Calabro v The State of Western Australia - [2024] WASCA 10

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CALABRO -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 10
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   18 JULY 2022 & 19 APRIL 2023
DELIVERED          :   2 FEBRUARY 2024
FILE NO/S:   CACR 33 of 2020
BETWEEN:   DOMINIC CALABRO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   JENKINS J
File Number            :   INS 321 of 2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of murder - Whether defence counsel failed to follow instructions and as a result a miscarriage of justice occurred - Whether the jury's verdict of guilty of murder is unreasonable or cannot be supported having regard to the defences available under s 244 and s 248 of the Criminal Code (WA) - Whether the trial judge misdirected the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code - Whether evidence, including records of interview between the appellant and police and records of conversations between the appellant and visitors at Hakea Prison, were wrongly admitted into evidence - Whether the prosecutor asked repetitive questions and was harassing towards the appellant while the appellant was giving evidence and as a result a miscarriage of justice occurred - Whether the prosecutor's closing address was misleading, unduly annoying, harassing, offensive and oppressive and as a result a miscarriage of justice occurred

Legislation:

Criminal Code (WA), s 244, s 248, s 279
Evidence Act 1906 (WA), s 106HB, s 112

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms L E Christian SC (18 July 2022), Mr R G Wilson (19 April 2023)

Solicitors:

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

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

Clarke v The State of Western Australia [2018] WASCA 14
Colley v The State of Western Australia [2015] WASCA 79
Goedecke v The State of Western Australia [2013] WASCA 25
Huggins v The State of Western Australia [2018] WASCA 61
JJS v The State of Western Australia [2014] WASCA 136
Leahy v The State of Western Australia [2021] WASCA 66
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
MAM v The State of Western Australia [2018] WASCA 35
McMahon v The State of Western Australia [2010] WASCA 143
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
Rankins v The State of Western Australia [2018] WASCA 138
Thorns v The State of Western Australia [2022] WASCA 127
Wark v The State of Western Australia [2023] WASCA 66
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

JUDGMENT OF THE COURT:

The appellant, Dominic Calabro, has applied for leave to appeal against conviction.
He was charged on an indictment which alleged that on or about 8 July 2018, at Balga, he murdered Andrew Minh Tran, contrary to s 279 of the Criminal Code (WA) (the Code).
On 21 October 2019, the appellant was convicted, after a trial before Jenkins J and a jury, of Mr Tran's murder.
On 31 January 2020, the trial judge sentenced the appellant to life imprisonment with a non‑parole period of 23 years. The sentence was backdated to 8 July 2018 to take account of time the appellant had spent in custody.
The appellant was represented at the trial by senior counsel, Simon Freitag SC. Mr Freitag was instructed by a solicitor, Clayton Woodhouse, who appeared as junior counsel at the trial.
The appellant was self‑represented in the appeal.
We would dismiss the appeal. Our reasons are as follows.

The appellant's initial grounds of appeal

Initially, the appellant relied upon four grounds of appeal. Those grounds were set out in his appellant's case filed 24 March 2021.
Ground 1 alleges, in essence, that '[p]olice were negligent in handling [the] appellant whilst [he was] under arrest'. Particulars of the ground make two complaints. First, police did not convey the appellant to Graylands Hospital immediately nor provide a forensic nurse, doctor or psychiatrist immediately for the purpose of examining and assessing the appellant. Secondly, police did not give the appellant reasonable access to a lawyer as he had requested on multiple occasions.
Ground 2 alleges, in essence, that defence counsel failed to follow instructions and, as a result, a miscarriage of justice occurred. The appellant's complaints, as explained in his submissions, appear in substance to be as follows. First, defence counsel failed to pursue an alternative defence case theory that other people were involved in or responsible for Mr Tran's death. Secondly, defence counsel failed to act upon materials provided by the appellant's sister, Luisa Calabro, in relation to Facebook screenshots and upon information provided by Ms Calabro in relation to potential defence witnesses who could give evidence about Mr Tran's character and propensity for violence. Thirdly, defence counsel failed to obtain details of pending criminal charges against Mr Tran and to adduce evidence of those pending charges at the appellant's trial.
Ground 3 alleges, in essence, that the jury's verdict of guilty of murder was unreasonable and could not be supported having regard to the defences available under s 244 and s 248 of the Code. Ground 3 comprises, in essence, two subgrounds. Ground 3.1 alleges that the defence under s 244 was available because Mr Tran punched the appellant in the face at the front door of the appellant's dwelling and consequently Mr Tran was a home invader. Mr Tran then continued to assault the appellant and threatened the appellant while Mr Tran was in the dwelling. Ground 3.2 alleges that the defence under s 248 was available because Mr Tran assaulted and threatened the appellant on many occasions; Mr Tran's actions were escalating and threats of imminent danger were looming; and Mr Tran had threatened to kill others indirectly and in front of the appellant.
Ground 4 alleges, in essence, that the jury's verdict of murder was unreasonable and could not be supported having regard to the defence of excessive self‑defence that was available under s 248 of the Code.

The appellant's application in an appeal filed on 22 June 2022 to vacate the appeal hearing

On 28 April 2022, the appeal was listed for hearing on 18 July 2022.
On 22 June 2022, the appellant filed an application in an appeal to vacate the hearing date for the appeal. The application was supported by the appellant's affidavit sworn 22 June 2022. In the affidavit the appellant acknowledged that on 2 May 2022 he was informed that the appeal had been listed for hearing on 18 July 2022. The appellant deposed to various circumstances within the prison where he was being held which the appellant asserted had impeded his preparation for the appeal hearing. On 18 July 2022, this court dismissed the appellant's application. The court was satisfied that the circumstances alleged in the appellant's affidavit did not prevent him from adequately presenting his case on the listed hearing date.

The appellant's other applications in an appeal that were heard on 18 July 2022

The appellant filed two other applications in an appeal that were heard on 18 July 2022.
One application was made orally by the appellant and sought leave to adduce additional evidence in the appeal, namely an affidavit of Luisa Calabro sworn 17 May 2021 and a statutory declaration of Ms Calabro made 8 July 2021.
The other application was filed on 7 July 2022 and sought leave to adduce additional evidence in the appeal, namely an affidavit of Bonar Levison sworn 6 July 2022.
On 18 July 2022, counsel for the State objected to the admissibility of various parts of Ms Calabro's affidavit and statutory declaration.
On 18 July 2022, the court ruled that it would receive, on a provisional basis, the additional evidence sought to be relied upon by the appellant, and would rule in its reasons for judgment in the appeal whether and to what extent the additional evidence was admissible and leave to adduce the evidence should be granted.

The State's application in an appeal that was heard on 18 July 2022

On 18 July 2022, this court heard an application in an appeal filed by the State on 3 September 2021. The application sought leave to adduce additional evidence in the appeal, namely an affidavit of Mr Woodhouse sworn 31 August 2021.
On 18 July 2022, the court ruled that it would receive, on a provisional basis, the additional evidence sought to be relied upon by the State and would rule in its reasons for judgment in the appeal whether and to what extent the evidence was admissible and leave to adduce the evidence should be granted.

The hearing of the appeal on 18 July 2022

At the hearing of the appeal on 18 July 2022, the appellant informed the court that he proposed to cross‑examine Mr Woodhouse on various issues relating to ground 2 of the appeal. The court explained to the appellant that his questions had to be relevant to the grounds of appeal. The court also explained to the appellant that, to the extent he put particular propositions of fact to Mr Woodhouse in cross‑examination and those propositions were not accepted by Mr Woodhouse, there would be no evidence in support of those propositions because the appellant had not filed an application in the appeal for leave to adduce evidence from the appellant. The court also explained to the appellant that if he wanted to put his version of events before the court then he would have to make an oral application for leave to adduce evidence of his version by giving evidence in the witness box at the hearing on 18 July 2022. The court also explained to the appellant that if he sought to adopt that course then counsel for the State would be entitled to cross‑examine him.
It became apparent on 18 July 2022, following an exchange between the court and the appellant in relation to supplementary questions the appellant sought to ask Ms Calabro, that the appellant wanted to adduce evidence from Ms Calabro in support of his assertion that, after he had been charged with the murder of Mr Tran and remanded in custody in Hakea Prison, he had been diagnosed with 'bipolar and schizo‑bipolar'. The appellant said that Ms Calabro could give evidence as to her observations of his behaviour while he was remanded in custody and that her evidence would support ground 1. The court pointed out to the appellant that he had not sought leave to adduce expert medical evidence in the appeal from a psychiatrist, a clinical psychologist or even a medical practitioner with relevant general practice experience.
At the hearing on 18 July 2022, the appellant said that he wanted to amend his grounds of appeal to allege two additional grounds. First, that the trial judge misdirected the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code. Secondly, that a miscarriage of justice occurred at his trial because evidence was not adduced to the effect that, at the time he killed Mr Tran, he was of unsound mind.
On 18 July 2022, the court made these orders:
(a)By 4.00 pm on 8 August 2022, the appellant must file and serve any application for leave to amend his grounds of appeal by adding an additional ground which alleged that the trial judge misdirected the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code, together with the appellant's proposed written submissions in support of the additional ground.
(b)By 4.00 pm on 19 September 2022, the appellant must file and serve:
(i)any application for leave to amend his grounds of appeal by adding a further additional ground which alleged that a miscarriage of justice occurred at the trial because evidence was not adduced to the effect that, at the time of killing Mr Tran, the appellant was not criminally responsible for the killing on account of unsoundness of mind within s 27 of the Code; and
(ii)an affidavit in support of any application which annexed the written opinion of a psychiatrist as to whether, at the material time, the appellant was of unsound mind within s 27 of the Code.
On 18 July 2022, after making those orders, the court informed the parties that the court would proceed immediately to hear submissions on the four existing grounds of appeal and to hear evidence as necessary. The appeal proceeded on that basis. At the conclusion of the hearing on 18 July 2022 the court reserved its decision on the applications in an appeal for leave to adduce additional evidence in the appeal. The court also reserved its decision on grounds 1, 2, 3 and 4.

Developments after the hearing on 18 July 2022

After the hearing on 18 July 2022:
(a)The appellant filed an application in an appeal on 28 July 2022, pursuant to the order referred to at [25(a)] above, for leave to amend his grounds of appeal by adding a new ground 5. The appellant also filed written submissions on 28 July 2022 in support of the proposed new ground 5.
(b)The appellant filed an application in an appeal on 15 September 2022 which in substance sought an extension of the time specified in the order referred to at [25(b)] above.
(c)On 19 September 2022, the court ordered that the time for compliance with the order referred to at [25(b)] above be extended from 4.00 pm on 19 September 2022 to 4.00 pm on 3 November 2022.
(d)The appellant filed an application in an appeal on 20 October 2022 which in substance sought another extension of the time specified in the order referred to at [25(b)] above as extended by the court on 19 September 2022.
(e)The appellant filed another application in an appeal on 20 October 2022 which in substance sought an order directing the Superintendent of Acacia Prison 'to allow a special visit from [Dr Victoria Pascu, consultant forensic psychiatrist] to interview [the appellant] either face‑to‑face or via video for as long as she needs in order to make an assessment of [the appellant] for a [p]sychiatric report'.
(f)On 27 October 2022, the court ordered that the time for compliance with the order referred to at [25(b)] above be extended again to 4.00 pm on 18 January 2023.
(g)On 27 October 2022, the court ordered that the appellant's application in an appeal filed 20 October 2022 for, in substance, an order directed to the Superintendent of Acacia Prison be dismissed.
(h)The appellant filed an application in an appeal on 22 December 2022 which in substance sought leave to adduce additional evidence in the appeal from the appellant. In his affidavit sworn 21 December 2022 in support of the application, the appellant said that the purpose of the affidavit was 'to explain what [the appellant] heard about [Mr Tran's] reputation prior to [the appellant] meeting him' at 1.00 am on 4 July 2018 (that is, about four days before the appellant killed Mr Tran).
(i)The appellant filed another application in an appeal on 22 December 2022 which in substance sought leave to adduce additional evidence in the appeal concerning criminal charges against Mr Tran that were pending as at the date of his death, the bail conditions relating to those charges and witness statements in respect of those charges.
(j)On 30 December 2022, the court ordered that the appellant's applications in an appeal filed 22 December 2022 be referred to the resumed hearing of the appeal.
(k)The appellant filed an application in an appeal on 3 January 2023 which in substance sought leave to issue a witness summons to the Commissioner of Police.
(l)The appellant filed an application in an appeal on 4 January 2023 which in substance sought leave to adduce additional evidence in the appeal from the appellant. In his affidavit sworn 4 January 2023 in support of the application, the appellant said that the purpose of the affidavit was to explain 'why it was unreasonable [to expect him] to call the police prior to' killing Mr Tran.
(m)On 12 January 2023, Buss P ordered that the appellant's application in an appeal filed 3 January 2023 for leave to issue a witness summons to the Commissioner of Police be referred to a directions hearing on 8 February 2023 and that the appellant's application filed 4 January 2023 for leave to adduce additional evidence in the appeal be referred to the resumed hearing of the appeal.
(n)The appellant filed an application in an appeal on 18 January 2023 which in substance sought a number of orders directing the Superintendent of Acacia Prison to provide the appellant with various computer, internet and other facilities to assist him in preparing for the resumed hearing of the appeal.
(o)On 20 January 2023, Buss P made an order that by 4.00 pm on 31 January 2023 the appellant file and serve an affidavit which annexed a letter from Dr Pascu setting out details as to the current status of her report and when it would be completed.
(p)On 26 January 2023, the appellant filed an affidavit sworn by him on 25 January 2023 which explained Dr Pascu's progress in preparing her report.
(q)The appellant filed an application in an appeal on 2 February 2023 for 'a Certificate against Self‑Incrimination'.
(r)On 8 February 2023, Buss P and Mazza JA:
(i)made various programming orders to facilitate Dr Pascu's preparation of her report, including an order that the time for compliance with the order referred to at [25(b)] above be extended again to 4.00 pm on 13 March 2023; and
(ii)dismissed the appellant's applications in an appeal filed 3 January 2023, 18 January 2023 and 2 February 2023.
(s)The appellant filed an application in an appeal on 15 February 2023 for leave to issue a witness summons to the Commissioner of Police.
(t)On 20 February 2023, Buss P ordered that the appellant's application in an appeal filed 15 February 2023 for leave to issue a witness summons to the Commissioner of Police be referred to a directions hearing on 24 February 2023.
(u)The appellant filed an application in an appeal on 23 February 2023 for leave to issue another witness summons to the Commissioner of Police.
(v)On 23 February 2023, the Acting Court of Appeal Registrar ordered that the appellant's applications in an appeal filed 15 and 23 February 2023 for leave to issue witness summonses be heard at the directions hearing on 24 February 2023.
(w)On 24 February 2023, Buss P and Mazza JA ordered:
(i)as to the application in an appeal filed 15 February 2023, leave is granted to issue a witness summons directed to the Commissioner of Police to produce at 9.00 am on 31 March 2023 the video recordings referred to in paragraph 3 of the appellant's affidavit sworn 15 February 2023; and
(ii)as to the application in an appeal filed 23 February 2023, leave is granted to issue a witness summons directed to the Commissioner of Police to produce at 9.00 am on 31 March 2023 the audio recording referred to in paragraph 9 of the appellant's affidavit sworn 22 February 2023.
(x)On 27 March 2023, the appellant filed an application in an appeal for leave to amend his grounds of appeal by adding new grounds 6, 7 and 8; to rely on submissions exceeding 20 pages; and to amend his orders sought.
(y)On 27 March 2023, the appellant filed an application in an appeal for leave to adduce additional evidence, namely the psychiatric report of Dr Pascu dated 7 March 2023.
(z)On 27 March 2023, the appellant filed an application in an appeal for leave to adduce additional evidence, namely the report of Professor David Joyce dated 10 September 2019.
(aa)The appellant filed written submissions on 27 March 2023 in support of the proposed grounds 6, 7 and 8.
(bb)On 30 March 2023, Buss P ordered that the applications in an appeal filed on 27 March 2023 in relation to Dr Pascu and Professor Joyce be listed for hearing on 19 April 2023.
(cc)On 31 March 2023, a solicitor engaged by the Commissioner of Police appeared before Buss P and Mazza JA in answer to the witness summonses that had been issued to the Commissioner of Police. The Commissioner did not have any documents or recordings to produce in answer to the witness summonses.
(dd)The appellant filed an application in an appeal on 13 April 2023 for leave to file and serve additional submissions.
(ee)On 14 April 2023, the State filed written submissions in response to proposed grounds 6, 7 and 8.

The appellant's proposed additional grounds of appeal

As we have mentioned, the appellant sought leave to supplement his initial grounds of appeal by relying upon new grounds 5, 6, 7 and 8.
Proposed ground 5 alleges, in essence, that the trial judge misdirected the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code and that the misdirection involved an error of law and fact, and occasioned a miscarriage of justice.
Proposed ground 6 alleges, in essence, that inadmissible evidence, including recordings, was admitted at the trial and the admission of that evidence, including the recordings, involved an error of law and fact by the trial judge and occasioned a miscarriage of justice. Ground 6 comprises, in essence, five subgrounds.
Ground 6.1 alleges that two police interviews were wrongly admitted into evidence at the trial, contrary to s 106HB of the Evidence Act 1906 (WA), and that the admission of the interviews involved an error of law by the trial judge and occasioned a miscarriage of justice.
Ground 6.2 alleges that recordings of conversations between the appellant and visitors at Hakea Prison were wrongly admitted into evidence, contrary to s 106HB of the Evidence Act, and that the admission of the recordings involved an error of law by the trial judge and occasioned a miscarriage of justice.
Ground 6.3 substantially reproduces ground 6.2, but alleges that the recordings of the conversation were wrongly admitted into evidence, contrary to s 112 of the Evidence Act, and that '[d]ue to the [appellant's] mental impairment these recordings were extremely prejudicial [to the appellant] and completely out‑weighed all, if any, probative value to the prosecution'.
Ground 6.4 alleges that the trial judge erred by ruling that photograph 414, which depicted a cut to Mr Tran's neck, was admissible and should be received in evidence as Exhibit 41, in that the photograph was 'extremely prejudicial [to the appellant] and out‑weighed any probative value to the prosecution'.
Ground 6.5 alleges that the trial judge erred by deciding that a ruler should be admitted into evidence as Exhibit 42 in that the ruler was tendered by the State for the purpose of representing the length of the wound suffered by Mr Tran and the width of the knife used to inflict the wound and, in these circumstances, the ruler was 'prejudicial [to the appellant] as it was a false and misleading representation of the stab wound'.
Proposed ground 7 alleges, in essence, that the trial judge erred 'by forcing the appellant, when giving evidence, to answer repetitive questions'. Ground 7 also alleges that her Honour erred 'by allowing the prosecutor to continue to be repetitive and harassing to the appellant whilst the appellant was giving evidence'. Ground 7 also alleges that her Honour erred 'by not adequately directing or misdirecting the jury'. It is contended that her Honour's alleged errors occasioned a miscarriage of justice. Ground 7 comprises, in essence, four subgrounds.
Ground 7.1 alleges that the trial judge forced the appellant, when giving evidence, to answer repetitive questions; the appellant said at ts 1098 that he had already answered a question; the question was repetitive; nevertheless, her Honour told the appellant that he was to answer the question again; this prejudiced the appellant at the time; consequently, a miscarriage of justice occurred.
Ground 7.2 alleges that the trial judge allowed the prosecutor to be repetitive and harassing to the appellant while the appellant was giving evidence; her Honour allowed the prosecutor to be misleading, repetitive, unduly annoying and harassing; this was prejudicial to the appellant; consequently, a miscarriage of justice occurred.
Ground 7.3 alleges that the trial judge failed to direct the jury on the mental impairment or psychiatric diagnosis of the appellant; the appellant was mentally impaired and heavily medicated; this was prejudicial to the appellant; her Honour's failure to direct the jury appropriately occasioned a miscarriage of justice.
Ground 7.4 alleges that the trial judge failed to give an appropriate direction to the jury to cure 'the unsupported … [alternative] version of events' advanced by the prosecutor in his cross‑examination and address to the jury; the prosecutor's alternative version of events was that '[Mr Tran] was on his knees facing the couch and had his neck cut from behind'; the prosecutor 'conceded' this version of events; her Honour failed to direct the jury on this concession; it was therefore open to the jury to adopt the alternative version of events that had been conceded by the prosecutor; the jury chose to rely on the alternative version of events in arriving at their verdict which was unreasonable and unsupported by the evidence; consequently, a miscarriage of justice occurred.
Ground 8 alleges, in essence, that the prosecutor's cross‑examination of the appellant and the prosecutor's address to the jury were 'misleading, unduly annoying, harassing, offensive and oppressive' and were calculated 'to elicit a prejudicial and unreasonable verdict by the jury that was unsupported by the evidence'. It is contended that the prosecutor's alleged conduct occasioned a miscarriage of justice.

The resumed hearing of the appeal on 19 April 2023

At the resumed hearing of the appeal on 19 April 2023, the appellant made oral submissions on, amongst other matters, the proposed additional grounds of appeal.
At the conclusion of the resumed hearing on 19 April 2023, the court made orders as follows:
(a)The court reserves judgment on the appellant's:
(i)application in an appeal dated 9 March 2023 to amend the grounds of appeal;
(ii)application in an appeal dated 14 March 2023 to adduce the evidence of Dr Pascu;
(iii)application in an appeal dated 14 March 2023 to adduce the evidence of Professor Joyce; and
(iv)application in an appeal filed 13 April 2023 for leave to file submissions.
(b)The court reserves judgment on the appellant's outstanding applications in an appeal including his applications filed 28 July 2022, 22 December 2022, 22 December 2022 and 4 January 2023.
(c)The court reserves judgment in the appeal.

The critical issue at the trial

It was common cause at the trial (and on the appeal) that the appellant had killed Mr Tran.
The critical issue at the trial was whether the jury were satisfied beyond reasonable doubt that the appellant's actions in killing Mr Tran were unlawful.

The State's case at the trial

The State's case at the trial was, in summary, as follows.
At about 8.45 am on Sunday, 8 July 2018, Mr Tran arrived at the appellant's house in Balga.
At about 3.00 pm on that day police found Mr Tran's body at the appellant's house. Mr Tran had been tied up, beaten and stabbed. His throat had been cut.
When Mr Tran died he was aged 29 and the appellant was aged 39.
The appellant had been living at the Balga house for a few months before Mr Tran's death. Usually the appellant lived alone. However, from time to time people would stay at the appellant's home.
A number of people who had interacted with Mr Tran or the appellant in the days preceding Mr Tran's death were called as State witnesses at the trial. Those witnesses gave evidence to the effect that Mr Tran and the appellant knew each other; Mr Tran had visited the appellant's house in the days preceding his death; and on the day before Mr Tran's death the appellant believed that his house had been burgled and the appellant was attempting to find those responsible for the burglary.
On the night before his death Mr Tran was affected by drugs, distressed and at times aggressive. On the night before his death Mr Tran had been assaulted. He stayed that night at Cindy Winjen's (also known as Cindy Cross) house in Balga.
Ms Winjen gave evidence that on the night of Saturday, 7 July 2018, Mr Tran arrived at her house. He was distressed and said that he had been stabbed. Mr Tran removed his clothes and showed his injuries to Ms Winjen and Shaun Smith, who also lived at Ms Winjen's house. Ms Winjen and Mr Smith saw that Mr Tran had a number of small cuts to his arm, a cut to his calf and a cut to his little finger. Mr Smith cleaned Mr Tran's injuries and applied a makeshift bandage to his calf to stop the bleeding and put a band‑aid on his finger.
Mr Tran stayed at Ms Winjen's house on the Saturday night. Alisa Oldham who was, at the time, training to be a nurse and who knew Mr Tran was contacted about him. She arrived at Ms Winjen's house sometime after 8.15 am on Sunday morning, 8 July 2018. Mr Tran declined Ms Oldham's offer to check his injuries. The only injuries Ms Oldham noticed were a cut to Mr Tran's little finger and a small cut to his calf. Mr Tran told Ms Oldham that he wanted to visit the appellant's house. Ms Oldham drove Mr Tran to that address.
When she arrived at the appellant's house, Ms Oldham saw that the wooden front door was open, but the flyscreen door was closed. As Mr Tran alighted from Ms Oldham's vehicle, the wooden front door was closed by someone who was in the house. Mr Tran opened the flyscreen door and attempted unsuccessfully to open the wooden door with his shoulder. Shortly after, the wooden door was opened by someone who was inside the house. Ms Oldham noticed the appellant standing near the wooden door. She then saw Mr Tran punch the appellant to the jaw and Mr Tran walk into the house.
Ms Oldham collected Mr Tran's stick and backpack from her vehicle and took them inside the house. Mr Tran and the appellant were speaking to each other in the house. There were a number of other people in the house.
Mr Tran said that he had been stabbed. He told the appellant that he needed a telephone, some drugs and the car which was parked outside the house. The appellant told Mr Tran that he would get him what he wanted, but he would have to pay for what Mr Tran had done to him as Mr Tran entered the house. Ms Oldham gave Mr Tran his stick and backpack. She then departed.
Two other people who had been at the appellant's house, Dean Jacobs and Tania Hill, left the house shortly after Mr Tran arrived. When they left the only people remaining in the house were the appellant and Mr Tran.
There were no eyewitnesses as to what happened between the appellant and Mr Tran when they were alone in the appellant's house.
The State's case against the appellant was based on evidence from a number of sources. Those sources included:
(a)evidence about Mr Tran's character, criminal record and propensity for violence;
(b)evidence about the relationship between the appellant and Mr Tran generally;
(c)evidence about the behaviour of each of the appellant and Mr Tran on 7 and 8 July 2018 and their interactions;
(d)the appellant's electronically recorded interviews with police;
(e)electronically recorded telephone calls and visits involving the appellant while he was remanded in custody; and
(f)evidence about the circumstances of Mr Tran's death and the scene at the appellant's house, including evidence of Mr Tran's cause of death and injuries and toxicology, and blood pattern evidence and DNA evidence.

The appellant's case at the trial

The appellant's case at the trial was in essence that Mr Tran had a reputation for violence and that he had been violent towards the appellant on 8 July 2018 and during the four day period preceding that date.
The appellant maintained that Mr Tran was the aggressor and had initiated the incident between them on 8 July 2018 that led to Mr Tran's death.
The appellant's primary case was that his actions were necessary to prevent Mr Tran from committing an offence in his dwelling. The appellant relied upon the defence against home invasion in s 244 of the Code and upon the defence of self‑defence in s 248 of the Code.
At the commencement of the trial the appellant made ten formal admissions pursuant to s 32 of the Evidence Act. During his opening statement to the jury, counsel for the appellant outlined the admissions and explained the relevance of each admission to the critical issue in the case (namely whether the jury were satisfied beyond reasonable doubt that the appellant's actions in killing Mr Tran were unlawful), as follows:
(a)Mr Tran died on 8 July 2018 at the appellant's house in Balga.
(b)Mr Tran died as a result of injuries caused to him by the appellant at that address.
(c)No other person was involved in causing Mr Tran's death.
(d)At about 12.00 noon on 8 July 2018 the appellant attended the home of his former partner in Balga and spoke with his daughter, S (who was born in 2007), and his son, T (who was born in 2005).
(e)The appellant told S and T that he loved them and he hugged them.
(f)S and T observed blood on the appellant's face. T also observed blood on the appellant's knee near a tear in his shorts.
(g)The appellant was wearing camouflage shorts and a jacket with a hood.
(h)The appellant told S that a group called the 'KGB' was there to protect them.
(i)The appellant appeared to S to be stressed and worried.
(j)When the appellant left the home of his former partner in Balga all of the doors to the house were locked and arrangements were made for the children to go to their grandmother's house.

The appellant's electronic record of interview dated 8 July 2018

The appellant participated in an electronically recorded interview with Detective Senior Constable Carbone and Detective Senior Constable Dorrington at Mirrabooka Police Station on 8 July 2018 at 10.23 pm. The State tendered the transcript of the electronic record of interview (EROI) as Exhibit 28.2 at the trial.
During the EROI the appellant provided the following information:
(a)The appellant's full name is Dominic Calabro, born in 1979, of 120 Balga Avenue in Balga. The appellant completed year twelve in school (EROI ts 2).
(b)The appellant was arrested at around 3.35 pm on 8 July 2018 on suspicion of murder and was taken to Mirrabooka Police Station for questioning (EROI ts 3).
(c)Nobody else was involved in the 'events' that occurred at the appellant's house on 8 July 2018. After the 'events', the appellant left his house and went to Mirrabooka Police Station to hand himself in. The appellant spoke with a sergeant and requested that he write down what the appellant was going to tell him. The sergeant refused to do this and advised the appellant he should leave if he was not going to tell him what was wrong. The appellant decided to leave after unsuccessfully pleading with the sergeant to agree to write down the information (EROI ts 6, 8 ‑ 9).
(d)The appellant then walked to a phone box outside McDonald's Mirrabooka and called the police. The appellant informed the police that there was a body in his living room and that he would wait at the McDonald’s Mirrabooka for police to attend to him (EROI ts 7).
(e)The appellant waited at McDonald's Mirrabooka and fell asleep. He awoke to four officers who took him into custody. The appellant was placed into the police car approximately 15 to 30 minutes later and informed that he was under arrest for suspicion of murder (EROI ts 7).
(f)Prior to this, the appellant had seen two police officers driving a police car whilst he was walking and had requested that they take him to the police station. The police officers advised that they could not take him (EROI ts 10 ‑ 12).
(g)The appellant told Detective Senior Constable Carbone and Detective Senior Constable Dorrington that he wished to speak with them about the events that occurred at his house earlier in the day 'off camera' before discussing them 'on camera'. The appellant wished to do this in order to provide the officers with 'context'. The officers advised the appellant that this is not how police interviews usually operate (EROI 12 ‑ 14).
(h)The officers suspended the interview at 10.45 pm to discuss how to proceed with the appellant's request. The interview recommenced at 11.38 pm (EROI ts 17). The officers advised the appellant that they would be able to have a discussion with the appellant off camera but that they would not be asking the appellant any questions during this discussion (EROI ts 18 ‑ 19). The officers suspended the interview at 11.42 pm and resumed the interview at 12.05 am after listening to the appellant discuss what he wished to speak about off camera (EROI ts 21).
(i)The appellant told the officers that Mr Tran had 'rocked up' at the appellant's house 'four mornings ago' and punched the appellant. Mr Tran then threatened and choked the appellant (EROI ts 21).
(j)The appellant 'couldn't allow it to continue'. There were 'very real' threats on the appellant's life and on the lives of other people. The appellant felt as though Mr Tran had put him in a position where he had no choice. Whilst Mr Tran told the appellant that he would forgive the appellant if he untied him, the appellant did not believe him. The appellant had to 'make the choice' (EROI ts 22).
(k)The appellant first met Mr Tran four days prior to Mr Tran's death (EROI ts 23). Mr Tran was a very controlling individual. At approximately 1.00 am on Thursday 5 July 2018, Mr Tran arrived at the appellant's house (EROI ts 24). Mr Tran was 'running around just trying to play gangster' and was threatening people. The appellant felt that either himself or another individual was Mr Tran's 'target'. It was as though the appellant was 'being kidnapped' (EROI ts 26).
(l)Mr Tran was at the appellant's house because he required medical assistance for various stab wounds on his body. Mr Tran also said that he had been robbed. The appellant believed, however, that what had actually happened is that the person (who the appellant would not name) whom Mr Tran had threatened the night before had 'had enough' and 'had people come in to try to protect her' (EROI ts 29 ‑ 30). Mr Tran told the appellant that he wanted drugs and proceeded to get 'more violent' (EROI ts 30).
(m)Mr Tran hit the appellant again and choked the appellant. Mr Tran began to pick up knives (EROI ts 32). The appellant tied up Mr Tran. The appellant could not let Mr Tran go at this point because he felt that Mr Tran wanted to kill him (EROI ts 33).
(n)When the appellant had Mr Tran tied up in his house, he had not yet realised that he needed to kill Mr Tran (EROI ts 36). It 'all [came] to an end' when Mr Tran told the appellant that he was going to 'rush' him (EROI ts 37). Mr Tran told the appellant that he was going to leave and then return to the house and it would then be 'over' for the appellant. Mr Tran then tried to kick the appellant. Mr Tran kept 'pushing' so the appellant 'put him out' (EROI ts 38).
(o)The appellant refused to give explicit details whilst the interview was being recorded (EROI ts 39).
(p)The appellant explained that Mr Tran displayed 'gas‑lighting, narcissistic, psychotic behaviour' (EROI ts 26). The appellant described 'gas-lighting' as a psychological procedure used by 'a psychopath or a narcissistic individual … to make [others] lose their mind or reality on situations' (EROI ts 41 ‑ 42). The appellant stated that Mr Tran's behaviour leading up to the events that took place at the appellant's house on 8 July 2018 was very controlled and calculated (EROI ts 42).
(q)The interview was terminated at 12.39 am on 9 July 2018 (EROI ts 44).

The appellant's electronically recorded conversations with friends and family members while in custody awaiting trial

The appellant engaged in numerous electronically recorded conversations with friends and family members while he was in custody awaiting trial. The State tendered audio recordings and transcripts of six of those conversations at the trial.

During the conversations the appellant made the following statements:
(a)13 July 2018 prison visit (Exhibit 31): The appellant told his visitors that he had spoken to police, stating 'I've said plenty... But I have had to redirect everything into way [sic] that, um, nobody else gets implicated - - - unfortunately.
I haven't actually given the specifics of what's happened in the house ... But when everything occurred - - - I'm the only one there. And I've locked the door. And I've left. So, nobody's seen what's happened in between that. So, I'm the only one that knows what's happened to that body'.
(b)3 August 2018 prison visit (Exhibit 32): The appellant told a male friend that he had not told the homicide officers 'the part in the middle' of what had happened when he killed Mr Tran.
(c)8 September 2018 telephone call (Exhibit 33): During the second telephone call between the appellant and his sister on 8 September 2018, the appellant told Ms Calabro to get someone to throw out the shrine erected for Mr Tran at 120 Balga Avenue, Balga, 'or just even a photo, of, you know, this is where the dog lies'. The appellant also told his sister 'You know, you know the story right? ... You know there's only one sort that can push me that far'.
(d)8 September 2018 telephone call (Exhibit 34): During the first recorded telephone call between the appellant and his sister, Luisa Calabro, on 8 September 2018, the appellant said: 'Well just remember this mate, I haven't done my police interview of what occurred at the house yet … I can make up any story I like'. Ms Calabro responded, laughing, that the appellant should remember to tell the police that he has a history of blacking out.
(e)9 September 2018 telephone call (Exhibit 35): During the telephone call between the appellant and his sister on 9 September 2018, the appellant described killing Mr Tran as 'taking out the trash'. The appellant instructed Ms Calabro to take a photograph of the shrine erected for Mr Tran and alter it by putting 'that red thing with a cross through it? ... the stop smoking symbol? So, you put one of those over it and say, "About time" or "Abort"'. The appellant's sister commented that 'It [Mr Tran's blood] was everywhere, and now I keep - every time I blink I see his face now and it's driving me insane, I can't sleep at night.'. The appellant replied: 'Oh, true? ... I wish I could say the same, but not really'.
(f)21 September 2018 prison visit (Exhibit 36): The appellant made several statements to his visitors on 21 September 2019 which, on the State's case, demonstrated his intent to kill Mr Tran and negatived the defence case that the appellant acted lawfully pursuant to s 244 of the Code: 'You know to me he looked like he was just asleep. I had to make sure he wasn't coming back'.
'This guy's a shit cunt. He rolled up on me. Everybody knows he's a stand over, you know. I've only got the one thing working against me. The fact that I killed him and left the body in such disarray'.
'Come on Louise ... You know, you know me mate ... You know I can't stop once I've started. ... Well he got, he didn't even get everything that he, should have happened to him'.
When asked by one of his visitors: 'I wonder how long you're going to be in here for and what ---', the appellant replied: 'Murder, murder's about 17 years'.

The appellant's evidence at the trial

The appellant elected to give evidence at the trial. The appellant's evidence was to the effect that he knew Mr Tran had a reputation for violence and that Mr Tran had been violent towards him on 8 July 2018 and in the few days before his death. The appellant gave evidence that Mr Tran had told him of numerous violent acts Mr Tran had perpetrated against others as, in effect, a 'standover man', including tying up, torturing and burning victims. The appellant said that Mr Tran had told him that he had killed people. The appellant insisted that he and/or a female friend had been targeted by Mr Tran and that Mr Tran was planning to kill one or both of them.
The appellant's evidence‑in‑chief was to the following effect:
(a)Prior to his arrest on 8 July 2018, the appellant resided at 120 Balga Avenue in Balga (ts 931). The appellant has two children from a prior de facto relationship (ts 932).
(b)The appellant first began using cannabis when he was approximately 32 years old and methylamphetamine when he was approximately 33 years old. At the time of Mr Tran's death, the appellant was smoking methylamphetamine via a glass pipe almost daily. The appellant was not smoking cannabis regularly (ts 932 - 933).
(c)The appellant was also selling drugs from his home in order to support his drug use habits (ts 933). The appellant was primarily selling methylamphetamine and 'a little bit' of cocaine (ts 934).
(d)On the evening of 4 July 2018, the appellant was at home. At around 1.00 am on 5 July 2018, a man and a woman knocked on the appellant's door. The appellant recognised the woman, Shannon Hill, from 'the drug scene'. The appellant did not recognise the man at the time, but later came to realise that he was Mr Tran (ts 934).
(e)The appellant believed that Shannon Hill and Mr Tran were looking for drugs and he let them inside (ts 934). Shannon Hill stayed in the appellant's living room. Mr Tran walked through various rooms in the house (ts 935). The appellant asked Mr Tran what he was doing. Mr Tran responded by asking the appellant if he knew who he (Mr Tran) was. The appellant guessed out aloud the words 'Andrew Tran' based on previously seeing Mr Tran on a video call, the man's Asian appearance and the way that he was behaving. The appellant knew that Mr Tran had a reputation for 'doing as he pleased' (ts 936).
(f)Mr Tran asked the appellant how the appellant knew who he was. The appellant told Mr Tran that he knew him because of his reputation. The appellant avoided answering any further questions by Mr Tran about what the appellant knew of him and his reputation (ts 936 - 937).
(g)Mr Tran asked the appellant for the names of any people the appellant knew who might be common to himself and Mr Tran. The appellant provided the names of Daniel Ogilvie, Jeremy Ogilvie and Gary Ogilvie. Jeremy Ogilvie was deceased at the time. The three men are brothers and were very prominent names in the 'KGB' area (Koondoola, Girrawheen and Balga) and the 'drug world' (ts 937). Upon hearing these names, Mr Tran became 'paranoid' and 'very angry'. Mr Tran put his arms around the appellant's neck and choked the appellant for around 30 seconds (ts 938).
(h)Mr Tran then demanded that the appellant give him drugs. The appellant provided Mr Tran with approximately 14 grams of cocaine and told Mr Tran that the price of the drugs was $5,000. The appellant did not receive payment from Mr Tran for the drugs nor did the appellant subsequently follow up with Mr Tran regarding payment (ts 939).
(i)Mr Tran gave half of the cocaine to Shannon Hill, who left the house. Mr Tran asked the appellant if he could use the appellant's house as a 'base'. The appellant asked Mr Tran what he would receive in return. Mr Tran told the appellant that if he gave Mr Tran a name, he would 'take care of them'. The appellant took this to mean that Mr Tran would have somebody killed for him. The appellant told Mr Tran that he did not need any favours of that kind (ts 940).
(j)The appellant suggested that Mr Tran could offer him money instead, to which Mr Tran offered another $5,000 in addition to the $5,000 for the cocaine. The appellant did not receive either of the two $5,000 payments from Mr Tran (ts 941).
(k)Shortly afterwards, at around 2.00 am, Mr Tran demanded that the appellant leave the house with him. The appellant and Mr Tran left the appellant's house in a 300C Chrysler driven by Mr Tran and drove to a house in Mirrabooka to see a man named 'Farris'. Mr Tran demanded that the appellant give Mr Tran his mobile phone. The appellant handed over his phone (ts 941 ‑ 942).
(l)A woman named Julie and a man named Wade Ninyette were also present at Farris's house (ts 942). The appellant had never met Julie, but he knew her ex-partner. The appellant did not know Mr Ninyette (ts 942 ‑ 943).
(m)The appellant sat at the dining table and smoked some methylamphetamine (ts 943). Mr Tran was acting 'erratic'. Mr Tran circled around the table, put his elbow into the back of the appellant's head, and poked the appellant with a knife (ts 944).
(n)Later on, Shannon Hill, Corina Garlett, Brendan Garlett and Kieran Garlett arrived at the house (ts 945 ‑ 946). Brendan and Kieran Garlett are brothers. Shannon Hill and Ms Garlett wanted the appellant to leave with them, but the appellant did not leave. The appellant asked Shannon Hill to find his mobile phone and to 'hold onto it', which she did (ts 946).
(o)The appellant, Mr Tran and Mr Ninyette left the house after approximately one or two hours. Mr Ninyette alighted from the vehicle in Mirrabooka (ts 947). The appellant and Mr Tran continued driving until they arrived at a house in Mirrabooka belonging to a woman named Sandy. They arrived at Sandy's house at about 3.00 am (ts 951). The appellant, Mr Tran and Sandy smoked some cannabis. Mr Tran continued to threaten the appellant and told the appellant that he was 'going to go for a ride in the boot' and other words to that effect (ts 952).
(p)The appellant and Mr Tran returned to the appellant's house. It was still dark. Several individuals were present at the house, including Shannon Hill and Ms Garlett, as well as Salvatore Ramondi (ts 953). While everyone was in the living room, the appellant had a nap on the couch (ts 954). When he woke, they had left his house (ts 955).
(q)At approximately 2.00 pm on 5 July 2018, Mr Tran arrived at the appellant's house. Mr Tran told the appellant that he was upset and angry because he had missed his reporting requirement at the police station. The appellant suggested that Mr Tran obtain a medical certificate to explain his absence (ts 955). At Mr Tran's request, the appellant organised a medical appointment for Mr Tran at the Mirrabooka Medical Centre for around 4.00 pm that day (ts 955 ‑ 956).
(r)Two male individuals passed by the appellant's house in a car. Mr Tran recognised the occupants of the car and demanded that they drive him and the appellant to the medical centre (ts 956). Mr Tran obtained the medical certificate (ts 957).
(s)The appellant and Mr Tran then met with Shannon Hill and Ms Garlett. The four called a taxi which took them to Alisa Oldham's house. The group sat in Ms Oldham's courtyard from approximately 4.30 pm to 6.30 pm. The appellant then got into a taxi with Shannon Hill and Ms Garlett and was dropped off at his home while Shannon Hill and Ms Garlett continued on (ts 957). Mr Tran stayed at Ms Oldham's house (ts 958).
(t)On 6 July 2018, Mr Tran arrived at the appellant's house and requested that the appellant travel with him to his hearing at the Joondalup Courthouse. At the hearing Mr Tran's bail was extended. The appellant travelled home alone via public transport (ts 958).
(u)When he returned home the appellant began to pack up his belongings. The appellant was planning to leave his house because he had not been paying rent and was anticipating an eviction notice. At around 4.30 pm on 6 July 2018, Mr Tran again appeared at the appellant's house. Mr Tran was angry because he had arrived with a different woman named Sandy who had 'escaped him'. Mr Tran requested that the appellant chase after her (ts 959). The appellant searched about 200 to 300 m along the street but could not see or hear anyone. When the appellant returned to his house, Mr Tran was screaming into his phone, 'You're dead' (ts 960).
(v)On the evening of 6 July 2018, the appellant and Mr Tran went to Julie's apartment at 131 Adelaide Terrace, Perth (ts 961). Also at the apartment were Michelle 'Cookie' Williams, her son, Gank Penny, and two men whom the appellant did not know. The appellant and the others smoked methylamphetamine with a glass pipe. Mr Tran was making verbal threats toward Julie (ts 962).
(w)At some point, Mr Tran left the apartment. The appellant had a conversation with Julie about his ex‑partner, Ariana. Following that conversation, the appellant made a phone call to Ariana to check on her safety (ts 963).
(x)Mr Tran returned to the apartment after about an hour. Mr Tran was upset because he had been unable to obtain drugs. Mr Tran told the appellant that he wanted drugs on that night in particular because he was worried that he would be taken into custody at his court hearing the next day. If he was taken into custody, Mr Tran wanted to traffic the drugs into prison (ts 964).
(y)The appellant, Mr Tran and Julie drove around for several hours in Julie's vehicle in an attempt to obtain drugs, but were unsuccessful. They returned to Julie's apartment at around 4.00 am or 5.00 am (ts 965). Mr Tran left the apartment again in an attempt to find drugs. He was gone for about an hour and this time was successful. Mr Tran requested that the appellant go to a convenience store to purchase balloons. Mr Tran intended to place the drugs he had obtained inside the balloons. The appellant went to purchase balloons (ts 966).
(z)Mr Tran became violent and punched the appellant several times in the face and choked him (ts 967). Mr Tran also acted aggressively towards Julie, who called the 000 emergency number (ts 968). Julie terminated the phone call when Mr Tran told her that he would throw her off the balcony if she continued the call. A 000 operator called Julie back not long after. Julie told the operator that everything was fine (ts 969).
(aa)Later in the day, the appellant and Julie accompanied Mr Tran to his appearance at the Perth Courthouse in Northbridge (ts 969 ‑ 970). Mr Tran sent Julie inside to enquire about his appearance. While the appellant and Mr Tran waited in the car, Mr Tran told the appellant about the ways he had previously tortured, killed and burned people (ts 970). Julie returned to the car with two police officers who took Mr Tran into custody. After waiting for about 20 to 30 minutes, the appellant asked Julie to drive him home. Julie dropped the appellant at his home at around 9.30 am on 7 July 2018 (ts 971).
(bb)When he arrived home, the appellant decided to go and search for his car. The appellant had lent his car (a Mitsubishi Magna) to Gary Ogilvie, who had not returned the vehicle (ts 971 ‑ 972). The appellant had reported his car as stolen to the police on previous occasions when he had lent his car and it had not been returned. The appellant decided to walk to the house of a man named Shannon. The appellant's car was at Shannon's house, but Gary Ogilvie was not (ts 972).
(cc)The appellant drove his car to the house of a person named Sunshine McGuckin. Also at the house was a man named Dean Jacobs, a woman named Jessica Hill (the daughter of Tania Hill) and a man whom the appellant did not recognise (ts 973). The appellant spent several hours at Ms McGuckin's house. The appellant, Mr Jacobs and Jessica Hill travelled to Tania Hill's house at about 6.00 pm (ts 974 ‑ 975).
(dd)The appellant received a phone call from Ariana while he was at Tania Hill's house. Ariana told the appellant that when she was at the casino the night before, a man named Tony Foti had told her that Mr Tran was 'looking for her' and 'wanted to kill her' (ts 975 - 976).
(ee)At around 1.00 am, the appellant, Mr Jacobs and Tania Hill went for a 'night ride' in the appellant's vehicle. They arrived at the appellant's house in the early hours of 8 July 2018 (ts 977).
(ff)The appellant woke up at around 9.00 am on 8 July 2018. Tania Hill was shaking him and saying that Mr Tran was at the door. The appellant let Mr Tran into the house. Mr Tran punched the appellant on his chin (ts 978). Mr Tran accused the appellant of slamming the door on him. Mr Tran pushed the appellant aside and walked through the house. Mr Tran told the appellant that he had been stabbed, and that he wanted first aid, drugs, money and a car. Mr Tran wanted to 'retaliate' against the people who had stabbed him (ts 979 ‑ 980).
(gg)The appellant wrote down some instructions and gave them to Tania Hill. The appellant's intention was to make it seem as though he was sending Tania Hill and Mr Jacobs away from the house, in order to get them away from Mr Tran (ts 981).
(hh)The appellant did not ask Mr Tran to leave his house. The appellant was scared about the potentially violent consequences that he may have suffered if he asked Mr Tran to leave (ts 986).
(ii)Mr Tran became angry with the appellant and choked him for about 30 seconds. The appellant told Mr Tran that 'that was enough' (ts 988). Daniel Ogilvie and a man named William Wright arrived at the house and began to shout at Mr Tran for allegedly robbing a single mother. About 10 minutes later, two individuals named Alan Brown and Rikeesha Drayton also arrived at the house (ts 989).
(jj)Daniel Ogilvie was angry with Mr Tran for punching the appellant and 'disrespecting' him in 'his own house'. Mr Tran was sitting on the appellant's three-seater couch while Daniel Ogilvie and Mr Wright were shouting at him (ts 990). Mr Wright was holding a large pole. Mr Brown and Ms Drayton were sitting on two single couches in the living room. The appellant was standing (ts 991 - 992).
(kk)Mr Wright instructed Mr Brown to collect electrical tape or gaffer tape from the utility vehicle parked outside the appellant's house. Mr Brown returned with two rolls of tape. The appellant began to bind Mr Tran's hands and wrists together with grey electrical tape (ts 992). The appellant wanted to 'show [Mr Tran] what it was like for his victims when he did it, and to keep [Mr Tran] under control'. The appellant smacked Mr Tran on the right side of his face with a tow hook (ts 993). The appellant fetched some ice for Mr Tran to calm the swelling on his face (ts 994). The appellant bound Mr Tran's mouth with the electrical tape. The appellant struck Mr Tran several more times with the tow hook (ts 995). Mr Tran managed to pull the tape from his mouth and the appellant responded by binding his ankles with the black tape (ts 996).
(ll)The appellant asked the others in the house to leave in order to 'de‑escalate the situation'. When the others left the appellant's house, Mr Tran was still conscious (ts 998). Mr Tran started making threats towards the appellant. The appellant did not intend to kill Mr Tran at this point (ts 999).
(mm)The appellant left the room and grabbed a paint scraper, which he described as a long metal pole (ts 999). When the appellant returned to the lounge room, Mr Tran had unbound himself and was running towards the appellant. The appellant struck Mr Tran with the paint scraper three times (ts 1000). The strikes were to Mr Tran's leg, arm and the left side of his face and were of significant force. Mr Tran became unconscious. The appellant could hear that Mr Tran was still breathing (ts 1001).
(nn)The appellant knew that he now had 'a big problem on [his] hands' (ts 1002). The appellant decided that he was going to stab Mr Tran. The appellant collected a knife from the kitchen and stabbed Mr Tran in the shoulder (ts 1003). The appellant felt that he had no choice and that he was not going to let Mr Tran 'come back'. The appellant proceeded to stab Mr Tran in the neck, where he knew a carotid artery would be. The appellant understood that if he stabbed Mr Tran in the carotid artery, Mr Tran would die (ts 1004).
(oo)The appellant continued to stab Mr Tran repeatedly. The appellant stabbed Mr Tran in his shoulder area, his neck area, the front of his throat, his chest, his arms, his thighs and his wrists (ts 1005). The appellant felt as though he was a 'passenger' to the stabbing and he was not in control. Mr Tran looked as though he was asleep at this point. Mr Tran did not look like he was dead (ts 1006).
(pp)The appellant collected another knife from the kitchen. It was a black handled knife with a slimmer blade (ts 1006). The appellant attempted to lift Mr Tran but he was too heavy. Mr Tran fell off the couch onto the floor face down. The appellant proceeded to stab Mr Tran in the back several times in order to 'make sure that he was dead' (ts 1007). The appellant recalled stabbing Mr Tran once more, in the side of his stomach. The appellant then decided that he would hand himself in to the police (ts 1008).
(qq)The appellant locked the front door and left his house. The appellant walked to the house of a man named Chuck or Charles to inform him that he had killed Mr Tran. The man wanted methylamphetamine from the appellant. The man's wife 'kicked [the appellant] out' of the house (ts 1010).
(rr)The appellant then walked to the house where his children lived with their mother, Kylie Semple. The appellant told both his son and his daughter that he loved them (ts 1011). The appellant spoke to Kylie briefly. The appellant obtained a lift from Kylie's partner, Jason, who dropped the appellant in Mirrabooka. The appellant then walked to Shannon's house. Daniel Ogilvie, Mr Wright and Gary Ogilvie were present. The appellant told them that he had killed Mr Tran (ts 1012).
(ss)The appellant left Shannon's house and flagged down a passing police car (ts 1013). The police officer driving the car refused to give the appellant a lift to the police station (ts 1014). The appellant then walked to Mirrabooka Police Station, which took him about 30 minutes (ts 1015).
(tt)The appellant spoke with an officer at Mirrabooka Police Station. The appellant did not provide the police officer with details of what had happened because the police officer did not agree to write down what the appellant was going to tell him. The appellant left the police station (ts 1017).
(uu)The appellant then walked to a telephone box close to the McDonald's Mirrabooka and dialled 000 (ts 1018). The appellant told the 000 operator that there was a body on the floor of his lounge room and that he was going to wait at the McDonald's Mirrabooka. The appellant requested a free meal at the McDonald's, which he received. The appellant sat down to eat and took off his jacket, sneakers and socks in order to 'preserve the evidence' (ts 1019). The appellant fell asleep at the table and was awoken by four police officers (ts 1020). The appellant was cautioned and taken into custody (ts 1021).

During cross‑examination, the appellant gave the following evidence:
(a)The appellant tortured and killed Mr Tran (ts 1024). The appellant had only known Mr Tran for four days. The appellant agreed that he perhaps could have said 'no' to travelling around with Mr Tran, but he wanted to 'see what [Mr Tran was] about' (ts 1025).
(b)The appellant understood that allowing Mr Tran to use his house as a 'base' might involve something where the appellant had to take a risk (ts 1026).
(c)The appellant was given $5,000 worth of cocaine to sell on behalf of his supplier, who goes by the name of 'Mike'. The appellant would receive a profit margin on the sale of the cocaine which he would use to purchase his own methylamphetamine (ts 1030 ‑ 1031). While the appellant had taken a little bit of methylamphetamine on the morning of Mr Tran's death, it 'didn't have [any] effect whatsoever' on him (ts 1047).
(d)The appellant feared for his life and made conscious decisions which were drastic (ts 1035). The appellant felt victimised by Mr Tran (ts 1040). The appellant denied that his primary motivation was revenge. The appellant accepted, however, that he was intending to put a stop to Mr Tran's allegedly violent behaviour towards other people (ts 1089).
(e)The appellant accepted that he possibly could have called the police and told them that he had a home invader tied up in his house (ts 1090).
(f)When the appellant told his sister after his arrest that he had not done his police interview yet, so he could 'make up any story [he] like[d]', he meant this in a 'joking context' (ts 1095).
(g)The appellant believed that it was necessary to kill Mr Tran. The appellant believed that if he had untied Mr Tran, things 'could have gone south very quickly' (ts 1098).
During re‑examination, the appellant clarified that he did not ask Mr Tran to leave his house because he was worried that this would 'set [him] off' and result in Mr Tran becoming 'more violent' (ts 1105).

The appellant did not adduce any other evidence at the trial

The appellant did not adduce any other evidence at the trial.

Evidence adduced by the State at the trial relating to the appellant's interactions with Mr Tran on and before 8 July 2018 and the appellant's mental state on 8 July 2018

The State called twenty‑nine witnesses at the trial. The statements of four State witnesses were read into evidence. Several witnesses gave evidence as to the appellant's interactions with Mr Tran in the days leading up to Mr Tran's death and the appellant's mental state at the time of Mr Tran's death as follows.
Sunshine Joelene McGuckin:
(a)At the time of Mr Tran's death, Ms McGuckin had known Mr Tran for several years (ts 77 ‑ 78) and had known the appellant for several months (ts 78). Ms McGuckin had been told on two occasions that the appellant, Mr Tran and Gary Ogilvie were living together at the appellant's house (ts 79).
(b)When the appellant, Mr Tran and Gary Ogilvie had first visited Ms McGuckin's home, a few weeks before Mr Tran's death, they were 'getting along very well', which struck Ms McGuckin as 'very odd' (ts 79, 88).
(c)The appellant visited Ms McGuckin's home on 7 July 2018. The appellant was 'aggravated' and was asking Ms McGuckin questions about Gary Ogilvie and Daniel Slater. The appellant wanted to know who had broken into his house during an incident several months previously (ts 80). The appellant told Ms McGuckin that he did not understand why Gary Ogilvie had 'moved [Mr Tran] in' (ts 81). The appellant was acting very strangely (ts 81 ‑ 82).
(d)The appellant told Ms McGuckin that when he had previously visited Ms McGuckin's home, the 'spirit' of her deceased ex‑brother‑in‑law (Jeremy Ogilvie) had 'jumped into [the appellant's] body and showed [the appellant] how he died from start to finish'. Ms McGuckin found this highly disturbing. The appellant's behaviour was aggressive but not violent (ts 82). The appellant was rambling, distressed and complaining about having a headache (ts 85). The appellant appeared to Ms McGuckin to be under the influence of methylamphetamine (ts 87).
Cindy Ann Winjen:
(a)Ms Winjen had known Mr Tran for approximately 10 years at the time of his death (ts 89). Ms Winjen had never met the appellant (ts 98, 111). During cross‑examination, Ms Winjen denied ever smoking cannabis with the appellant at her kitchen table (ts 99). Ms Winjen did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.
Shaun David Smith:
(a)Mr Smith had known Mr Tran for approximately 20 years at the time of Mr Tran's death. They were good friends (ts 116). Mr Smith did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.
Todd Samuel Cohen:
(a)Mr Cohen had known Mr Tran for several months at the time of Mr Tran's death (ts 149). Mr Cohen did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.
Rikeesha Louise Drayton:
(a)Ms Drayton had known Mr Tran for several months at the time of his death. Ms Drayton had purchased drugs from Mr Tran (ts 172).
(b)On 7 July 2018, Ms Drayton was with Mr Brown, Jessica Hill, Daniel Ogilvie and Mr Wright. The group drove around the 'KGB' area (ts 162 ‑ 163). They then went to 'Dom's house', as described by Ms Drayton. Ms Drayton had neither met the appellant nor been to his house before (ts 164).
(c)Ms Drayton went into the house and smoked some drugs (ts 165). Ms Drayton then went with Mr Brown, Jessica Hill, Daniel Ogilvie and Mr Wright to McDonald's Mirrabooka before returning to the house (ts 167). Ms Drayton remained in the car and did not enter the house on this occasion. Daniel Ogilvie and Mr Wright collected tools from the back of the house (ts 169). Ms Drayton did not return to the house again (ts 170).
(d)Ms Drayton gave evidence during cross‑examination that she did not see the appellant when she was doing drugs in his house, but she assumed that he was there somewhere (ts 172, 175). Ms Drayton did not see Mr Tran at the house (ts 174 ‑ 175). Ms Drayton did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.
Ish Gupta:
(a)Mr Gupta lived, at the relevant time, in a property near the appellant's house in Balga (ts 176). Mr Gupta gave evidence that there would sometimes be people 'coming and going' from the appellant's house. In the early hours of 8 July 2018, Mr Gupta heard noises at the appellant's property (ts 177). Mr Gupta did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.
Alisa Rosa Oldham:
(a)Ms Oldham had known Mr Tran for around four and a half years at the time of his death (ts 183). On 6 July 2018, Mr Tran arrived at Ms Oldham's house with Shannon Hill, the appellant and another woman, none of whom Ms Oldham had met previously (ts 183 ‑ 185). When Mr Tran was out of earshot of Shannon Hill and Dom, he told Ms Oldham that he feared the two were trying to set him up and were going to kill him (ts 184).
(b)On 8 July 2018, Mr Smith arrived at Ms Oldham's house requesting that she go with him to help Mr Tran. Ms Oldham drove to Ms Winjen's house, where Mr Tran was (ts 186). When she arrived at the house, Mr Tran was banging a large stick on the ground and was arguing with a lady named Helen Riley (ts 187 ‑ 188). Mr Tran would not allow Ms Oldham to assist him with his injuries. Mr Tran instead requested that Ms Oldham take him to the appellant's (ts 189). Ms Oldham knew of the house but did not know that it was the appellant's house (ts 190).
(c)When they arrived at the appellant's house, Mr Tran attempted unsuccessfully to enter the house by barging his shoulder and hip into the front door (ts 191, 193). The appellant opened the door. The appellant looked as though he had just woken up. Mr Tran punched the appellant in the face. Ms Oldham was unsure why Mr Tran punched the appellant (ts 193).
(d)Ms Oldham waited in the car for about 5 to 10 minutes before entering the house to give Mr Tran his belongings (ts 194). Also inside the house was a woman whom Ms Oldham later ascertained was Tania Hill and a man whom Ms Oldham later ascertained was Mr Jacobs (ts 195).
(e)Mr Tran requested a phone, money and drugs. The appellant said to Mr Tran, 'I'll help you with the things that you need but you will pay for doing what you did at the front door' (ts 196). The appellant and Mr Tran were not acting aggressively towards each other, it was 'just like an exchange of words' (ts 197). There was no 'friction' between anyone when Ms Oldham left the house (ts 198).
(f)Ms Oldham confirmed during cross‑examination that 6 July 2018 was the first time she had met the appellant (ts 203). The appellant was polite and respectful towards Ms Oldham. Mr Tran presented as paranoid and under the influence of drugs (ts 205). Mr Tran told Ms Oldham that he could see demons on the street and asked her if she could also see demons (ts 204, 208).
Kylie Nicole Semple:
(a)Ms Semple is an ex‑partner of the appellant. Ms Semple was in a relationship with the appellant for five years (ts 214). Ms Semple and the appellant have two children together. The relationship came to an end in 2007 (ts 215).
(b)On 8 July 2018, Ms Semple was at home with her two children and her partner, Jason Adams. At about midday the appellant arrived at Ms Semple's house. The appellant spoke with his son, who was outside. The appellant's daughter went outside to speak to him. Ms Semple then went outside to speak with the appellant (ts 215). The appellant was neither angry nor agitated and spoke calmly to Ms Semple. The appellant had blood on his face (ts 216).
(c)The appellant told Ms Semple to take the children to her parents' house for a few days because he was 'having trouble with somebody and … it would be best'. The appellant told Ms Semple that she should stay at Mr Adams' house (ts 217). The appellant asked Mr Adams for a lift and the two left the house together (ts 218).
(d)Ms Semple confirmed during cross‑examination that when the appellant spoke to her he was calm and direct. The appellant asked for nothing other than a lift with Mr Adams (ts 220).
Jason Michael Adams:
(a)Mr Adams is Ms Semple's partner (ts 221). On 8 July 2018, Mr Adams was at Ms Semple's house. The appellant arrived at around midday. The appellant spoke to his son outside and then requested that Mr Adams go inside and get his daughter and Ms Semple (ts 222).
(b)Mr Adams gave the appellant a lift in his car. The appellant did not provide Mr Adams with an address but instead gave Mr Adams directions as they were driving. The appellant asked Mr Adams to ensure that the children did not watch the news that evening, but gave no further explanation (ts 224).
(c)Mr Adams gave evidence during cross‑examination that the appellant was calm but slightly anxious whilst in the car. The appellant was not at any stage aggressive towards Mr Adams (ts 225).
Bradley Malcolm Nicholls:
(a)Sergeant Nicholls is a senior constable at WA Police (ts 228). On 8 July 2018, Sergeant Nicholls was stationed at Mirrabooka Police Station. Sergeant Nicholls was on duty with Sergeant Hawkes. At around 1.50 pm, a community services officer advised Sergeant Nicholls that a man named Dominic Calabro had presented at the front counter. Sergeant Hawkes agreed to go out and speak with the man (ts 229).
(b)At around 2.30 pm, Sergeant Nicholls became aware that police were required to attend at 120 Balga Avenue as a result of a call received from the appellant (ts 229). At around 3.00 pm, Sergeant Nicholls became aware that a deceased person had been located at 120 Balga Avenue and that the appellant had been located by police at the McDonald's Mirrabooka (ts 230). Sergeant Nicholls did not see or speak to the appellant (ts 231). Sergeant Nicholls did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.
Seanne Pauline Noreen Rosetes:
(a)Ms Rosetes was working at the McDonald's Mirrabooka on 8 July 2018. At around lunchtime, a man came into the McDonald's and requested a free meal. He seemed very anxious and nervous, but he was trying to remain calm (ts 235). The man requested that Ms Rosetes go and get her supervisor. He started to become angry and his tone was getting higher, but he did not look at Ms Rosetes or make eye contact with her (ts 236).
(b)Ms Rosetes' manager agreed that the man could be given some of the 'leftovers' for free (ts 236). When Ms Rosetes returned the man was asleep with his head on the table. Ms Rosetes tried to wake him but could not recall whether he woke (ts 237).
(c)Ms Rosetes gave evidence during cross‑examination that the man told her he was very tired. The man also told Ms Rosetes that he had blood all over him, but she could not see any blood (ts 238). Ms Rosetes again gave evidence that the man was anxious and nervous but appeared to be trying to remain calm. Ms Rosetes found it strange that the man was not making eye contact with her, and was instead looking into the distance behind her (ts 241).
Gary Hawkes:
(a)Sergeant Hawkes was stationed at Mirrabooka Police Station on 8 July 2018 (ts 242 ‑ 243). Officer Vintiner, who was at the front counter of the police station, asked Sergeant Hawkes whether he would assist with a man at the counter named Dominic Calabro. The first thing that Sergeant Hawkes noticed was that the appellant was sweating profusely (ts 243). The appellant requested that Sergeant Hawkes take notes of what he was about to say. Sergeant Hawkes wanted to know what the appellant intended to discuss before he started to write anything down. The appellant said 'Why won't you work with me on this?'. The appellant left after Sergeant Hawkes told him that if he did not explain why he was there, then the appellant would have to leave (ts 244).
(b)Sergeant Hawkes gave evidence during cross‑examination that the appellant did not show any outward signs of aggression that Sergeant Hawkes would sometimes see when people entered the police station. Other than rubbing the bridge of his nose, the appellant kept his hands and body very still (ts 255 ‑ 256). Although Sergeant Hawkes believed that the appellant was affected by methylamphetamine, the appellant was not acting aggressively or irrationally (ts 256 ‑ 257).
The witness statement of Julie Vintiner was read into evidence:
(a)Officer Vintiner was working on the front counter at Mirrabooka Police Station on 8 July 2018. At around 2.30 pm, a man approached the counter and stated that he had 'something very important and personal' to tell an officer. The man was 'soft spoken, distant and seemed very distressed'. The man told Officer Vintiner that his name was Dominic Calabro. Sergeant Hawkes came out and spoke to the man (ts 259).
Roy McLennan Begg:
(a)Sergeant Begg is a detective sergeant with WA Police. Sergeant Begg led the investigation into Mr Tran's death (ts 260 ‑ 261). Sergeant Begg gave evidence in relation to a 000 call that was received by the police on 8 July 2018 (ts 261). The recording was played to the jury (ts 262). Sergeant Begg did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.
The witness statement of Vaneza Pablo Panaligan was read into evidence:
(a)Ms Panaligan was working at the McDonald's Mirrabooka on 8 July 2018. At around 1.00 pm a man came into the McDonald's and requested a free meal. Ms Panaligan said she could give him something after she had served the other customers (ts 266).
(b)The man told Ms Panaligan that he was 'really tired'. Ms Panaligan thought the man was drunk because he was mumbling and was difficult to understand. Ms Panaligan told Ms Rosetes that the man could have one of the meals which had been ordered by a customer and made, but then cancelled by the customer. Ms Panaligan told Ms Rosetes not to give the man a McFlurry. The man appeared to fall asleep at the table where he was sitting. The police later arrived at the McDonald's and arrested the man (ts 267).
Scott Thomas Summerfield:
(a)First Class Constable Summerfield was stationed at Mirrabooka Police Station on 8 July 2018 (ts 268). At about 3.14 pm, First Class Constable Summerfield was instructed to attend a McDonald's restaurant in Mirrabooka (ts 268). When First Class Constable Summerfield arrived, he saw the appellant (ts 268 - 269).
(b)First Class Constable Summerfield had seen the appellant earlier that day, when the appellant had flagged down the police car that he had been driving. First Class Constable Summerfield had said to the appellant 'We're not a taxi service, you're going to have to walk down to the police station' (ts 269).
(c)At the McDonald's, the appellant was sitting on his own on a seat with his head in his hands. First Class Constable Summerfield heard Senior Constable Bhatia ask, 'Are you Dominic?', to which the appellant replied 'Yes' (ts 270). First Class Constable Summerfield arrested the appellant and took him to Mirrabooka Police Station (ts 270 ‑ 273).
(d)First Class Constable Summerfield gave evidence during cross‑examination that the appellant did not resist the arrest. The appellant did not attempt to flee the McDonald's and did not have any weapons on him as far as First Class Constable Summerfield could tell (ts 279).
Michael James Cursiter:
(a)Detective Senior Constable Cursiter was stationed at Mirrabooka Police Station on 8 July 2018 (ts 282). At about 3.00 pm, Detective Senior Constable Cursiter and Constable Semetaite attended the McDonald's Mirrabooka in response to a circulation for a unit to attend (ts 283).
(b)First Class Constable Summerfield sought to wake the appellant. The appellant said 'Give me a few moments, you know to [wake] up' or words to a similar effect (ts 284). The appellant provided his personal details to First Class Constable Summerfield (ts 285). Detective Senior Constable Cursiter asked the appellant why he had blood on his face, to which the appellant replied, 'It's probably not mine' (ts 286 ‑ 287).
(c)At about 8.40 pm that evening, Detective Senior Constable Cursiter attended Sir Charles Gairdner Hospital with the appellant. A medical assessment was carried out on the appellant. The appellant appeared to be shivering as if he was cold (ts 292). Detective Senior Constable Cursiter advised that he may be able to arrange some shoes for the appellant, who was barefoot. The appellant stated that he had taken his shoes off to 'preserve evidence, to make it easier for [the police]' (ts 292 ‑ 293).
Gintare Semetaite:
(a)Constable Semetaite was stationed at Mirrabooka Police Station on 8 July 2018. Constable Semetaite was on duty with Detective Senior Constable Cursiter, who was driving a marked police vehicle (ts 298). At around 3.12 pm, Constable Semetaite and Detective Senior Constable Cursiter received a request to attend at the McDonald's Mirrabooka (ts 298 ‑ 299).
(b)The appellant was sitting alone with his head on the table. The appellant told Constable Semetaite and Detective Senior Constable Cursiter to give him some time to wake up (ts 299). The appellant was then arrested and taken to Mirrabooka Police Station (ts 300 ‑ 301). Constable Semetaite accompanied the appellant and Detective Senior Constable Cursiter to Sir Charles Gairdner Hospital. The appellant said that he had removed his shoes to 'preserve evidence and make it easier for [the police]' (ts 301).
(c)Constable Semetaite gave evidence during cross‑examination that, whilst the appellant was being arrested, he did not attempt to resist, run or flee. The appellant was neither aggressive nor non-compliant (ts 303). Following the appellant's medical examination at the hospital, the appellant was deemed fit for custody (ts 304).

As to ground 6.2, which alleges that the electronically recorded conversations engaged in by the appellant with friends and family members, while he was in custody awaiting trial, were wrongly admitted into evidence at the trial, contrary to s 106HB of the Evidence Act, due to the appellant's alleged 'mental impairment', and ground 6.3, which alleges that those recordings were inadmissible due to his alleged 'mental impairment' and the recordings should have been excluded under s 112 of the Evidence Act because they were 'extremely prejudicial':
(a)As we have mentioned, in the context of ground 6.1, s 106HB of the Evidence Act does not apply to the admissibility of out of court statements made by an accused and s 106HB therefore did not apply to the appellant.
(b)Section 112 of the Evidence Act merely states that s 109 to s 114 do not affect the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused.
(c)The critical issue at the trial was whether the State had proved beyond reasonable doubt that the appellant's actions in killing Mr Tran were unlawful. The appellant's electronically recorded conversations with friends and family members, while he was in custody awaiting trial, were relevant to the proof by the State that there was no reasonable basis upon which the appellant believed that it was necessary to kill Mr Tran and to proof by the State that the appellant intentionally killed Mr Tran as a result of anger, malice and revenge.
(d)The electronically recorded conversations contained significant inculpatory statements by the appellant, including the following (emphasis added):
(i)13 July 2018 prison visit (Exhibit 31): The appellant told his visitors that he had spoken to police, stating 'I've said plenty ... But I have had to redirect everything into way that, um, nobody else gets implicated - - - unfortunately. I haven't actually given the specifics of what's happened in the house ... But when everything occurred - - - I'm the only one there. And I've locked the door. And I've left. So, nobody's seen what's happened in between that. So, I'm the only one that knows what's happened to that body'.
(ii)3 August 2018 prison visit (Exhibit 32): The appellant told a male friend that he had not told the homicide officers 'the part in the middle' of what had happened when he killed Mr Tran.
(iii)21 September 2018 prison visit (Exhibit 36): The appellant made several statements during covertly recorded conversations with his visitors on 21 September 2018 which, on the State case, demonstrated his intent to kill Mr Tran and negatived the defence case that the appellant acted lawfully pursuant to s 244 of the Code:
When asked by one of his visitors: 'I wonder how long you're going to be in here for and what ---', the appellant replied: 'Murder, murder's about 17 years'.
'This guy's a shit cunt. He rolled up on me. Everybody knows he's a stand over, you know. I've only got the one thing working against me. The fact that I killed him and left the body in such disarray'.
'Come on Louise ... You know, you know me mate ... You know I can't stop once I've started' ... 'Well he got, he didn't even get everything that he, should have happened to him'.
'You know to me he looked like he was just asleep. I had to make sure he wasn't coming back'.
(e)The evidence at the trial did not establish, and the evidence before this court does not establish, that when the appellant engaged in the electronically recorded conversations with friends and family, while he was in custody awaiting trial, the appellant was suffering from a mental impairment which may possibly have made his admissions against interest unreliable or which may possibly have made it unfair for the State to rely upon the admissions at the trial. Indeed, the evidence of Dr Pascu in the appeal indicates that at an earlier stage, when the appellant participated in the first and second police interviews, the appellant was not suffering from a mental impairment which may possibly have affected the reliability of his admissions or which may possibly have made it unfair for the State to rely upon the admissions at the trial.
(f)Grounds 6.2 and 6.3 are without merit.
As to ground 6.4, which alleges that the trial judge erred by ruling that photograph 414 (depicting a cut to Mr Tran's neck) was admissible and should be received in evidence as Exhibit 41 in that the photograph was extremely prejudicial to the appellant and this prejudice outweighed any probative value the photograph may have had:
(a)Photograph 414 was tendered by the prosecutor following the appellant's insistence in cross‑examination that he had 'stabbed' Mr Tran in the neck (ts 1068 ‑ 1070, 1074 ‑ 1076).
(b)The tender of the photograph was necessary to demonstrate the nature and extent of the injury to Mr Tran's neck.
(c)The trial judge ruled that photograph 414 was admissible in that the photograph had significant probative value in establishing that there was a deliberate slicing of Mr Tran's throat and consequently the photograph contradicted the appellant's evidence that he had 'stabbed' Mr Tran in the neck (ts 1080).
(d)We accept that at least some members of the jury may have found the photograph confronting. However, we consider that the trial judge was correct, for the reasons she gave, in ruling that the photograph was admissible. In our opinion, nothing in the photograph might have resulted in a juror determining the State's case against the appellant otherwise than according to law or by reference to a proper evaluation of the evidence as a whole. See Liyanage v The State of Western Australia.[10]
(e)Ground 6.4 is without merit.
[10] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [198] (Martin CJ, Mazza & Mitchell JJA).
As to ground 6.5, which alleges that the trial judge erred by deciding that a ruler should be admitted into evidence as Exhibit 42 in that the ruler was tendered by the State for the purpose of representing the length of the wound suffered by Mr Tran and the width of the knife used to inflict the wound and, in these circumstances, the ruler was prejudicial to the appellant as it was a false and misleading representation of the stab wound:
(a)The ruler was marked, by a black mark, to show 21 cm and, by a green mark, to show 5 cm. Those intervals were marked on the ruler to indicate the width and depth respectively of Mr Tran's neck wound.
(b)We are satisfied that the tender of the ruler with the relevant markings was not relevantly prejudicial to the appellant. In particular, the ruler and the markings did not give a false or misleading impression in relation to the width or depth of the wound to Mr Tran's neck, having regard to the whole of the evidence at the trial including the expert evidence of Dr Cadden in relation to the autopsy he conducted on Mr Tran.
(c)Ground 6.5 is without merit.
Ground 6 as a whole is without merit. Leave to amend the grounds of appeal by the addition of ground 6 should therefore be refused.

The merits of proposed ground 7

Proposed ground 7 alleges, in essence, that:
(a)the trial judge erred 'by forcing the appellant, when giving evidence, to answer repetitive questions';
(b)her Honour erred 'by allowing the prosecutor to continue to be repetitive and harassing to the appellant whilst the appellant was giving evidence'; and
(c)her Honour erred 'by not adequately directing or misdirecting the jury'.
Ground 7 comprises, in essence, four subgrounds.
Ground 7.1 alleges that the trial judge forced the appellant, when giving evidence, to answer repetitive questions; the appellant said at ts 1098 that he had already answered a question; the question was repetitive; nevertheless, her Honour told the appellant that he was to answer the question again; this prejudiced the appellant at the time; and consequently, a miscarriage of justice occurred.
Ground 7.2 alleges that the trial judge allowed the prosecutor to be repetitive and harassing to the appellant while the appellant was giving evidence; her Honour allowed the prosecutor to be misleading, repetitive, unduly annoying and harassing; this was prejudicial to the appellant; consequently, a miscarriage of justice occurred.
Ground 7.3 alleges that the trial judge failed to direct the jury on the appellant's mental impairment or psychiatric diagnosis, the appellant having been mentally impaired and heavily medicated during the trial.
Ground 7.4 alleges that the trial judge failed to give an appropriate direction to the jury to cure 'the unsupported … [alternative] version of events' advanced by the prosecutor in his cross‑examination and address to the jury; the prosecutor's alternative version of events, namely that '[Mr Tran] was on his knees facing the couch and had his neck cut from behind', was 'conceded' by the prosecutor; further, the trial judge failed to direct the jury on the prosecutor's concession; consequently, it was open to the jury to adopt the alternative version of events that the prosecutor had conceded; and the jury relied on the alternative version of events in arriving at their verdict, which was unreasonable and unsupported by the evidence.
The prosecutor in a criminal trial represents the State. The prosecutor must 'act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one': Whitehorn v The Queen.[11]
[11] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 ‑ 664 (Deane J).
As Mazza JA (McLure P agreeing generally & Newnes JA agreeing) noted in Goedecke v The State of Western Australia:[12]
Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R vCallaghan [1993] QCA 419; [1994] 2 Qd R 300, 306; offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.
See also JJS v The State of Western Australia;[13] MAM v The State of Western Australia.[14]
[12] Goedecke v The State of Western Australia [2013] WASCA 25 [36].
[13] JJS v The State of Western Australia [2014] WASCA 136 [134] (Martin CJ; Pullin JA agreeing & Buss JA relevantly agreeing).
[14] MAM v The State of Western Australia [2018] WASCA 35 [101] - [108] (Martin CJ; Beech JA agreeing & Hall J agreeing generally).
If a prosecutor breaches his or her duty at trial it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel. See Whitehorn (664); Goedecke [35], [37]; JJS [134].
The trial record reveals that:
(a)The appellant's evidence‑in‑chief began at 3.30 pm and ended at 4.05 pm on 15 October 2019. His examination‑in‑chief began again at 10.00 am and was completed at 12.50 pm on 16 October 2019.
(b)The appellant's cross‑examination began at 12.50 pm and ended at 12.55 pm and began again at 2.16 pm and ended at 4.00 pm on 16 October 2019. The cross‑examination resumed at 10.02 am and was completed at 11.20 am on 17 October 2019.
(c)The appellant's re‑examination began at 11.20 am and was completed at 11.35 am on 17 October 2019.
So, the appellant was examined‑in‑chief for about 3 hours 25 minutes; he was cross‑examined for about 3 hours 7 minutes; and he was re‑examined for about 15 minutes.
As to ground 7.1, the question referred to by the appellant in ground 7.1 occurred in the course of the following passage in his cross‑examination (ts 1098):
… You didn't have any grounds, I suggest, to believe that Mr Tran intended to commit an offence against you? ‑ Of course. He'd committed ‑ he'd already been assaulting me across four days and threatening my life so of course I had grounds.
And when you ‑ ‑ ‑? ‑ Very reasonable grounds.
When you killed Mr Tran you didn't believe that it was necessary to defend yourself against violence there and then? ‑ Well, it was future violence as well. If I'd have untied him it possibly could have gone south very quickly.
And it really wasn't necessary to kill Mr Tran at all at that point, was it? ‑ I believed it was. That's why I did it.
There were any number of other things that you could have done short of killing him? ‑ Like leaving the state, that I should be chased out of my own home by a terrorist? I don't think so.
The dreadful truth of the matter is you decided to punish Mr Tran from the moment he walked into your home and ‑ and chipped you on the chin? ‑ I've already answered this question.
JENKINS J: Well, you can answer it again? ‑ No.
JUBB, MR: And it started four days ago when he marched into your house and started looking in all the rooms and showing you absolutely no respect? ‑ No.
And you were angry and wanted to get rid of him. That's what the truth is, isn't it? ‑ No.
And you held him, tied him up, kept him from actually leaving the house? ‑ That's ‑ ‑ ‑
That's right, isn't it? ‑ - - - correct.
And you deliberately killed him in the way that we've been through now this morning again? That's right, isn't it? ‑ That's correct.
There was nothing oppressive or unfair in the trial judge requiring the appellant to respond again to the prosecutor's proposition that the appellant had decided to punish Mr Tran from the moment Mr Tran had entered the appellant's home on 8 July 2018 and 'chipped [the appellant] on the chin'.
As to ground 7.2, the prosecutor's cross‑examination of the appellant must be considered in the context that no one, apart from the appellant and Mr Tran, was present when the appellant killed Mr Tran. The interaction between the appellant and Mr Tran, while they were alone in the appellant's house in the period leading up to the killing, was of critical importance in evaluating whether the State was able to prove that the appellant had killed Mr Tran with the requisite mental element for murder and whether the State was able to prove that the killing was unlawful by negating the defences under s 244 and s 248 of the Code.
It is true that there was some repetition in the prosecutor's questioning of the appellant. A degree of repetition is not unusual in cross‑examination. It was to be expected in the present case having regard to the context that we have mentioned at [252] above.
Counsel for the appellant made a number of objections during the prosecutor's cross‑examination of the appellant. See ts 1027, 1055, 1067, 1074, 1088 ‑ 1089. It is significant that none of the objections asserted that the prosecutor's questioning was misleading, repetitive, annoying or harassing.
We are satisfied, upon our review of the trial record, that there was nothing oppressive or unfair in the prosecutor's cross‑examination of the appellant. The prosecutor's questioning of the appellant cannot be characterised as misleading, unnecessarily repetitive, unduly annoying or harassing. The prosecutor fairly advanced the State's case.
As to ground 7.3, it is true that the trial judge did not direct the jury in relation to any mental impairment the appellant may have had or any psychiatric diagnosis that may have been made in relation to the appellant.
However, there was no evidence at the trial that during the trial the appellant was mentally impaired. Further, there was no evidence at the trial that during the trial the appellant was heavily medicated.
During the trial there was a discussion between the trial judge, the prosecutor and defence counsel in relation to the editing of the electronically recorded conversations between the appellant and friends and family members while the appellant was in custody awaiting trial (ts 862 ‑ 890). The debate included the edits to be made to part of a conversation in which the appellant discussed his mental health, treatment and medication, and how in the appellant's opinion his mental health would be a mitigating factor in any sentencing process.
Counsel for the appellant said (ts 865):
… [W]hen your Honour reads that section in context it's all about sentencing and I agree with my learned friend, sentencing is irrelevant. And then after that it becomes Mr Calabro talking about his own mental health as part of a conversation about:
That will help in mitigation ‑
- and we would say (a) the fact that it might be mitigatory is irrelevant. And (b) Mr Calabro's mental health has largely been irrelevant in this trial. We've not sought ‑ we won't be seeking to call any expert evidence about that and we're not suggesting he's not fit to stand trial.
We're not running section 27. So what's happening with his medication and 10 years of treatment and so on is not relevant and it potentially opens up a whole line of speculation for the jury. So our submission to your Honour would be that whole section gets edited out rather than just the words suggested by the State.
The approach adopted by counsel for the appellant in that passage involved a reasonable and rational forensic decision made in the course of the trial.
The trial judge ruled that the edits sought to be made by counsel for the appellant in relation to the part of the conversation in which Mr Calabro discussed his mental health, treatment and medication should be made (ts 872).
As we have mentioned, Dr Pascu was of the view that the electronic recordings of the first and second police interviews confirmed that at that time the appellant's mental state was stable with no evidence of any psychotic or affective symptoms. The appellant was reasonably cooperative during the interviews. He appeared to be more in control of the interview process than the two detectives. The appellant's behaviour during the interviews did not indicate that he might have been distracted or affected by active psychotic or affective symptoms at that time.
Also, as we have noted at [147(k) and (l)] above, Dr Pascu said in her report dated 7 March 2023 that:
(a)the appellant likely suffers from bipolar 2 mood disorder on the background of mixed personality disorder with borderline (emotionally unstable) and narcissistic traits;
(b)the psychotic symptoms described by the appellant at the time of Mr Tran's death are more likely methylamphetamine related than attributable to an underlying psychotic illness;
(c)the appellant does not suffer from a major psychotic disorder from a psychiatric viewpoint: bipolar 2 mood disorders do not cause psychosis; and
(d)the appellant was fit to stand trial with assistance from his counsel.
We are satisfied, upon our review of the trial record and having regard to the additional evidence that is admissible in the appeal, that the appellant understood the questions asked of him by his counsel and the prosecutor. He responded lucidly to the questioning. There is no reasonable possibility that the appellant was materially disadvantaged in giving his evidence or otherwise during the trial by any mental impairment he had or any medication he was taking. No suggestion to that effect was made at the trial by the appellant's competent and very experienced criminal defence barrister.
In the circumstances, the trial judge was not bound to direct the jury in relation to any mental impairment the appellant may have had or any psychiatric diagnosis that may have been made in relation to him.
As to ground 7.4, Detective Senior Constable Durka gave evidence that, when he conducted the forensic examination of the appellant's house following the death of Mr Tran, he identified two separate footprints of Mr Tran (ts 747). Both footprints were of the ball of Mr Tran's left foot (ts 747 ‑ 748). Both of the footprints were pointing towards the three‑seater couch (ts 749).

The prosecutor cross‑examined the appellant in relation to the footprints as follows (ts 1052 ‑ 1053):
You remember the evidence about his footprint, or footprints, just the ball of his foot? ‑ Yep.
In front of the sofa? ‑ Yes.
Was he kneeling down? Is that how he only had the balls of his feet on the floor? ‑ Well, he can't be because the balls of the feet are facing the sofa, not away from the sofa.
Well, that's what I'm suggesting, that he was kneeling down in front of the sofa while you were delivering blows to him ‑ ‑ ‑? ‑ Then ‑ ‑ ‑
‑ ‑ ‑ of some kind? ‑ Then his feet would be further away from the sofa so it can't be.
All right. Well, the members of the jury have that evidence. I suggest to you, when you hit him, when you stabbed him, at some point, he was kneeling down? ‑ No, he wasn’t.
With his back facing you? ‑ No.
…
You saw the photographs of that orange and black, serrated knife sitting on the floor? ‑ Yes.
Laying on the floor. That was your knife? ‑ Yes.
Used in your work? ‑ Yes.
Cutting plaster board or things like that? ‑ Things like that.
And trying to cut Andrew Tran’s neck with it? ‑ Well, I don't remember that.
Was it when he was kneeling down, as I suggest? ‑ He was never kneeling down.
The prosecutor questioned the appellant about the manner in which the appellant had inflicted various injuries upon Mr Tran. The cross‑examination included questions about Mr Tran's position during the appellant's attack upon him. The prosecutor put to the appellant that Mr Tran was kneeling at some stage while the appellant struck or stabbed Mr Tran (ts 1052). The prosecutor also put to the appellant that the injuries to the back of Mr Tran's neck might have been inflicted while Mr Tran was kneeling and facing the three‑seater couch (consistent with the footprints of the ball of Mr Tran's left foot) (ts 1053).
Although the prosecutor, in his questioning of the appellant, referred to the evidence about the ball of Mr Tran's foot (as distinct from the ball of his left foot), any lack of precision in that respect did not create any perceptible risk that the jury might have been misled by the prosecutor's description of Detective Senior Constable Durka's evidence. The appellant expressly acknowledged recalling the evidence in question (ts 1052).
The prosecutor did not act improperly in putting to the appellant a scenario that was different from the version of events described by the appellant in his evidence‑in‑chief. In particular, there was nothing improper or misleading in the prosecutor putting to the appellant that Mr Tran was kneeling at some stage while the appellant struck or stabbed Mr Tran (ts 1052). The appellant disavowed that proposition and insisted that Mr Tran 'was never kneeling down' (ts 1053). There was, however, some support for the prosecutor's proposition in Detective Senior Constable Durka's evidence.
The prosecutor did not, in his closing address, 'concede' that Mr Tran was not kneeling at any stage while the appellant struck or stabbed Mr Tran. The relevant passage in the prosecutor's closing address reads (ts 1148):
And you'll recall I made the point that all we saw in that footprint identified to Mr Tran were the balls of his feet pointing towards the couch and you can come to your conclusions about that, members of the jury. I would suggest that the balls of your feet on the floor with your heels raised indicate that you were kneeling down.
I put that to the accused but he said that didn’t happen but you know that there were a number of significant injuries inflicted on Mr Tran whilst he may well have been in that position. The wounds to the back of his neck, for example. The accused says he can't remember any of that, doesn't know how that happened but clearly he inflicted those injuries, members of the jury, and [a] possible explanation as I suggested to him was that he was kneeling down at the time.
Grounds 7.1, 7.2, 7.3 and 7.4 are without merit. Leave to amend the grounds of appeal by the addition of ground 7 should therefore be refused.

The merits of proposed ground 8

Proposed ground 8 alleges, in essence, that the prosecutor's cross‑examination of the appellant and the prosecutor's address to the jury were 'misleading, unduly annoying, harassing, offensive and oppressive' and were calculated 'to elicit a prejudicial and unreasonable verdict by the jury that was unsupported by the evidence'.
The appellant appears to be asserting in support of ground 8 that the prosecutor's closing address misled the jury and consequently the jury's verdict of guilty of murder was unreasonable and unsupported in that the verdict was based upon the prosecutor's misleading conduct.
Ground 8 relies upon the contention that the State's case at trial was that there was an 'alternative version of events that [the appellant] slit [Mr Tran's] throat from behind while [Mr Tran] was on his knees facing the couch'. It is true, as we have indicated in considering ground 7, that the prosecutor asked questions to that effect in his cross‑examination of the appellant. However, the State's case was not put on the basis that the appellant must have inflicted the fatal wound to Mr Tran's neck while Mr Tran was kneeling. Rather, the proposition that was put to the appellant in cross‑examination was that Mr Tran was kneeling at some stage while the appellant struck or stabbed Mr Tran. The appellant disavowed that proposition.
As we have noted in considering ground 7, the prosecutor did not act improperly in putting to the appellant a scenario that was different from the version of events described by the appellant in his evidence‑in‑chief. In particular, there was nothing improper or misleading in the prosecutor putting to the appellant that Mr Tran was kneeling at some stage while the appellant struck or stabbed Mr Tran.
The relevant passage from the prosecutor's closing address is set out at [271] above. The prosecutor did not, in that passage or elsewhere in his closing address, misrepresent the evidence that was material to the issue raised in ground 8.
It is significant that, at the conclusion of the prosecutor's closing address and before defence counsel commenced his closing address, the appellant's competent and very experienced criminal defence barrister raised with the trial judge and the prosecutor two alleged misstatements by the prosecutor in his closing address (ts 1167 ‑ 1171). One of the alleged misstatements related to whether a particular T‑shirt had been worn by Mr Tran. The other related to the evidence of Dr Cadden about the wound to Mr Tran's jaw. However, defence counsel made no complaint of the kind now sought to be raised by the appellant in ground 8.
We are satisfied, upon our examination of the trial record, that the prosecutor's cross‑examination of the appellant and the prosecutor's closing address to the jury were not misleading, unduly annoying, harassing, offensive or oppressive as alleged in ground 8. We are also satisfied, upon our examination of the trial record, that the prosecutor's cross‑examination of the appellant and the prosecutor's closing address were not calculated to elicit a prejudicial or unreasonable verdict by the jury that was unsupported by the evidence.
As we have explained, in the context of ground 7, the prosecutor sought fairly to advance the State's case at the trial. Also, as we have explained in the context of grounds 3 and 4, the jury's verdict of murder was not unreasonable and the verdict is supported having regard to the whole of the evidence at the trial (and the additional evidence that is admissible in the appeal) including having regard to the defences under s 244 and s 248 of the Code.
There is no basis for impugning the jury's verdict of guilty of murder by reason of the manner in which the prosecutor conducted the State's case at trial.
Ground 8 is without merit. Leave to amend the grounds of appeal by the addition of ground 8 should therefore be refused.

Conclusion

We would make orders in the appeal to this effect:
(a)The appellant's oral application in an appeal for leave to adduce additional evidence in the appeal, namely an affidavit of Luisa Calabro sworn 17 May 2021 and a statutory declaration of Ms Calabro made 8 July 2021, is granted, subject to the rulings on admissibility that we have made in these reasons.
(b)The appellant's application filed on 7 July 2022 for leave to adduce additional evidence in the appeal, namely the affidavit of Bonar Levison sworn 6 July 2022, is granted, subject to the rulings on admissibility that we have made in these reasons.
(c)The State's application filed on 3 September 2021 for leave to adduce additional evidence in the appeal, namely an affidavit of Clayton Woodhouse sworn 31 August 2021, is granted.
(d)The appellant's applications filed on 28 July 2022 and 27 March 2023 for leave to amend his grounds of appeal by the addition of proposed grounds 5, 6, 7 and 8 are refused.
(e)The appellant's application filed on 27 March 2023 for leave to adduce additional evidence in the appeal, namely Dr Victoria Pascu's report dated 7 March 2023, is granted.
(f)The appellant's application filed on 27 March 2023 for leave to adduce additional evidence in the appeal, namely Professor David Joyce's report dated 10 September 2019, is refused.
(g)The appellant's application filed on 13 April 2023 for leave to file submissions is granted.
(h)The appellant's applications for leave to adduce additional evidence in the appeal from the appellant are granted, subject to the rulings on admissibility that we have made in these reasons.
(i)The appellant's application filed on 4 January 2023 for leave to adduce additional evidence as to why it was unreasonable for the appellant to call the police prior to killing Mr Tran is granted.
(j)The oral evidence given by the appellant, Ms Calabro and Mr Woodhouse at the hearing of the appeal is admitted as additional evidence in the appeal.
(k)Leave to appeal is refused.
(l)All other outstanding applications are dismissed.
(m)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
2 FEBRUARY 2024