Burt v The State of Western Australia - [2022] WASCA 150

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BURT -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 150
CORAM:   QUINLAN CJ
MAZZA JA
VAUGHAN JA

HEARD:   6 APRIL 2022
DELIVERED          :   14 NOVEMBER 2022
FILE NO:   CACR 22 of 2021
BETWEEN:   JASON JOHN BURT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 23 of 2021
BETWEEN: JASON JOHN BURT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
File Number            :   INS 38 of 2019

Catchwords:

Criminal law – Appeal against conviction – Manslaughter – Cause of death – Whether the trial judge erred in not leaving to the jury the application of s 275 of Criminal Code (WA) – Whether sufficient evidence that surgical or medical treatment was the immediate cause of death

Criminal law – Appeal against conviction – Manslaughter – Accident – Whether the trial judge erred in not leaving to the jury the defence of accident in relation to stab wound – Whether death from stab wound to the lower back reasonably foreseeable

Criminal law – Appeal against conviction – Manslaughter – Unwilled act – Whether the trial judge erred in not leaving to the jury the defence of unwilled act in relation to stab wound – Whether accused describing his response to harmful act as a 'reflex' evidence act was unwilled

Criminal law – Appeal against conviction – Manslaughter – Excessive use of force in self-defence – Whether trial judge erred in directing jury in relation to whether accused's act not a reasonable response in the circumstances as he believed them to be – Whether verdict of manslaughter unreasonable or not supported by the evidence

Criminal law – Appeal against sentence – Manslaughter – Excessive use of force in self-defence – Whether sentencing judge erred in fact finding for the purpose of sentence – Whether sentence imposed manifestly excessive

Legislation:

Criminal Code (WA), s 23A, s 23B, s 248, s 270, s 271, s 272, s 273, s 274, s 275
Interpretation Act 1984 (WA), s 13C

Result:

Leave to adduce additional evidence refused
Appeals dismissed

Category: A

Representation:

CACR 22 of 2021

Counsel:

Appellant	:	In Person
Respondent	:	J C Whalley SC

Solicitors:

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

CACR 23 of 2021

Counsel:

Appellant	:	In Person
Respondent	:	J C Whalley SC

Solicitors:

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

Cases referred to in decision:

Armstrong v The State of Western Australia [2013] WASCA 290
Austic v The State of Western Australia [2010] WASCA 110
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Cook v The Queen (1979) 2 A Crim R 151
De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57
DLS v The State of Western Australia [2021] WASCA 197
Egitem v The State of Western Australia [2016] WASCA 214; (2016) 263 A Crim R 203
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Hawke v The State of Western Australia [2017] WASCA 40
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
Impicciatore v The State of Western Australia [2020] WASCA 33
Kabambi v The State of Western Australia [2019] WASCA 44
Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
Levy v The Queen (1949) 51 WALR 29
Liu v The State of Western Australia [2012] WASCA 218
Liyange v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Marshall v The State of Western Australia [2015] WASCA 156
Martin v The Queen (No 2) (1996) 86 A Crim R 133
MEN v The State of Western Australia [2020] WASCA 118
MSK v The State of Western Australia [2022] WASCA 55
Owen v Evans and Owen (Builders) Ltd [1962] 3 All ER 128
Pomana v The State of Western Australia [2020] WASCA 204
R v Horseferry Road Metropolitan Stipendiary Magistrate; Ex parte Siadatan [1991] 1 All ER 324
Raux v The State of Western Australia [2012] WASCA 1
Royall v The Queen (1991) 172 CLR 378
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Simms v The Queen [2004] WASCA 237
TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297
The Queen v Kinash [1982] Qd R 648
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v Camus [2014] WASCA 74
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171
Viro v The Queen (1978) 141 CLR 88
Wark v The State of Western Australia [2020] WASCA 19
Yarran v Western Australia [2019] WASCA 159
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645

Table of Contents

Introduction and overview

State case at trial

Medical evidence

Forensic evidence

Additional police evidence

Defence case at trial

Mr Burt's evidence

Trial judge's ruling as to s 275 of the Code

Trial judge's directions to the jury

Conviction appeal

Conviction appeal – grounds of appeal

Conviction appeal – application to adduce additional evidence on appeal

Conviction appeal – general overview of the grounds of appeal

Conviction appeal – ground 1 – misleading evidence as to novus actus interveniens

Conviction appeal – ground 2 – medical treatment as novus actus interveniens and the lower back injury

Additional evidence and the time of death
Section 275 of the Code
Lower back injury

Conviction appeal – ground 6 – accident under s 23B of the Code

Conviction appeal – ground 4 – unwilled act under s 23A of the Code

Conviction appeal – grounds 3 and 5 – jury directions as to self‑defence

Conviction appeal – ground 7 – unreasonable verdict

Conviction appeal – conclusion

Sentence appeal

Sentence appeal – trial judge's Sentencing remarks

Sentence appeal – grounds of appeal

Sentence appeal – ground 1 – fact findings

Sentence appeal – ground 2 – alleged impermissible reasoning

Sentence appeal – ground 3 – manifest excess

Sentence appeal – conclusion

Conclusion

Schedule 1

Schedule 2

JUDGMENT OF THE COURT:

Introduction and overview

On the evening of 26 December 2018, the appellant, Jason John Burt, was at home with his housemate, Johannes Andreas Clemens Besselaar. No one else was present.
At some point prior to 10.00 pm that evening, Mr Besselaar suffered two large stab wounds to his trunk: a stab wound on the back of his left shoulder that was at least 15 cm deep and a stab wound to his lower back that was at least 11.5 cm deep. There is no question that these stab wounds were caused by a large kitchen knife wielded by Mr Burt.
Mr Burt called 000 and sought assistance for Mr Besselaar. He told the operator that Mr Besselaar had tried to stab him and that 'I stabbed him back'. When asked where he had stabbed Mr Besselaar, Mr Burt responded that he 'stabbed him a couple of times'.
Mr Besselaar was taken by ambulance to Royal Perth Hospital. Both in the ambulance and at the hospital he underwent a number of interventions. Mr Besselaar died as a result of blood loss.
Mr Burt was charged with murder. His trial was heard, by Fiannaca J and a jury, from 17 September 2020 to 2 October 2020.
Mr Burt gave evidence in the trial. In brief, Mr Burt gave evidence that, on the evening of 26 December 2018, he had consumed alcohol and medication, with the intention to 'knock [himself] out'. He said that Mr Besselaar was behaving in a manner that made him feel threatened and concerned for his wellbeing. In that context, Mr Burt gave evidence that Mr Besselaar had previously admitted to performing a sexual act on Mr Burt without his knowledge or consent when he was inebriated.
Mr Burt gave evidence that he armed himself with the knife on 26 December 2018 in order to get Mr Besselaar to leave him alone. He said that, as he tried to sneak past Mr Besselaar in the hallway, Mr Besselaar 'projected himself from the opposing wall and made contact with the knife' causing the stab wound to Mr Besselaar's lower back.
Mr Burt said that Mr Besselaar then left the hallway area and walked through the kitchen towards a laundry area. Mr Burt said that he also walked to the kitchen and then back to the hallway area. He said that, as he was making his way out of the kitchen area, he heard Mr Besselaar coming behind him and when he turned around Mr Besselaar lunged at him with something. Mr Burt said that in the course of a struggle, in which Mr Besselaar was thrusting at him, as a reflex he brought down his hand and the knife penetrated Mr Besselaar's left shoulder.
The learned trial judge directed the jury as to the elements of the offence and left to them a number of defences. In relation to the stab wound to Mr Besselaar's lower back, his Honour directed the jury that they must be satisfied that that stab wound was not the result of an unwilled act (or alternatively not the result of criminal negligence in the use of the knife). In relation to the stab wound to Mr Besselaar's left shoulder, the learned trial judge directed the jury that the State were required to prove that Mr Burt did not act in self‑defence.
The jury found Mr Burt not guilty of murder, but guilty of manslaughter.
As will be apparent from the issues in the trial, there were a number of potential ways in which the jury's verdict of manslaughter could be explained. For the purposes of sentencing, the learned trial judge concluded that the shoulder injury was the immediate cause of Mr Besselaar's death and that, while it was in self‑defence, Mr Burt's act of stabbing Mr Besselaar in the shoulder was not a reasonable response in the circumstances that Mr Burt believed them to be.
The learned trial judge sentenced Mr Burt to 8 years imprisonment, commencing on 26 December 2018. Mr Burt is eligible for parole.

Mr Burt now appeals both his conviction and sentence.
Mr Burt represented himself in the appeals. While some aspects of the appellant's case were a little difficult to follow, Mr Burt presented his submissions in a thoughtful and respectful manner, which enabled the Court to clarify the essential complaints that he sought to make in relation to the trial and sentencing process.
In his appeal against conviction, Mr Burt raised a number of issues concerning the learned trial judge's directions to the jury, in relation to self‑defence, unwilled acts and accident, which were directed towards his 'primary ground' that the verdict of guilty was unreasonable, having regard to the evidence. In that context, Mr Burt sought to rely upon additional evidence on appeal, consisting of material the subject of pre‑trial disclosure but which was not adduced at trial.
Mr Burt also submitted, principally in his written appellant's case, that the learned trial judge erred in failing to leave to the jury the potential application of s 275 of the Criminal Code (Code), which concerns circumstances in which 'the immediate cause of death was … surgical or medical treatment'. To that end, Mr Burt's trial counsel had cross‑examined a number of the expert medical witnesses to the effect that it was possible that Mr Besselaar died as a consequence of a 'femoral cutdown' performed during the efforts to resuscitate him. The learned trial judge concluded, however, that there was no evidential basis upon which the jury could consider as a reasonable hypothesis that the immediate cause of Mr Besselaar's death was the surgical treatment.
For the reasons that follow, we are not satisfied that the learned trial judge made any legal error in the course of the trial, or that there was otherwise a miscarriage of justice. The jury's verdict of manslaughter was not unreasonable or unsupported by the evidence. Nor is there any basis, in the interests of justice, to admit the additional evidence relied upon by Mr Burt in the appeal.
In his appeal against sentence, Mr Burt submitted both that the learned trial judge had made a number of errors of fact in his Honour's findings for the purposes of sentence and that the sentence of 8 years imprisonment was manifestly excessive. The alleged errors of fact, in many respects, reiterated Mr Burt's complaints on the conviction appeal. They are without merit. Nor, in all of the circumstances, was the sentence of 8 years imprisonment manifestly excessive.
Both the appeal against conviction and the appeal against sentence must be dismissed.
Before turning to the grounds of appeal in each appeal, it is necessary to set out the course of the trial in further detail. The following summary does not set out all of the evidence, but is directed to those matters relevant to the appeals.

State case at trial

On 26 December 2018, Mr Burt, who was 39 years of age at the time, was living at the home of Mr Besselaar, who was 68 years of age.
The State's case was that Mr Burt and Mr Besselaar were at home alone together on the evening of 26 December 2018. Mr Burt made formal admissions to that effect (Exhibit 1) and also that he had made a 000 call (Exhibits 2A and 2B).
The 000 call contained a number of admissions by Mr Burt, as well as exculpatory statements to the effect that Mr Besselaar had tried to stab him, including:
He, he tried to stab me and I stabbed him back.[1]
I stabbed him a couple of times … I stabbed myself even.[2]
He, he's in, he, he's in a bad way. I, I've hurt hi‑, I've hurt him pretty bad.[3]

Medical evidence

[1] Exhibit 2A; Exhibit 2B, 3.

[2] Exhibit 2A; Exhibit 2B, 6.

[3] Exhibit 2A; Exhibit 2B, 7.

The State called evidence from a number of the paramedics and medical practitioners who attended the scene or treated Mr Besselaar. It is not necessary to recite all of their evidence for the purposes of the appeal. It is principally relevant to the contention advanced during the trial that it was possible that Mr Besselaar died as a consequence of a 'femoral cutdown' performed during the efforts to resuscitate him.
In that context, it may be noted that defence counsel opened Mr Burt's case before the jury on the basis that he would be calling Dr Byron Collins, a pathologist, to give evidence that injury to the femoral area could not be excluded as a cause of death.[4] Dr Collins was not, however, ultimately called to give evidence. The only evidence touching upon that issue arose in the State's case, although, as will be apparent, a report from Dr Collins was referred to in some of the evidence.
[4] Ts 100.
The first of those witnesses, Benjamin Robinson, a paramedic, gave evidence that when he attended the scene he observed a male patient (i.e. Mr Besselaar) in a large pool of blood. He said that as he and his colleagues treated Mr Besselaar they identified two major stab wounds: the first being at the top of the posterior of the left shoulder and the second being on his back, lower down.[5]
[5] Ts 111.
While at the scene Mr Robinson observed a large 'cook's knife' approximately 30 cm long (including the handle) and a large yellow flathead screwdriver.[6]
[6] Ts 112, 114, 115.
The paramedics endeavoured to stabilise Mr Besselaar for transport, placing a small breathing tube into his airway, attaching IV lines and performing a thoracostomy (a cut to the chest to deflate the pleural space).[7] Mr Besselaar was transported to Royal Perth Hospital (Hospital) by ambulance, during which time cardiopulmonary resuscitation (CPR) was commenced. The shoulder wound bled excessively en route.[8] Mr Robinson remained present for an hour until Mr Besselaar was declared deceased. During the treatment of Mr Besselaar, Mr Robinson maintained his hand in the shoulder wound with dressing in an attempt to stem blood flow.
[7] Ts 115 - 116.
[8] Ts 118.
In cross‑examination, Mr Robinson observed that when they arrived in the treatment bay at the hospital, Mr Besselaar was in cardiac arrest and at no point did his heart beat for itself again.[9] Mr Robinson said that Dr Sudhaker Rao was the one in charge of the treatment. He recalled Dr Rao requesting a cutdown be performed, which he described as a procedure performed to gain vascular access.[10] He said that Dr Rao asked for a femoral access line (in the groin area). At that time, Mr Robinson said he observed a trauma registrar perform a femoral cutdown and that Mr Besselaar bled quite heavily from the groin.[11] He said that in a debrief the trauma registrar admitted that a miscommunication had occurred and that he had been asked to do a standard cutdown.[12]
[9] Ts 124.
[10] Ts 125.
[11] Ts 128.
[12] Ts 130.
Dr Ranesh Pallan was the service surgical registrar in the major trauma unit. He was present with Dr Rao when Mr Besselaar arrived at the Hospital. CPR was in progress on arrival and continued at the Hospital.[13] Dr Pallan said that CPR continued initially with chest compressions and then by direct cardiac massage, after Mr Besselaar's chest was opened.[14] A massive transfusion protocol was used as part of the resuscitation attempts.[15] Dr Pallan said that Dr Rao asked him to do multiple things during the resuscitation, including a saphenous cutdown. Dr Rao also asked for a femoral cutdown, which Dr Pallan attempted in the groin.[16] He said that he thought he went too far from where he needed to be and 'all I exposed was some muscles'. He did not visualise any blood vessels. He said that there was a lot of bleeding from the groin which they packed and continued the resuscitation.
[13] Ts 429.
[14] Ts 431.
[15] Ts 432.
[16] Ts 435 - 436.
In cross‑examination, Dr Pallan said that he could not recall making the statement as to miscommunication attributed to him by Mr Robinson.[17] He was asked a number of questions as to whether there was a clinical need to do a femoral cutdown and whether to do so was a 'clinical incident'.[18] Dr Pallan confirmed that as part of the entries he made in the Hospital notes he recorded 'iatrogenic vascular injury' in relation to the femoral cutdown.[19] An 'iatrogenic' injury is one that occurs in the course of medical treatment.[20] Dr Pallan agreed that he was concerned as to whether he had damaged a vein or an artery, but he did not know whether that had occurred.[21]
[17] Ts 444.
[18] Ts 448 ‑ 451.
[19] Ts 452.
[20] Ts 451.
[21] Ts 452.
In re‑examination, Dr Pallan gave evidence that the procedure he performed correlated with a procedure he could potentially perform and, if successful, would assist with the resuscitation. He confirmed that, without the intervention performed by Dr Pallan and his colleagues, Mr Besselaar would have died.[22]
[22] Ts 458.
Dr Jennifer Vance was another specialist involved in the treatment of Mr Besselaar at the Hospital. She gave a consistent account of the circumstances as Mr Besselaar arrived at the Hospital. Dr Vance gave evidence as to the massive blood transfusion required by Mr Besselaar (16 units of packed blood cells (500 ml each) and 8 units of fresh frozen plasma).[23] She said of Mr Besselaar's condition at that time that 'he had already bled – bled out. So his heart was empty. So we needed to get blood back into his heart and blood vessels to try and bring him back to life'.[24]
[23] Ts 468 ‑ 469.
[24] Ts 469.
When referring to the various access points for transfusions Dr Vance gave the following evidence:[25]
So you used the expression 'femoral' and we've heard some evidence about that. Can you, in your words, tell us what the femoral area is?---So the – so where we get access to the femoral vein is at the top of the leg. So it's really at the top of the thigh – and almost where it meets – meets the main bit of the body – meets the main trunk of the body and there's an area there where we have access to a femoral vein, a femoral artery and a femoral nerve and we will access all of those for different reasons. So for this patient we were trying to get into the femoral vein.
Okay. Now – and you said, also, something about the lower leg. What was that? The saphenous?---Saphenous.
Saphenous vein?---Yes. Yes.
And again, these were all just attempts to try and get multiple sites for blood transfusions to occur; is that so?---Correct. Correct.
Now, in your professional opinion, were these steps that were being undertaken by you and other medicos within the team, were they all reasonably necessary steps to try and resuscitate this patient?---Yes.
Were they all performed in good faith by the team?---Yes.
Now, can you tell us what, then, happened with this patient after these attempts to transfuse this blood were made?---So – so we were unable to get what we call a perfusing rhythm at any point during the resuscitation. So at no point - - -
Sorry. There's a little bit of a problem with the line here. What sort of rhythm did you say, Doctor? Sorry?---What we call a perfusing rhythm. So it means we were trying to – so at no point during the resuscitation did his heart beat. It didn't contract. And that's what we were trying to get to happen. If we can't get his heart to beat, then – we – we need to get him back alive in order to repair damage from – from this – from his injuries. So we were trying to fill up his vessels but we still couldn't get his heart to beat and it was decided after – at 23:49 hours, myself in liaison with the trauma consultant felt that we had tried everything we could. We couldn't get his heart to beat and we had never – so he had – so we – we decided that we would not try any further. We had tried everything we could. He hadn't responded to anything and therefore we would cease our further attempts.
[25] Ts 471.

In cross‑examination, Dr Vance confirmed that electrical activity had been observed on a monitor, but Mr Besselaar's heart did not provide a pulse with it (described as 'PEA': pulseless electrical activity).[26] Dr Vance was cross‑examined in relation to the femoral cutdown. She said that she would not have had direct vision of the left femoral area[27] and had no recollection of bleeding from the area of the cutdown, but was fed back information during the resuscitation that there had been an unsuccessful cutdown and pressure was being applied to that area.[28] She was asked 'immediately prior to the femoral cutdown happening, as you sit there now, you don't know whether Mr Besselaar would have lived or died, do you?' to which she answered 'I think it's extremely unlikely we (sic – he) would have lived'.[29]
[26] Ts 475.
[27] Ts 477.
[28] Ts 484.
[29] Ts 486. See also ts 493: 'It was not felt that that was causing the death of this patient'.
Dr Vance completed a Death in Hospital form and an Audit of Hospital Death form.[30] She declared that Mr Besselaar was deceased at 2349 hours (i.e. 11.49 pm).[31] In cross‑examination, Dr Vance was asked about the Audit of Hospital Death form, in which she stated that clinical care had not contributed to Mr Besselaar's death. She said:[32]
I did not feel the femoral puncture contributed to his cause of death.
So that's why you've ticked 'no', is it?---Well, I – so I –so where the – so the reason why I say that is because I don't know whether I filled this form in before or after that debrief. But I do know that I do not think the femoral puncture was the cause of his death. So if I had known or I hadn't known, my answer would have been no. And I – I genuinely cannot remember when I filled this form in. But I do know that is what my feeling is of the femoral puncture.
…
He did not – in my opinion, he did not – he did not bleed to death from his femoral cutdown. He had already bled to an – to a very unlikely chance of survivability, and that's without taking into account the effect [of] hypoxia on his organs, during the time interval when he was trying to have – trying to do CPR and he had no volume going around his body.
…
Why isn't the left femoral cutdown referred to in the audit of hospital death form?---Because I don't think it caused his death. I do think that the anticipating – it was an anticipated death, due to cardiorespiratory arrest, which occurred before arrival at hospital. The comment on the back is a very, very brief note to give people an idea of just what happened, but you're going to the notes. It's not a – it's a really brief thing and people go to the notes. We don't – this is – so they go to the notes for the – for more information, for more detail. And it wasn't something that I felt caused his death. So if I felt it had caused his death, I would have put it there but I didn't. And to me, it seemed totally expected that the outcome was what it was. We had tried to resuscitate him for way longer than we would for many arrests. And if we even had been successful, I think he would have been brain dead, without a doubt. So it was very clear in my mind that the left femoral puncture was, was not – it was of no – it was not of a concern to me, as to the cause of his death. And it was not a concern that it was a significant iatrogenic event, in this situation, where the guy had no volume and everyone is trying their hardest to get as many puncture points, and get as much volume in as you possibly can, and we had multiple teams working at multiple sites doing that; opening up his chest, manually pumping his heart. So in the scale of all that, the left femoral puncture was not – and that's what this is to point to. It's to point to what are your major key things? So it wasn't a key thing for the cause of death, in my opinion.
[30] Exhibit 18; Exhibit 19 (ts 509, 519).
[31] Ts 614 ‑ 615.
[32] Ts 513, 514 ‑ 515, 516 ‑ 517.
Dr Rao also gave evidence as to the resuscitation efforts. He gave evidence that as part of those efforts, the team attempted to insert as many cannulas as reasonably possible in order to supply blood volume.[33] Dr Rao said that in the course of those efforts he would have directed cutdowns be performed in terms such as 'Do a venous cutdown' or 'Do a cutdown'.[34] He said he became aware of a registrar performing a cutdown where he couldn't get the vein and that he had to advise what to do.[35]
[33] Ts 535.
[34] Ts 538 ‑ 539.
[35] Ts 539.
Dr Rao's evidence was to the effect that Mr Besselaar's condition was due to the large stab wound on the back of his shoulder, in relation to which he said:[36]
Well the fact that he was in cardiac arrest would imply to me straight away that he had lost enough blood, and our assumption was that he had lost blood from a major blood vessel that had been cut there is, in this part of the body, there are really big blood vessels, so our assumption was that he had cut a big blood vessel. I've not seen the post‑mortem, I don't know what was actually injured in this poor chap, so I'm going to still stick with what we thought at that time, which was we assumed that a big blood vessel in this part of the body had been divided. Now, I was aware that he also had a wound further down, so we never even got to – got to look at that wound, that was further at the back, I think.
[36] Ts 541.
In cross‑examination, Dr Rao was asked on a number of occasions whether the femoral cutdown was the cause of Mr Besselaar's death. He said that he did not think so.[37] Indeed, he said, in that context, that:[38]
[Mr Besselaar] was essentially dead when he got to us, as in he had no signs of clinical life. So in a very strict sense, the person was dead when he came to us. So we talk about loss of signs – loss of clinical signs of life. That's – essentially, you could pronounce someone dead right there and then. I think it's a – it's a fact that the patient's outcome was not affected by the fact that he lost some blood from his femoral vein, when he was actually literally exsanguinating from his top end.
[37] Ts 553.
[38] Ts 558.
Dr Rao expanded upon that evidence later in the cross‑examination:[39]
This was a femoral cutdown where the femoral veins cut, the bleeding is not brought under control, and Mr Besselaar is pronounced dead, and you're saying that it didn't have a bearing?---In comparison to the bleeding that was pouring out, and if I can use my word torrential bleeding, because I was the one at that end, I could see what – in comparison to that, the bleeding from the femoral vein was not in anyway significant.
…
I have to keep comparing it to the actual bleeding that was happening at the top end. That was the actual source of blood loss.
…
The bleeding from the leg was actually able to be compressed by someone pressing on it, whereas the bleeding at the top end, yes, we – we could not compress it so. If you compare the two, there's no doubt that the arterial bleeding, and again, I'm – I don't know the coroner's report but the arterial bleeding was significant. I recall that quite well.
[39] Ts 563 ‑ 564
Dr Rao was also asked about the attempts to 'shock' Mr Besselaar's heart to spontaneously beat. He also gave evidence that there was some electrical activity in the heart but the heart was not beating.[40]
[40] Ts 547.
The final witness to give medical evidence was Dr Judith McCreath, the forensic pathologist who performed the autopsy on Mr Besselaar. Dr McCreath concluded that the cause of Mr Besselaar's death was the two stab wounds to his trunk, that is the 15 cm deep stab wound on the back of his left shoulder and the 11.5 cm deep stab wound to his lower back.[41] The first of those injuries, Dr McCreath said, included an incision to the upper lobe of the lung.[42] She said that the cause of death was the combination of the two wounds.[43]
[41] Ts 570 ‑ 571.
[42] Ts 573.
[43] Ts 577.
Dr McCreath confirmed that she had been supplied with a report prepared by Dr Collins as to the impact of the medical procedures on Mr Besselaar's cause of death. She was asked:[44]
When you were supplied with Doctor Collins's report, did you – did your opinion about the cause of Mr Besselaar's death change?---No.
…
And with respect to that, what do you say, in terms of the cause of Mr Besselaar's death. Are you able to, in any way, expand upon your opinion – your original opinion – that he died as a result of the stab wounds to his trunk?---I can't completely exclude that the medical procedures have compromised the effectiveness of the resuscitation. However, Mr Besselaar, on arrival at hospital, was already not breathing and his heart had stopped, due to the bleeding from the injuries – or due to the injuries that he had already received, and the resuscitation – and also, during the resuscitation, they were unable to regain control of, or control the bleeding from the lung injury. Because of both of these things, I don't believe that the efforts at resuscitation have contributed to his death. However, I would defer to the clinicians on that point.
…
If Mr Besselaar did not have the femoral cutdown, as it has been described, performed – what's your opinion about whether he would have survived, if - - -?---I still don't believe he would have survived.
[44] Ts 577 - 578. See also ts 587.
Dr McCreath maintained her opinion in cross‑examination that the femoral cutdown was not a likely cause of Mr Besselaar's death. She said that she did not believe that the cutdown 'has affected his outcome' and that 'the stab wound is the cause of his death'.[45]

Forensic evidence

[45] Ts 598.

A number of police officers, including forensic officers, gave evidence as to exhibits and material gathered at the scene and from Mr Burt's person.
Relevantly, evidence was called from Sergeant Neil Blaver, a forensic officer specialising in bloodstain analysis. Sgt Blaver gave evidence in relation to various bloodstains he observed at the scene. That evidence included the following.
First, there were spatter bloodstains in the hallway area, located on linen cupboard doors and low down. There were also spatter bloodstains on the wall of the hallway opposite the linen cupboard doors and a major deposit of blood (a saturation bloodstain)[46] on the floor of the hallway. Sgt Blaver gave evidence that spatter bloodstains could result from impact with a source of liquid blood, as a result of being expirated from an airway or as a result of cast‑off from a blood bearing object (or a combination of these mechanisms).[47] He also observed transfer stains on the wall, some of which were of no recognisable pattern and some of which had a shape consistent with a hand.[48]
[46] Ts 298.
[47] Ts 294.
[48] Ts 296.
Second, Sgt Blaver gave evidence that he observed a further saturation bloodstain in the study area adjacent to the hallway and a number of drip bloodstains on the top edge of, and within, a wooden chest in the study.[49]
[49] Ts 298 - 299.
Third, Sgt Blaver observed transfer bloodstains between the study area and the kitchen sink in the adjacent kitchen. The transfer stains were located on the floor and the shape was consistent with a left footprint.[50] Bloody footprints were also observed leading into the bathroom (accessible from the other end of the hallway) and bloodstains on the vanity top and tap handle.[51]
[50] Ts 300.
[51] Ts 303 - 304.
Fourth, Sgt Blaver gave evidence that there were transfer bloodstains across the entire length of the knife seized from the scene, and splatter bloodstains on the screwdriver. He also gave evidence of bloodstaining on the palms of Mr Burt's hands, the soles of his feet and his shorts.
From this evidence, Sgt Blaver expressed a number of conclusions including (inter alia) that Mr Besselaar moved, or was moved, between the hallway and the study, although the direction could not be determined; and that Mr Burt had moved between the study and the kitchen after coming into contact with Mr Besselaar's blood.[52]
[52] Ts 310 - 311.
In cross‑examination, Sgt Blaver agreed that the movements to the kitchen and bathroom he described were consistent with Mr Burt looking for a cloth or towel (which he had been asked by the 000 operator to use).[53] Similarly he confirmed that the transfer stain of a handprint was consistent with someone tending to an injured person and then standing up.[54]
[53] Ts 316.
[54] Ts 321.
Sgt Blaver was also shown a photograph taken in the garage of the house.[55] He identified a number of areas of staining that had an appearance consistent with blood. He said that he was not aware of any biological results in relation to those stains.[56] A later witness, Senior Constable Susan Popial confirmed that blood swabs were taken from the stains.[57] A further witness, Senior Constable Scott Ralph, however, gave evidence that those apparent droplets of blood were not sent for analysis.[58]
[55] Exhibit 12, originally MFI 12 (see ts 259, 352 ‑ 353).
[56] Ts 324.
[57] Ts 352.
[58] Ts 620.
Blood samples from both Mr Besselaar and Mr Burt were tested for drugs and alcohol. Mr Besselaar had a blood alcohol level of 0.109% to 0.144% (depending upon the sample)[59] and a range of different medications, including an antidepressant and a drug used in resuscitation attempts.[60] Mr Burt had a blood alcohol level of 0.206% to 0.218% (depending upon the sample)[61] and evidence of diazepam and tramadol.[62]

Additional police evidence

[59] Ts 330.

[60] Ts 332, 335.

[61] Ts 370.

[62] Ts 369.

The first police officer on the scene at the house, First Class Constable Andrew Palmer, placed Mr Burt under arrest on suspicion of attempted murder and cautioned him. Constable Palmer gave evidence that Mr Burt smelt of alcohol and said that he had been drinking 'a lot'. Constable Palmer said that Mr Burt said that he had stabbed 'Hans' (Mr Besselaar) with a knife. He gave evidence that Mr Burt said that Mr Besselaar had come at him with a knife, that Constable Palmer asked 'What knife?' and 'Was it the same knife that you used to stab him' and that Mr Burt said 'yes'. [63]
[63] Ts 186.
In cross‑examination, Constable Palmer was taken to his statement which was based on his notes and contained references as to Mr Burt's statements that were consistent with his evidence‑in‑chief.
Constable Paul Kelly arrived at the scene with Constable Palmer. He gave evidence that, at the scene, Mr Burt was saying that:
'Hans' shouldn't have come at him.
Why did he come at me with a knife?
This is the worst thing I've ever done.
Why did I stab him? I hope he's okay?[64]
[64] Ts 199.
The following day, on 27 December 2018, Mr Burt participated in an electronic record of interview (EROI) with detectives from the homicide squad. An edited copy of the EROI was tendered in evidence.[65] Mr Burt drew a plan of the house in the course of the EROI and answered a number of questions in relation to his history of living at the property with Mr Besselaar. He confirmed that he made the 000 call but elected not to give an account of the events on the night of 26 December 2018. In the EROI, Mr Burt said that he did not know anything about the apparent blood stains in the garage.[66]
[65] Exhibit 22.
[66] Ts 620.

Defence case at trial

Mr Burt elected to give evidence at trial. He also called very brief evidence from his brother, Roscoe Warden, in relation to a matter that is not relevant to the appeals.

Mr Burt's evidence

Mr Burt was born in South Africa in 1979. He gave evidence that he moved to Perth in 2015 (via Melbourne) and became Mr Besselaar's housemate in March 2016.[67] Mr Burt gave evidence as to his and Mr Besselaar's drinking habits. That evidence was to the effect that they each became intoxicated from time to time.[68]
[67] Ts 674.
[68] Ts 679.
Mr Burt described Mr Besselaar as having suffered a medical episode in March 2017 that saw him hospitalised until June of that year. He said that Mr Besselaar seemed to have suffered some cognitive damage in the process of that medical episode, struggling with his vocabulary and slurring his words.[69]
[69] Ts 684.
Mr Burt described a generally friendly relationship between the two men, although on rare occasions they had verbal arguments.[70] Some months after he returned from hospital, Mr Burt described Mr Besselaar as starting to 'flirt' with him and to make sexual advances towards him. He described this behaviour as making him feel uncomfortable, which he told Mr Besselaar. Mr Burt had earlier described Mr Besselaar as having a sexual interest in men, a preference that he did not share.[71]
[70] Ts 685.
[71] Ts 686.
Mr Burt said that, in November 2017, he and Mr Besselaar had a conversation in which Mr Besselaar stated that a few days earlier he had 'sucked [Mr Burt] off' when he was passed out on the couch. Mr Burt said that he felt violated, hurt and disappointed by the revelation.[72] He said that Mr Besselaar later apologised and that he agreed to let it go and move on.[73]
[72] Ts 688.
[73] Ts 690.
Mr Burt said that he had a serious conversation with Mr Besselaar on Christmas Day 2018 in which he told Mr Besselaar he was going to move out soon. He said that it had become difficult to live with Mr Besselaar, as he had become more aggressive, confrontational and erratic, including making sexual advances.[74]
[74] Ts 693.
On 26 December 2018, Mr Burt said that Mr Besselaar was behaving unusually, 'sort of lurking'.[75] Mr Burt decided to go to bed at about 10.00 pm. He drank half a bottle of wine and took five tramadol, 'trying to knock myself out'.[76] Mr Burt said he returned to the lounge area and encountered Mr Besselaar in the hallway. He said that Mr Besselaar insisted that he sleep on the couch and began to impede his progress back to his bedroom. Mr Burt said he felt threatened and concerned for his wellbeing and that, if he passed out, Mr Besselaar would take advantage of him and perform sexual acts on him.[77]
[75] Ts 699.
[76] Ts 701.
[77] Ts 704 - 705.
Mr Burt said he told Mr Besselaar he was going to get a knife and then retrieved a knife from the kitchen. He said he thought it would be a deterrent, but that Mr Besselaar continued to stand there and would not let Mr Burt pass.
Mr Burt then described the first wound to Mr Besselaar's lower back as having occurred, unintentionally, as follows:[78]
What's the next thing that happened?---I continued – excuse me. I continued to try to pass him. Each time I tried to pass him he obstructed my path again, and he became – he became more physical. He started grabbing at my wrist. I was actually keeping the knife away from him. It was a very sharp knife. I didn't want to hurt him, so I was keeping the knife away from him. In that position, my left hand was slightly forward, my right hand being slightly behind me. But he kept reaching for my left hand with his right trying to grab me, trying to restrain me, I suppose. This happened back and forth. We gradually were closer and closer to my bedroom. At one point – eventually we got close enough to my bedroom where I thought that I might actually be able just to sneak past him and get into my room. If I could get into my room, just shut the door on him, barricade myself in my room, then that would be the end of it. In the process of him grabbing at me, he lost his balance, and I really thought that I had an angle to get by, and I tried to sneak past him as he was slightly off‑balance. In sneaking past, I led with my right hand, which had the knife in it, and he had projected himself from the opposing wall and made contact with the knife. I obviously didn't make it to my bedroom, but I realised – I realised that he had been hurt in that process.
[78] Ts 706 - 707.
Mr Burt said that Mr Besselaar began swearing at him, saying 'I'll kill you' and reaching for the knife block in the kitchen. Mr Burt said he was asking Mr Besselaar to stop so that he could have a look at his injury. He lost view of Mr Besselaar as he turned from the kitchen into the laundry area. He said that he assumed that Mr Besselaar had gone out to the garage.[79]
[79] Ts 709 - 710.

Mr Burt said that as he was returning back into the hallway area, Mr Besselaar lunged at him, following which Mr Burt struck him and lost his footing. He continued:[80]
And as you regained your footing, where was Mr Besselaar?---Well, he had closed the gap on me as I fell, and as I managed to get to my feet, he was already pressed against me. We had just entered the – back into that hallway space – just entered that hallway space at this point.
Sorry. When you say he was pressing up against you, was he doing anything?---Yes, well, once he pressed me up against the wall in that – just as we had entered the hallway space, I began to notice him thrusting with his right hand and I could feel – I was able to restrain some of his thrusting with my left hand, to some degree, but I did feel that whatever he was thrusting into me, I – really at that point in time, I had no idea what he was holding and there wasn't any time to process what he was holding. But he was holding something and whatever it was that he was thrusting into my abdomen, I felt it just glancing off me a few times. It had glanced off a few times and he somehow – I felt like I was managing to sort of hold of the thrusting but one of those thrusts hit me really directly right in the rib pretty hard and I suppose as a reflex – sorry. As a – I'm right – as a reflex I brought my right hand down and that knife penetrated his shoulder.
At that time, not what you've learnt afterwards, at that time what did you think he had in his hand?---I wasn't sure if it was a knife. I suppose I had assumed, on a subconscious level at some point in my mind, that it was a knife. I had seen him, sort of, reach for the knife block earlier. I have no idea what was in his hand but, I suppose, on some level, I might have assumed that it was a knife.
[80] Ts 711 - 712.
A little later Mr Burt was asked:[81]
What did you think at that time, when you put the knife in his shoulder, what did you think would happen to you if you didn't do that?---I believed I was going to die.
…
At that time that you stabbed him in the shoulder, did you think you had any other option?---No. It – it wasn't even an option. It – it felt to me like that was the only thing that I could possibly do in that moment. It was a reflex.
[81] Ts 712 ‑ 713.
Mr Burt's account of the events was challenged in cross‑examination. It was put to him, having regard to the position in which the screwdriver was found, that Mr Besselaar did not have the screwdriver and did not attack him with the screwdriver.[82]
[82] Ts 730.
Mr Burt was also cross‑examined as to his position relative to Mr Besselaar when the first knife wound was inflicted and it was put to him that there was no way that Mr Besselaar pushed himself onto the knife.[83]
[83] Ts 734, 739.
That cross‑examination included questions directed to demonstrating the inherent implausibility that Mr Besselaar projected himself off the wall opposite Mr Burt (to Mr Burt's left), as he tried to pass Mr Besselaar on the right, while holding the knife in his right hand (i.e. on the opposite side of the hallway from Mr Besselaar's location), thereby coming into contact with Mr Besselaar's back and causing a horizontal wound. For example:[84]
[84] Ts 735 ‑ 736, 738 ‑ 739.
Okay, and you were walking around trying to get into your bedroom, on the right‑hand side, that is the side adjacent to his bedroom door, weren't you?---His bedroom door can be seen on the right‑hand side of that image on the right‑hand side of the passageway.
That is right, it can?---We were slightly beyond that point where I tried to pass him.
Yes, and you tried to pass him on the side where his bedroom door is?---That's correct.
And he was facing towards you trying to grab you and you were trying to get into your bedroom?---Prior to losing balance, yes.
Prior to losing balance. So the left side of his body was pointed towards your bedroom?---No, the other way round. The left side of his body was pointed towards your bedroom because he was facing you?---If he was facing me, then the right‑hand side of his body would be roughly where that picture frame is. When he lost balance, he turned towards that wall and that's how he thrust himself off that wall which meant that the left‑hand side of his body was facing where that photograph is taken from.
Mr Burt, did you not say only moments ago that you were trying to pass him on the right‑hand side of this passageway?---That's correct.
And that as you were trying to pass him, he was facing you?---He was facing me when he was trying to grab a hold of me. As I mentioned, he lost balance. When he lost balance, his body turned parallel to that wall, which is how he thrust himself off that wall, which meant that the left side of his body was facing where the photo was taken from. It was when he lost balance that I tried to pass him.
…
Were you facing towards your bedroom door?---Yes. I was.
So your – the knife in your right hand is on the opposite side of the hallway where he was?---That sounds correct. Yes..
So, again, there's no way that he pushed himself onto that knife, is there?---Well, it – it happened.
Mr Burt was cross‑examined to the effect that his evidence of Mr Besselaar obtaining the screwdriver from the garage was inconsistent with his statement to the police in the EROI that he did not know anything about the apparent blood stains in the garage.[85]
[85] Ts 742.
It was put to Mr Burt that having regard to Mr Besselaar's age and health, that he was no threat to Mr Burt at all.[86] Mr Burt repeated his evidence that he believed his life was over 'and had I not reacted, I probably would be dead'. In that context, he said that bringing the knife down in a stabbing motion was the only range of movement that he had.[87]
[86] Ts 745.
[87] Ts 746.
Mr Burt was also cross‑examined as to the account that he gave to Constable Palmer and Constable Kelly (see [55] to [57] above). He said that he was in shock and did not have an opportunity to digest the facts of the situation.[88]
[88] Ts 758 ‑ 759.

Trial judge's ruling as to s 275 of the Code

Following the close of the defence case, the trial judge heard submissions as to whether there was a sufficient evidential basis to leave to the jury consideration of s 275 of the Code, in light of the evidence adduced as to the 'femoral cutdown'.
Section 275 of the Code provides:
When a person does grievous bodily harm to another and such other person has recourse to surgical or medical treatment (including palliative care), and death results either from the injury or the treatment, he is deemed to have killed that other person, although the immediate cause of death was the surgical or medical treatment; provided that the treatment was reasonably proper under the circumstances, and was applied in good faith.
The learned trial judge determined that there was no basis in the evidence for the jury to consider s 275.[89]
[89] Ts 827 ‑ 829.
His Honour commenced his reasons in that regard by observing that, before the question of causation could be left to the jury on the basis of s 275
there must be some evidence upon which a reasonable jury, properly instructed, could find that – or at least have a reasonable doubt that the immediate cause of death was the surgical or medical treatment. After which the jury would need to consider whether the treatment was reasonably proper under the circumstances and was applied in good faith.[90]
[90] Ts 827.
His Honour observed that, pursuant to s 13C of the Interpretation Act 1984 (WA), for the purposes of the law in this State a person 'dies', inter alia, when there occurs irreversible cessation of circulation of blood in the person's body.[91]
[91] Ts 827 - 828.
The trial judge observed that the evidence was all in one direction that Mr Besselaar's heart never beat by itself after his cardiac arrest in the ambulance before he was brought into the emergency department of the Hospital. He said that the evidence was that Mr Besselaar was, in effect, clinically dead at the time that he arrived at the emergency department of the Hospital.
The trial judge concluded, by reference to the evidence of the medical witnesses, that there was no evidentiary basis upon which a jury could consider, as a reasonable hypothesis, that the immediate cause of death was the surgical treatment of Mr Besselaar. His Honour continued that even if that were not so, there was no evidentiary basis upon which the jury could fail to be satisfied beyond reasonable doubt that the surgical treatment was reasonably proper.
His Honour noted that the jury would still have to be satisfied beyond reasonable doubt that either one or both of the injuries inflicted by Mr Burt caused the death of Mr Besselaar, having regard to the usual considerations in relation to causation (if they found that those injuries were inflicted by Mr Burt).

Trial judge's directions to the jury

The trial judge gave the jury detailed instructions as to the elements of the charge and a number of defences. The defences differed in relation to the act causing each of the stab wounds suffered by Mr Besselaar. The directions were supplemented by a number of written jury aids, including a 'Decision Tree' in relation to both the lower back injury and the shoulder injury sustained by Mr Besselaar. A copy of each of the Decision Trees is reproduced in Schedule 1 to these reasons.
Where necessary we will return to the detail of his Honour's directions in the context of the grounds of appeal. It suffices for present purposes to identify the following matters.
In relation to whether an act of Mr Burt caused Mr Besselaar's death, the learned trial judge gave the jury an orthodox direction that a person causes the death of another if he does an act that substantially or significantly contributes to the death. His Honour directed the jury that the accused's act need not be the sole cause, but that it must be a substantial or significant cause in a common sense and practical way.[92]
[92] Ts 865.
In that context his Honour directed the jury that they had to be satisfied
beyond reasonable doubt that in light of all of the evidence, including the medical evidence, the act or acts of the accused in inflicting one or both of the knife wounds to the deceased substantially contributed to his death.[93]
[93] Ts 865 ‑ 866.
As noted above, however, depending upon whether one or other (or both) of the relevant 'acts' giving rise to the lower back injury and the shoulder injury respectively was established as having substantially contributed to Mr Besselaar's death, separate and distinct issues arose for the jury's consideration.
This can be seen reflected in the Decision Trees referred to above, each of which required a separate consideration of, and answer to, the question as to whether the lower back injury and the shoulder injury respectively substantially contributed to Mr Besselaar's death. Similarly, the learned trial judge's directions to the jury identified the need to consider the causative effect of the separate 'acts' giving rise to each injury before addressing the other issues.
For example, in relation to the question: 'Has the State proved beyond reasonable doubt that the lower back wound substantially contributed to the deceased's death?', the learned trial judge directed the jury that if the answer was 'No' they would then need to consider the shoulder injury.[94] His Honour then directed the jury:[95]
[I]n relation to the shoulder injury, the first question, of course, is:
Has the State proved beyond reasonable doubt that the shoulder injury substantially contributed to the deceased's death?
You wouldn't be going anywhere without having been satisfied of that in relation to each of the injuries. So again, if the answer is 'no', you're back to looking at what you've decided in relation to the lower back injury.
[94] Ts 931.
[95] Ts 934.
The separate and distinct issues arising in relation to each of the injuries were as follows.
In relation to the first 'act' (the penetration of Mr Besselaar's lower back by the knife held by Mr Burt), the learned trial judge directed the jury that they must be satisfied that the act was not an unwilled act (Code, s 23A). That is, that 'the State must prove beyond reasonable doubt that when the knife penetrated Mr Besselaar's lower back, it was as a result of a conscious decision by the accused to stab Mr Besselaar'.[96] His Honour directed the jury that if they were not so satisfied, that they should consider whether Mr Burt was nevertheless criminally negligent in his use or management of the knife (potentially leading to a verdict of manslaughter).[97]
[96] Ts 896.
[97] Ts 896 ‑ 898.
In relation to the second 'act' (the penetration of Mr Besselaar's shoulder by the knife held by Mr Burt) the learned trial judge directed the jury that they must be satisfied that Mr Burt was not acting in self‑defence. In that context, his Honour directed the jury that if Mr Besselaar was attempting to strike Mr Burt with a large screwdriver that conduct would be, for the purposes of the law of self‑defence, a harmful act.
The learned trial judge's directions in that context included the following:[98]
[98] Ts 915 ‑ 918.
[T]he State can prove that it was not done in self‑defence by proving beyond reasonable doubt any one of the following matters.
That the accused did not believe that the stabbing of Mr Besselaar was necessary in order to defend himself against a harmful act by Mr Besselaar.
Or (2), there were no reasonable grounds for the accused to believe that the stabbing of Mr Besselaar was necessary to defend himself against a harmful act by Mr Besselaar.
Or (3), the accused's stabbing of Mr Besselaar was not a reasonable response by the accused in the circumstances as he believed them to be.
If the State has not proved at least one of those matters, then the verdict in respect of the accused must be not guilty. If the State has proved at least one of those matters, then the State has proved that the accused's harmful act, that is the stabbing of Mr Besselaar, was not done in self‑defence.
Now, the first matter, so number 1, is concerned with the accused's subjective belief. What did he actually believe. The State can prove that the accused did not have the belief by proving that either the accused did not believe Mr Besselaar was doing, or would do, a harmful act. Or [2], the accused did not believe that stabbing Mr Besselaar was necessary to defend himself against any such harmful act. Now, in circumstances where the accused has given evidence that he did believe that Mr Besselaar was doing, or would do, a harmful act because he was actually doing a harmful act to him using the screwdriver.
In order to prove that he did not believe Mr Besselaar was doing, or would do, a harmful act, obviously, the State would need to satisfy you beyond reasonable doubt that you should reject the accused's evidence about that. So you would need to positively reject the accused's evidence in order for the State to be able to prove a negative of that kind. And the State has submitted to you that you should reject the accused's evidence because of the implausibility of things having occurred in the way that … Mr Burt described, and pointing to a number of factors, which I will say something about later, that the State says show his account cannot be believed.
Similarly, in relation to [2], that the accused did not believe that stabbing Mr Besselaar was necessary to defend himself against any such harmful act requires you to, in the first place, as far at the State's case is concerned, reject the evidence that Mr Besselaar has given. Or, if you consider his evidence, and you consider that on the basis of his own evidence he did not believe that stabbing Mr Besselaar was necessary to defend himself against any such harmful act, then the State can prove it on that basis.
Now, the second matter, and I'm going to come to Mr Burt's evidence about this in a moment, but the second matter that you need to be satisfied about, so number 2 in that list on page 2, is whether the accused's beliefs were reasonable. If the State can prove that matter, and it is that there were no reasonable grounds for the accused to believe that the stabbing of Mr Besselaar was necessary to defend himself against a harmful act by Mr Besselaar, by proving one of two matters.
Either that it was not reasonable, in all the circumstances, for the accused to believe that Mr Besselaar was doing, or would do, a harmful act. Or [2], it was not reasonable in all the circumstances for the accused to believe that stabbing Mr Besselaar was necessary to defend himself against any such harmful act. So the first part there is concerned with whether it was reasonable to believe that Mr Besselaar was doing or would do a harmful act. The second is to do with the reasonableness of – in all of the circumstances, of the accused believing that stabbing Mr Besselaar was necessary to defend himself against any such harmful act. So if there was a harmful act, was it reasonable?
Were there reasonable grounds for the accused to believe that it was necessary for him to stab Mr Besselaar in order to defend himself against any such harmful act. Now, the third matter in that list is concerned with the reasonableness of the accused's response in stabbing Mr Besselaar in the circumstances as he believed them to be. So this is on the basis that you at least think that it is reasonably possible that the accused had the belief that he described to you in his evidence about what was occurring and what Mr – or what might happen to him.
And in those circumstances, even if the accused believed that Mr Besselaar was doing or would do a harmful act, and that it was necessary for him to defend himself against that harmful act, the State can prove the accused did not act in self‑defence if it proves that what he did in stabbing Mr Besselaar was not a reasonable response in all the circumstances. So to determine the accused's beliefs – and those are the first two matters – requires an examination of his state of mind at the time of the act in question.
You have the accused's evidence about his state of mind. And you may also be able to draw inferences about his state of mind from all the circumstances established by other evidence. But you cannot draw an inference adverse to the accused in respect of his beliefs … unless it is the only reasonable inference available on the evidence … You cannot draw an inference adverse to the accused in respect of his beliefs unless it is the only reasonable inference available on the evidence. And that is consistent with the directions I gave you about the drawing of inferences and where you need to be satisfied about the matter as a necessary step in finding the accused guilty.
So the next matter then concerns the reasonableness of the accused's beliefs and the reasonableness of his response. They are objective matters to be judged by the standards of a reasonable person of the same age, background and level of intellectual function as the accused and familiar with all the circumstances that were known to him at the relevant time but not affected by alcohol because, when you're concerned with what is reasonable – objectively reasonable, it is no excuse to be affected by alcohol. That does not accord with reasonableness. So you will put that to one side.
In considering those matters, you need to take into account that a person defending himself cannot always weigh precisely the particular action which he should take in order to defend himself from harm. And you should approach your task in a broad and practical way, giving proper weight to the situation in which the accused person found himself.
That situation might be one in which he had little opportunity for calm … calm deliberation or detached reflection. And that is a matter for you to determine on the evidence. You must consider the whole of the circumstances at the time of the accused's actions. So with that question of reasonableness, members of the jury, you are applying the standards of a reasonable person and determining whether the response adopted by the accused, in stabbing Mr Besselaar in the area of his shoulder on the back, was a reasonable response in order to defend himself against the harmful act.
That obviously depends on the nature of the harmful act that was being inflicted upon him, that is upon the accused, Mr Burt, and what that may, as a matter of reasonableness, have caused a person to think might happen to them. So if there is a reasonable basis for him to believe that he is going to be killed, then that would obviously be a relevant consideration to your determination of what is a reasonable response and whether stabbing someone in the shoulder area in the back was a reasonable measure to save his own life.

The learned trial judge also directed the jury in relation to the element of intention. In that context, his Honour gave the following directions in relation to the relevance of intoxication:[99]
Now, the law provides that, where an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention, in fact, existed.
There is evidence that the accused was affected by alcohol at the time immediately after the incident that resulted in the fatal injuries to Mr Besselaar. There is also evidence that he had consumed pain tablets, that is the tramadol. If you find that the accused was intoxicated, then the fact that he was intoxicated, whether by alcohol or medications or by a combination of both, that fact may be regarded by you for the purpose of ascertaining whether the accused, in fact, had the intention to kill the deceased or to cause him a life‑threatening injury.
It's not a question of whether he was capable of having an intention. It's a question of whether he actually had the intention. And you're entitled to take into account, if you find that he was intoxicated, that fact because intoxication may sometimes result in people doing things without necessarily intending the consequences. On the other hand, as Mr Standish submitted to you, intoxication can sometimes disinhibit people so that do act with a particular intention when, otherwise, they may not have.
So these are the things that you would need to weigh. Evidence that the accused was intoxicated would not, in itself, entitle him to an acquittal because a person who is intoxicated may form the necessary intention. And a person who has formed that intention and who is intoxicated does not escape responsibility because his intoxication has reduced his inhibitions or diminished his power to resist temptation to carry out an intention, which is what I've just said. But the point is that it is relevant to your consideration of whether he actually had one of the relevant intentions. So if, because of the evidence as to the accused's intoxication or by reason of any other matter, you are not satisfied beyond reasonable doubt that he did, in fact, have an intention to kill the deceased or cause him a life‑threatening injury, then you must find the accused not guilty of the charge of murder.
[99] Ts 870.
As we observed at the beginning of these reasons, the jury returned a verdict of not guilty of murder, but guilty of manslaughter.
We turn to the conviction appeal.

Conviction appeal

Conviction appeal – grounds of appeal

There are seven grounds of appeal. They are in the following terms:
GROUND ONE – Evidence
1.There is a reasonable and not fanciful possibility of a miscarriage of justice occurring due to the court being misled by State witnesses which may have affected the verdict.
Particulars:
a.The forensic examination of the scene excluded substantive material evidence compelling to the appellant's case in violation with the terms of the search warrant.
b.The expert opinion of Sergeant Blaver (Bloodstain Pattern Analyst) was evidentially deficient, and failed to meet expert witness standards.
c.The police investigation failed to comply with the Criminal Investigation Act, precluded witnesses and compromised the integrity of the expert reports of the State's toxicologist and pathologist.
d.Expert medical witnesses from Royal Perth Hospital introduced false evidence, and produced misleading and prejudicial opinions.
e.The State's pathologist provided evidence to the Court in conflict with the Confidential Report to the Coroner.
f.The State's toxicologist failed to meet expert witness standards.
g.Leave to adduce additional evidence in the appeal is sought.
GROUND TWO – Chain of Causation
2.The learned trial Judge was in error by failing to resolve the chain of causation.
Particulars:
a.Directions given to the jury on the issue of 'death' were in conflict with law, and with material medical facts.
b.His Honour erred by omission that the lower back injury was not capable of causing death.
c.His Honour erred by excluding a direction on novus actus interveniens.
d.The uncontradicted evidence is that, objectively, the shoulder injury endangered the life of the deceased.
e.The Shoulder Injury Decision Tree pathway leading to a not guilty verdict based upon the absence of intent is unattainable.
f.Leave to adduce additional evidence in the appeal is sought.
PART TWO – INTENT & DEFENCES
GROUND THREE – State of mind
3.The learned trial Judge's directions on the appellant's 'state of mind' were in discord with the weight of the evidence, having a manifestly prejudicial effect on directions.
Particulars:
a.The use by his Honour of the term 'state of mind' confounded the distinction between 'intoxication' and 'intent' in the minds of the jury.
b.There was an absence of direction from his Honour on the distinction between general intent and specific intent.
c.It was an error in law for his Honour to direct the jury that 'state of mind' is a necessary consideration at Section 248(4)(c) in the determination of reasonable grounds for beliefs held by the appellant.
d.Omissions from his Honour's directions on the issue of intoxication – where it is 'partial', not 'self‑induced', or is temporally disconnected from the relevant circumstances – precluded necessary considerations by the jury.
GROUND FOUR – Reflex (Section 23A)
4.The learned trial judge erred by failing to leave to the jury the possibility that the deceased was killed by the appellant pursuant to an unwilled act.
Particulars:
a.A defence of unwilled act was open to the jury based upon the evidence, thus obliging the learned trial judge to direct the jury as to its application.
b.Despite defence counsel expressly not pursuing a direction from the trial judge as to unwilled act (on the shoulder injury), his Honour was still bound to direct the jury as to its potential application.
GROUND FIVE – Self‑defence (Section 248)
5.The learned trial judge erred in law when directing the jury on Section 248. The test of reasonableness was improperly applied and led to a substantial miscarriage of justice.
Particulars:
a.A series of misdirections, in addition to the non‑direction on a novus actus interveniens, confounded the circumstances, beliefs and acts relevant to Section 248(4)(b).
b.The directions did not delineate the questions of necessity and proportionality for Section 248(4).
c.His Honour failed to resolve the test into its proper constituent parts.
GROUND SIX – Accident (Section 23B)
6.There was a miscarriage of justice when his Honour erred by failing to leave to the jury the possibility that death resulted by accident pursuant to Section 23B.
Particulars:
a.A defence of unwilled act was open to the jury based upon the chain of events, thus obliging the learned trial judge to direct the jury as to its application.
b.Despite defence counsel expressly not pursuing a direction from the trial judge as to accident, his Honour was still bound to direct the jury as to its potential application.
PART THREE – UNREASONABLE VERDICT
GROUND SEVEN – Unreasonable Verdict
7.The sentencing judge applied impermissible reasoning to rationalise the verdict reached by the jury. The jury's verdict was unreasonable, having regard to the evidence.

Conviction appeal – application to adduce additional evidence on appeal

At the hearing of the appeal, Mr Burt tendered a number of documents which he sought to be admitted as additional evidence in the appeal.[100] Those documents were marked for identification, on the basis that the Court would hear submissions as to the significance of the documents in the course of Mr Burt's submissions as to the merits of the appeal, and would determine whether to admit the additional evidence in that context. Schedule 2 to these reasons is a list of the documents forming MFI 1.
[100] Prior to the hearing of the appeal, Mr Burt made two applications in the appeal (dated 30 July 2021 and 8 September 2021) seeking leave to adduce additional evidence in the appeal. Those applications identified, but did not produce, the evidence that was sought to be adduced (some of which Mr Burt sought to obtain from third parties). Those applications were dismissed by Mazza JA on 4 April 2022 on the basis that Mr Burt would produce all of the additional evidence that he wished to adduce at the hearing of the appeal.
Mr Burt confirmed that all of the material in MFI 1 was material that was part of the disclosure by the State prior to trial, but which was not adduced at trial.[101] The material comprising MFI 1 (and the grounds to which it was said to relate) may be summarised as follows:
(a)extracts from Sgt Blaver's Bloodstain Pattern Analysis Report (ground 1);
(b)extracts from the Forensic Disclosure Report, running sheets and other documents created in the course of the police investigation (including a search warrant) (grounds 1 and 7); and
(c)extracts from the records of the Hospital concerning Mr Besselaar's treatment at the Hospital (grounds 1 and 2).
[101] Appeal ts 62. Upon closer inspection it appears that one of the documents (Document 15 – an email dated 14 October 2020) was generated after the trial.
In exercising its discretion whether to admit additional evidence, this Court is ultimately concerned with whether it is just, in all of the circumstances, to admit the further evidence on appeal.[102] In that context, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence remain relevant to the exercise of the discretion and to the determination of whether there was a miscarriage of justice, although the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles.
[102] Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460 [114] (Buss JA, Steytler P agreeing) [9] (Pullin JA).
In that regard, where an accused has been convicted, an appellate court will not allow an appeal on the basis of new (as distinct from fresh) evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[103]
[103] Impicciatore vThe State of Western Australia [2020] WASCA 33 [69] ‑ [70] (Quinlan CJ), [218] ‑ [232] (Buss P & Mazza JA).
We have addressed the additional material further in the context of the grounds of appeal.

Conviction appeal – general overview of the grounds of appeal

Before dealing with the grounds of appeal in detail, it is appropriate to provide a general overview. At the hearing of the appeal, Mr Burt provided the following general overview of the structure of the appeal against conviction.
Mr Burt identified ground 7 – which alleges an unreasonable verdict – as the primary ground of appeal. He submitted that ground 7 was linked to ground 3 (concerning the trial judge's directions as to Mr Burt's state of mind) and ground 5 (concerning the trial judge's directions as to 'reasonableness' in the context of self‑defence). Indeed, Mr Burt submitted that ground 5 must be established for ground 7 to have any substance. As was pointed out to Mr Burt at the hearing of the appeal, however, the nature of ground 7 – being that, based on the evidence at trial, no jury could have failed to have a reasonable doubt about self‑defence – was capable of consideration regardless of any alleged misdirection by the trial judge.
Grounds 4 and 6 concern discrete complaints about the absence of certain directions concerning s 23A and s 23B of the Code.
By ground 4, Mr Burt contends that the trial judge erred in failing to leave the issue of 'unwilled act' to the jury in relation to the shoulder injury. This was based on the reference in his evidence to his stabbing Mr Besselaar as a 'reflex' (see [69] above). By ground 6, Mr Burt contends that the trial judge erred in failing to direct the jury to consider whether, if Mr Besselaar's death resulted from the injury to his lower back, that his death would have been an accident (within the meaning of s 23B of the Code).
The issues raised by ground 4 and ground 6 were not raised by counsel for Mr Burt at trial.
Finally, ground 1 and ground 2 were said to relate to 'causation'. In that context Mr Burt, in his appellant's case and at the hearing, made various references to there having been a novus actus interveniens or intervening act. It became clear at the hearing of the appeal that Mr Burt used that expression in two quite different senses.
First, he referred to his account of Mr Besselaar going to the garage to retrieve the screwdriver as being a novus actus interveniens.[104] While this did not reflect the usual use of that term, by this submission we understand Mr Burt to be contending that there were two quite separate and distinct 'incidents' between himself and Mr Besselaar that were required to be considered entirely independently. The submissions in support of ground 1 were directed to establishing the fact of that 'intervening act'.[105] This submission was linked to the contention in ground 6 that Mr Besselaar's death was not a foreseeable consequence of the injury to his lower back.[106]
[104] Appeal ts 69, 74.
[105] Appeal ts 67 ‑ 69, 74.
[106] Appeal ts 73.
The second sense in which Mr Burt invoked the notion of novus actus interveniens was more orthodox, and concerned the contention (particularly in ground 2) that the application of s 275 of the Code ought to have been left to the jury. In ground 2, Mr Burt also contended that the learned trial judge erred by 'omission that the lower back injury was not capable of causing death'.
Having regard to the way in which the conviction appeal was developed, we propose to address the grounds of appeal in the following order:
(a)ground 1 – misleading evidence as to novus actus interveniens;
(b)ground 2 – medical treatment as novus actus interveniens and the lower back injury;
(c)ground 6 – accident under s 23B of the Code;
(d)ground 4 – unwilled act under s 23A of the Code;
(e)grounds 3 and 5 – jury directions as to self‑defence; and
(f)ground 7 – unreasonable verdict.

Conviction appeal – ground 1 – misleading evidence as to novus actus interveniens

Mr Burt's written submissions in relation to ground 1 focused, for the most part, on detailed criticisms of the forensic scene investigation and in particular the bloodstain analysis carried out by Sgt Blaver.[107] A significant portion of the material sought to be adduced as additional evidence on the appeal also related to those criticisms.
[107] See Appellant's submissions [3] ‑ [36] (WAB 10 ‑ 17).
The significance of those matters was not readily apparent from the appellant's case filed by Mr Burt. As noted above, however, at the hearing of the appeal, Mr Burt clarified that his complaint was that, as a result of omissions from Sgt Blaver's evidence, and the police evidence more generally, significant evidence was excluded from the police investigation that would have demonstrated that Mr Besselaar left the scene after the initial stab wound, armed himself and then returned, thus separating the two interactions between Mr Burt and Mr Besselaar.[108] Thus Mr Burt sought to adduce evidence such as entries in running sheets referring to 'drops of blood in [the kitchen]' and records of blood swabs being taken from the garage. Documents 1 to 9 and 18 in MFI 1 fall into this category.[109]
[108] Appeal ts 69.
[109] See in particular Appellant's submissions [3], [4], [12] (document 1), [5] (document 2), [11(a)] (document 3), [11(b), (d)] (document 4), [11(g)] (document 5), [16] (document 6), [23] (document 7), [24(a)] (document 8), [28] (document 9). The alleged significance of document 18, which consists of a number of photographs of small bloodstains at the scene, is not clearly explained in the appellant's submissions although it appears to relate to the bloodstain analysis generally.
None of this evidence in relation to the forensic scene investigation is 'fresh' evidence. The evidence was all disclosed prior to trial and none of it is capable of establishing that Mr Burt is innocent or raises a doubt as to whether he should have been convicted.
Indeed, upon an analysis of the trial record, it is clear that the issue as to whether Mr Besselaar went to the garage to retrieve the screwdriver following the injury to his lower back was fully ventilated at trial. As is clear from the summary of the evidence at trial:[110]
(a)Sgt Blaver gave evidence in relation to areas in the garage showing staining that had an appearance consistent with blood;
(b)Senior Constable Popial confirmed that blood swabs were taken from those stains; and
(c)Senior Constable Ralph gave evidence that those apparent droplets of blood were not sent for analysis.
[110] See [53] above.
There was therefore evidence before the jury, to which they were entitled to have regard, in support of Mr Burt's evidence as to his assumption that Mr Besselaar had gone to the garage after suffering the wound to his back.[111] None of the 'new' evidence would have added to that evidence. Mr Burt, for example, submitted that 'new' evidence from the Forensic Disclosure Report (pages 111 and 112) demonstrated that swabs for blood were taken from the garage.[112] Evidence to that effect, however, was already before the jury.
[111] See [68] above.
[112] Appellant's submissions [28] (WAB 15).
In that context, it was not the case, as Mr Burt submitted, that the State was required 'to prove beyond reasonable doubt that the deceased did not deposit droplets of blood in the garage in accordance with the reasonable hypothesis raised by the accused's testimony'.[113] That submission misapprehends the State's burden, which was to prove the elements of the offence beyond reasonable doubt, not to disprove (to that standard) everything said by the accused in his defence.[114]
[113] Appellant's submissions [30] (WAB 15).
[114] Shepherd v The Queen[1990] HCA 56; (1990) 170 CLR 573, 576 (Mason CJ), 581 (Dawson J); Austic v The State of Western Australia[2010] WASCA 110 [2] ‑ [4] (McLure P); Wark v The State of Western Australia[2020] WASCA 19 [615] ‑ [616] (Beech JA, Mazza JA agreeing).
Nor is there any basis for contending that the additional evidence sought to be adduced in relation to the forensic scene investigation involved any deliberate exclusion or 'misleading' by State witnesses as alleged in ground 1. As we have observed, the documentation in relation to the forensic scene investigation was disclosed prior to trial and the relevant witnesses were all cross-examined. Defence counsel, whose conduct of the trial was not the subject of any criticism in the grounds of appeal, did not challenge the credit of Sgt Blaver or that of the other forensic officers. Indeed, it was defence counsel who adduced the evidence from Sgt Blaver as to the apparent blood stains in the garage. It is not in the interests of justice to admit documents 1 to 9 in MFI 1 as additional evidence on the appeal.
Similarly, it is not in the interests of justice to admit the other documents relating to the investigation referred to in the context of ground 1, namely documents 10 to 15 and 19 in MFI 1.[115] Mr Burt submitted that those documents demonstrated that there were matters that the investigating officers did not investigate (or did not verify) that would have assisted Mr Burt's defence by verifying his evidence. For example, he refers to there being no record of analysis of the screwdriver for Mr Besselaar's fingerprints[116] or any references in the examination of him to a head injury.[117] Similarly, Mr Burt submitted:[118]
Witnesses, potentially able to verify elements of the accused's testimony, were known to police by execution of the search warrant and photographed, but denied an opportunity to testify for the defence.
[115] Appellant's submissions [37] ‑ [45] (WAB 17 ‑ 19). See in particular [39] (document 10), [41] (document 11), [42] (documents 12, 13, 14), [44] (document 15), [45] (document 19).
[116] Appellant's submissions [41] (document 11).
[117] Appellant's submissions [42] (documents 12, 13, 14).
[118] Appellant's submissions [43].

Sentence appeal – ground 1 – fact findings

As is apparent, ground 1 contends that the learned trial judge erred in finding certain facts for the purposes of sentence. We will address each of the findings referred to in ground 1, together with additional facts referred to in Mr Burt's written submissions in support of ground 1.
Particulars (a) to (f) of ground 1 all relate to the learned trial judge's remarks at [3] and [8] of the Sentencing remarks. For convenience those paragraphs are, in full:
To arrive at the appropriate sentence in your case, it is necessary for me to determine the circumstances of the offence. I will do so in some detail shortly. Stated briefly, you stabbed Mr Besselaar with a large kitchen knife, causing two wounds: one to his lower back, which penetrated soft tissue and his pancreas, and one to the back of his left shoulder, which penetrated his lung and caused bleeding within his chest. Both injuries were capable of causing his death. Mr Besselaar died as a result of blood loss from the wounds.
…
Turning to the first issue raised at trial, the jury's verdict means it was satisfied beyond reasonable doubt that you caused the deceased's death. The issue raised on your behalf in that regard at trial was whether the medical intervention administered to the deceased in an attempt to save his life may have been the immediate cause of his death. In the end, the proposition was not open on the evidence given by the medical witnesses. The evidence overwhelmingly established that the deceased was bleeding profusely from the shoulder injury and was showing no signs of life when he was brought into the hospital emergency department. He had suffered a cardiac arrest following the stabbing, and at no time after that did his heart beat on its own. Artificial circulation of his blood was maintained while the medical intervention occurred, but, as the consultant surgeon, Mr Rao, said in evidence, the deceased was 'essentially dead' when he was brought into the emergency department. He was never revived. The forensic pathologist, Dr McCreath, found that the cause of death was the two stab wounds, and she maintained that opinion, knowing what had occurred in the emergency department.
As will be apparent from the summary of the evidence at trial, and our reasons in relation to ground 2 in the conviction appeal, none of the matters raised in particulars (a) to (f) of ground 1 arguably demonstrate error in these paragraphs of the Sentencing remarks. In brief:
(a)while the learned trial judge found that the shoulder wound was the immediate cause of Mr Besselaar's death, it was open to the trial judge to find that both injuries were capable of causing his death.[228] In any event the trial judge's remark to that effect was innocuous in the context in which both injuries had in fact caused Mr Besselaar's death, even if the shoulder injury could be described as the immediate cause;
(b)contrary to Mr Burt's submissions, Mr Besselaar did not die as a result of the medical treatment provided at the Hospital. There was no evidence that bleeding from the femoral cutdown even contributed to Mr Besselaar's death;[229]
(c)it was open to the jury to be satisfied and it was open to the trial judge to be satisfied for the purposes of sentencing that Mr Burt caused Mr Besselaar's death. Indeed, while (contrary to the terms of this particular) it was not necessary to determine the 'sole cause of death', the evidence was overwhelming that the stab wounds caused by Mr Burt, in combination, could properly be described as the sole cause of Mr Besselaar's death;
(d)as we have already concluded, the medical intervention was not a significant cause of Mr Besselaar's death. Even if it were, unless there was evidence that the medical intervention was the immediate cause, the potentially exculpatory effect of s 275 of the Code was not engaged;
(e)Dr Rao's evidence to the effect that Mr Besselaar 'was essentially dead when he got to us' was simply evidence that Mr Besselaar did not have any clinical signs of life at the time of the resuscitation attempts. It was clearly relevant to the issue of causation; and
(f)there was nothing 'evidentially deficient' in the evidence of Dr McCreath or Dr Rao such that their evidence could not be relied upon by the learned trial judge for the purposes of finding the facts for sentencing.
[228] See [173] above.
[229] See [163] above.
Particulars (g) to (j) of ground 1 challenge various pathways to the verdict of manslaughter identified by the learned trial judge in the course of the Sentencing remarks. The challenges to those pathways have been dealt with in the conviction appeal and need not be repeated. In any event, for the purposes of sentencing it was the fifth pathway –'excessive self‑defence' – that his Honour concluded had been established beyond reasonable doubt.
For the reasons we have given in relation to ground 7 in the conviction appeal, it was open to the jury to conclude that for Mr Burt to stab Mr Besselaar in the shoulder in the manner that he did was an unreasonable response in the circumstances Mr Burt believed them to be. Nor in our view was the learned trial judge in error to reach that conclusion for the purposes of sentence, particularly having regard to his Honour's obvious advantage in having seen and heard the witnesses give their evidence.
Particular (k) of ground 1 challenges his Honour's 'interpretation of pre‑trial admissions' made by Mr Burt, presumably in the 000 call and to the police officers who attended the scene. The appellant's submissions do not, however, identify any particular finding that is challenged in that regard. The only finding in the Sentencing remarks that could be said to be clearly based on those statements was that his Honour's finding that the two stab wounds occurred in the course of one struggle in the hallway.
In that context, his Honour referred to the 'things [Mr Burt] said in the 000 call and to First Class Constable Palmer'.[230] In those statements Mr Burt said that Mr Besselaar came at him with a knife (the same knife that Mr Burt used) and that Mr Burt stabbed him 'a couple of times'.[231] The statements included no reference to an unwilled act or to Mr Besselaar having 'projected … himself off the opposite wall' onto the knife.[232] The inconsistency of these statements with Mr Burt's account in evidence were capable of being relied upon by his Honour in concluding that the two stab wounds occurred in the course of one struggle.
[230] Sentencing remarks [48].
[231] Sentencing remarks [45].
[232] Sentencing remarks [38].
It must also be noted that his Honour did not reach that conclusion based on that evidence alone but on the combined effect of that evidence and the other evidence, including the absence of bloodstains that would indicate that Mr Besselaar went to the kitchen and the garage and the implausibility of aspects of Mr Burt's account. Again, his Honour having seen and heard the witnesses, in our view, it was open to his Honour to reach that conclusion beyond reasonable doubt. His Honour has not been shown to be in error in so doing.
The final particular in ground 1 (particular (l)) is that 'His Honour erroneously relied on the State's closing address as fact when it was predominantly conjecture'. The simple answer to this particular is that the learned trial judge did no such thing.
The Sentencing remarks make two references to the State's closing. Both were references to the difficulties with Mr Burt's account as to the manner in which the lower back and shoulder wounds were caused, which his Honour considered to be implausible. In that context, his Honour said that the difficulties with Mr Burt's account were summarised by the State in its closing.
The relevant part of the State's closing address included the following:[233]
So having retrieved that knife, Mr Besselaar, seeing that that knife is in Mr Burt's hand, Mr Burt claims that Mr Besselaar continued to obstruct his passage to that safe haven of his bedroom. And, ladies and gentlemen, do you remember the cross-examination? And it's a matter for you as to how you assess this, but, in my submission to you, Mr Burt was pretty argumentative when I was simply seeking from him some details of how it was that this attempted passage to his bedroom occurred.
Which side was he trying to pass Mr Besselaar? It's apparent from what Mr Burt said that Mr Besselaar was facing towards him, towards Mr Burt, trying to hold onto him. So they're faced together. Somehow he loses balance and he must spin around so that his hands are up against that left-hand wall, as we look at the photographs, and push himself off and then land on that knife that inflicts the wound in the way and the manner described by Dr McCreath as to the wound track.
Okay. So that wound effectively was one which, on my recollection of Dr McCreath's evidence and I will turn to it shortly, it was effectively a horizontal wound track. It went straight into that area of the hip. Okay. So if he has stumbled as claimed by Mr Burt – and you might remember I was asking him about whether he had lost any height and had to push himself up. But just look at the location of that wound, the depth of that wound, the circumstances immediately preceding what Mr Burt said occurred before that wound, and ask yourself does it pass any reasonable scrutiny?
Could the wound have been sustained in the way that Mr Burt claimed, or is that just simply inherently improbable?
[233] Ts 18 ‑ 20.
These remarks to the jury adequately summarise a number of the difficulties with Mr Burt's evidence, as it was tested in cross‑examination.[234] The learned trial judge did not err in referring to that summary in the course of his Sentencing remarks.
[234] See [73] above.
Ground 1 is without merit. We would refuse leave to appeal.

Sentence appeal – ground 2 – alleged impermissible reasoning

Ground 2 in the sentence appeal is, on its face and as confirmed in the submissions, a repetition of ground 5 of the conviction appeal.[235] For the reasons we have already given, it was open to the trial judge to be satisfied for the purposes of sentencing that for Mr Burt to stab Mr Besselaar in the shoulder in the manner that he did was an unreasonable response in the circumstances Mr Burt believed them to be.
[235] Appellant's submissions [37] (WAB 135).
Leave to appeal on ground 2 should be refused.

Sentence appeal – ground 3 – manifest excess

Ground 3 in the sentence appeal contends that the sentence imposed by the learned trial judge was manifestly excessive. The principles in relation to an appeal alleging manifest excess are well settled and were summarised in Kabambi v The State of Western Australia.[236]
[236] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
Particular care must be taken in relation to sentences customarily imposed for the offence of manslaughter. In that regard, the authorities make clear that there is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts.[237]
[237] Pomana v The State of Western Australia [2020] WASCA 204 (Pomana) [58] (Buss P, Mitchell & Vaughan JJA).
Manslaughter is, however, of its very nature a serious offence. It always calls for a sentence that reflects the value that Parliament has placed on human life.[238]
[238] Pomana [61] (Buss P, Mitchell & Vaughan JJA).
In the present case, notwithstanding the fact that it was not premeditated, Mr Burt's offending was objectively serious. He deliberately armed himself with a very dangerous weapon and he brought about the death of another human being by the use of that weapon. While Mr Burt's actions were found by the learned trial judge to be in self‑defence, it is notable that, in accordance with the trial judge's findings, Mr Besselaar came at Mr Burt with the screwdriver only after Mr Burt had deliberately stabbed him. In any event, the final stab wound inflicted on Mr Besselaar was an unreasonable response in the circumstances as Mr Burt believed them to be: Mr Burt had no reasonable basis to fear for his life and no reasonable cause to inflict what was clearly a life threatening injury.
While Mr Burt had the benefit of good prior character and remorse for having taken Mr Besselaar's life, he did not have the significant ameliorating effect that would come from a discount for a plea of guilty.
In his submissions, Mr Burt referred to four previous decisions of the Court in support of his submissions as to the standards of sentencing customarily imposed with respect to manslaughter: The State of Western Australia v Auckram,[239] Armstrong v The State of Western Australia,[240] The State of Western Australia v Camus,[241] and Marshall v The State of Western Australia.[242]
[239] The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 (Auckram).
[240] Armstrong v The State of Western Australia [2013] WASCA 290. (Armstrong).
[241] The State of Western Australia v Camus [2014] WASCA 74 (Camus).
[242] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99 (Marshall).
We will address each of these cases in turn.
Auckram was also a serious case of manslaughter involving excessive force in self‑defence. It also involved the use of a weapon, in that case a rifle. Like Mr Burt, the offender in that case was a person of prior good character, and had remorse for his offending. Unlike Mr Burt, the offender in Auckram accepted responsibility for the offending, and had offered to plead guilty to manslaughter prior to trial (a matter that was taken into account by the Court of Appeal in resentencing the offender).[243] In addition, at the time of sentencing the offender in Auckram, who was 53 years of age, was suffering from tonsillar carcinoma, a condition that would make prison more arduous for him. The Court also reduced the sentence that would otherwise be imposed due to the real risk that he would die in prison.[244] He also suffered from post-traumatic stress disorder.[245]
[243] Auckram [153(b)] (Buss JA; Mazza JA & Hall J agreeing).
[244] Auckram [159] (Buss JA; Mazza JA & Hall J agreeing).
[245] Auckram [153(c)] (Buss JA; Mazza JA & Hall J agreeing).
The offender in Auckram was sentenced following a State appeal, to 6 years imprisonment. While that sentence was less than that imposed on Mr Burt for a serious case of manslaughter, the offender in Auckram had the benefit of a number of mitigating factors that were absent in the present case.
In Armstrong the offender, who was 28 years of age at the time of sentence, was resentenced by this Court to 8 years imprisonment. It was another case of excessive self‑defence involving a knife. In that case, the victim had brandished the knife first, which the offender took from the victim (after the victim had already been wounded by the knife), following which the offender stabbed the victim three times in what the sentencing judge described as a 'frenzy of anger or incoherence or lack of control'.[246]
[246] Armstrong [10] (Mazza JA; Newnes JA & Hall J agreeing).
While younger than Mr Burt, the offender in Armstrong had similar antecedents: he encountered some difficulties in his childhood, problematic alcohol and cannabis use and, while he had a criminal history, it was relatively minor.[247]
[247] Armstrong [12] ‑ [13] (Mazza JA; Newnes JA & Hall J agreeing).
The offending in Armstrong could be regarded as somewhat more serious than in the present case, given the number of blows inflicted on the victim. Nevertheless, there are two significant differences between the circumstances in Armstrong and the present case:
(a)the maximum penalty for manslaughter applicable in Armstrong was 20 years. In the present case it was life imprisonment. An increase in the maximum penalty for an offence is an indication that sentences for the relevant offence should be increased; and
(b)the offender in Armstrong pleaded guilty at an early stage. Unlike in the present case, his plea of guilty warranted a reduction in his sentence of 25%.[248]
[248] Armstrong [30] (Mazza JA; Newnes JA & Hall J agreeing).
Camus was a State appeal against sentence, in which this Court imposed a sentence of 6 years 6 months imprisonment. The offence in Camus also involved the use of a knife. The offender stabbed the victim three times in the torso following an incident in which the victim viciously attacked two of the offender's friends. The offender, who was very intoxicated, had intentionally followed the victim.
The circumstances of the offending in Camus were, in our view, more serious than those in the present case, and the offender had a number of mitigating factors in common with Mr Burt, including prior good character, a low risk of violent reoffending and a lack of premeditation. The offender in Camus, at 22 years of age (at the time of the offending), was, however, youthful for sentencing purposes and, as a French national with limited English, imprisonment had been more onerous for him.
Significantly, the maximum penalty for manslaughter applicable in Camus was 20 years.
Finally, in Marshall the offender was sentenced to 7 years 6 months imprisonment for manslaughter, after the maximum penalty had been increased to life imprisonment. The offender in Marshall, who was 32 years of age (at the time of sentencing), had stabbed the victim five times in the back with the shaft of a golf club. The offender had been under attack by the victim and two companions who had armed themselves with pieces of wood, in what the sentencing judge described as 'grossly aggressive behaviour'.[249] The stabbing occurred in the course of that altercation. As in the present case the offender in Marshall called an ambulance after injuring the victim.
[249] Marshall [26] (Martin CJ; Hall J agreeing).
The offence in Marshall, particularly given the number and force of stab wounds, was plainly very serious. As in the present case, the offender was genuinely remorseful. There were, however, two significant mitigating factors in Marshall that are not present in this case:
(a)the offender in Marshall suffered from a neurocognitive impairment as a consequence of a previous car accident. That impairment was found to have played a significant part in his overreaction to the attack on him and reduced his culpability, although not to the level that it limited his ability to know right from wrong; [250]
(b)the offender in Marshall pleaded guilty to the offence, leading to a reduction in his sentence of 15%.[251]
[250] Marshall [25] (Martin CJ; Hall J agreeing).
[251] Marshall [22] (Martin CJ; Hall J agreeing).
When considered in their full context, none of the authorities relied upon by Mr Burt suggest that the sentence of 8 years imposed by the learned trial judge was plainly unjust or unreasonable. To the extent that those cases reveal customary standards of sentencing in relation to manslaughter, in our view, they tend to confirm that the sentence imposed by his Honour fits comfortably within the range of sentences customarily imposed for that crime.

Of all of those cases, Armstrong is perhaps the most comparable, having regard to the various sentencing considerations. The offender in that case received the same sentence as did Mr Burt. In that regard, as the State submitted, the following observations made by Martin CJ in Marshall, could equally be applied to the present case:[252]
The sentence imposed by this court in Armstrong in respect of an offence committed at a time when the maximum penalty was less than that applicable at the time of the offence committed in this case, places an obvious and significant difficulty in the path of the appellant's assertion that the sentence imposed in this case was manifestly excessive given the comparable circumstances of the two cases.
[252] Marshall [55] (Martin CJ; Hall J agreeing).
In our view there is no merit to the contention that the sentence imposed by the learned sentencing judge was manifestly excessive. We would refuse leave to appeal on ground 3.

Sentence appeal – conclusion

Leave to appeal having been refused in relation to each of the grounds of appeal in the sentence appeal, the sentence appeal must be dismissed.

Conclusion

In light of the foregoing, we would make the following orders:
(a)the application to adduce additional evidence in the conviction appeal (CACR 23 of 2021) is refused;
(b)leave to appeal on each of grounds 1 to 7 in the conviction appeal (CACR 23 of 2021) is refused;
(c)the conviction appeal (CACR 23 of 2021) is dismissed;
(d)leave to appeal on each of grounds 1 to 3 in the sentence appeal (CACR 22 of 2021) is refused; and
(e)the sentence appeal (CACR 22 of 2021) is dismissed.

Schedule 1

Schedule 2

Additional evidence sought to be adduced by the appellant

Document	Description
1.	Extract from Bloodstain Pattern Analysis Report (pages 1 to 6)
2.	Extract from Forensic Disclosure Report (page 19)
3.	Extract from running sheet (page 7)
4.	Extract from running sheet (page 3)
5.	Extract from Forensic Disclosure Report (page 16 to 18)
6.	Extract from Forensic Disclosure Report (page 49)
7.	Extract from Forensic Disclosure Report (page 10)
8.	Extract from Forensic Disclosure Report (page 13)
9.	Extract from Forensic Disclosure Report (page 111 to 112)
10.	Copy search warrant
11.	Extract from Forensic Disclosure Report (page 95)
12.	Extract from Forensic Disclosure Report (page 12 to 14)
13.	Extract from Forensic Disclosure Report (page 15)
14.	Extract from running sheet dated 27 December 2018.
15.	Email from Office of the Director of Public Prosecutions dated 14 October 2020
16.	Bundle of Extracts from Royal Perth Hospital notes
17.	Journal article – Resuscitative Thoracotomy – September 2016
18.	Bundle of Photographs from Prosecution Brief
19.	Running Sheet – Officer Sloan

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Principal Associate to the Honourable Chief Justice Quinlan
14 NOVEMBER 2022