Blurton v The State of Western Australia - [2021] WASCA 207

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BLURTON -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 207
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   15 OCTOBER 2021
DELIVERED          :   3 DECEMBER 2021
FILE NO/S:   CACR 15 of 2021
BETWEEN:   ERROL JOHN BLURTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 2127 of 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial by jury of one count of aggravated armed robbery - Alleged miscarriage of justice - Trial judge initially ruled that evidence of a balaclava being found in the appellant's car was inadmissible, and then reversed this ruling during the trial - Where prosecutor referred to the balaclava in her opening address, but evidence of it was not adduced - Whether the reference to the balaclava in the prosecutor's opening address was of such power and persuasiveness that there remained a perceptible risk of prejudice despite the trial judge's direction that the opening addresses were not evidence

Legislation:

Nil

Result:

Extension of time granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	J Gullaci
Respondent	:	B M Murray

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Arico v The Queen [2018] VSCA 135; (2018) 272 A Crim R 450
Kitto v The State of Western Australia [2019] WASCA 161
Leaman v The Queen (1987) 28 A Crim R 104
RLB v The State of Western Australia [2021] WASCA 73
Taylor v The State of Western Australia [2020] WASCA 113
Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313

BUSS P & MAZZA JA:

This is an appeal against conviction. The appellant filed his notice of appeal approximately two weeks late. Accordingly, an extension of time within which to appeal is required. The respondent does not oppose the granting of an extension of time. An extension of time should be granted.
The appellant was charged on indictment in the District Court with a single count that:
On 16 December 2018 at Morley [the appellant] and another stole from Laura Anne Quinton and Corrie William Floyd Thomas with violence a sum of money, jewellery, a laptop, two mobile telephones and an empty safe, the property of Laura Anne Quinton
And that [the appellant] was in company with another
And that [the appellant] and another were armed with dangerous weapons namely a firearm and a machete
The appellant was tried before Bowden DCJ and a jury over four days in November 2020. On 12 November 2020, he was convicted as charged. Subsequently, he was sentenced to 5 years 2 months' imprisonment.
The appellant relies upon the following ground of appeal:
1.A miscarriage of justice occurred when the Trial Judge permitted the prosecution to lead evidence that a balaclava was found inside the appellant's vehicle, in a pre‑trial ruling, and then during the running of the trial reversed that ruling.
Particulars:
a)The prosecution sought to lead evidence that a balaclava was found in the appellant's vehicle.
b)An application was made by defence to exclude that evidence on the Friday before the trial commenced.
c)During the trial, the Trial Judge reversed this ruling and determined the evidence was not admissible.
d)The evidence, of the balaclava being found, was referred to in the prosecution opening and prejudiced the appellant unfairly.
The question of leave to appeal on this ground was referred to the hearing of the appeal.[1]
[1] Order of Buss P, 15 April 2021; WAB 4.
For the reasons that follow, we would dismiss the appeal.

The State's case

The State's case at trial was as follows.
Shortly after 3.30 am on 16 December 2018, two men, alleged to be the appellant and another man, Clinton Prosser, entered a house in Morley which was occupied by Ms Quinton, her partner, Mr Thomas, and Ms Quinton's 15‑year‑old daughter, PA. The face of each offender was, in some way, masked.
Ms Quinton woke up because she was feeling unwell. She went to the bathroom, and decided to have a shower. At this point, Mr Thomas and PA were asleep. While she was in the shower, Ms Quinton heard some loud bangs. She wrapped herself in a towel. As she did this, a man, who was carrying a gun, entered the bathroom. Ms Quinton tried unsuccessfully to push the door shut. The man pushed her into the bathroom, and pointed the gun at her chest. The man asked her whether her daughter had a telephone. Ms Quinton pleaded with the man to leave her daughter alone. Ms Quinton was then struck to the face, and the man grabbed a necklace from her neck.
Meanwhile, Mr Thomas woke up to find a different man standing over him. This man was carrying a machete. Mr Thomas was forced out of bed, into the bathroom, where Ms Quinton and the other offender were present. There, the two men asked for the number of the safe. Ms Quinton had a safe in her bedroom wardrobe. She told the men that she could not remember the code. At this point, the man with the machete swung it towards Ms Quinton's head, hitting the bathroom door above her.
The men continued to demand the code to the safe. One of them threatened, 'I'll chop your fingers off'. Eventually, the offenders closed the bathroom door on Ms Quinton and Mr Thomas and left them there for a period. During this time, the offenders went to an outside shed. Ms Quinton and Mr Thomas then heard loud bangs.
After she left the bathroom, Ms Quinton saw that the door of the safe in the bedroom was broken off, and that its contents, which included jewellery and a sum of money, were missing. Also missing from the house was Ms Quinton's purse and Mr Thomas's wallet. Among the items stolen from the purse and wallet were drivers' licences, credit cards, debits cards, concession cards and Medicare cards, which belonged to them. In addition, Ms Quinton's medication, Ms Quinton and Mr Thomas's mobile telephones, PA's laptop and another safe, which was empty at the time, were stolen.
Ms Quinton checked to see that the two men had left the house, and having been satisfied that they had done so, she used PA's mobile telephone to call the police.
The State's case against the appellant on the element of identity was circumstantial. The prosecutor alleged that the appellant and Mr Prosser had been, in effect, hired by two drug users, Mr Garrick Naylor and Ms Samantha Challen, to collect a drug debt totalling approximately $6,750 owed to them by a man called Zac. In the past, Ms Challen had dropped Zac off at the Morley address. As it turned out, while Ms Quinton knew Zac, he did not live at the Morley address.
On the evening of 15 December 2018, Ms Challen drove Mr Prosser to the carpark at the Red Rooster store in Morley. In the carpark was a white Mitsubishi sedan occupied by a man and a woman. Ms Challen was introduced to the man called Errol (the first given name of the appellant). The female occupant (later named as Danica Higgs) was introduced to Ms Challen as Errol's partner.
In the early hours of 16 December 2018, two vehicles, one of which was the vehicle being driven by Ms Challen in which Mr Prosser was the passenger, the other being the white Mitsubishi sedan which contained the appellant and his girlfriend, drove to the Morley address. Ms Challen stopped her vehicle and watched Mr Prosser and the appellant walk off in the direction of the house. Each was carrying weapons. A short time later, the two men returned to their respective vehicles, carrying property.
Ms Challen then drove with Mr Prosser to Mr Naylor's house. At about 4.00 am, her vehicle and the white Mitsubishi sedan arrived at Mr Naylor's address. Their arrival and other events were captured on CCTV at Mr Naylor's property. It was not disputed at the trial or on appeal that the appellant and Mr Prosser were seen in the footage. The CCTV footage shows the occupants of the two vehicles getting out of the cars and carrying property onto the balcony of the premises. The CCTV footage captured the registration number of the white Mitsubishi sedan. It also showed that the appellant was part of a group handling and dividing up property. About an hour or so later, the appellant and Mr Prosser are seen to leave Mr Naylor's property and go their separate ways.
The State called a number of witnesses who gave oral evidence, including Ms Quinton, Mr Thomas, PA, Mr Naylor, Ms Challen, Ms Higgs and a number of police officers.
Among the exhibits admitted into evidence were:
(a)the CCTV footage of Mr Naylor's property from the early hours of 16 December 2018;
(b)the registration details of the white Mitsubishi sedan which showed that the vehicle was registered under the name of the appellant;
(c)various telephone records including those which showed that the appellant and Mr Prosser were in touch with each other at about the time of the offence; and
(d)police interviews conducted with the appellant on 7 January 2019 and 28 February 2019.

The defence case

In the course of his interviews with police, the appellant denied any involvement in the alleged offence. He said that at the time of the alleged offence, he was at his mother's house. The appellant elected not to testify in his defence, nor call other evidence in his defence. In essence, his case at trial was that he was not the offender.

Issue to be determined at trial

It was not disputed that an armed robbery had occurred at the Morley address in the early hours of 16 December 2018 and involved Mr Prosser. The real issue for the jury to determine was whether the State had proved beyond reasonable doubt that the appellant was the other offender.

Ground of appeal - background

On 8 January 2019, just over three weeks after the commission of the alleged offence, police officers stopped the white Mitsubishi sedan, registered in the appellant's name, in what was referred to in the trial as a 'random stop'. At the time, the vehicle was being driven by the appellant's then girlfriend. The appellant was not in the vehicle, but three other people were. Police officers conducted a search of the vehicle and found, in the boot, a Mastercard in the name of Mr Thomas, which had been stolen in the robbery, a balaclava and a glove. The State sought to adduce evidence of the search and the items found in the boot as part of the State's case at trial.
On 6 November 2020 (the last working day before the scheduled commencement of the trial), at a directions hearing before the trial judge, defence counsel objected to the discovery of the balaclava and the glove being admitted as evidence.
With respect to the balaclava, defence counsel drew his Honour's attention to the proposed evidence of Ms Quinton, Mr Thomas and PA, which did not mention that either of the two offenders wore a balaclava. Defence counsel noted Ms Quinton, in her deposition, referred to one of the men wearing a mask that may have had a skull or flames on it and the other man wore a dark mask. Mr Thomas referred to the male with the machete wearing a hockey mask which covered the top half of his face, but he could see the man's mouth and neck. Mr Thomas was silent regarding the other male in terms of any face coverings. PA stated that the man with the firearm wore what looked like a bandana, which stopped just under his eyes. He was wearing some kind of a hat. She said nothing about the face covering of the other offender. Ms Challen had told the prosecutor that the appellant and Mr Prosser wore face masks, but did not specifically mention either of them wearing a balaclava. Some of the State witnesses observed that the offenders wore gloves.
In argument, defence counsel focused her submissions on the balaclava. She submitted to the trial judge that there was nothing to connect the balaclava found by police on 8 January 2019 with the alleged offence, which had occurred three weeks before. Defence counsel noted that, in addition to the appellant's girlfriend there were three other occupants in the car at the time of the vehicle stop, and that at the time of the search the appellant was in police custody. Defence counsel submitted, in effect, that there was no evidence to connect the balaclava with the commission of the offence and that its discovery by police was irrelevant.
In effect, the State prosecutor submitted that the discovery of the balaclava was relevant, having regard to the evidence that the offenders wore face coverings and that a balaclava was broadly consistent with the observations of the State witnesses.
His Honour ruled that the discovery of the balaclava in the vehicle by police on 8 January 2019 was admissible (the first ruling). He said:[2]
In my ruling, that evidence is admissible. It is part of the State's circumstantial case. Issues such as the length of time after the offence for which it was located, the circumstances of its location, the persons who were in the vehicle when it was located, the fact that the accused wasn't present, are all matters that go to its weight.
[2] Directions hearing ts 39.
On the first day of the trial, 9 November 2020, in his preliminary remarks to the jury, his Honour directed, among other things, that what counsel said in their opening addresses was not evidence. He also told the jury that evidence came from the testimony of witnesses and the exhibits.[3]
[3] ts 78 - 79.
The State prosecutor began her opening address by stating that she would outline the facts that she anticipated would 'come out during the course of the trial during the evidence that the State will lead'.[4] She then told the jury:[5]
[W]hat you need to understand is what I'm about to say is not evidence, it's just an overview of what the State anticipates the evidence will be. And I do this to assist you in understanding what this matter is all about.
[4] ts 83.
[5] ts 83.
The prosecutor then outlined the State's case as to what occurred at the Morley address in the early hours of 16 December 2018. She also outlined other evidence, including that of Ms Challen and Mr Naylor, as well as what was shown on the CCTV footage.
The prosecutor then referred to what she said were some of the 'key' pieces of evidence.[6]
[6] ts 88.
The prosecutor told the jury that it would hear evidence that the white Mitsubishi vehicle, seen in the CCTV footage, was registered to the appellant.
The prosecutor then said another piece of evidence to be adduced by the State was that the same white Mitsubishi vehicle that was seen in the CCTV footage, was stopped by police on 8 January 2019. The prosecutor said:[7]
That vehicle was searched by police at the time and they found a bankcard in the name of Corry Thomas in the vehicle. And the State says that's a bankcard that was stolen during the robbery. Also in the vehicle was a balaclava and some gloves. (emphasis added)
[7] ts 88.
The prosecutor went on to refer to the telephone records and to the interviews police conducted with the appellant on 7 January 2019 and 28 February 2019.
The prosecutor said that she anticipated that the element of identity would be a real issue to be determined in the trial.[8]
[8] ts 90.
Apart from the brief reference to the balaclava set out at [33] above, the prosecutor made no other reference to it in the course of her opening address.
Defence counsel, in her opening address, expressly told the jury that there was no dispute that a robbery had taken place as alleged by the State, nor was it in dispute that one of the offenders involved in it was Mr Prosser. Defence counsel said that the defence case was that the appellant was not involved in the robbery.[9]
[9] ts 93.
Defence counsel told the jury that there was no forensic evidence linking the appellant to the offence and no 'positive evidence of identity'. With respect to the CCTV footage, defence counsel, in effect, accepted that the appellant was depicted in it, but asserted that his presence at Mr Naylor's house did not mean that he was involved in the offence.[10] Defence counsel submitted, in effect, that Ms Challen was not a truthful or reliable witness. With respect to the appellant's police interviews, defence counsel said that the appellant did not always tell the truth in the two interviews. She urged the jury not to jump to a conclusion that, because he told lies, he was guilty of the offence.[11]
[10] ts 94.
[11] ts 94.
Defence counsel made no mention of the vehicle stop on 8 January 2019 or the balaclava.

Ground 1 - trial judge reverses the first ruling

At the commencement of the proceedings on 11 November 2020, in the absence of the jury, his Honour raised with counsel the first ruling.[12] By this time, the evidence of Ms Quinton, PA, Mr Thomas, Mr Naylor and most of Ms Challen's evidence had been adduced. The evidence of the search of the white Mitsubishi vehicle had not been led. The trial judge told counsel that, in light of the evidence that had been adduced, none of which referred to the offender wearing a balaclava, and having regard to the judgments of the Court of Appeal of Victoria in Arico v The Queen[13] and the High Court in Thompson and Wran v The Queen,[14] he had come to the view that the evidence of the balaclava was inadmissible.[15]
[12] ts 195.
[13] Arico v The Queen [2018] VSCA 135; (2018) 272 A Crim R 450. His Honour referred specifically to the (dissenting) reasons of Priest JA.
[14] Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313.
[15] ts 197 - 198.
His Honour observed that the witnesses described the face covering as a mask and not a balaclava. He said that to allow evidence of the discovery of the balaclava would be, in reality, to allow evidence of 'tools of trade', which would amount to (impermissible) propensity evidence.[16] Alternatively, if the evidence was admissible, its prejudicial value outweighed any probative value, such that he would have excluded it in the exercise of his discretion.[17] The trial judge acknowledged that the prosecutor had opened on the balaclava, and said:[18]
… that can be covered by a direction to the jury that … they have to consider … the evidence presented at the trial, not what counsel says in their opening or their closing.
[16] ts 197.
[17] ts 197 - 198.
[18] ts 198.
At no stage did defence counsel seek to discharge the jury.
His Honour characterised what he had said to counsel as his 'revised preliminary view'.[19] However, the matter was not raised again in the trial. It may be accepted, as the parties did in this appeal, that his Honour, in substance, reversed the first ruling. In this appeal, the State concedes that his Honour was correct to reverse the first ruling, essentially for the reasons he gave.[20] In our opinion, the State's concession is correct. The evidence was irrelevant.
[19] ts 200.
[20] WAB 33.
Later in the trial, the State led evidence from Constable David Benedetto as to the search of the vehicle on 8 January 2019.[21] Constable Benedetto referred to the discovery of a black backpack which contained a black male wallet. The wallet contained what was described as two bankcards, one of which was in the name of Mr Thomas.[22] The card was photographed and admitted as an exhibit in the trial.[23] A photograph of the glove, but not the balaclava, was also admitted as an exhibit.[24]
[21] ts 218 -222.
[22] ts 220.
[23] ts 221, exhibit 15.
[24] ts 277, exhibit 36.
After the State closed its case and defence counsel informed the court that the appellant would not give or adduce evidence in his defence,[25] a discussion followed in the absence of the jury as to the directions to be given to the jury. None of the matters concerned the balaclava.
[25] ts 277.

On the morning of 12 November 2020, the prosecutor and defence counsel delivered their closing addresses to the jury. Neither of them referred to the balaclava.
In his summing up, his Honour gave the following relevant directions:[26]
(1)The jury must accept his instructions on the law.
(2)Although counsel had commented on some aspects of the evidence during their closing addresses, the jury's obligation was to consider the evidence in its entirety.
(3)The evidence in its entirety comprised the answers made by the witnesses and the exhibits which went into the jury room. Counsel's questions were not evidence.
(4)The jury was given a transcript of the evidence. His Honour stated that the transcript included every piece of evidence that had been given. His Honour then summarised the evidence. In doing so, he did not say anything about the balaclava.
[26] ts 287 - 300.
Defence counsel took no exception to the summing up.

Appellant's submissions

Initially, counsel for the appellant submitted that the prosecutor's reference in her opening address to the discovery of the balaclava was unfairly prejudicial and gave rise to a miscarriage of justice for two reasons.[27] First, it invited the jury to find that the balaclava was one of the items worn by the appellant at the time of the commission of the offence and, thus, connected him to it. Second, the presence of the balaclava, a 'tool of the trade' of those who commit armed robberies, conveyed to the jury that the appellant had a criminal propensity and was of bad character.
[27] Appeal ts 3 - 5.
However, in the course of oral submissions, counsel for the appellant conceded that, by the time the jury retired, having regard to the evidence, the closing addresses of counsel and the summing up, the only arguable miscarriage of justice was the second reason referred to above.[28]
[28] Appeal ts 11.
Counsel for the appellant submitted that the prejudice caused by reference to the discovery of the balaclava was of such power and persuasiveness that no direction could cure its prejudicial effect and that there remained a perceptible risk that the jury would have taken it into account in arriving at its verdict of guilty.[29]
[29] Appeal ts 6 - 7.

Ground of appeal - disposition

The real issue for the jury to decide was whether the State had proved beyond reasonable doubt that the appellant was one of the two men who committed the armed robbery. As we have already stated, the State's case in respect of this issue was circumstantial.
While the prosecutor referred to the discovery of the balaclava in her opening address and, in particular, in her summary to the key pieces of evidence which established the element of identity, the reference was fleeting and was unaccompanied by any explanation of why it was 'key' to the State's case. The prosecutor did not seek to connect the balaclava to the face coverings worn by the offenders, nor did she suggest, even obliquely, that the discovery of the balaclava in the appellant's motor vehicle was a 'tool of the trade' of armed robbers and showed him to be of bad character, or that he had a propensity to commit offences of the kind with which he was charged. In any event, when the police officers stopped the white Mitsubishi sedan and searched it, the vehicle was being driven by the appellant's then girlfriend. There were three other people in the vehicle, but the appellant was not one of them.
As we have said, apart from the reference in the prosecutor's opening address, there was no further reference to the discovery of the balaclava in the presence of the jury. The reversal of the first ruling meant that Constable Benedetto did not refer to it. There was no other evidence adduced at trial concerning it. Nothing was said by either counsel in their closing addresses.
Based on the evidence actually adduced at trial, the State's case on the element of identity was strong. The evidence of Ms Challen and Mr Naylor was substantially corroborated by the CCTV footage, which showed the appellant and Mr Prosser dividing what appeared to be the spoils of the armed robbery within a very short time of its commission. The discovery of Mr Thomas's Mastercard in the vehicle registered to the appellant, combined with the other evidence, produced a strong circumstantial case. The prosecutor's statement about the discovery of the balaclava, bearing in mind that no‑one identified the offenders as wearing such an item during the commission of the offence, was, in the scheme of things, of little significance.
It cannot be overlooked that, at the outset of the trial, minutes before the prosecutor opened her case, the judge told the jury that what counsel said in their opening addresses was not evidence. The prosecutor told the jury that what she said in her opening address was not evidence. It was what she anticipated the evidence would be. The use of the word 'anticipated' would have conveyed to the jury that what the prosecutor was saying about the facts was no more than an expectation of what the evidence might be, not what the evidence was.
In his summing up, the trial judge directed the jury that what counsel said in their closing addresses was not evidence. This was consistent with the trial judge's direction at the commencement of the trial and would have reinforced in the minds of the jury that statements made by counsel in their addresses were not evidence. Importantly, his Honour told the jury what evidence they had to consider, emphasising that it was limited to the oral testimony and exhibits that

had been adduced at the trial. His Honour did not refer to the prosecutor's reference in her opening address to the discovery of the balaclava. This is hardly surprising, given that defence counsel sought no specific direction concerning the balaclava. For his Honour to have raised the matter in his summing up would have needlessly run the risk of highlighting the issue.

Contrary to the submissions of counsel for the appellant, we do not regard the fleeting reference to the discovery of the balaclava in the prosecutor's opening address as having such power and persuasiveness that, despite the trial judge's directions, there remained a perceptible risk that the jury would have taken the discovery of the balaclava into account as conveying that the appellant had a criminal propensity and had a bad character. The simple answer to this submission is that the reference was not reasonably capable of having this effect upon the jury. Having regard to the directions given by the trial judge at the outset of the trial and in his summing up, the comments the prosecutor made and referred to in [29] above, and the evidence that was actually adduced at the trial, there is no reasonable possibility that the reference to the balaclava had any effect on the jury, let alone the prejudicial effect alleged by the appellant.
For the above reasons, the appellant has suffered no miscarriage of justice. The ground of appeal has not been made out.

Conclusion and orders

The ground of appeal has not been made out. The appellant's appeal against conviction must be dismissed. The orders we would make are as follows:
1.An extension of time is granted.
2.Leave to appeal is refused.
3.The appeal is dismissed.

BEECH JA:

For the reasons that follow, like Buss P and Mazza JA, I would refuse leave to appeal and dismiss the appeal. I gratefully adopt their Honours' statement of the background, the course of the trial, ground of appeal and submissions.

As explained in the joint reasons, following a pre-trial ruling by the trial judge, in opening the prosecutor identified, as among the key pieces of evidence, that in the course of a search of the vehicle about three weeks after the offence was said to have occurred, were several items found in the vehicle, one of which was a balaclava. However, following a further ruling by the judge, no evidence was led concerning the finding of a balaclava in the vehicle.
The appellant's sole ground of appeal asserts a miscarriage of justice. In the circumstances of the present case, in order to establish a miscarriage of justice, the appellant must demonstrate a perceptible risk that the prosecutor's reference, in opening, to a balaclava being found would have induced the jury to engage in erroneous or impermissible reasoning or otherwise resulted in an unfair trial.[30]
[30] See, by analogy, Kitto v The State of Western Australia[2019] WASCA 161 [66] ‑ [69]; Taylor v The State of Western Australia [2020] WASCA 113 [71] - [72]; RLB vThe State of Western Australia [2021] WASCA 73 [149] ‑ [150], all cases involving the reception of inadmissible evidence.
Although at times the appellant put his case on a wider basis, ultimately he accepted that a miscarriage of justice could be established only if there was a perceptible risk that the jury might (i) rely on the reference in opening to a balaclava to conclude that the appellant was a person of bad character with a propensity to commit criminal offences; and (ii) use or be influenced by that conclusion in coming to a verdict of guilty.[31]
[31] Appeal ts 11.
In my opinion, for the reasons that follow, having regard to the course of the trial as a whole and to the trial judge's directions, there is no such perceptible risk.
At the outset of the trial, before the prosecutor opened, the judge told the jury that the evidence in its entirety comprised the answers given by witnesses and the exhibits, and that what counsel said in their opening addresses was not evidence.[32]
[32] ts 78, 79.
In his summing up to the jury, the judge told the jury that their obligation was to consider the evidence in its entirety and that the evidence in its entirety comprised the answers given by the witnesses and the exhibits.[33] The judge then told the jury not to speculate about things that were not in evidence, reiterating that the evidence is the answers given by the witnesses and the exhibits.[34] Later in the summing up, the judge provided the jury with a copy of the transcript, saying that together with the exhibits, the transcript contained every piece of evidence that had been given.[35]
[33] ts 287 – 288.
[34] ts 288.
[35] ts 300.
By the time they retired to consider their verdicts, the jury had been told in unmistakably clear terms that the evidence comprised, and comprised only, (i) what witnesses said in their answers to questions in the court and (ii) the exhibits. No witness and no exhibit referred to or said anything about a balaclava. For the jury to have taken into account, and drawn a conclusion from, the prosecutor's reference in opening to a balaclava would have been for the jury to act on something that was not in evidence, thereby acting contrary to the judge's direction to them.
As recently explained in Taylor v The State of Western Australia, the law proceeds on the basis that, with rare exceptions, jurors follow directions given by the trial judge:[36]
With rare exceptions, a criminal trial on indictment proceeds on the fundamental assumption that jurors are true to their oath or affirmation and understand and obey the trial judge's directions. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. As the High Court observed in Dupas v The Queen, what is vital to the criminal justice system is 'the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations'. That is consistent with the 'experience and wisdom of the law … that, almost universally, jurors approach their tasks conscientiously'. (footnotes omitted)
[36] Taylor v The State of Western Australia [78].
I see no basis in this case for departing from this fundamental tenet. That is fatal to the appeal. Proceeding on the basis that the jury followed the judge's directions, there is no perceptible risk of the kind referred to in [64] above.
The appellant asserted, without explanation or elucidation, that the prejudice to him arising from the prosecutor's reference to the balaclava was such that it could not be cured by judicial direction.[37] I am far from persuaded that that is so. The law recognises that there are rare cases in which the overwhelming emotional or other effect of something on the jury, or the complexity of directions required to be given, might render the jury unable or unwilling to act in accordance with the judge's directions.[38] This is not, even arguably, such a case. To state the obvious, the mention of a balaclava is not of such overwhelming prejudicial effect to render a jury unable or unwilling to follow the judge's direction. No issue of complexity arises.
[37] Appellant's submissions [56]; appeal ts 6 - 7.
[38] See, for example, Leaman v The Queen (1987) 28 A Crim R 104, 108 - 109.
The following circumstances count further against a conclusion that there was a perceptible risk of the kind referred to in [64] above. The single reference to the balaclava occurred in the opening, on the first morning of the trial, 9 November 2020. That reference had the limited significance, in the context of the case as a whole, explained in the joint reasons at [53] and [55]. By the time the jury retired to consider their verdicts, three days had elapsed, and the jury had heard evidence from nine witnesses, addresses from counsel and the judge's summing up. As already noted, no witness or exhibit mentioned the balaclava. In the closing addresses, neither counsel said anything regarding the balaclava. The same is true of the judge's summing up. Moreover, the appellant's counsel at trial did not suggest that the trial needed to be aborted by reason of the mention of the balaclava. Nor, having heard the judge's summing up, did trial counsel ask the judge to give any further direction.
For these reasons, I would make the orders set out in [60] of the joint reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
3 DECEMBER 2021