the detectives that he did not know what had happened on the preceding evening. He said that he was 'drugged ... with marijuana'. The only things that he said which related to the incident were:
It hurt. They kill me [a reference to his hand].
...
I fall somewhere. I fell, fell somewhere.
When asked about a broken window at the house, the appellant said, 'I don't ... '. The appellant said that he had given Mrs Ammoun a drink whilst she was in the toilet. It was a can of Diet Coke. When asked specifically about the tying up of Mrs Ammoun, the appellant said:
Q.Can you tell me how Tania [sic Tanya] came to be tied up? Her hands were tied in front of her.
A.Mm.
Q.And there was a bra wrapped around her throat. Can you tell me how that was?
A.Tania?
Q.Mm'hm. And she's got cuts to her face and her chest.
A.Mm.
Q.And her bottom, and her body.
A.Cut?
Q.Yeah. She's been stabbed several times.
A.Why she doing this?
Q.Well, she's not done this. She's not done this to herself. She says you did this.
A.Okay. Why I do this?
In answer to further questioning, the appellant denied that he had broken into Mrs Kepic's house through the laundry window and then hit her when she entered, although he qualified his answer with the words 'I don't know'. He then asked, 'Why do I hit her for?'
It was then put to the appellant that he had assaulted Mrs Kepic, taken her upstairs to the bedroom and assaulted her further, but he said, 'I never hurt this woman'. It was put to him that he had threatened to kill her and the following exchange occurred:
Q.She tells us that you did, quite badly. You, you threatened to kill her.
A.Threatened to kill her?
Q.Mm'hm.
A.Why?
Q.I don't know why. Only you can answer that.
A.I never kill anybody (indistinct)
Q.I think you were going to.
A.Going to kill?
Q.Mm'hm.
A.Who?
Q.Tania.
A.Me?
Q.Yes.
A.Why?
Q.Because you're angry, I guess. I don't know. I can only assume. Why, why would you want to?
A.Want what?
Q.To kill Tania.
A.I don't want to kill her. She want to bring my kids to me (indistinct) kill her.
Q.Mm. You stabbed her more than 20 times.
A.Tania?
Q.Mm, and you tied her up and you tried to strangle her and suffocate her.
A.Tania, she's in the hospital?
In essence, the appellant, in his video record of interview, denied any knowledge of having committed offences against either or both Mrs Kepic or Mrs Ammoun, and contended that he had no clear recollection of what had occurred on the night before.

The medical evidence

The trial transcript reveals that the medical evidence in relation to Mrs Ammoun was adduced at the hearing by the oral testimony of Dr Ali Coowar, and the medical evidence in relation to Mrs Kepic was adduced by the reading into evidence of two medical reports of Dr Willy Lowe and Dr David Scott Anderson.
Dr Coowar gave evidence that he was in the emergency department at Fremantle Hospital on 22 January 2007, when he had occasion to examine Mrs Ammoun. He described her injuries in detail. They included multiple lacerations, bruises and abrasions. First, there were multiple lacerations to the face. There were two very deep lacerations on the right side of the face, one about 5 cm long above the right side of the upper lip and the other about 5 cm long, also on the right side of the lips. These were described as being very deep. One of these lacerations extended vertically from just beneath the right eye, past the right side of the nose, to a point close to the lip on the right‑hand side of the face. The other laceration above the right side of the lips extended down to just above the chin. It was a deep laceration, being 4 cm deep and gaping. There was a deep 3 cm laceration at the start of the left eyebrow, which went up into the forehead slightly. There was a 1 cm laceration under the right lower eyelid, a 2.5 cm laceration above the upper lip in the midline, a laceration 3 cm in length to the left of the left eye, and a laceration 4 cm in length on the left cheek.
Second, there were lacerations to the head area which did not involve the face. There was a 1 cm laceration to the lobe of the left ear and a 3 cm laceration behind the left ear. There were also four abrasions of 2 cm in length to the left side of the neck, below the left ear. There were two large lacerations to the scalp and an area of loss of hair measuring 7 cm by 8 cm on the scalp. There were also scalp haematomas.
Third, there were lacerations and injuries to other parts of the body. There was a 1 cm superficial puncture wound to the left side of the chest and a 1 cm superficial puncture wound on the right upper abdomen. There were two abrasions to the right arm and there were six 1 cm puncture wounds to the lateral right thigh. On the inner right thigh, there was a single 1 cm puncture wound and on the right big toe there was an abrasion.
In cross‑examination, Dr Coowar maintained that some of the lacerations were deep. Dr Coowar agreed that the facial lacerations could be described as vertical cuts. He accepted that the stab wounds to the thigh were superficial. He said that x‑rays revealed no bone damage.
The report of Dr Lowe was brief. The doctor said that Mrs Kepic had suffered a subarachnoid haemorrhage and a left tripod fracture with orbital floor fracture.
The report of Dr Anderson was more detailed. The doctor stated that Mrs Kepic had sustained head and facial injuries, which, on CT scan, 'demonstrated a small amount of subarachnoid haemorrhage in her left ambient system, with a left tripod fracture of her facial bones involving the orbital floor and a displaced fracture through the left zygomatic arch'. He also reported fractures of the exterior wall of the maxillary sinus and fractures involving the orbital floor. The injuries were described as significant injuries.

Appeal against conviction

At a directions hearing on 24 April 2009, I ordered that the application for leave to appeal against conviction should be heard together with the appeal. I also made orders which entitled both the appellant and the respondent to rely upon certain affidavit evidence at the hearing of the appeal, and ordered that Laurence Mark Levy SC and the appellant could be cross‑examined in relation to their affidavits.

Grounds of appeal

The grounds of appeal (without particulars) are as follows:
APPEAL GROUND 1
The learned trial Judge erred in law, by quoting from a transcript of the '000' telephone call (made by the Appellant), in the summing‑up, in that the transcript was not in evidence before the Jury, & it was for the Jury & the Jury alone to decide the facts. (T: 496, 513‑14, 523)
APPEAL GROUND 2
The learned trial Judge erred in law, in that, the summing up to the Jury was not fair, balanced & impartial, & not in accordance with the obligations incumbent upon the trial Judge. (T:471‑511)
APPEAL GROUND 3
The learned trial Judge erred in law, in that the Jury was not given an adequate or proper separate consideration direction (T:480‑1).
APPEAL GROUND 4
The learned trial Judge erred in law, in that the Jury was not given a propensity warning.
APPEAL GROUND 5
The learned trial Judge erred in law, in that the time the Jury was sent out to commence deliberations may have adversely affected the quality of deliberations, thereby depriving the Appellant of a fair trial according to law. (T:471)
APPEAL GROUND 6
The Appellant did not receive the fair trial to which he was entitled, due to the inadvertence &/or negligence of defence counsel.
I will make reference to the particulars appended to each ground when dealing with each of the grounds.

Ground 1

This ground of appeal was not strongly argued at the hearing of the appeal. This was because counsel for the appellant conceded that the strength of it had 'diminished' by reason of testimony of the appellant before this court. When called to be cross‑examined in relation to two affidavits he had sworn, the appellant agreed that, in the triple zero call, he had said, 'I tried to kill my wife and my mother‑in‑law'. He had not previously said this in either of his two affidavits. The appellant's concession did not extend to the second reference to the word 'kill', just before he said 'I stabbed them'. He maintained that on this occasion he had said 'call'. Even if that is so, it dose not detract from the force of the concession that he did use the word 'kill' earlier in the telephone conversation.
The particulars appended to ground 1 are in the following terms:
1.1Recitation by the trial Judge in the summing up, of the '000' telephone call transcript usurped the Jury's role as the sole judges of fact in the trial.
1.2The trial Judge's quotation of the '000' telephone call transcript gave judicial imprimatur to an interpretation of the telephone call content consistent with guilt, when an interpretation consistent with innocence was available.
1.3The trial Judge's re-direction did not cure the prejudice.
1.4The transcript of the '000' telephone call was not correct.
1.5The audio recording of the '000' telephone call was in evidence before the Jury (Exhibit 4), but the transcript was not.
The essential submission put at the hearing of the appeal was that an irregularity occurred because the trial judge read from the transcript of the triple zero call and the transcript of that call was not accurate.
The trial judge did read to the jury from the transcript he had of the triple zero call. In doing so, he said that, in the course of the call, the appellant had said, 'I tried to kill my wife and my mother‑in‑law' and 'I tried to kill them'.
At the close of the trial judge's summing up, trial counsel for the appellant expressed concern about the fact that the trial judge had read from the transcript of the triple zero call. He said that this gave the transcript 'an evidentiary quality' and that the evidence was the tape, not the transcript.
Trial counsel for the appellant conceded that, although his junior was of the view that the word used was 'call', rather than 'kill' (in the second reference to 'killing'), he had not raised the matter as an issue. He nevertheless contended that the trial judge had erred in placing reliance upon the transcript rather than upon the tape itself.
The trial judge agreed to redirect the jury on the issue and, in the course of his redirection, said to the jury:
The second thing is I read out to you transcript of what the accused allegedly said in the triple zero call. You don't have the transcript and the reason for that is that it is always possible that the transcript is wrong. The evidence is what he actually said and that's on the audiotape or the audio CD that you have got in the jury room. So to determine what he said you have to listen to that audio and determine for yourself what he said and not rely upon what I put to you because it is possible that what I read out to you by way of a transcript is wrong. All right?
In Butera v Director of Public Prosecution for the State of Victoria [1987] HCA 58; (1987) 164 CLR 180, a tape‑recording of conversations implicating the accused person was admitted in evidence. The conversations were in a foreign language and translations into English were made by interpreters. The interpreters gave oral evidence of their translations and verified the transcript of them. The transcripts were then admitted into evidence and were taken into the jury room when the jury retired. In the High Court, Mason CJ, Brennan and Deane JJ held that the transcripts had been properly admitted into evidence and it was appropriate for the jury to have them in the jury room, but held also that a tape‑recording is not admissible evidence of its contents unless it is first played over. A transcript is not admissible on the basis of its ability to inform the court of the contents of the tape. In the course of their judgment, Mason CJ, Brennan and Deane JJ said at 188:
The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape.
In the present case, the transcript of the triple zero call was not admitted in evidence. Only the recording itself was admitted. The trial judge gave a direction to the jury (by way of redirection) which complied with the suggested direction in Butera. The jury must have been quite clear that they were to rely upon the audio CD of the triple zero call, and not upon anything that had been read out from the transcript.
In my opinion, the transcript of the recording which was read by the trial judge did accurately reflect what was contained within the recording. Further, the appellant, in the course of his cross‑examination before this court, conceded that he had used the word 'kill' when he said, 'I tried to kill my wife and my mother‑in‑law.'
In any event, whether the transcript of the triple zero call was accurate or not, it is clear that the jury was properly directed that the evidence they were to consider was the evidence on the audio CD of the call. The transcript was not before them and, in those circumstances, the only evidence that they had to consider was that of the audio CD itself.

In my opinion, there is no substance in ground 1 and leave to appeal in relation to it should be refused.

Ground 2

This ground contends that the trial judge's summing up was unfair, unbalanced and not impartial because the trial judge essentially referred to the evidence‑in‑chief of each of Mrs Kepic and Mrs Ammoun, without any reference to their cross‑examination. The particulars appended to the ground are in the following terms:
2.1The trial Judge quoted extensively from the transcript of the examinations in chief of the 2 main Prosecution witnesses (Mrs Tanya Ammoun & Mrs Pamela Kepic) [T:485-495].
2.2The trial Judge did not quote from any transcript of the cross examination of these 2 witnesses by the Defence, nor of any transcript revealing inconsistencies in the State's case.
2.3The trial Judge failed to summarise both the Prosecution's & Defence's cases.
2.4The existence of a defence case is not dependant upon the defence having called witnesses.
2.5Mere scant reference to, &/or reliance upon defence counsel's closing address was not adequate.
2.6The trial Judge gave judicial imprimatur to the Prosecution's case.
2.7The Defence's objection was dismissed by the trial Judge (T:518‑20)

The duty of the trial judge to charge the jury

The trial judge had an obligation to charge the jury in accordance with the classic statement contained within Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, where Dixon, Williams, Webb, Fullagar and Kitto JJ said:
[I]t may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.
This obligation is modified in Western Australia by the provisions of s 112 of the Criminal Procedure Act 2004 (WA), which provides:
After addresses have been made in accordance with section 145 and before the jury retires to consider its verdict, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.
In The State of Western Australia v Pollock [2009] WASCA 96, I dealt at length with the authorities relating to the obligation of the trial judge to summarise the evidence in a case, and I concluded at [140] that a trial judge has an obligation to explain to the jury:
(1)how the law applied to the facts of the case;
(2)what the issues were in the trial;
(3)how those issues related to the facts of the case; and
(4)what evidence was relevant to the facts in issue.
In the present case, it is not suggested that the trial judge failed to comply with these requirements, but rather that the trial judge failed adequately to put aspects of the defence case, with the result that the summing up was 'not fair, balanced and impartial, & not in accordance with the obligations incumbent upon the trial Judge'.
The obligation to put the defence case is also referred to in Pollock, where at [147] ‑ [151] I summarised a number of cases as follows:
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 is authority for the proposition that the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury.
In a short trial, it may well be that it is unnecessary for a trial judge to do much more than what the trial judge did here (see, for example, Williams per Wood CJ at CL, at [42]).
In a complex case (which the trial judge said this was), an outline of the arguments put by the defence should fairly be put before the jury (Piazza per Hunt CJ at CL, at 64 - 65, citing R v Zorad (1990) 19 NSWLR 91, at 105).
The obligation to put fairly before the jury the defence case was referred to by Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, at [41], where their Honours said:
... it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. [Alford v Magee (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ.] No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. [Alford v Magee (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ.] It will require the judge to put fairly before the jury the case which the accused makes. (My emphasis) [41]
An earlier observation to the same effect was made by Winneke CJ (Sholl and Pape JJ agreeing) in R v Schmahl [1965] VR 745, at 748 - 749:
... Failure adequately to put the defence is, of course, a well-recognized ground of appeal. See the case of R v Wilson (1913) 9 Cr App Rep 124. In a case like this where the evidence was lengthy, and by no means easy to unravel, and where it related to a conversation which had taken place so long before, the interests of justice required that the defence of the applicant should be clearly and fully presented to the jury. Failure to make such a presentation where it relates to an important part of the defence makes it dangerous, in my view, to allow the verdict to stand.
See also Martin CJ (with whom Wheeler JA agreed) at [2] ‑ [4].
It is true that the trial judge read at length from the evidence‑in‑chief of each of Mrs Kepic and Mrs Ammoun in the course of his directions. Having referred in considerable detail to their evidence‑in‑chief, his Honour said:
I think that's a fair summary of the evidence from the two main prosecution witnesses and that's the version of events that they have testified as to what happened that night. Of course there's very extensive cross examination to test their version of events and you have heard submissions from counsel as to some of the answers that were given.
The reference to 'submissions from counsel as to some of the answers that were given' clearly referred to the closing address of counsel for the appellant. This address was given by Mr Colin Lovitt QC, a very experienced criminal barrister. That address, according to Mr Lovitt QC, took approximately two and a quarter hours. Although there is no transcript of the address available, it is without doubt that counsel for the appellant devoted a substantial proportion of the time spent in addressing the jury in pointing out discrepancies that he contended became apparent from the evidence of each of Mrs Kepic and Mrs Ammoun during the course of cross‑examination.
In the course of discussions with the trial judge after the jury had first retired, Mr Lovitt QC said:
I have just spent probably about two and a quarter hours addressing the jury, doing exactly that, trying to explain to them or put submissions to them about how evidence changed, not just during cross examination but when they heard other evidence, the weight or quality of that initial evidence changed.
The trial judge questioned in what way the evidence given in‑chief by each of Mrs Kepic and Mrs Ammoun had changed in cross‑examination. He pointed out to counsel for the appellant that if the version had changed, he would have brought it to the attention of the jury. In the circumstances, he saw no need to redirect the jury about any aspect of the cross‑examination.
I have already adverted sufficiently to the cross‑examination of each of Mrs Kepic and Mrs Ammoun to demonstrate that each of them denied the assertions put by counsel for the appellant, namely, that, in each case, they had been responsible for attacking the appellant and not vice versa.
In my opinion, little purpose would have been served by the trial judge adverting to that cross‑examination. It was open to the jury to conclude that it did not achieve anything. As Wheeler JA said during the course of the hearing of the appeal, sometimes there simply is not a defence case and this case may be such an example. In my opinion, it is. Although arguments were of course advanced on behalf of the defence, there was no 'defence case' in the sense that there was no credible version of events, inconsistent with the appellant's guilt, which could be advanced, and there was no sensible reason which could be advanced for disbelieving the evidence of the two complainants, supported as it was by the evidence of disinterested witnesses, including the medical witnesses. A number of propositions were put to each of Mrs Kepic and Mrs Ammoun in cross‑examination, but they were only propositions. There was no agreement with them.
The trial judge made reference to the defence arguments at numerous points during his address to the jury. His Honour wove into his address aspects of each of the prosecution and defence arguments.
The complaint made by trial counsel for the appellant at the conclusion of the trial judge's address was that the trial judge had summarised parts of the State case, but had not referred to the cross‑examination of the witnesses whose evidence was recited.
The trial judge did not make specific reference to a number of aspects of the cross‑examination of Mrs Ammoun, but that does not mean that his Honour was obliged to make reference to all points which had been relied upon by defence counsel in the course of his address to the jury. His Honour was not bound to comment on all the facts unless the case required it. (See Pollock per Martin CJ at [2] and Pezzino v The State of Western Australia [2006] WASCA 131 per Wheeler JA at [85].) It was necessary to put fairly before the jury the case which the accused person made (Pollock per Martin CJ at [6], citing RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [41]).
Counsel for the appellant argued, at the hearing of the appeal, that there were a number of evidentiary issues which were important to the defence and which were capable of establishing a reasonable doubt about the prosecution case, none of which were mentioned by the trial judge in his summing up to the jury. These issues were summarised in the written submissions (upon which reliance was placed at the hearing of the appeal) in the following way:
•Mrs Ammoun testified she was slashed in the throat, but there was no medical evidence of any slash or stab wounds to her throat (T:152);
•Mrs Ammoun testified she was subjected to a lot of violence in the toilet & that her blood was all over the walls, but none of her DNA was found in the toilet (T:152);
•Mrs Ammoun testified she did not go near a green chair or near the entrance near the green chair, nor to the laundry door (T:159), yet her blood (DNA) was found at all of these places;
•Mrs Ammoun testified that the Appellant had attempted to strangle her, but there were no bruises on her throat, nor any injury to her thyroid cartilage etc (T:191);
•None of Mrs Ammoun's DNA was found on the knife that was allegedly used to stab/slash her (T:176-7);
•Mrs Kepic testifying she was punched 'a lot' by the Appellant & had bruises ('I was black & blue') [T:265-7], yet there was no mention of any such bruises in the statements & testimonies of the Doctors who examined & treated her;
•The black Hessian bag Mrs Kepic described as being placed over her head as a hood was never located on her or her premises (T:260);
•Mrs Kepic testified she never saw a knife on the night in question (T:248);
•Mrs Kepic testified [she] did not remember being hit with a hammer (T:248);
•Mrs Kepic testified [she] did not remember being stabbed or slashed (T:248);

Slashing of the throat

The medical evidence revealed that Mrs Ammoun had suffered a number of very serious injuries. These included multiple stab wounds. Whether they be described as stab wounds or lacerations does not seem to me to matter.
The trial judge could have made reference to the fact that there was no medical evidence of any slash or stab wounds to the throat, despite Mrs Ammoun testifying that her throat was slashed.
There was, however, a laceration which extended from the right side of the mouth down to just above the chin. Given the attack that Mrs Ammoun said that she sustained, it would not be surprising that she was of the understanding that her throat had been slashed.
I see no reason why the trial judge should have dwelt particularly on the defence point that there was no medical evidence of slash or stab wounds to the throat. The trial judge made reference to the evidence of Dr Coowar, summarising what the doctor said in relation to the lacerations and puncture wounds.

The forensic evidence - blood on toilet walls

It is contended that the trial judge failed to point out to the jury that, although Mrs Ammoun testified to the fact that she was subjected to a lot of violence in the toilet and that there was blood all over the walls, none of her DNA was found in the toilet.
A forensic biology report of Ms Christine Chin was tendered in evidence as exhibit 32. It is a very substantial report, which comprises some 64 pages of text. There are annexures to it.
The trial judge made reference to the forensic evidence and to the fact that Mrs Ammoun's blood must have been on the appellant's hand when he touched various locations within the house. The trial judge told the jury that the forensic report, and the schedule attached to it, revealed where different items were found and what the DNA result was in relation to those items. He said that the schedule would be of great assistance to the jury. His Honour then said that the main value of the DNA evidence was the extent to which it tended to confirm or to contradict the evidence of the two main prosecution witnesses, but pointed out that the appellant could only be found guilty of the charges preferred against him if Mrs Ammoun and Mrs Kepic, or either of them, were believed and the jury was satisfied beyond reasonable doubt that the essential version of events given by them was truthful and correct. His Honour then said:
Obviously the forensic evidence and the evidence of other witnesses is relevant to the extent to which it either tends to confirm the evidence of the main witnesses or contradicts it and thus might lead you not to accept some particular aspect of their evidence. Counsel have made extensive submissions in this regard. I don't intend to summarise what they have had to say but those submissions are fresh in your mind and you should have regard to all that has been put to you by counsel.
This passage clearly referred to the submissions of defence counsel to the effect that no DNA evidence relating to Mrs Ammoun had been found in the toilet area. It was, in my opinion, unnecessary for the trial judge to do more than he did.

DNA on chair and door

It is suggested in the appellant's written submissions that the trial judge should have informed the jury that Mrs Ammoun testified that she did not go near the entrance or near a green chair, nor to the laundry door, and, yet, her DNA was found at these places. In my opinion, that was such a minor matter of detail as not to necessitate specific direction about it.

No bruising on throat

It is also suggested that the trial judge should have told the jury that, although Mrs Ammoun testified that the appellant had attempted to strangle her, there were no bruises on her throat, nor any injuries to her thyroid cartilage. I have already pointed out that Dr Coowar's evidence established very significant head injuries and injuries which extended to the chin. The doctor was not asked whether or not bruising had been found on the throat. He did not say it had, but clearly he was concerned primarily with the multiple lacerations and puncture wounds to which I have already made reference. I do not consider that the trial judge was obliged to make reference to the point made by the defence that no mention was made by the doctor of bruising to the throat or injury to the thyroid cartilage.

No DNA of Mrs Ammoun on knife

The final suggestion is that the trial judge ought to have told the jury that none of Mrs Ammoun's DNA was found on the knife that was allegedly used to stab/slash her.
It was the fact that the knife alleged to have been used in the incident had the DNA of the appellant on it, but not that of Mrs Ammoun. Mrs Ammoun was asked why that was so and she said that she was not able to explain it.
Whatever the position in this regard, the fact remains that Mrs Ammoun undoubtedly sustained multiple and severe lacerations and stab wounds. They were consistent with the use of a knife. They must have been inflicted on her by the appellant, or by herself. It is inconceivable that Mrs Ammoun stabbed herself as many times as the medical evidence revealed. The appellant in his evidence before this court conceded that it was not suggested that anybody else was present. He was asked, 'So she must have stabbed herself or by accident?', and he responded by saying, 'By accident. Right, or maybe she did it. I don't know'.
Having regard to the fact that Mrs Ammoun clearly sustained knife injuries, it seems to me to have been unimportant for attention to be drawn to the fact that no DNA of Mrs Ammoun was found on the knife that was allegedly used to stab or slash her. In those circumstances, I do not consider that the trial judge was obliged to make reference to this point. In his evidence in the appeal, the appellant said a knife was involved in his struggle with Mrs Ammoun. That detracts further from the contention that the absence of DNA evidence was material to the issues the jury had to decide.

Punching of Mrs Kepic

It is then said that a number of aspects of the defence cross‑examination of Mrs Kepic should have been put before the jury. The first proposition is that, although Mrs Kepic testified that she was punched 'a lot' by the appellant and had bruises on her (to the extent that she was 'black and blue'), there was no mention of such bruises in the statements and testimonies of the doctors who examined and treated her.
I have already made reference to the medical evidence in relation to Mrs Kepic. The evidence of Dr Lowe and Dr Anderson was to the effect that Mrs Kepic had suffered significant head injuries. It was with those injuries that the doctors were primarily concerned. No mention was made of any bruising to the body, but there was no examination or cross‑examination of the doctors on this point. Their reports were simply read into evidence. In the circumstances, I can see no reason why the trial judge should have drawn this matter to the attention of the jury.

No location of hessian bag

It is then said that the trial judge should have made reference to the fact that a black hessian bag that Mrs Kepic said had been placed over her head was never located on her or on the premises. As I have already pointed out, Mrs Kepic gave evidence that such a bag was put over her head. The appellant gave no evidence. He did not therefore suggest that a bag had not been put over Mrs Kepic's head. It was not suggested in cross‑examination of Mrs Kepic that no bag had been placed over her head. Mrs Kepic was simply asked to describe the 'hood' that was put over her head and she said that it was very dark and felt like hessian. I can see no reason why the trial judge should have mentioned this matter to the jury.

Whether Mrs Kepic detailed all relevant matters

It is then suggested that the trial judge should have told the jury that Mrs Kepic testified that (a) she never saw a knife on the night in question; (b) she did not remember being hit with a hammer; and (c) she did not remember being stabbed or slashed.
In my opinion, the trial judge was not obliged to make reference to these points. They were minor points. Mrs Kepic was clearly the subject of a violent assault which left her with severe injuries, a description of which I have already given. It is not surprising that, as she was in and out of consciousness, she might not have remembered every detail of the assault which was made upon her.
In my opinion, there is no substance in any of the matters raised in ground 2 of the grounds of appeal and I would refuse leave in relation to that ground.

Ground 3

This ground contends that the trial judge erred in failing to give an 'adequate or proper separate consideration direction'. It is unnecessary to detail the particulars of this ground.
In my opinion, there is no substance in this ground of appeal, because the trial judge did, in fact, give a 'separate verdicts direction'. At the commencement of the trial, his Honour said:
[T]hose are the six counts or six charges on the indictment. You will be asked to come to six separate verdicts in respect of each of those six counts on the indictment.
Whilst addressing the jury at the conclusion of the trial, the trial judge stressed the need for separate verdicts on each of the six counts on the indictment. He said:
You do need to realise that there are of course six separate charges which do have to be considered separately. Theoretically there could have been six separate trials but obviously that would have been terribly inconvenient and costly, so we have had the six trials proceed simultaneously, all at once. Even though the six charges all involve the same witnesses and the same evidence, you do have to come to separate verdicts and because you reach a particular verdict on one count, that doesn't mean you have to come to the same verdict on the others. You have to consider each count quite separately.
This direction deals also with ground 4, to which I shall come.
The fact that the jury returned a verdict of not guilty in relation to the circumstance of aggravation alleged in relation to count 1 indicates clearly that the jury understood the need to consider each count separately.
I can see no substance in ground 3 and, in my opinion, leave to appeal in relation to this ground should be refused.

Ground 4

This ground contends that the trial judge erred in law in that the jury was not given a propensity warning. The particulars are as follows:
Particulars
4.1The Jury was not warned against impermissibly reasoning that if they were to find the Appellant guilty of 1 or more Counts, that he therefore must also be guilty of 1 or more of the remaining Counts.
4.2There were 6 Counts, involving 2 different (but related) complainants before the Jury.
4.3All of the offences were alleged to have occurred on the same date & at the same location.
This was not a case in which any uncharged acts or 'relationship evidence' were before the court. The provisions of s 31A of the Evidence Act1906 (WA), which define and provide the circumstances in which propensity and relationship evidence may be admitted, did not come into play.
In some cases, it may be necessary to give a 'universal propensity warning' because the evidence on one count may show a propensity to commit crime, and even the crime of the kind the subject of the other charges. Nevertheless, ordinarily, juries do not use propensity reasoning to convict on other counts unless instructed that they can do so, and a warning against the use of propensity evidence is not generally called for. This was made clear in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, where McHugh J said at [36] ‑ [38]:
It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a 'separate consideration warning'). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside [cfJones v The Queen (1997) 191 CLR 439].
Thus, although the evidence on one count may show a propensity to commit crime - even crime of the kind the subject of the other charges - the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning.
In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts.
In my opinion, the trial judge was not called upon to give a 'propensity warning' in the present case. The jury was told to focus upon the evidence relevant to each charge. There was no feature in the evidence which created a risk that the jury would use that particular evidence, or a conviction in respect of any particular count, to reason that the accused was the kind of person who would commit the crime charged in another count or counts in the indictment.
The case against the appellant was that he had broken into the home of Mrs Kepic and had lain in wait for her arrival and then attacked her. It was alleged that he had then forced Mrs Kepic to contact Mrs Ammoun and get her to come to the house. It was alleged that when Mrs Ammoun arrived the appellant set upon her and assaulted her. The different charges the subject of the six counts on the indictment were each separate matters and required separate consideration, as the trial judge directed the jury it should give to them.
I can see no substance in ground 4 and, in my opinion, leave to appeal in relation to this ground should be refused.

Ground 5

This ground contends that the trial judge erred in law in that the appellant was deprived of a fair trial because of the time at which the jury was sent out to commence its deliberations.
The transcript of the trial reveals that the jury retired to consider its verdicts at 4.17 pm on 13 February 2008. This was the sixth day of the trial. The jury was brought back for redirection at 4.41 pm and the jury retired again at 4.47 pm. Verdicts were returned at 7.09 pm.
At the outset of his directions to the jury, the trial judge made it clear that those directions would take about an hour, that there would be a good deal to consider, and that consideration should therefore be given to the time of the day. His Honour said:
Members of the jury, it is now my turn and I am probably going to take about an hour. There's a good deal of evidence for you to consider in a case such as this. Sometimes juries come to their verdicts relatively quickly but sometimes they take some considerable time, so if I send you out this afternoon, that means you have to be ready to have a late night if that becomes necessary. In that event we of course provide you with a meal and the sheriff's officer will be able to make any telephone calls to your homes or anyone you need to leave messages with, so on that basis I hope that you won't be troubled if I do proceed now and let you go out tonight. Are you all happy with that? Very good.
Although there is no recorded response to the question 'Are you all happy with that?', it is clear that the members of the jury must have indicated that they were quite content to deliberate on the evening of 13 February 2008.
No objection was taken by trial counsel for the appellant to the course which the trial judge suggested. Senior counsel for the appellant was very experienced and it must therefore be assumed that he saw nothing wrong with the course proposed by the trial judge. No pressure was put upon the jury to reach its verdict (cfRoberts v The Queen [2002] WASCA 64; (2002) 25 WAR 501 at 506 ‑ 510).
The fact that a jury is sent out to consider its verdict late in the day is not, of itself, an indication that the appellant has been deprived of a fair trial. In R v McMahon (1984) 15 A Crim R 289, the appellant was charged with 37 counts of offences against s 424 of the Criminal Code. They were essentially allegations of falsifying a document with intent to defraud. The appellant was tried in the District Court at Carnarvon. The trial began on 10 September 1984 and proceeded to 12 September 1984. The trial judge directed the jury between 2.45 pm and 3.20 pm on 12 September and the members of the jury then retired to consider their verdict, having been told that they were to consider each count separately and bring in a verdict upon each of those counts. This required the jury to consider a large number of documents.
The members of the jury were given an evening meal and various refreshments and they returned a verdict at 3.10 am on 13 September. The appellant was convicted on 32 counts and found not guilty on five counts. The appellant appealed against his conviction on the ground that the jury, having retired at approximately 3.20 pm, was allowed to continue its deliberations until 'approximately 3.30 am' the following morning.
Burt CJ (with whom Smith J agreed) said at 291 that if the jury had been brought back from time to time in an effort to hurry the verdicts along, it could rightly have been said that undue pressure had been placed upon the jury to reach their verdicts. The only option was to allow the jury to 'work it out or to abort the trial' because of the lack of overnight accommodation in Carnarvon (Burt CJ at 291). The relevant principles were stated by Burt CJ at 291 ‑ 292:
Every case must, of course, be judged on its own facts. It is most undesirable that juries should be asked to sit for inordinately long hours. This is such a case and if there were any reason to be gathered from what the foreman may have said to the trial judge or from the demeanour of any members of the jury from the nature of the verdict or otherwise to think that they and each of them were unable properly to consider the evidence to apply the law as directed and to reach a verdict I would set the conviction aside as being unsafe. But nothing of that kind appears, nor has it been suggested. On the contrary, we are told by the trial judge that no member of the jury was exhibiting any signs of fatigue and distress and counsel for the appellant at his trial does not suggest to the contrary. The verdicts which they returned, including the verdicts of not guilty, appear to be reasonable and explicable. It cannot, in my opinion, be held on the facts that there has been a miscarriage of justice and I would dismiss the appeal.
Kennedy J said at 296:
It was, I believe, unfortunate that the decision was made to send them out so late in the day, and it would have been preferable for the learned trial judge to have brought the jury back into open court to inquire as to whether he could assist them in their deliberations. But nothing other than the time at which they returned their verdicts after a very long day indicates that they were placed under any pressure and there is nothing to indicate that they were at any time deadlocked and unable to agree. No doubt there has to come a time at which it must be said that a jury should deliberate no longer, and I accept that this case came very close to that time. In the absence, however, of any other complaint as to the conduct of the trial, in my opinion, the verdicts should stand.
In Stevenson v The Queen (Unreported, WASCA, Library No 960039, 29 January 1996), the appellant was charged with unlawfully doing grievous bodily harm with intent to do grievous bodily harm. The trial was conducted over two days. The appellant was acquitted of the count charged, but convicted of an alternative offence of unlawfully doing grievous bodily harm. One of the grounds of appeal raised by the appellant was that it was oppressive to require the jury to consider verdicts in circumstances where they retired at 4.17 pm, having commenced to hear evidence that day at 9.00 am and having had only a one half‑hour break for lunch and two short breaks, one in the morning and one in the afternoon.
Kennedy J (with whom Wallwork and Murray JJ agreed) made reference to McMahon and to a number of authorities referred to in that case. His Honour concluded that a trial judge has a wide discretion to evaluate the desirability of allowing a jury to deliberate at a particular time and to continue deliberations in a day which has been a long day. His Honour concluded at 13:
There can be no doubt that the jury in the present case must have been under some strain by the time they finally reached their verdict. Unfortunately, juries not infrequently find themselves under stress; but in this case it is obvious that the learned trial Judge was alert to the problem. It was the subject of discussion with counsel and his Honour observed no signs of distress approximately a quarter of an hour before they returned with their unanimous verdict. At the time when he made this observation the foreman of the jury had agreed that, with further time being allowed, he thought the jury would be able to reach a unanimous decision. It is important to appreciate in this context that juries can differ markedly in their capacities to sit for extended hours. For a few, the normal sitting hours may be too long. Other juries, when asked, express a clear preference for concluding trials by sitting longer hours rather than being called upon to return on the following day.
The court concluded that, in the circumstances of the case, it could not be satisfied that the discretion of the trial judge had miscarried.
The cases of McMahon and Stevenson indicate that the time at which juries retire and the length of time during which they deliberate are very much matters for the discretion of the trial judge. In the present case, it is clear that the trial judge was satisfied that the jury were prepared to retire to consider their verdict late in the afternoon of the sixth day of the trial. No pressure was placed upon them to reach a verdict and, indeed, the verdict was returned within a relatively short period of time. I can see no basis upon which it can be suggested that the trial miscarried in consequence of the trial judge's decision to address the jury on the afternoon of the sixth day and to send the jury out to consider its verdict after 4.00 pm on that day.
In my opinion, there is no substance in ground 5 of the grounds of appeal and leave to appeal should be refused.

Ground 6

This ground contends that because of 'the inadvertence &/or negligence of defence counsel' the appellant did not receive a fair trial. The following particulars are given:
Particulars
6.1Counsel failed to take a proof of evidence from the Appellant prior to trial.
6.2Counsel (Mr Lovitt QC) failed/refused to act upon, &/or dismissed the Appellant's instructions as to the content of the '000' telephone call (T:513).
6.3Counsel (Mr Lovitt QC) incorrectly conceded in his opening address to the Jury (T:51), & conducted the defence on the (incorrect) basis that the Appellant broke the glass pane in the door, to unlawfully gain entry into Mrs Kepic's house without her consent.
6.4Counsel failed to pursue in cross examination of Mrs Tanya Ammoun, her presence next to the Appellant when he made the telephone call to '000'.
6.5Counsel (Mr Lovitt QC) conducted himself in a manner which, in the absence of a direction from teh [sic the] Judge to the contrary, may have adversely affected the Jury's view or impression of the Appellant & the defence's case overall.
6.6Counsel failed to call the Appellant to give evidence in his own defence.
At the hearing of the appeal, this ground was really confined to the contention that there had been a miscarriage of justice occasioned by reason of failure on the part of defence counsel to call the appellant to give evidence in his defence when the appellant, at all times, wanted to give that evidence.

Affidavit evidence before Court of Appeal

The appellant was called to give evidence before this court. He swore to the truth and correctness of his affidavits sworn 11 December 2008 and 22 April 2009. Both affidavits were tendered in evidence.

First affidavit of appellant

In the first of his affidavits, the appellant said that he was represented at trial by Mr Lovitt QC and Mr Laurie Levy SC. He said that Mr Levy SC 'and/or his junior associate' visited him when he was on remand in Hakea Prison prior to trial, but at no time did Mr Levy SC or any of his associates take detailed instructions from him. He complained that he was instead told by Mr Levy SC to write out his version of events in detail and forward a document to him, which he did. The appellant said that he no longer had a copy of the document because the hard copy he had kept for himself had vanished from his cell at Hakea Prison prior to his trial.
In his first affidavit, the appellant contended that his written instructions to Mr Levy SC explained that:
(i)it was Mrs Ammoun who had asked him to call triple zero for Mrs Kepic, because Mrs Kepic had fallen and injured herself;
(ii)it was Mrs Ammoun who told him to tell the triple zero operator, 'I want to report a murder', because this would make them (the emergency services) come more quickly;
(iii)Mrs Ammoun was standing right next to the appellant throughout the triple zero call;
(iv)the triple zero call came to an end because Mrs Kepic hit the appellant on the head with a hammer;
(v)the triple zero operator called the appellant back after the first telephone call had ended abruptly;
(vi)the appellant did not say during the triple zero call that he had tried to 'kill' his wife and/or mother‑in‑law, but instead said that he had tried to 'call' them;
(vii)the appellant had gone to Mrs Kepic's home to speak with her about why she and Mrs Ammoun were not letting him see the children;
(viii)Mrs Ammoun armed herself with a knife and both the appellant and she accidentally fell down the stairs and that this was how she got her knife wounds and how he got a knife wound to his hand;
(ix)the appellant never had any intention, nor did he ever make an attempt, to injure, harm or threaten Mrs Ammoun or Mrs Kepic; and
(x)the appellant did not break into Mrs Kepic's home and did not break the glass in the window. He genuinely and honestly believed that he had Mrs Kepic's consent to be at her home on 21 January.

Mr Coehlo was called to give evidence on 1 December 2009. He confirmed the truth and accuracy of his affidavit sworn 22 October 2009 (although he did not have a copy with him) and he was then cross‑examined. In the course of his cross‑examination, Mr Coehlo backed away from the confident statement in his affidavit that the words 'I broke into the house' were not in the statement that he typed for the appellant. What he said in cross‑examination was as follows:
Yes, because the sentence reads, 'Noticing that there was no‑one inside but a lot of children's clothes, I broke into the house'?‑‑‑I honestly do not recall ever typing, 'I broke into the house.'
Mr Coehlo contended that the appellant had told him that, after he had gone upstairs and whilst he was coming down the stairs, he saw Mrs Kepic and she let him into the house. He responded to questioning as follows:
All right. You told us that you were concerned about a statement which appears in that document and in particular the question of whether he broke in. How did he say he got in?‑‑‑It was when he had come back downstairs, from what I could recall, your Honour - it was when (a) he was coming back downstairs again from being upstairs - it was that Pamela turned up and that's when he got let in the house.
So he told you that Pamela let him in. Is that right?‑‑‑That's correct.
Mr Rayner is the Deputy Superintendent at Hakea Prison. In his affidavit sworn 4 November 2009, Mr Rayner annexed a memorandum which he had sent to counsel for the respondent noting that Mr Coehlo was a prisoner at Hakea Prison between 1 February 2007 and 9 December 2007 and again between 21 December 2007 and 14 July 2008. A Gregory Flynn (Mr Flynn) was a prisoner at Hakea Prison only for the period 27 August 2007 to 12 September 2008. Records on the Total Offender Management Solution computer system showed no record of the appellant having complained of any computer disk being stolen or missing and there was no record of Mr Flynn having stolen any computer disks from other prisoners.
Mr Rayner was called to give evidence and he was cross‑examined by counsel for the appellant. He conceded that, in certain circumstances, not every record of an incident that occurred in Hakea Prison would be on the Total Offender Management Solution computer system.
However, the importance of Mr Rayner's evidence is that Mr Flynn was not at Hakea Prison on 5 July 2007, when the 19‑page statement was faxed to the appellant's solicitors. The facsimile notations on annexure 1 to the affidavit of Mr Coehlo clearly reveal that it was on 5 July 2007 that the document was faxed from the Hakea legal library. It could not therefore have been the case that Mr Flynn had been responsible for stealing the appellant's disk and inserting into it the words complained of by both the appellant and Mr Coehlo.
When cross‑examined, Mr Coehlo testified that when the document was first sent to the appellant's solicitors he was present. He said, however, that the document was not complete. His testimony was to the following effect:
But you were present, weren't you, when the document was ultimately faxed from the law library - weren't you?‑‑‑Yes, but it wasn't the completed document.
No, hold on a second. You were present when the document was faxed - that's Ali's document to his lawyer was faxed - from Hakea law library?‑‑‑Again, I was present but it wasn't completed. It was only half of the actual pages that we still continued working on.
Did you send more than one fax to Ali's lawyer?‑‑‑I didn't, no.
This evidence cannot be accepted, because the 19‑page statement was clearly faxed in its entirety. Each page bears the facsimile header:
05/07/2007 [time] 93666434 HAKEA LEGAL LIBRARY PAGE [no]
In any event, it is quite clear that the passage 'I broke into the house' must have been in the statement faxed from Hakea legal library to Mr Levy SC on 5 July 2007.
The only other passage with which Mr Coehlo joined issue was that at page 16 of the 19‑page document in which it is recorded that Mrs Kepic asked the appellant to get her a Panadol and he said that he would, and left the room to look for tablets, but could not find them. According to the affidavit of Mr Coehlo, the appellant told him that Mrs Kepic had said she wanted to go to her bedroom to get some Panadol after she had fallen and hit her head.
Nothing appears to turn on this small point.

Evidence of Mr Levy SC on inclusion of words, 'I broke into the house'

When Mr Levy SC was cross‑examined on 1 September 2009, he said that his primary focus in defending the appellant had always been on the more serious of the charges, particularly the charge of attempted murder. He said that the burglary charge was 'never a real concern' and that, in any event, his instructions from the appellant had always been that he had entered the house without permission. His testimony was to the following effect:
Yes?‑‑‑Yes, and given that his instructions to me from the start were that he had gone into the house without permission. That was never a focus. The burglary charge was never a real concern.
You're saying from the outset you were - you had been instructed that Mr Ammoun was guilty of that, had you?‑‑‑In fact the words that I said they used with him in the conference were that on his own account he was guilty of the deprivation of liberty and the burglary.
Mr Levy SC agreed that, amongst his handwritten notes, there was an entry next to the word 'burglary' which showed the initial 'G' and a question mark. He then explained what this meant:
What did that question mark relate to?‑‑‑Because - what it was was when he was explaining to me his version of events I had told him that on his own account he was admitting to the burglary. The difficulty was that this is very early in the piece. I think this is before we even had the voluntary case conference. That's why I had suggested, given his instructions, that we go to the voluntary case conference, we have something to offer. He was prepared to plead guilty to the burglary and although at that stage, because of - for forensic reasons we weren't going to say that he would plead guilty to that and get rid of it. That's why we left it in there. We were giving the jury some compromise.
Mr Levy SC reiterated in his testimony that his understanding of the appellant's instructions was that he (the appellant) had entered the house without permission. He added:
Did you clarify with Mr Ammoun what he understood, 'I broke into the house,' to mean?‑‑‑He told me what it meant. He told me what he had done.
Right. What did he tell you?‑‑‑He told me that he had broken into the house and that he was going to confront Mrs Kepic.

Conclusion on application to reopen

The application to reopen the appeal and to adduce new evidence really amounted to very little. In the first place, the supposed alteration of the 19‑page statement by Mr Flynn fell away when it was revealed that Mr Flynn was not in Hakea Prison at the time the statement was the subject of a facsimile to the appellant's counsel. All that was left of Mr Coehlo's evidence was his contention that he could not recall typing in the words, 'I broke into the house'. Against this contention was the fact that the facsimile statement was sent on 5 July 2007 and Mr Coehlo admitted being present when it was sent. Clearly, the words were then in the statement. Clearly, they also came from the appellant.
Further, and in any event, the evidence of Mr Levy SC (which I accept) makes it clear that he discussed with the appellant the circumstances of his entry into the house and the appellant made it very clear that he had broken into the house and that he was going to confront Mrs Kepic.
In these circumstances, the evidence of Mr Coehlo has no real credibility. The evidence of Mr Levy SC is to be preferred. The application for leave to reopen the appeal and adduce new evidence has no substance and, in my opinion, it should be refused.

Could failure to call the appellant have been a miscarriage of justice?

There is an onus on the appellant to satisfy the court on the balance of probabilities that he was, by the conduct of his counsel, denied the opportunity of giving evidence on oath: R v Armstrong (1983) 35 SASR 356 per Matheson and Johnston JJ at 378.
I have concluded that the appellant has not made out his contention that he was denied, by the conduct of his counsel, the opportunity to give evidence on oath at his trial. He has failed to discharge the onus to establish that fact on the balance of probabilities.
However, even if the appellant had been able to establish that he was denied, by the conduct of his counsel, the opportunity to give evidence on oath at his trial, it does not follow that there was inevitably a miscarriage of justice. I would respectfully agree with Legoe J in R v Armstrong at 366 that if the facts and circumstances of particular advice given by counsel reflect a denial of the appellant's fundamental right to give evidence, a court of appeal may be able to spell out a miscarriage of justice in a particular case (my emphasis).
In R v Armstrong, Matheson and Johnston JJ noted at 376 that the Crown had conceded that if the court was satisfied that the applicant was, by the conduct of his counsel, denied the opportunity of giving evidence on oath in answer to the charge laid against him, 'there would, in such circumstances, have been a miscarriage of justice'. Their Honours do not appear to have considered the question independently.
In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P (with whom Wheeler and Pullin JJA agreed) said at [148] that even if it had been established that the appellant had been denied by his counsel the opportunity of giving evidence on oath at his trial, no miscarriage of justice had been demonstrated. Clearly, Steytler P considered that in a case in which it was established that the appellant had been denied the opportunity of giving evidence at his trial, it was necessary for him to demonstrate that a miscarriage of justice had occurred.
In Rinaldi, Steytler P at [148] said of the case under consideration:
However, it seems to me that no miscarriage has in any event been demonstrated. As I have said, the circumstantial case against the appellant was very strong, he has no alibi and, it seems, there was fertile ground upon which to cross-examine him concerning, at the very least, his animosity towards Mrs Rinaldi. Further, unlike the appellant in Nudd (see at [29] and [160]), the appellant did not explain to the Court what relevant evidence he could have given, with the result that there is no reason to believe that his evidence would have assisted his case. In those circumstances, and in circumstances in which he did not, on his own evidence, raise any disagreement with his counsel's suggestion, or seek to revisit it at any subsequent time prior to the completion of the prosecution case, there is nothing to support his contention that he was denied a fair trial or that there was otherwise any miscarriage as a consequence of Ms Braddock's advice.
These observations are particularly relevant to the present case. The evidence against the appellant consisted primarily of the direct evidence of Mrs Kepic and Mrs Ammoun. There was other direct evidence in the form of the triple zero call to which I have referred. There was circumstantial evidence which suggested that the injuries sustained by Mrs Kepic and Mrs Ammoun were consistent with having been inflicted by an assailant rather than in any other way.
Had the appellant given evidence on oath, it is difficult to know how his counsel would have handled the fact that his sworn evidence would apparently have deviated from the evidence contained in the 19‑page fax of instructions. Leaving that to one side, once the appellant had given evidence on oath, he would have been subject to cross‑examination. There would have been 'fertile ground upon which to cross‑examine him' (Rinaldi per Steytler P at [148]). The appellant's contention before this court was that Mrs Kepic injured herself by falling against the sink in the laundry (apparently without slipping) and Mrs Ammoun must have injured herself by either deliberately stabbing herself or by accidentally stabbing herself when she fell down the stairs. Neither of these contentions could possibly have withstood any measure of cross‑examination. Further, the appellant conceded in evidence before this court that he had in the triple zero call said 'I want to report a murder' and, 'I tried to kill my wife and my mother‑in‑law'. These admissions (assuming that they would also have been made at trial) could not possibly have assisted the appellant's case. Further, my assessment of the appellant's sworn evidence before this court is that he could not be believed. I have no hesitation in concluding that a jury would have reached a like conclusion.
There is an additional aspect of the matter. The appellant did not raise any disagreement with the statement of his counsel that he elected not to give evidence. At no stage did he raise the matter with the trial judge. In my opinion, he had an excellent grasp of the English language and would clearly have understood what was taking place at his trial. In these circumstances, there is nothing to support the contention that he was denied a fair trial or that otherwise any miscarriage of justice could have occurred (see Rinaldi per Steytler P at [148]).
In my opinion, there is no substance in ground 6 and I would refuse leave in relation to it.

Appeal against sentence

The appellant seeks leave to appeal against sentence on two grounds. They are:
(1)The learned sentencing Judge erred in law, in that the offences comprising the remaining Counts were treated as aggravating factors in the sentence imposed for Count 1 (burglary), & the sentence was manifestly excessive.
(2)The learned sentencing Judge erred in law, in that the overall effective head sentence imposed on the Appellant, was manifestly excessive.
At the hearing of the appeal, counsel for the appellant only faintly argued the application for leave to appeal against sentence.
The primary contention of counsel for the appellant was that the sentence for the offence of burglary (6 years 8 months' imprisonment) was manifestly excessive and that the offence committed by the appellant was far from being in the most serious category of burglary offences. The second basis upon which the overall sentence of 16 years' imprisonment was challenged involved contentions that (a) the one transaction rule was breached; (b) the totality principle was breached; and (c) the sentence for attempted murder was manifestly excessive.
In answer to questions from the bench, counsel for the appellant ultimately conceded that the real question was whether an aggregate sentence of 16 years' imprisonment properly reflected the criminality of the appellant's conduct. Counsel was unable to argue strongly that it did not.

Ground 1

The sentence imposed for burglary was one of 6 years 8 months' imprisonment (not 6 years' imprisonment as the submissions filed on behalf of the appellant suggest). This was a severe sentence, but it reflected the fact that burglary is an offence for which sentences are being firmed up in recognition of the prevalence of the offence and the wide community concern about that prevalence: Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 per Miller JA at [168].
In the present case, the seriousness of the burglary was that the appellant broke into the house of Mrs Kepic with the intention of seriously assaulting her. Such a burglary is more serious than a burglary which is committed with the intent only of stealing. This was made clear in R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159, where Malcolm CJ (with whom Ipp & White JJ agreed) said at [8]:
A home invasion which is committed with intent to intimidate the occupants by threatening them is more serious than a burglary which simply involves an intent to steal. To break into a dwelling house during the night-time for the purpose of inflicting a savage beating upon an occupant is a form of burglary which is at the upper end of the scale of seriousness. These two offences were serious offences of their kind.
The maximum term of imprisonment which could have been imposed upon the appellant was a sentence of 18 years' imprisonment (s 401(1)(b) Criminal Code). By reason of the decision in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 (per Wheeler & Pullin JJA at [43]), where a case does not fall into the worst category and there is an established range of sentences capable of affording a comparison, a sentencing judge is to have regard to the minimum terms which would have been required to have been served under that range of sentences and to tailor the sentence to be imposed, so as to avoid unjustifiable disparity in respect of the minimum custodial period.
The offence of burglary committed by the appellant does not fall within the worst category. It has not been suggested by the respondent that it does. The consequence is that, for practical purposes, the maximum term that could have been imposed upon the appellant was one of 12 years' imprisonment. He was sentenced to 6 years 8 months' imprisonment, which is just over one half of that maximum. In the circumstances of the case, and having regard particularly to what Malcolm CJ said in R v Ward at [8], I do not consider that the sentence imposed for the offence of burglary was manifestly excessive. It was at the upper end of the range, but not beyond it.

Ground 2

Ground 2 really raises the question of totality. Although the submissions refer to the aggregate sentence offending the one transaction rule, this is a misconception. The so‑called one transaction rule is only a good working rule to the effect that generally terms of imprisonment will be made concurrent if offences are part of the one transaction. That is, if the offender was truly engaged upon one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest: see Walgar v The State of Western Australia [2007] WASCA 241 per McLure JA at [9]; The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 per Steytler P at [14].
In the end, the task of the sentencing judge is to consider whether the total sentence imposed results in an appropriate measure of the total criminality involved in the conduct: Amoore per Steytler P at [14].
In the present case, there was one multifaceted course of criminal conduct, but there was an invasion of more than one legally protected interest. Both Mrs Kepic and Mrs Ammoun were seriously assaulted. In any event, when regard is had to the total criminality of the conduct of the appellant, it is difficult to see how a sentence of 16 years' imprisonment could be said to be manifestly excessive.
This, in turn, raises the question of totality. The principle is well‑known. It requires a judge sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at 307 ‑ 308 and see Roffey v The State of Western Australia [2007] WASCA 246 per McLure JA at [24] ‑ [26]; Jarvis The Queen (1993) 20 WAR 201 per Ipp J at 206 ‑ 207.
In the present case, the total criminality of the appellant's conduct clearly necessitated a very substantial sentence. It may have been appropriate to have accumulated the sentences imposed on count 3 (6 years 8 months' imprisonment) and count 6 (10 years' imprisonment), rather than the sentence imposed on count 1 with the sentence imposed on count 6. That is because count 3 was the offence of, with intent to maim, disfigure, disable or do some grievous bodily harm, unlawfully doing grievous bodily harm to Mrs Kepic and count 6 was the offence of attempting to unlawfully kill Mrs Ammoun.

This court could only allow the appeal against sentence if, in its opinion, a different sentence should have been imposed (Criminal Appeals Act, s 31(4)(a)) and, in my opinion, it cannot be suggested that any different sentence should have been imposed upon the appellant. In my opinion, a sentence of 16 years' imprisonment 'fairly and justly [reflected] the total criminality of the offender's conduct': Jarvis v The Queen per Ipp J at 207.
It is unnecessary to consider in any detail the attack made by the appellant upon the sentence of 10 years' imprisonment imposed for the offence of attempted murder. Counsel for the appellant referred in written submissions to a number of cases of attempted murder which were said to be comparative and in which sentences of less than 10 years' imprisonment (after taking into account the transitional provisions) were imposed. However, there is no tariff for the offence of attempted murder and, in particular, no 'broad tariff' of 7 to 10 years (pre‑transitional) for the offence: see Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307 per Malcolm CJ at [4] and Wallwork J at [41].
Garlett v The State of Western Australia [2009] WASCA 44 is perhaps the most recent indication by this court of an example of comparable sentencing for the offence of attempted murder. It was a 'post‑transitional' case in which the appellant was sentenced to imprisonment for a term of 10 years. The victim of the offence had gone to an ATM at a shopping centre when the appellant, who had been drinking all day, suddenly and without warning (and for no reason) stabbed the victim in the neck with a knife with a 16‑cm blade. The explanation given by the appellant for the stabbing was that the victim had referred to him as a 'black bastard', but the court considered that the trial judge had correctly rejected that this was the case. In other words, it was an unexplained, random attack upon an unsuspecting victim who was effectively defenceless at the time he was struck. It was not a case which was in the worst category of attempted murder, but it was a very serious example of such an offence (Garlett per Wheeler JA at [13]). The sentence was imposed after trial, so the appellant was disentitled to any discount for a plea of guilty and the Court of Appeal considered that a sentence of 10 years' imprisonment was well open in the circumstances of the case.
In my opinion, the offence of attempted murder committed by the appellant in this case was a very serious example of that offence and a sentence of 10 years' imprisonment was entirely justified.
It follows that, in my opinion, there is no substance in either of the grounds of appeal against sentence. I would refuse leave to appeal against sentence.