Boag v The State of Western Australia [No 2]
[2024] WASCA 75
•26 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BOAG -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 75
CORAM: BUSS P
MAZZA JA
SEAWARD J
HEARD: 15 JANUARY 2024
DELIVERED : 24 MAY 2024
PUBLISHED : 26 JUNE 2024
FILE NO/S: CACR 61 of 2021
BETWEEN: ROSS JAMES BOAG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CORBOY J
File Number : INS 47 of 2017
Catchwords:
Criminal law - Appeal against conviction - Criminal responsibility - Appellant and co–accused convicted after a joint trial before a judge sitting alone of unlawful killing - Trial judge's construction and application of s 7(a) of the Criminal Code (WA) constituted a wrong decision on a question of law - Prosecution relied solely upon s 7(a) in alleging that the appellant was criminally responsible for the unlawful killing - Whether the trial judge's unchallenged findings of fact established that the appellant was criminally responsible under s 8(1) of the Code - Whether no substantial miscarriage of justice occurred - Whether a judgment of acquittal should be entered or a new trial ordered
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4), s 30(5)
Criminal Code (WA), s 7(a), s 8(1), s 270, s 272, s 280(1)
Result:
Leave to appeal granted on grounds 2 and 3
Appeal allowed
Judgment of conviction set aside
New trial ordered
Category: B
Representation:
Counsel:
| Appellant | : | A O Karstaedt |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Austic v The State of Western Australia [2020] WASCA 75; (2020) 57 WAR 39
Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418
Boag v The State of Western Australia [2023] WASCA 74
Brennan v The King [1936] HCA 24; (1936) 55 CLR 253
Clarke v The State of Western Australia [2022] WASCA 6
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196
O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315
Orreal v The Queen [2021] HCA 44; (2021) 274 CLR 630
Pickett v The State of Western Australia [2020] HCA 20; (2020) 270 CLR 323
Puntigam v The State of Western Australia [2023] WASCA 46
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v Wyles; Ex parte Attorney‑General [1977] Qd R 169
Shaw v The State of Tasmania [2022] TASCCA 2
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426
Taylor v The State of Western Australia [2023] WASCA 190
TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365
Warren v The Queen [1987] WAR 314
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Yarran v The State of Western Australia [2019] WASCA 159
REASONS OF THE COURT:
The appellant has appealed against conviction.
On 26 February 2021, after a joint retrial before Corboy J (the trial judge) sitting alone without a jury, Lucas James Yarran, the appellant and Leroy Daniel Smith were convicted of having unlawfully killed Peta Lynette Fairhead, contrary to s 280(1), read with s 272, of the Criminal Code (WA) (the Code).
On 28 April 2021, the trial judge sentenced the appellant to 8 years' imprisonment with eligibility for parole. His Honour backdated the sentence to 9 February 2019 and ordered that the sentence be served concurrently with other sentences the appellant was serving.
At the retrial the State relied solely upon s 7(a) of the Code in alleging that the appellant was criminally responsible for Ms Fairhead's unlawful killing. The trial judge held that the appellant was criminally responsible under s 7(a) in that Mr Yarran, the appellant and Mr Smith had acted in concert and the combination or totality of their acts or series of acts that threatened or intimidated Ms Fairhead had been a cause, and a significant or substantial cause, of Ms Fairhead's act which resulted in her death. His Honour's construction and application of s 7(a) constituted a wrong decision by his Honour on a question of law within s 30(3)(b) of the Criminal Appeals Act 2004 (WA). We are not persuaded that his Honour's wrong decision was immaterial and could not have deprived the appellant of a chance of acquittal that was fairly open to him. Further, we are not persuaded that no substantial miscarriage of justice has occurred.
On 24 May 2024, the court granted leave to appeal, allowed the appeal, set aside the judgment of conviction and ordered a new trial. These are our reasons for making those orders.
Relevant procedural history of this appeal
On 25 May 2021, the appellant, by his lawyer, filed an appeal notice. In the notice the appellant applied for leave to appeal against his conviction following the joint retrial.
On 16 August 2021, the appellant, by his lawyer, filed a discontinuance notice in respect of the appeal.
On 18 August 2021, the Acting Court of Appeal Registrar signed a certificate of conclusion of criminal appeal in respect of this appeal.
On 2 September 2022, the appellant filed an application in an appeal for:
(a)leave to withdraw the discontinuance notice;
(b)an order setting aside the certificate of conclusion of criminal appeal; and
(c)an order extending the time to file the appellant's case.
On 5 May 2023, this court made orders substantially in the terms sought by the appellant in his application. See Boag v The State of Western Australia.[1]
[1] Boag v The State of Western Australia [2023] WASCA 74.
The appellant's original trial and his original appeal against conviction
In March 2018, Mr Yarran, the appellant and Mr Smith were jointly tried before Hall J and a jury on seven counts, including the count of unlawful killing of Ms Fairhead, contrary to s 280(1), read with s 272, of the Code (count 7).
The other counts of which Mr Yarran, the appellant and Mr Smith were convicted comprised three counts of aggravated armed robbery, being counts 1, 2 and 3 (in relation to Cody James Joseph Watson, William James Wilton and Ms Fairhead respectively) and three counts of deprivation of liberty, being counts 4, 5 and 6 (in relation to Mr Watson, Mr Wilton and Ms Fairhead respectively).
On 21 March 2018, Mr Yarran, the appellant and Mr Smith were convicted of all of the counts, including the unlawful killing of Ms Fairhead.
The appellant was sentenced as follows:
(a)Count 1: 4 years 6 months' imprisonment;
(b)Count 2: 4 years 6 months' imprisonment;
(c)Count 3: 4 years 6 months' imprisonment;
(d)Count 4: 3 years' imprisonment;
(e)Count 5: 3 years' imprisonment;
(f)Count 6: 3 years' imprisonment; and
(g)Count 7: 8 years' imprisonment.
Hall J ordered that the sentence for count 4 commence upon the appellant having served 18 months of the sentence for count 1 and that the sentence for count 7 commence upon the appellant having served one year of the sentence for count 4. The other sentences were ordered to be served concurrently. The total effective sentence was therefore 10 years 6 months' imprisonment. The total effective sentence was backdated to 9 August 2016. A parole eligibility order was made.
Each of Mr Yarran, the appellant and Mr Smith appealed to this court against his conviction for unlawfully killing Ms Fairhead, but not against any of the other convictions.
On 17 October 2019, this court allowed all of the appeals against conviction. The court allowed the appeals on the ground that the judge at the original trial had misdirected the jury on the issue of causation in relation to Ms Fairhead's death. See Yarran v The State of Western Australia.[2] The court ordered that the judgments of conviction on the count of unlawfully killing Ms Fairhead be set aside and that there be a new trial of Mr Yarran, the appellant and Mr Smith on that count.
[2] Yarran v The State of Western Australia [2019] WASCA 159.
Relevant provisions of the Code
Section 280(1) of the Code provides, relevantly, that if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter.
By s 270 of the Code, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
Section 272 of the Code provides:
A person who, by threats or intimidation of any kind, or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him.
Sections 7, 8, 9 and 10 of the Code specify who may be parties to an offence.
Section 7 provides:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence;
(d)Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
Section 8 provides:
(1)When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2)A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person -
(a)withdrew from the prosecution of the unlawful purpose; and
(b)by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c)having so withdrawn, took all reasonable steps to prevent the commission of the offence.
The State's case at the retrial
The State's case at the retrial was, in summary, as follows.
The State contended that Mr Yarran, the appellant and Mr Smith were joint principals, within s 7(a) of the Code, in that each of them did an act or a series of acts that threatened or intimidated Ms Fairhead.
The State alleged that Mr Yarran, the appellant and Mr Smith, by threats or intimidation, caused Ms Fairhead to do an act (namely, open the door of a moving motor vehicle in which she was a passenger, while not wearing a seatbelt, and exit the vehicle), which resulted in her death.
On the evening of 2 August 2016, Mr Yarran, the appellant and Mr Smith were at a house on Hinchinbrook Avenue, Ridgewood. They were living or staying at the house. SH, a female friend of hers (called Nanna) and Georgia McEwan were visiting the house.
During the evening Mr Yarran asked SH, the female friend of hers and Ms McEwan whether they knew of anyone they 'could roll for gear', meaning rob for methylamphetamine. SH said she knew someone who she could bring to the house. The appellant and Mr Smith were present when the plan to rob someone of methylamphetamine was formulated and put into effect.
SH contacted Mr Watson by text message and by telephone. She asked him to come to the Ridgewood house. She also asked him whether he had any methylamphetamine. SH gave Mr Watson the impression that she had a sexual interest in him. She told Mr Watson that she was with her cousin. She did not indicate that the accused were also at the house.
When Mr Watson received the communications from SH he was with Mr Wilton and Ms Fairhead. They were in Ms Fairhead's motor vehicle, a Toyota Prado 4-wheel drive. Ms Fairhead agreed to drive Mr Watson to the Ridgewood house.
At about 1.50 am on 3 August 2016, Mr Watson, Mr Wilton and Ms Fairhead arrived at the Ridgewood house in Ms Fairhead's motor vehicle. SH and her female friend were waiting outside the house to meet them. SH invited Mr Watson, Mr Wilton and Ms Fairhead to enter the house. Before and after they entered the house, Mr Watson, Mr Wilton and Ms Fairhead were threatened or intimidated by Mr Yarran, the appellant and Mr Smith.
The alleged threats or intimidation included verbal threats, physical intimidation, depriving Mr Watson, Mr Wilton and Ms Fairhead of their liberty, and physical violence against Mr Watson and Mr Wilton in Ms Fairhead's presence during a protracted incident.
In particular, the alleged threats and intimidation included:
(a)Mr Yarran, the appellant and Mr Smith confronting Ms Fairhead and the others, while armed, outside the house;
(b)Mr Yarran, the appellant and Mr Smith confining Ms Fairhead and the others in the house and then separating them;
(c)Mr Yarran, in Ms Fairhead's presence, becoming angry and slamming a machete into a coffee table in the lounge room;
(d)Mr Yarran, in Ms Fairhead's presence, hitting Mr Watson on the forehead with the machete, drawing blood;
(e)Mr Yarran, the appellant and Mr Smith stealing from Mr Watson, Mr Wilton and Ms Fairhead;
(f)Mr Yarran ordering Ms McEwan, in a threatening way while holding the machete, to strip-search Ms Fairhead;
(g)Mr Yarran, the appellant and Mr Smith forcing Ms Fairhead and the others into Ms Fairhead's motor vehicle while armed;
(h)Mr Yarran threatening to kill Ms Fairhead and the others by burning the vehicle with them in it;
(i)Mr Yarran, the appellant and Mr Smith being armed with the machete, baseball bats and Mr Watson's knife over the course of the incident;
(j)Mr Yarran, in Ms Fairhead's presence, demanding drugs; and
(k)the tone of voice used during the incident.
Mr Yarran, the appellant and Mr Smith threatened to strike Mr Watson, Mr Wilton and Ms Fairhead with the machete and the baseball bats if they did not get into Ms Fairhead's motor vehicle. Mr Wilton was jabbed with the end of a baseball bat. Mr Watson, Mr Wilton and Ms Fairhead were being held against their will. Mr Yarran got into the driver's seat of the vehicle. Ms Fairhead was in the front passenger seat. Mr Watson was in the rear compartment, Mr Wilton was in the middle of the back passenger seat with the appellant and Mr Smith on either side of him. Mr Yarran, the appellant and Mr Smith took the machete and the baseball bats with them when they got into the vehicle.
Mr Yarran drove Ms Fairhead's motor vehicle erratically. He threatened to drive the vehicle into the bush and to burn it with Mr Watson, Mr Wilton and Ms Fairhead inside. Ms Fairhead opened the door adjacent to her. She then said words to the effect of 'I can't be here'. She reached for the machete, which was in the centre console between the driver and passenger seats. Mr Yarran attempted to grab Ms Fairhead's clothing. The vehicle swerved. Ms Fairhead fell from the vehicle through the open door.
When Ms Fairhead fell from the vehicle she struck the road and suffered traumatic head injuries. She appears to have lost consciousness immediately and to have been bleeding significantly. Although she did not die immediately, Ms Fairhead did not survive. The cause of her death was the traumatic head injuries which she suffered upon striking the road after falling from the vehicle.
The State's case, based on s 7(a), s 272 and s 280(1) of the Code, was that:
(a)the accused threatened Ms Fairhead and committed acts that intimidated her;
(b)the threats and acts of intimidation caused Ms Fairhead deliberately to open the door of the vehicle; that is, Ms Fairhead's act, for the purposes of s 272, was her act of deliberately opening the door;
(c)Ms Fairhead's act of opening the door resulted in her death in that she fell from the vehicle, while it was moving and while she was not wearing a seat belt, and she sustained fatal injuries in the fall;
(d)each of the accused did an act that constituted the offence (that is, each of the accused made a threat and/or did an act or acts that intimidated Ms Fairhead) so that each accused was guilty of the unlawful killing of Ms Fairhead as a principal offender within s 7(a), even though the accused acted together when they threatened and/or intimidated Ms Fairhead and it was the combined effect of their threats and/or intimidation that caused Ms Fairhead to open the door; and
(e)the killing of Ms Fairhead was unlawful in that it was not authorised, justified or excused by law.
The appellant's case at the retrial
The appellant's case at the retrial was, in summary, as follows.
The appellant contended that early in the morning on 3 August 2016, Mr Yarran, the appellant, Mr Smith, Mr Watson, Mr Wilton and Ms Fairhead left the Ridgewood house in Ms Fairhead's motor vehicle to collect drugs. Mr Watson, Mr Wilton and Ms Fairhead acted willingly. None of them was compelled to do anything.
It was necessary for the State to prove that the appellant made a threat or committed an act of intimidation that was, in itself, a significant or substantial cause of Ms Fairhead's act of opening the door of the vehicle; that is, the appellant could only be found guilty of unlawfully killing Ms Fairhead if he did an act (that is, made a threat or committed an act of intimidation) that was a significant or substantial cause of Ms Fairhead's death.
Any act of the appellant (that is, any threat made by him and/or any act of intimidation committed by him) was not a significant or substantial cause of Ms Fairhead's death.
None of Mr Yarran, the appellant and Mr Smith gave evidence, but the appellant and Mr Smith called evidence. The appellant called Dr Robertson and Mr Smith called Dr Walton.
The State's case on criminal responsibility at the retrial
The prosecutor, in her opening address at the retrial, stated (ts 1448):
The State says that all three accused did an act or acts in a series of acts that resulted in [Ms Fairhead] being threatened or intimidated. The threats or intimidation resulted from a combination of words and actions.
The prosecutor, in her closing address at the retrial, stated (ts 2589):
The State case is that all three accused did an act or acts in a series of acts that resulted in Ms Fairhead being threatened or intimidated. Now, threats were not just spoken words, they were conduct, the use of weapons.
The State's case at the retrial was based solely on s 7(a) of the Code.
The trial judge's findings of fact in relation to events upon arrival at the Ridgewood house, inside the Ridgewood house and inside Ms Fairhead's vehicle after leaving the Ridgewood house
The trial judge made these findings in relation to events upon Mr Watson, Mr Wilton and Ms Fairhead arriving at the Ridgewood house in Ms Fairhead's vehicle:
(a)The appellant was at the Ridgewood house with the other accused men, SH, Nanna and Ms McEwan when Mr Watson, Mr Wilton and Ms Fairhead arrived at the house in Ms Fairhead's vehicle. Mr Watson was armed with a knife when he arrived at the Ridgewood house. Mr Wilton had at least one knife in a bag. Mr Watson was the first to get out of the vehicle. As he went to hug SH, the knife fell from where Mr Watson had hidden it in his trousers. The appellant, Mr Smith and Mr Yarran came out of the house to confront Mr Watson. The appellant and Mr Smith were armed with baseball bats. Mr Yarran was armed with a machete [503].
(b)On the basis of CCTV film taken from a house in the vicinity, Ms Fairhead was, most likely, inside her vehicle when the confrontation occurred. The confrontation occurred close to the vehicle. Ms Fairhead would have seen that the accused were armed with a machete and baseball bats and that they were behaving aggressively towards Mr Watson, including by rushing out of the house towards him. However, the trial judge did not find that Ms Fairhead knew that Mr Watson had been struck by one of the accused with a baseball bat [507].
His Honour made these findings in relation to what occurred inside the Ridgewood house [509] ‑ [512], [521] ‑ [522], [526]:
I found that:
(1)There was a period of calm after Mr Watson, Mr Wilton and Ms Fairhead entered the [Ridgewood house]. …
(2)Shortly afterwards, Mr Yarran banged a coffee table with a machete and demanded that Mr Watson, Mr Wilton and Ms Fairhead hand over whatever drugs they had in their possession. His demands were made in a threatening way. That was apparent from the use of the machete, the tone of his voice, his demeanour generally and the nature of his demands.
(3)Mr Watson and Mr Wilton handed over the methylamphetamine they had in their possession. They handed over other items of property, including a knife that Mr Wilton had in his possession.
(4)Ms Fairhead's bag was taken by one of the accused. …
(5)Ms McEwan took [SH] and Nanna to a bedroom at the back of the house immediately after Mr Yarran slammed the table with a machete. I accepted her evidence that she sought to return to the lounge room but was prevented from doing so by Mr Smith who was holding a baseball bat. She went back to the bedroom.
(6)Subsequently, Mr Yarran brought Ms Fairhead to the bedroom and said something to Ms McEwan which she understood to mean that Ms Fairhead was to be strip searched. Ms Fairhead had the same understanding and commenced removing her clothes. Mr Yarran was armed with a machete when he brought Ms Fairhead to the bedroom; he was screaming at Ms McEwan. He said things that made Ms McEwan feel sick; things that Ms Fairhead must have heard given Ms McEwan's evidence, which I accepted that Mr Yarran was yelling. His behaviour continued to be threatening.
(7)Ms Fairhead was scared by what had occurred in the living room. I accepted Ms McEwan's evidence that Ms Fairhead was visibly distressed by what had occurred - that she was 'scared, petrified' and 'hysterical'. I also accepted Ms McEwan's evidence that she told Ms Fairhead to put her clothes back on and attempted to calm her and that Ms Fairhead appeared to settle but became 'emotional' again and pleaded with Ms McEwan to persuade the accused to allow her to go.
(8)Mr Watson and Mr Wilton were required to strip after Ms Fairhead had been taken to the bedroom. They continued to be threatened by the accused. Mr Watson was hit on the head by Mr Yarran using the machete. The blow was not overly forceful but it was sufficient to cause Mr Watson to bleed. Mr Wilton was threatened by Mr Yarran with the machete in the laundry.
(9)Mr Wilton was also threatened by Mr Yarran with the machete in the lounge room when his hand was held on a table and Mr Yarran swung the machete in the direction of his hand. …
(10)Ms Fairhead was not aware that Mr Wilton had been threatened by Mr Yarran in the laundry.
(11)Ms Fairhead returned to the lounge room at some point prior to when the accused, Mr Watson, Mr Wilton and Ms Fairhead left the [Ridgewood house].
…
I found that Ms Fairhead was not present when Mr Watson was struck with the machete by Mr Yarran. Photographs taken by the police later on 3 August indicated that the cut was not especially deep ‑ consistent with Mr Watson being 'tapped' on the head with the machete. However, I accepted Mr Watson's evidence that it was bleeding sufficiently that he attempted to staunch the blood flow with his jumper and Mr Yarran complained about blood spilling onto the floor. … I inferred that Ms Fairhead must have seen the injury to Mr Watson when she returned to the living area from the bedroom.
I accepted the evidence of Mr Watson and Mr Wilton that Ms Fairhead appeared more frightened when she returned from the back bedroom than when she had been taken to the room by Mr Yarran.
I also accepted Mr Wilton's evidence that Ms Fairhead had returned to the lounge room when he was further threatened with a machete. …
…
I found that Mr Watson, Mr Wilton and Ms Fairhead were forced into [Ms Fairhead's vehicle]. …
I found that Mr Yarran said words to the effect 'I'm going to dump youse up in the bush' as Mr Wilton, Mr Watson and Ms Fairhead went to [Ms Fairhead's vehicle] with the accused. However, I did not find that Ms Fairhead necessarily heard Mr Yarran say those words. … [CCTV film from a house in the vicinity] showed that the accused, Mr Watson, Mr Wilton and Ms Fairhead did not come out of the [Ridgewood house] closely grouped together. However, it is implausible that Mr Yarran and the [other] accused were not making some oral threats, as well as being armed, to force Mr Watson, Mr Wilton and Ms Fairhead into [Ms Fairhead's vehicle]. The behaviour of the accused in forcing Mr Watson, Mr Wilton and Ms Fairhead into [Ms Fairhead's vehicle] while armed with a machete and, at least, one baseball bat was threatening.
…
I further found that:
(1)Mr Yarran took the machete with him when he went to [Ms Fairhead's vehicle] and that at least one baseball bat was taken by either [the appellant] or Mr Smith.
(2)The purpose of taking the machete and the baseball bat was to force Mr Watson, Mr Wilton and Ms Fairhead into [the vehicle] and to comply with whatever demands were made by the accused once they were in [the vehicle] and after they left the [Ridgewood house]. I accepted Mr Watson's evidence that he felt threatened by the fact that the accused were armed with a machete and, at least, one baseball bat.
(3)Mr Watson and/or Mr Wilton were struck on the back of the leg as they went to [the vehicle]. However, there was no evidence from which it could be inferred that Ms Fairhead knew that either one of them had been hit.
(4)Mr Yarran put the machete inside [the vehicle] ‑ it was placed in the centre console between the driver and passenger seats. …
(5)At least one baseball bat was carried by one of the other accused into [the vehicle]. … I found that the baseball bat was taken into the Prado by Mr Smith in the State's case against him.
(6)Ms Fairhead continued to be frightened by what occurred between when she was taken from the bedroom by Mr Yarran and when she was forced into [the vehicle]. (footnote omitted)
The trial judge made these findings in relation to events that occurred inside Ms Fairhead's vehicle after leaving the Ridgewood house [527] ‑ [531]:
I found that:
(1)Mr Yarran had the keys to [Ms Fairhead's vehicle]. The keys had been taken from Ms Fairhead sometime before leaving the [Ridgewood house] to go to [her vehicle]. …
(2)Mr Yarran sat in the driver's seat of [the vehicle] and he drove the vehicle when it left the [Ridgewood house]. … Ms Fairhead was sitting in the front passenger seat. … Mr Wilton, [the appellant] and Mr Smith were sitting in the rear seats; Mr Watson was in the rear luggage compartment. Ms Fairhead was not wearing her seatbelt.
(3)Mr Yarran was driving erratically after leaving the [Ridgewood house]. Mr Watson was not directing Mr Yarran where to drive.
(4)Ms Fairhead was visibly upset and shouting after the vehicle left the [Ridgewood house]. I found that she continued to feel distressed and fearful while in [the vehicle].
(5)Shortly after leaving the [Ridgewood house], Ms Fairhead deliberately opened the passenger door of [the vehicle]. I accepted Mr Watson's evidence that at this point the vehicle was travelling in excess of 50 kmph, but it was not possible to make any further findings about the speed of the vehicle. It was most unlikely that the vehicle was travelling much less than 50 kmph.
I made the following further findings having regard to the evidence given by Mr Watson and Mr Wilton:
(1)Ms Fairhead said words to the effect 'I can't be here' before leaving the vehicle. Mr Wilton said that Ms Fairhead may have said words similar to 'I can't do this' or 'I can't be in this'. The words spoken by Ms Fairhead conveyed that she did not want to be in the vehicle or possibly, to be involved in whatever was occurring or she thought was to occur.
(2)Ms Fairhead attempted to grab the machete that was in the centre console after opening the passenger door. She turned in the passenger seat towards Mr Yarran to do so. Consequently, at that point her back was, at least, partially facing the open passenger door. It was likely that Ms Fairhead took hold of the machete ‑ it was next to her; there was no evidence that Ms Fairhead gave a warning that she intended to grab the machete; and Mr Yarran was driving the vehicle and, most probably, would not have been able to prevent her from doing so.
(3)Mr Yarran attempted to grab hold of Ms Fairhead's clothing. I accepted Mr Watson's evidence that the car swerved as Mr Yarran grabbed or attempted to grab Ms Fairhead's clothing.
(4)Ms Fairhead left the vehicle with her back, at least, partially towards the open door. …
(5)Ms Fairhead['s] exit from the vehicle was not a 'controlled exit' as a result of Mr Yarran grabbing Ms Fairhead's clothing and the vehicle swerving.
I found that Ms Fairhead had decided to deliberately leave [the vehicle] while it was moving by the time she opened the passenger door and reached for the machete. For reasons that will be explained, I found that Ms Fairhead had not decided to commit suicide by throwing herself out of [the vehicle]. Rather, I found that she had decided to escape from the vehicle and the accused. I inferred, as a matter of common sense, that she would have endeavoured to control the way in which she left the vehicle to minimise, as much as possible, the risk of serious injury from the fall.
As stated above, I found that her exit from the vehicle was not controlled by her as a result of Mr Yarran's attempt to intervene. It is likely that Ms Fairhead pushed back towards the open passenger door to free herself from Mr Yarran's hold. It is reasonably possible that Ms Fairhead deliberately pushed herself out of [the vehicle] at that point; it is also reasonably possible that she unintentionally fell as she pushed back and the vehicle swerved.
…
… I further found that Ms Fairhead continued to feel fearful and intimidated while travelling in [the vehicle] up to the moment when she left the vehicle. (footnote omitted)
The trial judge's findings in relation to the element of threats and intimidation
The trial judge was satisfied beyond reasonable doubt in relation to the element of threats and intimidation that [546]:
(a)Each accused made threats and did acts that were intimidating. Each accused was a party to the threats and acts of intimidation of the other accused. The accused were acting in concert.
(b)The accused intended that their conduct be threatening and that their conduct be intimidating.
(c)Ms Fairhead was threatened and intimidated by the threats of the accused and their acts of intimidation.
(d)Ms Fairhead was fearful as a result of the threats and the acts of intimidation of the accused and her fear was a natural and intended consequence.
The trial judge's findings in relation to causation
The trial judge made these findings in relation to causation [542], [543], [545]:
(a)Ms Fairhead felt threatened and intimidated by the conduct of the accused. She was fearful and her fear was a natural and intended consequence of the accused's conduct.
(b)The accused's conduct inside the Ridgewood house conveyed an intention to harm Mr Watson, Mr Wilton and Ms Fairhead if they did not comply with the accused's demands.
(c)The accused intended their conduct to be threatening. They were committing and had committed a robbery and they suspected that Mr Watson, Mr Wilton and Ms Fairhead had more drugs and could obtain more drugs.
(d)The accused's conduct was also intimidating. It had the capacity to engender fear and to force Mr Watson, Mr Wilton and Ms Fairhead to act, or refrain from acting, according to the accused's directions. Viewed objectively, the conduct of the accused was threatening and intimidating.
(e)Mr Yarran played a primary role in threatening and intimidating Ms Fairhead (and Mr Watson and Mr Wilton). However, the appellant and Mr Smith were present throughout and their presence was, and was intended to be, threatening. In particular [543(10)]:
[the appellant and Mr Smith] took Mr Wilton to the laundry; [the appellant] held Mr Wilton's hand down on the table while Mr Yarran swung the machete; they went with Mr Yarran, Mr Watson, Mr Wilton and Ms Fairhead to [Ms Fairhead's vehicle]; one of them [took] a baseball bat to [the vehicle]; and, in the circumstances, it is inconceivable that they did not make oral threats and demands of Mr Watson, Mr Wilton and Ms Fairhead.
(f)The presence of the accused together in the confined space of Ms Fairhead's vehicle was, in all the circumstances, threatening. Ms Fairhead felt threatened and intimidated by the conduct of the accused whilst inside the vehicle. Mr Yarran was driving her vehicle; the accused were armed; Ms Fairhead was in a confined space with a machete immediately next to where she was sitting; Mr Wilton was sitting behind with the appellant and Mr Smith; and Mr Watson was further back in the rear compartment of the vehicle. Ms Fairhead was fearful. Her fear was a natural and intended consequence of the accused's conduct.
His Honour was satisfied beyond reasonable doubt that, as a matter of objective fact, the threats and acts of intimidation of the accused were a cause of Ms Fairhead's act of opening the passenger door of her vehicle while the vehicle was moving and while she was not wearing a seat belt [557].
The trial judge was satisfied beyond reasonable doubt that Ms Fairhead's act of opening the passenger door of her vehicle while the vehicle was moving and while she was not wearing a seat belt was, in all the circumstances, a reasonable and proportionate response to the threats and intimidation of the accused [558].
His Honour was satisfied beyond reasonable doubt that, as an objective fact, the threats and acts of intimidation of the accused were a substantial or significant cause of Ms Fairhead's act of opening the passenger door of her vehicle while not wearing a seat belt and while the vehicle was moving [564].
The legal basis on which the trial judge found that the appellant was criminally responsible
The trial judge held that the three accused, including the appellant, were criminally responsible for the unlawful killing of Ms Fairhead on the basis of s 7(a) of the Code in that they had acted in concert.
His Honour recorded that the State's case was that [43(d)]:
each of the accused did an act that constituted the offence (made a threat and/or did an act or acts that intimidated Ms Fairhead) so that each accused was guilty of the unlawful killing of Ms Fairhead as a principal offender - albeit that the accused acted together when they threatened and/or intimidated Ms Fairhead and it was the combined effect of their acts that, on the State's case, caused Ms Fairhead to open the car door;
In a footnote to [43(d)], his Honour cited s 7(a) of the Code.
The trial judge recorded this submission by defence counsel for the appellant [50]:
It was also submitted … that the State was required to prove that [the appellant] made a threat or committed an act of intimidation which was, in itself, a significant or substantial cause of Ms Fairhead's act of opening the door of [her vehicle] ‑ that is, [the appellant] could only be guilty of the unlawful killing of Ms Fairhead if he did an act (made a threat or committed an act of intimidation) which was a significant or substantial cause of Ms Fairhead's act. As against each accused, the State could not rely on the combined effect of the threats and acts of intimidation found to have been made by all of the accused to prove causation.
After setting out the text of s 7(a) of the Code, his Honour made these observations about the provision [350]:
The reference to every person who does 'the act' includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that way, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person (L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [32]).
Next, the trial judge reiterated that the State's case was that 'each accused threatened and/or intimidated Ms Fairhead and that it was the combined effect of their threats and acts of intimidation that caused Ms Fairhead to deliberately open the passenger door of [her vehicle] while not wearing a seat belt and while the vehicle was moving' [351]. His Honour noted that the State's reliance in the first trial on the combined effect of the conduct of the accused was challenged unsuccessfully in the appeal to this court [351]. His Honour then said that, nevertheless, defence counsel for the appellant submitted that it was not open to the State to put its case on causation in that way [351].
Later, his Honour elaborated upon the legal basis of the appellant's criminal responsibility as follows [416] ‑ [418]:
As noted earlier, it was submitted on behalf of [the appellant] that the State was required to prove that he made a threat or committed an act of intimidation which, in itself, resulted in Ms Fairhead feeling threatened or [intimidated] and which was a substantial or significant cause of her act of deliberately opening the passenger door of [the vehicle]. It was submitted that the State had failed to prove beyond a reasonable doubt any connection between an act by [the appellant] (a threat or act of intimidation) and Ms Fairhead's subsequent act of opening the car door while not wearing a seatbelt and while the vehicle was moving.
As [defence counsel for the appellant] recognised, that submission was made and rejected in the Court of Appeal in Yarran. In their joint judgment, Mazza and Beech JJA observed [322] ‑ [324]:
Ground 1 contends that the judge misdirected, or inadequately directed, the jury on the legal basis of [the appellant's] responsibility for the offence of manslaughter. The ground is particularised in two ways. Particular (a) asserts that the judge erred in directing the jury to determine whether any of the totality of the alleged threats and acts performed by all of the accused were a substantial or significant cause of the deceased's act, when the jury should have been directed to determine whether the threats or intimidation by the individual accused were a substantial or significant cause of the deceased's death.
[The appellant's] submissions in support of his ground 1(a) rely heavily on what is said in the decision of this court in Krakouer. [The appellant] points to statements in that case to the effect that an accused will not be held criminally responsible for a death unless his or her act is a substantial or significant cause of the death. [The appellant's] reliance on these statements overlooks the nature of the State case against him and his two co accused. As already outlined, and as the judge explained to the jury, the State case was that each of Mr Yarran, [the appellant] and Mr Smith were liable for manslaughter because they all did an act or acts in a series of acts which, together, resulted in Ms Fairhead being threatened or intimidated. That is a conventional application of s 7(a) of the Code, in that the reference to 'every person who … does the act' in s 7(a), when read with s 10(c) of the Interpretation Act 1984 (WA), encompasses all persons who, acting in concert, do an act or one or more acts in a series of acts constituting the offence.
What is said in Krakouer does not detract from the operation of s 7(a) of the Code in this manner. … In this case, the judge's direction correctly required the jury to consider the question of causation by reference to the totality of the threats or intimidation found by the jury to have occurred. (citations omitted)
With respect, those observations are plainly right. They were adopted and applied in determining whether the State had proved that each of the accused was guilty of the unlawful killing of Ms Fairhead. (original emphasis)
The trial judge:
(a)directed himself that the question of whether the proved threats and acts of intimidation by the accused caused Ms Fairhead to open the passenger door of her vehicle while not wearing a seat belt and while the vehicle was moving 'was to be determined according to the combined effects of the threats and intimidation' because 'each accused was alleged to be criminally responsible for Ms Fairhead's death pursuant to s 7(a) of the Code' [422(b)];
(b)was satisfied beyond reasonable doubt that 'each accused made threats and did acts that were intimidating and were a party to the threats and acts of the other accused'; and that 'the accused were acting in concert' [546(a)];
(c)was satisfied beyond reasonable doubt that, as a matter of objective fact, 'the threats and acts of intimidation by the accused' (that is, the threats and acts of intimidation by the accused collectively) were a cause of Ms Fairhead's act of opening the passenger door of her vehicle while the vehicle was moving and while she was not wearing a seatbelt [557]; and
(d)was satisfied beyond reasonable doubt that, as an objective fact, 'the threats and acts of intimidation by the accused' (that is, the threats and acts of intimidation by the accused collectively) were a substantial or significant cause of Ms Fairhead's act of opening the passenger door of her vehicle while not wearing a seat belt and while the vehicle was moving [564].
The grounds of appeal
Initially, the appellant relied upon three grounds of appeal. However, at the hearing of the appeal counsel for the appellant abandoned ground 1.
Ground 2 alleges, in essence, that the conviction should be set aside because the trial judge made a wrong decision on a question of law. The relevant decision was that the issue of the appellant's criminal responsibility under s 7(a) of the Code for causing Ms Fairhead's death was to be determined according to whether Ms Fairhead's act of opening the door of the vehicle was caused by the totality or combination of threats or acts of intimidation by all of the accused acting in concert. This decision was alleged to be erroneous on the basis that the appellant's criminal responsibility under s 7(a) for causing Ms Fairhead's death should have been determined according to whether the threats or acts of intimidation by the appellant were of themselves a cause of Ms Fairhead's act of opening the door of the vehicle.
Ground 3 alleges, in essence, that his Honour erred in law in deciding the appellant's criminal responsibility under s 7(a) of the Code on the basis that Ms Fairhead's act of opening the door of the vehicle was caused by the totality or combination of threats or acts of intimidation by all of the accused acting in concert, and not on the basis of whether threats or acts of intimidation by the appellant were of themselves a cause of Ms Fairhead's act of opening the door of the vehicle.
On 19 May 2023, Buss P referred the appellant's application for leave to appeal on those grounds to the hearing of the appeal.
Counsel for the appellant's submissions on the grounds of appeal
Counsel for the appellant submitted that at the retrial the State relied solely upon s 7(a) of the Code. Neither the prosecutor nor the trial judge made any reference to the appellant or any of the other accused being criminally responsible under any other provision.
It was submitted that, having regard to the judgment of the majority of the High Court in O'Dea v The State of Western Australia,[3] the appellant could not properly have been convicted under s 7(a) unless he did an act or acts that threatened or intimidated Ms Fairhead and the relevant act or acts done by the appellant were, in themselves, a cause of Ms Fairhead's act of opening the passenger door of her vehicle, while the vehicle was moving and while she was not wearing a seat belt and, further, were a substantial or significant cause of Ms Fairhead's act.
[3] O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315.
His Honour found that the appellant was criminally responsible under s 7(a) on the basis that Mr Yarran, the appellant and Mr Smith had acted in concert and that the combination or totality of their acts or series of acts that threatened or intimidated Ms Fairhead had been a cause, and a significant or substantial cause, of Ms Fairhead's act which resulted in her death.
It was submitted that the trial judge made a wrong decision on a question of law in finding that the appellant was criminally responsible under s 7(a) and that the wrong decision occasioned a miscarriage of justice.
Counsel for the State's submissions on the grounds of appeal
Counsel for the appellant noted that the retrial occurred before the High Court delivered judgment in O'Dea. Consequently, the State's case at trial on criminal responsibility and, ultimately, the attribution of liability by the trial judge proceeded on the basis of s 7(a) of the Code as the law then stood. Counsel conceded that, having regard to the judgment of the majority of the High Court in O'Dea, his Honour's construction and application of s 7(a) were wrong.
The merits of the grounds of appeal
When the trial judge presided over the retrial and delivered judgment the law in this State as to the operation of s 7(a) of the Code was that the phrase in s 7(a), 'person who actually does the act', extended to '[a]ll persons who actually do the act or one or more acts in the series which constitutes or constitute the offence'.[4] Criminal responsibility under s 7(a) arose where there were several persons acting in concert, each doing some act which, in aggregate, would constitute the offence if done by one person. See Warren v The Queen;[5] L v The State of Western Australia.[6]
[4] R v Wyles; Ex parte Attorney‑General [1977] Qd R 169, 177 (Lucas J).
[5] Warren v The Queen [1987] WAR 314, 328 - 329 (Franklyn J).
[6] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [32] (Martin CJ, Mazza JA & Mitchell J).
However, on 10 August 2022, after the appellant's retrial and conviction, the High Court delivered judgment in O'Dea.
In Taylor v The State of Western Australia,[7] Buss P and Mazza JA considered the judgment of the majority in O'Dea in relation to s 7(a). It is convenient to reproduce what their Honours wrote on that occasion.
[7] Taylor v The State of Western Australia [2023] WASCA 190 [61] ‑ [77].
In O'Dea, the appellant and his co‑accused, Jacob Webb, were tried in the District Court on a count which alleged that the appellant and Mr Webb, with intent to maim, disfigure, disable or do some grievous bodily harm to Alimamy Koroma, unlawfully did grievous bodily harm to Mr Koroma, contrary to s 294(1) of the Code. The jury returned a verdict of guilty, as charged, in respect of the appellant. The jury was unable to agree upon a verdict in respect of Mr Webb. Later, Mr Webb was re‑tried and convicted of the alternative offence of unlawfully doing grievous bodily harm to another, contrary to s 297(1) of the Code.
At the trial of the appellant and Mr Webb, the prosecutor submitted in his closing address that, while it was not possible to be certain that the appellant had caused Mr Koroma's traumatic brain injury (which constituted the grievous bodily harm), it was more likely to have been caused by the appellant than Mr Webb. It was submitted that the appellant had inflicted the majority of the blows upon Mr Koroma, including with a weapon similar to a hockey stick. However, as a result of each of the appellant and Mr Webb having inflicted a number of blows upon Mr Koroma, it was possible that the grievous bodily harm had been caused by a combination of their acts.
The State's case against the appellant and Mr Webb relied upon s 7(a) and s 7(c) of the Code. The State did not rely upon s 8(1) of the Code.
The trial judge directed the jury, in relation to the pathway to conviction based upon s 7(a), that the jury could convict the appellant if they were satisfied beyond reasonable doubt of four matters. First, Mr Koroma suffered a bodily injury that amounted to grievous bodily harm. Secondly, the appellant and Mr Webb were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to Mr Koroma. Thirdly, the relevant accused's acts were unlawful. Fourthly, in doing the relevant acts, the relevant accused intended to disable or to cause grievous bodily harm to Mr Koroma.
This court dismissed the appellant's appeal against conviction.
However, a majority of the High Court (Gordon, Edelman and Steward JJ; Kiefel CJ and Gageler J dissenting) allowed the appellant's appeal, set aside his conviction and ordered a new trial.
Gordon, Edelman and Steward JJ held, in effect, that [67]:
(a)where two accused persons are charged with unlawfully doing grievous bodily harm and the prosecution relies on s 7(a) of the Code, for the prosecution to succeed in establishing criminal responsibility on the part of both accused persons it will be necessary that the prosecution prove against each of them an act causing injuries amounting to grievous bodily harm, as well as the necessary intent;
(b)in other words, the act 'causing' the grievous bodily harm must be the 'actual' and not the attributed act of the accused person; and
(c)the act that constitutes the offence of unlawfully doing grievous bodily harm must be the one that the accused person 'actually does'.
Their Honours commented that '[t]he clearest instance in which s 7(a) will apply, using the example of a fatal stabbing, is where the accused person's actual act is proved to have been the only act that caused the victim's death' [69]. Their Honours continued [69]:
It will also apply, in the same manner, where the death is the result of the acts of two or more people acting independently, and where the acts of each person were sufficient to cause the death. Thus, if the accused person and another person both fatally stab a victim without any underlying common purpose or joint criminal enterprise and the victim dies, it is not open to either the accused person or the other person to deny criminal responsibility for their acts on the basis that, but for their acts, the death would have resulted from the acts of the other individual.
Gordon, Edelman and Steward JJ did not refer, at [69] or elsewhere in their reasons, to the concept of causation in s 270 of the Code or to the decisions of this court which have explained, in the context of unlawful killing, how the concepts of factual causation and legal causation embodied in s 270 apply. See, for example, the decisions of this court in TB v The State of Western Australia;[8] Birdsall v The State of Western Australia;[9] Clarke v The State of Western Australia.[10]
[8] TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297 [114] ‑ [144] (Buss JA; Mazza JA & Chaney J agreeing).
[9] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [127] ‑ [135] (Buss P & Mazza JA).
[10] Clarke v The State of Western Australia [2022] WASCA 6 [222] ‑ [231] (Buss P; Mazza JA relevantly agreeing).
Their Honours said that the implication of a common law requirement of 'acting in concert' in s 7(a) 'would so overwhelm the meaning of s 7(a) that it would be possible for a person to be criminally responsible under s 7(a) even if the person had not done any actual acts at all' [73].
Gordon, Edelman and Steward JJ added that the recognition of an implication based on a common law requirement of 'acting in concert' in s 7(a) 'is also precluded by the history and context of s 7(a), which includes the express requirement of a common purpose in s 8' [74].
Their Honours decided that the trial judge erred in his direction to the jury that the appellant could be convicted under the first pathway to guilt, namely s 7(a), based upon a combination of the acts of the appellant and Mr Webb acting 'in concert' [81]. The direction was an error of law which occasioned a miscarriage of justice [81]. Their Honours said that the concept of 'acting in concert' is not contained in s 7(a) and it should not form part of any direction concerning s 7(a) [81].
Gordon, Edelman and Steward JJ commented that s 8(1) operates in circumstances where 'A B and C form a plan to burgle a house, in pursuance of which A breaks into the house but does not enter, B takes no part in the breaking but enters and steals, and C keeps watch in the street outside' [74].
Later in their reasons, their Honours observed [79]:
[A] remarkable feature of the State's case against [the appellant] and Mr Webb was that the State made no attempt to allege that, at any point during the assaults on Mr Koroma, [the appellant] and Mr Webb tacitly formed an unlawful common purpose of doing grievous bodily harm to Mr Koroma, which extended beyond a reasonable response to the circumstances that they believed to exist (section 248(4)(b) of the Criminal Code).
By that observation, Gordon, Edelman and Steward JJ stated, in effect, that:
(a)the prosecutor should have run the State's case at trial on the basis of s 8(1) of the Code; and
(b)it was open to the State to allege that, during the assaults on Mr Koroma, the appellant and Mr Webb 'tacitly formed an unlawful common purpose of doing grievous bodily harm to Mr Koroma' and that, in the circumstances, the defence of self‑defence under s 248(4) was negated.
Some of the implications of the majority's decision in O'Dea in relation to s 8(1) were considered by this court in Puntigam v The State of Western Australia.[11]
[11] Puntigam v The State of Western Australia [2023] WASCA 46.
In the present case, the trial judge held that the appellant was criminally responsible under s 7(a) of the Code in that Mr Yarran, the appellant and Mr Smith had acted in concert and the combination or totality of their acts or series of acts that threatened or intimidated Ms Fairhead had been a cause, and a significant or substantial cause, of Ms Fairhead's act which resulted in her death.
His Honour's reasoning was, in essence, the kind of reasoning which the majority in O'Dea held, on a proper construction of s 7(a), was erroneous. Section 7(a) was the sole pathway to criminal responsibility that was relied upon by the State and his Honour. His Honour's construction and application of s 7(a) constituted a wrong decision by his Honour on a question of law within s 30(3)(b) of the Criminal Appeals Act. As we will explain, in considering the State's submissions on the proviso, we are not persuaded that his Honour's wrong decision was immaterial and could not have deprived the appellant of a chance of acquittal that was fairly open to him. See Baini v The Queen;[12] Filippou v The Queen.[13]
[12] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [49] (Gageler J).
[13] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15], [48] (French CJ, Bell, Keane & Nettle JJ).
Grounds 2 and 3 have been made out.
Counsel for the State's submissions on the proviso
Counsel for the State submitted that this court should apply the proviso because, although the appellant was convicted on the basis of a wrong construction and application of s 7(a) of the Code, the trial judge's unchallenged findings of fact established that the appellant was criminally responsible under s 8(1) of the Code.
Counsel did not contend that the proviso should be applied on the basis that the appellant was criminally responsible under s 7(a) in that the appellant's own acts or series of acts that threatened or intimidated Ms Fairhead had been a cause, and a significant or substantial cause, of Ms Fairhead's act which resulted in her death (appeal ts 25).
In the State's written submissions at [36], counsel for the State asserted that Mr Yarran, the appellant and Mr Smith were engaged in an unlawful common purpose to rob Mr Watson of methylamphetamine.
However, at the hearing of the appeal, counsel for the State disavowed that formulation of the alleged unlawful common purpose (appeal ts 16) and asserted that Mr Yarran, the appellant and Mr Smith were engaged in an unlawful common purpose of making threats of violence and intimidating Mr Watson, Mr Wilton and Ms Fairhead to supply them with methylamphetamine (appeal ts 22). Counsel said that he had discussed the reformulation of the State's alleged unlawful common purpose with counsel for the appellant 'late last week' (appeal ts 16). Counsel for the State did not, however, inform the court of the reformulation until he made submissions at the hearing. Counsel contended that the proviso should be applied having regard to the reformulated alleged unlawful common purpose (appeal ts 28).
It was submitted that his Honour's unchallenged findings of fact lead inevitably to the conclusion that Mr Yarran, the appellant and Mr Smith were engaged in an unlawful common purpose of making threats of violence and intimidating Mr Watson, Mr Wilton and Ms Fairhead to supply them with methylamphetamine. His Honour found that:
(a)Mr Watson was a person who SH knew might be 'rolled' to obtain 'gear' (that is, robbed to steal methylamphetamine);
(b)Mr Yarran, the appellant and Mr Smith knew that SH was communicating with Mr Watson about obtaining methylamphetamine and would have been shown the pictures of methylamphetamine that SH had received from Mr Watson at about 10.56 pm;
(c)SH communicated with Mr Watson for the purpose of inviting him to the Ridgewood house so that Mr Yarran, the appellant and Mr Smith could steal his methylamphetamine;
(d)each accused made threats and did acts that were intimidating; each accused was a party to the threats and intimidation of the other accused; and the accused were acting in concert; and
(e)the accused intended that their conduct be threatening and that their conduct be intimidating.
It was also submitted that an offence was committed during the course of the prosecution of the unlawful common purpose, the relevant offence being the unlawful killing of Ms Fairhead pursuant to s 280(1) read with s 272 of the Code. The unlawful killing was an offence of such a nature that its commission was a probable consequence of Mr Yarran, the appellant and Mr Smith's prosecution of their unlawful common purpose. It was submitted that this conclusion flows from his Honour's findings in relation to causation that we have reproduced at [50] above.
Counsel acknowledged that the trial judge did not address the question of whether the offence of unlawfully killing Ms Fairhead was an offence of such a nature that its commission was a probable consequence of the prosecution of the unlawful common purpose within s 8(1) of the Code. However, according to counsel:
(a)the finding that Ms Fairhead's act of opening the door of her vehicle was a reasonable and proportionate response to the threats and intimidation of Mr Yarran, the appellant and Mr Smith and that those threats and intimidation were likely to induce considerable fear, stress and panic 'necessarily entails a causal connection which … involves a higher threshold than the element of probable consequence required by s 8'; and
(b)the findings as to causation 'belie any notion of the unlawful killing being something other than a probable consequence of the commission of the unlawful common purpose'.
It was submitted that the finding that Ms Fairhead's act was a reasonable and proportionate response necessarily encompasses that it was 'something that could well have happened'[14] as a result of the threats and intimidation, even if Ms Fairhead's killing was not intended or foreseen by Mr Yarran, the appellant or Mr Smith. It was also submitted that the threats and intimidation were an integral part of the unlawful common purpose and that his Honour's unchallenged findings of fact satisfied 'the requisite causal element of the offence being a probable consequence of the accused men's unlawful common purpose'.
[14] Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [81] (Gleeson CJ, Gummow, Heydon & Crennan JJ).
Counsel contended that, in the circumstances, the appeal should be dismissed because no substantial miscarriage of justice has occurred.
Counsel for the appellant's submissions on the proviso
Counsel for the appellant submitted that the proviso should not be applied.
First, it was argued that the court could not conclude that no substantial miscarriage of justice had occurred merely because there may be a basis for criminal responsibility on a legal pathway which the State chose not to rely upon at the retrial and which was not relied upon by the trial judge in making findings of fact or arriving at the verdict of guilty. Counsel elaborated that guilt cannot have been proved at a trial other than on the legal basis relied upon by the State at the trial. It is a contradiction in terms to assert that guilt was proved at a trial even though the State presented its case on a fallacious basis which could not, as a matter of law, prove guilt.
Secondly, it was argued that even if it could be said that a finding of criminal responsibility based on s 8(1) could be established, having regard to the trial judge's unchallenged findings of fact and the submissions put by counsel for the State on appeal, that does not mean that no substantial miscarriage of justice occurred at the retrial. A substantial miscarriage of justice did occur because of the fundamental errors made by the State and his Honour in relation to s 7(a).
Thirdly, it was argued that his Honour's unchallenged findings of fact did not prove to the criminal standard that Mr Yarran, the appellant and Mr Smith formed a common intention to prosecute an unlawful purpose, namely to make threats of violence and intimidate Mr Watson, Mr Wilton and Ms Fairhead to supply them with methylamphetamine, in conjunction with one another. Alternatively, even if the unchallenged findings of fact did prove beyond reasonable doubt the formation of that unlawful common purpose, the unchallenged findings of fact did not prove beyond reasonable doubt that the offence of unlawfully killing Ms Fairhead was an offence of such a nature that its commission was a probable consequence of the prosecution of that unlawful common purpose.
Relevant principles governing the application of the proviso
Section 30(4) of the Criminal Appeals Act provides that, despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The principles enunciated by the High Court about the role of a court of criminal appeal when considering the application of the proviso in an appeal against conviction following a jury trial, apply by analogy in an appeal against conviction following a judge alone trial. See Filippou [4], [15] (French CJ, Bell, Keane and Nettle JJ), [83] ‑ [85] (Gageler J). See also Wark v The State of Western Australia;[15] Dansie v The Queen.[16]
[15] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [288] ‑ [302] (Buss P).
[16] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [15] (Gageler, Keane, Gordon, Steward & Gleeson JJ).
There is no single universally applicable description for what constitutes a substantial miscarriage of justice. See Baini [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Awad v The Queen.[17]
[17] Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421 [26] (Kiefel CJ & Gleeson J).
This court must consider the whole of the trial record and the nature and effect of the trial judge's wrong decision on a question of law (within s 30(3)(b)) or the nature and effect of the error which gave rise to the miscarriage of justice (within s 30(3)(c)), as the case may be. After performing that task, this court must be persuaded that the evidence properly admitted at trial proved the offender's guilt beyond reasonable doubt before it can conclude that no substantial miscarriage of justice, within s 30(4), has occurred. See Weiss v The Queen;[18] Kalbasi v The State of Western Australia;[19] Orreal v The Queen.[20]
[18] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [43] ‑ [44] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
[19] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [15] (Kiefel CJ, Bell, Keane & Gordon JJ).
[20] Orreal v The Queen [2021] HCA 44; (2021) 274 CLR 630 [20] (Kiefel CJ & Keane J).
Although this court must consider the whole of the trial record, there are 'natural limitations' when a court of criminal appeal proceeds wholly or substantially on the trial record. See Weiss [40]; Orreal [22]. However, notwithstanding those 'natural limitations', it may be apparent to a court of criminal appeal from the trial record that the evidence of a witness at trial was glaringly improbable and that the evidence should be rejected. See Hofer v The Queen.[21]
[21] Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 [61] (Kiefel CJ, Keane & Gleeson JJ).
This court must consider the nature and effect of the trial judge's wrong decision on a question of law or the nature and effect of the error which gave rise to the miscarriage of justice, as the case may be, because some errors will prevent an appellate court from being able to assess whether the offender's guilt was proved beyond reasonable doubt. See Kalbasi [15]; Orreal [20].
In Kalbasi [15], Kiefel CJ, Bell, Keane and Gordon JJ said that errors which will prevent an appellate court from being able to assess whether guilt was proved beyond reasonable doubt 'include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence' (footnotes omitted).
In Baini [30], French CJ, Hayne, Crennan, Kiefel and Bell JJ made these observations about a court of criminal appeal concluding that no substantial miscarriage of justice occurred at trial because a verdict of guilty, on the evidence properly admissible at trial, was inevitable:
[T]he possibility that the Court of Appeal may conclude that no 'substantial miscarriage of justice' occurred because a verdict of guilty, on the evidence properly admissible at trial, was inevitable neither reintroduces the proviso to the common form criminal appeal provision nor imposes on an appellant some onus of proving his or her innocence. To recognise that possibility does no more than acknowledge that the Court of Appeal's satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been 'a substantial miscarriage of justice'. The Court's satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account in answering the question [of whether a substantial miscarriage of justice occurred]. (original emphasis)
In Kalbasi [12], Kiefel CJ, Bell, Keane and Gordon JJ said:
The concepts of a 'lost chance of acquittal' and its converse the 'inevitability of conviction' do not serve as tests because the appellate court is not predicting the outcome of a hypothetical error‑free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.
However, after referring to errors which will prevent an appellate court from being able to assess whether guilt was proved beyond reasonable doubt (see [111] above), their Honours noted that '[i]n such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved' [15] (footnote omitted).
The negative proposition that the proviso cannot be applied unless the court of criminal appeal is persuaded that the evidence properly admitted at trial proved the offender's guilt beyond reasonable doubt states a necessary but not sufficient condition for applying the proviso. An error at trial may be 'such as to preclude the application of the proviso in the sense of precluding a conclusion that there was no substantial miscarriage of justice, irrespective of the appellate court's view as to whether the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt': Lane v The Queen.[22] In other words, 'some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable': Lane [38]. See also Baiada Poultry Pty Ltd v The Queen.[23]
[22] Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196 [38] (Kiefel CJ, Bell, Keane & Edelman JJ).
[23] Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 [29] (French CJ, Gummow, Hayne, Heydon & Crennan JJ).
A court of criminal appeal, in deciding whether to apply the proviso, must not 'substitute trial by an appeal court for trial by jury': R v Baden‑Clay.[24] See also Lane [50]. In Hofer [61], Kiefel CJ, Keane and Gleeson JJ explained that where a court of criminal appeal, on the basis of the trial record, rejects the evidence of a witness at trial because it is apparent to the court that the evidence of the witness is glaringly improbable, the court is not usurping the jury's function. A case of that kind is to be distinguished from a case which turns on the jury's preference for the evidence of one witness over another witness.
[24] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).
In Dansie [16] ‑ [17], Gageler, Keane, Gordon, Steward and Gleeson JJ said in relation to a judge alone trial:
Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.
The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial …
In this appeal should the court apply the proviso?
As we have mentioned, counsel for the State submitted that in the present case the proviso should be applied because, notwithstanding the trial judge's wrong construction and application of s 7(a) of the Code, his Honour's unchallenged findings of fact established that the appellant was criminally responsible under s 8(1) of the Code.
Section 8(1) of the Code requires the State to prove three matters. First, the formation by two or more persons of a common intention to prosecute an unlawful purpose in conjunction with one another. Secondly, that in the prosecution of the unlawful purpose an offence was committed. Thirdly, that the offence that was committed was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose. See Brennan v The King;[25] Stuart v The Queen;[26] R v Keenan.[27]
[25] Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263 ‑ 264 (Dixon & Evatt JJ).
[26] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 440 ‑ 442 (Gibbs J; Menzies & Mason JJ agreeing).
[27] R v Keenan [2009] HCA 1; (2009) 236 CLR 397 [83] ‑ [88] (Hayne J; Heydon & Crennan JJ agreeing).
The word 'offence' in s 8(1) refers to acts done or omissions made which, together with the other prescribed circumstances, render the offender liable to punishment. It is the doing of the acts or the making of the omissions by the actor that is attributed to another person or other persons, pursuant to s 8(1), and not the criminal responsibility of the actor. See R v Barlow;[28] Pickett v The State of Western Australia.[29]
[28] R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 9 ‑ 11 (Brennan CJ, Dawson & Toohey JJ).
[29] Pickett v The State of Western Australia [2020] HCA 20; (2020) 270 CLR 323 [47], [52], [66] (Kiefel CJ, Bell, Keane & Gordon JJ).
The circumstances in which the relevant acts or omissions which, together with the other prescribed circumstances, constitute the 'offence' in s 8(1); the result of the relevant acts or omissions; and the state of mind which accompanied the relevant acts or omissions; are factors which, either together or separately but in combination with the relevant acts or omissions, define the particular 'nature' of the offence. See Barlow (10) (Brennan CJ, Dawson and Toohey JJ); Keenan [84] (Hayne J; Heydon and Crennan JJ agreeing).
The fact finding tribunal must determine what was the common unlawful purpose; what the prosecution of the common unlawful purpose was intended to involve; and what was the nature of the offence that was actually committed; and then determine whether the offence that was actually committed was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose. See Stuart (443) (Gibbs J; Menzies and Mason JJ agreeing); Keenan [83] ‑ [88] (Hayne J; Heydon and Crennan JJ agreeing).
The ultimate question posed by s 8(1), namely whether the offence that was actually committed was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose, is directed to the connection between the offence and the common purpose. That connection is the basis for criminal responsibility under s 8(1). The test of connection does not mandate an approach which imports the acts or omissions involved in the offence into the finding of common purpose. See Keenan [115] (Kiefel J; Hayne J relevantly agreeing, Heydon and Crennan JJ agreeing). The requisite connection is to be determined by applying the test, whether the offence was the probable consequence of the common unlawful purpose, after that purpose has been ascertained. See Keenan [117].
The requirement in s 8(1) that the nature of the offence that was actually committed be such as to be a probable consequence of the prosecution of the unlawful purpose involves an objective test. The test is to be applied by reference to a reasonable person in the position of the accused and with his or her state of knowledge. See Brennan (260 ‑ 261) (Starke J); Stuart (454 ‑ 455) (Jacobs J); Keenan [124] (Kiefel J). The test must be applied prospectively and not with the benefit of hindsight. As Kirby J observed in Darkan [154], 'the actual happenings cannot decide the case in judging the probabilities prospectively'.[30]
[30] Kirby J dissented in the result in Darkan but not on this point.
An 'offence', in s 8(1), will be of such a nature that its commission was a probable consequence of the common unlawful purpose if the commission of an offence of that nature was objectively probable in the sense that it could well have happened in the prosecution of the common unlawful purpose. See Darkan [81] (Gleeson CJ, Gummow, Heydon and Crennan JJ).
In Puntigam [235], Mitchell and Hall JJA held that s 8(1) can be a basis for criminal responsibility where there is a common intention to prosecute an unlawful purpose and the unlawful purpose has the same factual components as the offence that has been committed. Their Honours said that s 8(1) is not confined in its application to circumstances where the common unlawful purpose and the nature of the offence that has been committed are materially different. Their Honours also said that this conclusion was supported by the reasoning of the majority in O'Dea and by the judgment of the majority in Shaw v The State of Tasmania.[31]
[31] Shaw v The State of Tasmania [2022] TASCCA 2.
In the present case, we are not persuaded, for the following reasons, that no substantial miscarriage of justice occurred at the retrial.
First, it is true that the State's case at the retrial included the allegation that Mr Yarran, the appellant and Mr Smith formed a plan to rob Mr Watson of methylamphetamine and that Mr Yarran, the appellant and Mr Smith sought to implement the plan by making threats of violence and intimidating Mr Watson, Mr Wilton and Ms Fairhead. It is also true that the trial judge found that Mr Watson was a person who SH knew might be 'rolled' to obtain 'gear' (that is, robbed to steal methylamphetamine); that Mr Yarran, the appellant and Mr Smith knew that SH was communicating with Mr Watson about obtaining methylamphetamine; and that SH communicated with Mr Watson for the purpose of inviting him to the Ridgewood house so that Mr Yarran, the appellant and Mr Smith could steal his methylamphetamine. It is also true that his Honour found that each accused made threats and did acts that were intimidating; each accused was a party to the threats and intimidation of the other accused; the accused were acting in concert; and the accused intended that their conduct be threatening and that their conduct be intimidating.
However, the retrial was not conducted on the basis that the appellant was criminally responsible for the charged offence because Mr Yarran, the appellant and Mr Smith had formed a common intention to prosecute an unlawful purpose (either to rob Mr Watson of methylamphetamine or to make threats of violence and intimidate Mr Watson, Mr Wilton and Ms Fairhead to supply them with methylamphetamine) in conjunction with one another.
Secondly, the retrial was not conducted on the basis that the appellant was criminally responsible for the charged offence because in the prosecution of an unlawful purpose (either to rob Mr Watson of methylamphetamine or to make threats of violence and intimidate Mr Watson, Mr Wilton and Ms Fairhead to supply them with methylamphetamine) an offence (namely the unlawful killing of Ms Fairhead) was committed.
Thirdly, the retrial was not conducted on the basis that the appellant was criminally responsible because the charged offence of unlawfully killing Ms Fairhead was of such a nature that its commission was a probable consequence of the prosecution of an unlawful purpose (either to rob Mr Watson of methylamphetamine or to make threats of violence and intimidate Mr Watson, Mr Wilton and Ms Fairhead to supply them with methylamphetamine).
Fourthly, even if the trial judge's findings of fact established, in substance, the formation by Mr Yarran, the appellant and Mr Smith of a common intention to prosecute an unlawful purpose (either to rob Mr Watson of methylamphetamine or to make threats of violence and intimidate Mr Watson, Mr Wilton and Ms Fairhead to supply them with methylamphetamine) in conjunction with one another, and even if his Honour's findings of fact established, in substance, what the prosecution of the common unlawful purpose was intended to involve, his Honour did not:
(a)determine what was the 'nature' of the offence that was actually committed; and
(b)then determine whether the offence that was actually committed was 'of such a nature' that its commission was a probable consequence of the prosecution of the common unlawful purpose.
Fifthly, a description of the alleged common unlawful purpose and a description of what the prosecution of the common unlawful purpose was intended to involve is of fundamental importance where the State alleges that an accused is criminally responsible for a charged offence by virtue of s 8(1).
In the present case, his Honour's reasons did not include a consideration of what the prosecution of the common unlawful purpose posited by the State on appeal was intended to involve beyond the formation of a plan to rob Mr Watson of methylamphetamine which Mr Yarran, the appellant and Mr Smith sought to implement by making threats of violence and intimidating Mr Watson, Mr Wilton and Ms Fairhead. Further, his Honour's reasons did not include a consideration of whether at any time there was any alteration to or broadening of any common unlawful purpose; for example, after Mr Watson, Mr Wilton and Ms Fairhead arrived at the Ridgewood house.
Sixthly, it is true that the trial judge's findings of fact established, in substance, that there was a causal connection between the combination or totality of the acts or series of acts of Mr Yarran, the appellant and Mr Smith that threatened or intimidated Ms Fairhead, on the one hand, and Ms Fairhead's act which resulted in her death, on the other. However, the character of the connection required by s 8(1) is materially different. The relevant connection under s 8(1) depends upon whether the offence that was actually committed was 'of such a nature' that its commission was 'a probable consequence' of the prosecution of the common unlawful purpose. An assessment of the relevant connection is to be made after the common unlawful purpose has been ascertained. The assessment involves determining whether the commission of an offence of the nature of the charged offence was objectively probable, in the sense that it could well have happened, in the prosecution of the common unlawful purpose. The assessment is made prospectively, by reference to the objective probabilities, once the fact finding tribunal has determined what was the common unlawful purpose; what the prosecution of the common unlawful purpose was intended to involve; and what was the nature of the offence that was actually committed.
Seventhly, having regard to the trial record including the trial judge's findings of fact, the conclusion is not inevitable that the charged offence of unlawfully killing Ms Fairhead was 'of such a nature' that its commission was 'a probable consequence' of the prosecution of the common unlawful purpose posited by the State on appeal. His Honour's wrong decision was not immaterial.
Eighthly, as we have mentioned, the appellant did not give evidence at the retrial. It cannot be assumed that if the State had alleged at the retrial that the appellant was criminally responsible for Ms Fairhead's death by virtue of s 8(1), the appellant would not have given evidence.
In the circumstances, we are not persuaded that no substantial miscarriage of justice occurred at the retrial. The proviso should not be applied.
Counsel for the State's submissions on the orders to be made in the event that the proviso is not applied
Counsel for the State submitted that, in the event this court decided not to apply the proviso, the judgment of conviction should be set aside and a new trial ordered.
Counsel informed the court that if a further retrial was ordered then the State would confine its case on criminal responsibility at the further retrial to reliance upon s 8(1) of the Code. The State would not contend at the further retrial that the appellant was criminally responsible under s 7(a) by virtue of his own threats or acts of intimidation (appeal ts 26).
Counsel for the appellant's submissions on the orders to be made in the event that the proviso is not applied
Counsel for the appellant submitted that, in the event this court decided not to apply the proviso, the judgment of conviction should be set aside and a judgment of acquittal entered.
Counsel emphasised that, following the original trial, the appellant received a total effective sentence in respect of all of the counts of 10 years 6 months' imprisonment backdated to 9 August 2016 with eligibility for parole. Hall J (the original trial judge) ordered in effect that the sentence of 8 years' imprisonment for the unlawful killing of Ms Fairhead begin on 9 February 2019. Corboy J (the trial judge at the retrial) also sentenced the appellant to 8 years' imprisonment for the unlawful killing of Ms Fairhead and backdated the sentence to 9 February 2019. Counsel noted that the appellant would be eligible for release on parole on 9 February 2025. The appellant was aged 19 years at the time of the offending, he is now aged 26 or 27 and he has been tried twice for the unlawful killing offence. It is not in the interests of justice that the appellant be tried again.
The orders to be made on the appeal
Section 30(5) of the Criminal Appeals Act applies in the case of an appeal against a conviction by an offender. It reads, relevantly:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.
The principles which apply when this court is deciding whether to order a new trial or to enter a judgment of acquittal were summarised in Austic v The State of Western Australia.[32] It is unnecessary to repeat the summary.
[32] Austic v The State of Western Australia [2020] WASCA 75; (2020) 57 WAR 39 [620] ‑ [625] (Buss P, Mazza JA & Sofronoff AJA).
In the present case, we are satisfied, for the following reasons, that a judgment of acquittal should not be entered and that a new trial should be had.
First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a fact finding tribunal.
Secondly, this appeal must be allowed as a result of the manner in which the majority of the High Court in O'Dea construed s 7(a) of the Code and not as a result of any act or omission for which the State is responsible.
Thirdly, the State has a strongly arguable case that the appellant is criminally responsible under s 8(1) for the unlawful killing of Ms Fairhead. A prosecution case that is formulated having regard to s 8(1), s 272 and s 280(1) of the Code is capable of satisfying a fact finding tribunal beyond reasonable doubt that the appellant is guilty of the unlawful killing of Ms Fairhead.
Fourthly, we are not persuaded, having regard to the submissions of counsel for the appellant, that the circumstances render it unjust to the appellant to make him stand trial again.
Conclusion
We would grant leave to appeal on grounds 2 and 3, allow the appeal, set aside the judgment of conviction and order a new trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
26 JUNE 2024
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