Clarke v The State of Western Australia

[2022] WASCA 6

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CLARKE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 6

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   25 JUNE 2021

DELIVERED          :   1 FEBRUARY 2022

FILE NO/S:   CACR 200 of 2019

BETWEEN:   AMBROSE JOHN CLARKE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 59 of 2020

BETWEEN:   XAVIER GERARD CLARKE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   CORBOY J

File Number            :   INS 82 of 2012

Catchwords:

Criminal law - Appeals against conviction - Appellants convicted after trial of murder - Intention to kill - Causation - Whether the jury's verdicts as to the element of intent to kill and as to causation of the deceased's death were unreasonable or not supported by the evidence

Legislation:

Criminal Code (WA), s 268, s 270, s 277, s 279

Result:

CACR 200 of 2019
Application for an extension of time to appeal granted
Leave to appeal on ground 1 and ground 2 granted
Appeal dismissed

CACR 59 of 2020
Application for an extension of time to appeal granted
Leave to appeal on ground 1 and ground 2 granted
Appeal dismissed

Category:    B

Representation:

CACR 200 of 2019

Counsel:

Appellant	:	Mr O P Holdenson QC, Mr A E Eyers &  Ms K Kumar
Respondent	:	Ms A L Forrester SC & Mr R G Wilson

Solicitors:

Appellant	:	Anthony Eyers
Respondent	:	Director of Public Prosecutions (WA)

CACR 59 of 2020

Counsel:

Appellant	:	Ms S L Duce
Respondent	:	Ms A L Forrester SC & Mr R G Wilson

Solicitors:

Appellant	:	Efficient Law Group
Respondent	:	Director of Public Prosecutions (WA)

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

Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257

BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101

Campbell v The Queen [1981] WAR 286

Clarke v The State of Western Australia [2018] WASCA 14

Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779

GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698

Houghton v The Queen [2004] WASCA 20; (2004) 28 WAR 399

Jago v The State of Western Australia [2022] WASCA 2

Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610

Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123

Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493

R v Aubrey [1995] QCA 148; (1995) 79 A Crim R 100

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

R v Baxter [2019] QCA 87; (2019) 1 Qd R 138

R v Carlton [2018] QCA 294

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

R v Mahony [2019] QCA 131

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

R v Ping [2005] QCA 472; [2006] 2 Qd R 69

R v Reid [2006] QCA 202; [2007] 1 Qd R 64

R v Reid [2018] QCA 63

R v White [1998] 2 SCR 72

R v Willmot [No 2] [1985] 2 Qd R 413

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297

Turner v The Queen [2004] WASCA 127

Weissensteiner v The Queen (1993) 178 CLR 217

Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

TABLE OF CONTENTS

BUSS P

The State's case at the trial

The State's case at the trial in relation to the requisite intent for murder

Ambrose Clarke's case at the trial

Xavier Clarke's case at trial

The medical evidence called by the State

The medical evidence called by the defence

The trial judge's directions as to the possible verdicts

Grounds of appeal

The organisation of the balance of these reasons

Ground 2:  Ambrose Clarke's submissions

Ground 2:  Xavier Clarke's submissions

Ground 2:  the State's submissions

Ground 2:  its merits

Ground 1:  Ambrose Clarke's submissions

Ground 1:  Xavier Clarke's submissions

Ground 1:  the State's submissions

Ground 1:  its merits

Conclusion

MAZZA JA

MITCHELL JA

Overview of the cases at trial

Primary facts

Motivation to kill Peter Davis

The Albert Norrish phone

The black plastic

Appellants' and Peter Davis' movements on 30 May 2011

Discovery of Peter Davis' body on 31 May 2011

Basis on which the jury could be satisfied that the appellants intended to kill Peter Davis

Motive

The Albert Norrish phone

The black plastic

Request for protective covers

Movements on the morning of 30 May 2011

Post-offending conduct

No contradictory account by the appellants

Conclusion

Orders

BUSS P:

1. The appellant in CACR 200 of 2019 (Ambrose Clarke) and the appellant in CACR 59 of 2020 (Xavier Clarke) were jointly charged on an indictment which alleged that on 30 May 2011, at Perth, Ambrose Clarke and Xavier Clarke murdered Peter John Davis (the Deceased), contrary to s 279 of the Criminal Code (WA) (the Code).

2. On 3 December 2013, after a trial in the Supreme Court before Hall J and a jury, Ambrose Clarke and Xavier Clarke were convicted of murder.

3. On 17 December 2013, Hall J sentenced both Ambrose Clarke and Xavier Clarke to life imprisonment with a minimum non‑parole period of 18 years.

4. Ambrose Clarke and Xavier Clarke appealed to this court against their convictions.  On 8 February 2018, this court allowed the appeals against conviction, set aside the judgments of conviction for murder and ordered a new trial for murder.  See Clarke v The State of Western Australia.[1]

   [1] Clarke v The State of Western Australia [2018] WASCA 14.

5. On 17 July 2019, after a new trial before Corboy J and a jury, Ambrose Clarke and Xavier Clarke were again convicted of murder.

6. On 25 September 2019, Corboy J sentenced both Ambrose Clarke and Xavier Clarke to life imprisonment with a minimum non-parole period of 21 years.

7. Ambrose Clarke and Xavier Clarke have again appealed to this court against their convictions.

8. Both Ambrose Clarke and Xavier Clarke require an extension of time within which to appeal.  The last date for appealing was 16 October 2019.  Ambrose Clarke did not file his appeal notice until 20 December 2019.  His application for an extension of time is supported by an affidavit of his lawyer, Anthony Edward Eyers, sworn 20 December 2019.  Xavier Clarke did not file his appeal notice until 28 April 2020.  His application for an extension of time is supported by an affidavit of his lawyer, Shay Louise Duce, sworn 27 April 2020.  Counsel for the State did not oppose the applications for an extension of time.  In the circumstances, extensions of time should be granted.

9. Ambrose Clarke and Xavier Clarke rely upon two grounds of appeal.  Their grounds are, in substance, identical.  Ground 1 alleges that the jury's verdict as to the causation of the Deceased's death was unreasonable and not supported by the evidence.  Ground 2 alleges that the jury's verdict as to the element of intent to kill was unreasonable or not supported by the evidence.

10. I would grant leave to appeal on each of the grounds.  However, the grounds have not been made out.  The appeals should be dismissed.

The State's case at the trial

1. The State's case at the trial was, relevantly, as follows.

2. The Deceased was aged 57 when he died.  Ambrose Clarke was 46 and Xavier Clarke was 44.

3. Ambrose Clarke and Xavier Clarke are brothers.

4. The Deceased was a self‑employed businessman.  He and his wife, Jennifer Davis, were the proprietors of two businesses.  One was called Top Seal Concreting Service (Top Seal) and involved industrial and domestic high pressure cleaning and sealing of concrete and paving surfaces.  The other was called Top Additives Australia and involved the supply of chemicals to be added to concrete.

5. In about late 2006, Ambrose Clarke commenced employment in an administrative capacity with Top Seal.  In about mid 2007, he purchased a franchise from Top Seal for $125,000.  Ambrose Clarke operated the franchise but continued to be employed by Top Seal.

6. In about April 2008, Ambrose Clarke invested $160,000 in Top Additives Australia.

7. In early 2009, the Deceased became concerned that Ambrose Clarke was fraudulently appropriating money from Top Seal.  As a result, in about April or May 2009, the Deceased terminated Ambrose Clarke's franchise and employment.

8. In about June 2009, the Deceased made a complaint to the police to the effect that Ambrose Clarke had stolen money from Top Seal.  Ambrose Clarke knew that the Deceased had made the complaint.

9. Ambrose Clarke, for his part, believed that the Deceased owed him at least $300,000.  The Deceased denied that he owed Ambrose Clarke any money.

10. The circumstances associated with the severance of the business relationship between the Deceased and Ambrose Clarke produced animosity between them.

11. In about August 2009, Ambrose Clarke believed that the Deceased was making defamatory allegations about him.  Ambrose Clarke instructed lawyers.  By letter dated 11 August 2009 the lawyers wrote to the Deceased.  The letter set out the alleged defamatory allegations including alleged statements by the Deceased that Ambrose Clarke was 'facing a fraud charge', there was 'police involvement' and he was a '[crook] who [could not] be trusted' (ts 9559 ‑ 9564).

12. Between late 2009 and November 2010, Ambrose Clarke attempted, by unconventional means, to recover the money he believed the Deceased owed him.  Ambrose Clarke asked his friend, Alex Ioasa, to endeavour to recover the money.  When Mr Ioasa met with the Deceased to attempt to collect the money the Deceased became angry (ts 5346).  Mr Ioasa was unsuccessful in seeking to meet with the Deceased on a second occasion (ts 5352).  Mr Ioasa's attempts on behalf of Ambrose Clarke to recover money from the Deceased were unsuccessful (ts 5354). 

13. In March 2011, Ambrose Clarke retained lawyers to recover the money he believed the Deceased owed him.  However, in April 2011 Ambrose Clarke instructed his lawyers to cease acting in the matter because he did not have adequate funds to pay legal fees.

14. In May 2011:

    (a)Ambrose Clarke was aware that the Deceased was making payments to Robyn Santoro, who was another investor in Top Additives Australia, but not to Ambrose Clarke (ts 9575 ‑ 9576, 9711);

    (b)a business partnership between Ambrose Clarke and Ronald Spiteri was terminated by Mr Spiteri (ts 5991, 9725); and

    (c)Ambrose Clarke had a credit card debt in excess of $115,000.

15. By May 2011 (and, most likely, from mid 2009), Ambrose Clarke was under significant financial pressure. 

16. The State's case was that Ambrose Clarke and Xavier Clarke intentionally caused the Deceased's death.  Ambrose Clarke and Xavier Clarke formed a plan to kill the Deceased and carried out the plan with that intent.  Ambrose Clarke's motive for killing the Deceased was to be found in their failed business relationship.  Ambrose Clarke was focused on retribution. Xavier Clarke assisted Ambrose Clarke to kill the Deceased because of their close relationship as brothers.  Ambrose Clarke and Xavier Clarke acted together (possibly with a third person) in planning and preparing to kill the Deceased.

17. The State's case was that, pursuant to their plan, Ambrose Clarke and Xavier Clarke lured the Deceased to 7 Townsend Street, Malaga (the Malaga property) under the inducement that someone wanted the Deceased to provide a quotation to carry out work.  A children's party business called Full of Fun was conducted at the Malaga property.  The business was owned by Lina Zuvela.  There was no connection between Ms Zuvela, Full of Fun or the Malaga property, on the one hand, and Ambrose Clarke, Xavier Clarke or the Deceased, on the other (ts 6128).  There was no CCTV and no gate or fence at the Malaga property.  Access was easy.  Ambrose Clarke was familiar with the Malaga area.  The Malaga property was private and protected (ts 4664).

18. On 22 May 2011, a SIM card was purchased from Affinity Allphones Kingsway.  On 22 May 2011, Ambrose Clarke made a number of calls to register the SIM card in the false name of Albert Norrish.  Soon after the last call, there were telephone communications between Ambrose Clarke and Xavier Clarke.  Ambrose Clarke then purchased a prepaid mobile telephone voucher.

19. On 23 May 2011, Ambrose Clarke telephoned the Full of Fun business.  On 24 May 2011, Ambrose Clarke or someone acting on his instructions used the mobile telephone in the false name of Albert Norrish to call the Deceased.  

20. On 26 May 2011, Xavier Clarke used Google Maps to search for the Malaga property.  Shortly afterwards, Xavier Clarke used the mobile telephone in the false name of Albert Norrish to call the Deceased on two occasions.  On the second occasion a conversation occurred.  Immediately afterwards, Xavier Clarke called Ambrose Clarke.

21. On 29 May 2011, Ambrose Clarke made a number of telephone calls to Trevor Reid (who was a business associate of Ambrose Clarke and a friend of the Deceased) and arranged to obtain some plastic from him.  Ambrose Clarke collected a piece of black plastic from Mr Reid at about 5.30 pm on that day.  The piece was between 1.5 m and 2 m square (ts 5242).  After the Deceased was killed he was wrapped in the plastic.  Mr Reid gave evidence that Ambrose Clarke told him that he needed the plastic because he had a 'little job' (ts 5238).  Mr Reid also gave evidence that Ambrose Clarke had asked him whether he had any 'protective covers' (which Mr Reid described as 'like a set of overalls') (ts 5251) or 'protective clothing' (ts 5255 ‑ 5256).  Mr Reid's response to Ambrose Clarke was 'no' (ts 5251). 

22. On 30 May 2011, Xavier Clarke was in the vicinity of Rivervale at or very close to 6.00 am.  The State's case was that Ambrose Clarke and Xavier Clarke travelled together in a vehicle from Rivervale to the Malaga property.  They arrived at the property before the Deceased.

23. On 30 May 2011, the Deceased left his home and went to the Newburn Deli at about 6.20 am.  A navigation device in the Deceased's vehicle was programmed with a journey ending at the Malaga property.  A vehicle matching the description of the Deceased's Pajero 4WD vehicle was recorded on security footage at a series of business premises between High Wycombe and Malaga from 6.20 am to 6.50 am.  At 6.44 am his vehicle was recorded at Oxleigh Drive, Malaga.  Those sightings were consistent with the journey programmed on the Deceased's navigation device.

24. The Deceased, unusually, did not respond to a text message sent to his mobile telephone by his son, Kurt Davis, at 7.12 am.  The message concerned an important family matter and a disruption of Kurt Davis' work.  On the State's case, the Deceased had been incapacitated at or before 7.12 am.

25. When the text message was received by the Deceased's mobile telephone, the telephone was registering from a tower in Lockridge.  The State's case was that the Deceased, having been incapacitated and placed in the back of his vehicle, was being transported to the Great Eastern Motor Lodge at Great Eastern Highway, Rivervale.

26. At 7.33 am Xavier Clarke called Ambrose Clarke.  Telephone records indicated that at the time Xavier Clarke was in the vicinity of Rivervale and Ambrose Clarke was in the vicinity of Maylands.  The State's case was that Ambrose Clarke and Xavier Clarke drove separately to the Great Eastern Motor Lodge.  One of them was driving the vehicle they had used to travel to the Malaga property and the other was driving the Deceased's vehicle.

27. At 7.50 am the Deceased's vehicle was seen at the Great Eastern Motor Lodge.  At 8.19 am the Deceased's mobile telephone was registering from a tower in Belmont.  By about 7.50 am, and certainly by 8.20 am, the Deceased remained incapacitated and in the rear of his vehicle which was parked at the Great Eastern Motor Lodge.

28. At about 9.28 am a second mobile telephone (an iPhone) belonging to the Deceased was used to send an email to a 'Chesty Babe' and to Top Seal.  The subject of the email said that the Deceased was 'coming over now' and the message said 'I'm really horny'.  The State's case was that Ambrose Clarke was in possession of the Deceased's second mobile telephone and the Deceased's diary.  The Deceased's passwords to his mobile telephones were written in his diary.  Further, Ambrose Clarke was familiar with the Top Seal email accounts and, accordingly, knew where to send the email.

29. At 9.33 am the Deceased's second mobile telephone was used to send a text message to his wife which indicated that he was 'takn the day off'.  The fact that the Deceased was apparently using a mobile telephone to communicate by text message with his wife, the spelling in the text message and the fact that he was apparently 'takin day off' were unusual.  Telephone records indicated that the Deceased's second mobile telephone was in the Malaga area when it was used to send the text message.  The State's case was that either Ambrose Clarke or a third person sent the text message, but in any event the second mobile telephone was ultimately found at Ambrose Clarke's house.

30. Between 8.40 am and 10.12 am Ambrose Clarke's mobile telephone location was recorded as 'unknown'.  On the State's case, that could be explained by the mobile telephone being switched off or being out of range.  The State's case was that between 8.40 am and 10.12 am Ambrose Clarke returned to the Malaga property.  The next known location of Ambrose Clarke's mobile telephone was at 10.12 am and 10.13 am.  At 10.12 am Ambrose Clarke's telephone was registering from a tower in Rivervale and at 10.13 am it was registering from a tower in Maylands.  The State's case was that Ambrose Clarke had returned to the Great Eastern Motor Lodge to check on the Deceased's vehicle.

31. At 10.20 am there was further telephone contact between Ambrose Clarke and Xavier Clarke.

32. The Deceased's mobile telephone continued to register from a tower in Belmont, with the exception of three occasions when it registered from a tower in Kensington.  The Kensington tower is the closest tower to the Belmont tower.  The State's case was that the Deceased's mobile telephone remained on his person while he was in the rear of his vehicle and the vehicle was parked at the Great Eastern Motor Lodge. 

33. Between 1.11 pm and 2.07 pm telephone records indicated that Ambrose Clarke's mobile telephone was located in the vicinity of Northbridge.  This was consistent with Ambrose Clarke's evidence that he went to an apartment in Northbridge to which he had access in order to deal with some paperwork.  On the State's case, Ambrose Clarke had the opportunity to hide the Deceased's property at this apartment.  The Northbridge apartment belonged to Ambrose Clarke's Malaysian friend, Adrian Lee.

34. At 10.09 pm Ambrose Clarke telephoned Xavier Clarke.  At the time Ambrose Clarke was in the Kewdale area.  The State's case was that Ambrose Clarke had returned to the Great Eastern Motor Lodge either in company or to meet others for the purpose of disposing of the Deceased's body and vehicle.

35. Just after midnight, Kurt Davis and his girlfriend, Natasha Klanjscek, were in the Kewdale area.  They were searching for the Deceased.  Kurt Davis and Ms Klanjscek drove along Great Eastern Highway.  They turned left into Toorak Road in Rivervale.  Toorak Road intersects with Great Eastern Highway.  The Great Eastern Motor Lodge abuts Great Eastern Highway and Toorak Road.  Kurt Davis and Ms Klanjscek observed two cars parked on the left hand side of the road.  One was described as a blue Hilux utility and the other as a silver hatchback.  The State's case was that these vehicles belonged to Ambrose Clarke and Xavier Clarke.  Kurt Davis and Ms Klanjscek saw a man wearing a navy blue 'mechanic-type jumpsuit' with reflective strips, generally described as 'hi‑vis gear'.  The State's case was that this person was Xavier Clarke who would have been wearing 'high visibility clothing' because he had finished work recently.  Kurt Davis recognised Ambrose Clarke.  The State's case was that at the time Ambrose Clarke and Xavier Clarke were in company with each other and an unidentified third man.

1. Kurt Davis drove into the rear carpark of the Great Eastern Motor Lodge.  After a short period he saw the Deceased's vehicle in the carpark.  Soon afterwards Ambrose Clarke's vehicle entered the rear carpark of the Great Eastern Motor Lodge.  The State's case was that Ambrose Clarke entered the rear carpark because he and the other occupant of his vehicle intended to dispose of the Deceased's body and vehicle.

2. Ambrose Clarke's vehicle rammed Kurt Davis' vehicle repeatedly.  At the time of the collisions Kurt Davis saw that Ambrose Clarke (whom he recognised) and the other occupant of Ambrose Clarke's vehicle were wearing some sort of white overalls.  Ms Klanjscek saw that the passenger in Ambrose Clarke's vehicle was wearing something bunched up around his neck, like 'a hoodie'.  Ms Klanjscek's description of what the passenger was wearing matched the description of the clothing worn by Ambrose Clarke when he was stopped shortly afterwards by the police.  The State's case was that at the Great Eastern Motor Lodge Ambrose Clarke was the passenger in his vehicle.

3. After the collisions, Ambrose Clarke's vehicle departed from the Great Eastern Motor Lodge.  The person who had been driving the vehicle alighted.  By his own admission, Ambrose Clarke's vehicle travelled through the back streets of Rivervale. 

4. After the collisions, Kurt Davis drove from the Great Eastern Motor Lodge in an unsuccessful attempt to follow Ambrose Clarke's vehicle.  A short time later, he returned and contacted the emergency services.

5. At about 12.20 am on 31 May 2011 Ambrose Clarke was stopped by police for a traffic violation on Great Eastern Highway.  Ambrose Clarke informed the police officers that he had been involved in a traffic accident, but made no other mention of the incident.  During the traffic stop, the police officers became aware of the report that Kurt Davis had made about the incident at the Great Eastern Motor Lodge.  Ambrose Clarke was asked questions about his relationship with the Deceased and whether he knew of his whereabouts.  The police officers described Ambrose Clarke as being calm and controlled.  One of the police officers, Acting Sergeant Peter Steeger, noticed that Ambrose Clarke had a shovel and containers in the back seat or the tray of his vehicle (ts 6262 ‑ 6263).

6. At 1.19 am Ambrose Clarke's wife's mobile telephone was used to contact Ambrose Clarke.  At 1.33 am the telephone was used to contact Xavier Clarke.  The State's case was that Ambrose Clarke's wife knew that Ambrose and Xavier were together on the night in question, but was unlikely to have known what they were doing.

7. Ambrose Clarke admitted that when he returned home he unloaded equipment from his vehicle and changed his clothes in the garage.

8. On 31 May 2011, and again on 28 July 2011, police searched Ambrose Clarke's house.  During the second search, a Postpak containing an envelope filled with the Deceased's property was located in a filing cabinet in Ambrose Clarke's garage.  The Postpak was addressed to Mr and Mrs A P Clarke and the envelope had a Malaysian address on the front.  The State's case was that the Deceased's property may not have been found during the first search because the property may have been hidden at Mr Lee's Northbridge apartment.

9. Shortly after Kurt Davis contacted them, the emergency services found the Deceased in the back of his vehicle at the Great Eastern Motor Lodge.  He was wrapped in a piece of black plastic.  The black plastic was the same piece of plastic that Ambrose Clarke had collected from Mr Reid on the evening of 29 May 2011.  The State's case was that Ambrose Clarke had the piece of plastic in his possession when he went to the Malaga property on the morning of 30 May 2011 and that the plastic had been obtained as part of Ambrose Clarke and Xavier Clarke's plan to kill the Deceased.

10. Two thumbprints found on the piece of black plastic matched the prints of Xavier Clarke.  The State's case was that Xavier Clarke was present at the Malaga property on the morning of 30 May 2011 and that he was involved physically in assaulting the Deceased, incapacitating the Deceased, placing the black plastic in the Deceased's vehicle and, further or alternatively, in wrapping the Deceased in the plastic.  See the evidence of Senior Constable Damien Luckman (ts 7094 ‑ 7095).

11. DNA was recovered from the Deceased's trousers.  The results overwhelmingly supported the hypothesis that Xavier Clarke was a contributor to a number of the DNA samples obtained from the trousers.  The State's case was that Xavier Clarke's DNA was deposited on the Deceased's trousers when Ambrose Clarke and Xavier Clarke were putting or positioning the Deceased in the rear of the Deceased's vehicle.  See the evidence of Dr Duncan Taylor (ts 8266).

12. DNA was also recovered from a diary page found among the Deceased's property at Ambrose Clarke's house.  The results overwhelmingly supported the hypothesis that Ambrose Clarke was more likely than not to have contributed to the DNA sample.  There was evidence on which the jury could be satisfied that Ambrose Clarke's DNA was deposited on the diary page when he tore it from the Deceased's diary or subsequently when he handled the page in the course of hiding it.  See the evidence of Dr Taylor (ts 8267).

13. Dr Daniel Moss, a forensic pathologist who carried out a post-mortem examination of the Deceased, gave evidence that '[the Deceased] died from cardiac arrhythmia in a man with coronary artery atherosclerosis and multiple blunt force injuries' (ts 8595).

14. The State's case was that although the Deceased had an underlying heart disease and was suffering from a cold, the 'tipping point' was the assault (ts 10,604).  The prosecutor submitted in his closing address that 'on the evidence, [the jury] would be satisfied that [the Deceased] was killed from a combination of circumstances brought about by the assault on him by [Ambrose Clarke and Xavier Clarke], and that's what caused [the Deceased] to die' (ts 10,612).

15. The State's case was that none of the medications taken by the Deceased contributed to his cardiac arrhythmia (ts 10,606).

The State's case at the trial in relation to the requisite intent for murder

1. Section 279(1) of the Code provides, relevantly, that if a person unlawfully kills another person and:

   (a)the person intends to cause the death of the person killed or another person; or

   (b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person,

   the person is guilty of murder.

2. As I have mentioned, the State's case at trial was that Ambrose Clarke and Xavier Clarke caused the Deceased's death and that they intended to kill him.

3. The State did not run an alternative case at the trial on the basis that Ambrose Clarke and Xavier Clarke intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the Deceased's life.

4. The State sought to prove the requisite mental element for murder by alleging and proving that, before they lured the Deceased to the Malaga property, Ambrose Clarke and Xavier Clarke had formed a plan to kill the Deceased and that their intention to kill continued to exist when they assaulted the Deceased at the Malaga property.

Ambrose Clarke's case at the trial

1. Ambrose Clarke's case at the trial was, relevantly, as follows.

2. Ambrose Clarke ran a positive case at the trial.  He gave evidence.

3. Ambrose Clarke admitted that in about May 2011 he obtained a SIM card which he registered in the false name of Albert Norrish.  He inserted the SIM card into an old mobile telephone he had at home.  Ambrose Clarke also admitted using a mobile telephone to make a call for the purpose of activating the SIM card; obtaining the piece of black plastic from Mr Reid; attending at the Great Eastern Motor Lodge on the night of 30 May 2011; and being involved in a motor vehicle collision in the rear carpark of the Great Eastern Motor Lodge.  Ambrose Clarke further admitted that when he was stopped by police, at about 12.20 am on 31 May 2011, for the traffic violation on Great Eastern Highway there was a shovel, a container with acid, a container with chlorine and a broom in the tray of his vehicle (ts 9514 ‑ 9515, 10,033, 10,084).

4. During cross‑examination:

   (a)Ambrose Clarke denied that he and Xavier Clarke were at the Malaga property when the Deceased arrived at 6.50 am on 30 May 2011 (ts 10,080).

   (b)Ambrose Clarke denied that between 6.50 am and 7.12 am on that date he and Xavier Clarke assaulted the Deceased (ts 10,080).

   (c)Ambrose Clarke said that the last time he had personal contact with the Deceased was in March and April 2009 (ts 9530).

5. Ambrose Clarke asserted in evidence that Xavier Clarke had come to his home on 29 May 2011 and had on that occasion handled the piece of black plastic.

6. Ambrose Clarke gave evidence that he had driven to a number of different locations on the morning of 30 May 2011. 

7. In particular, Ambrose Clarke said:

   (a)On the morning of 30 May 2011, Ambrose Clarke left home shortly after 5.00 am and went to the Guildford post office to collect mail.

   (b)Ambrose Clarke then travelled from Guildford to a building site in Fitzgerald Street, Northbridge.  He arrived at about 7.00 am.  Ambrose Clarke unloaded tools, Elastoseal and the piece of black plastic with a view to performing work at the building site.  Ambrose Clarke did not sign in and he did not see anyone when he unloaded his vehicle.  However, he left without carrying out any work because it was raining heavily.  He left the black plastic at the Fitzgerald Street, Northbridge site.

   (c)Ambrose Clarke then travelled to a Gull service station on Guildford Road, Maylands to have breakfast.

   (d)Ambrose Clarke then went into Perth city and attended mass at St Mary's Cathedral.

   (e)Ambrose Clarke then went to Osborne Park and South Perth.

   (f)He then went home to meet his sister.

8. Ambrose Clarke said that the alleged defamatory allegations made by the Deceased had a damaging effect on him and his business (ts 9562).  Ambrose Clarke denied that he was angry and frustrated that the Deceased had made payments to Ms Santoro, but not to him (ts 10,087 ‑ 10,088).  Ambrose Clarke also denied that he was angry when Mr Spiteri terminated their business partnership (ts 9725).

9. Ambrose Clarke raised a hypothesis that an Estonian criminal association may have been responsible for the altercation with the Deceased which resulted in the blunt force injuries he suffered.

10. Ambrose Clarke referred to 'the Estonians' on numerous occasions in the course of his evidence (ts 9356 ‑ 9377, 9404, 9428, 9454, 9813, 9815 ‑ 9820, 10,011, 10,068).

11. There was evidence as to connections between the Estonians (being a number of men of Estonian descent), Mr Ioasa, Mr Spiteri and Ambrose Clarke.  The Estonians had worked at the Fitzgerald Street, Northbridge site.  In late 2010, there was a falling out between Ambrose Clarke and the Estonians.  An incident occurred at a building site at Canning Vale in which various threats were allegedly made.  It was contended on behalf of Ambrose Clarke that the Estonians had spoken to Mr Ioasa about Ambrose Clarke's claim against the Deceased for the debt allegedly owing by the Deceased to Ambrose Clarke.  Mr Ioasa gave evidence that he gave some papers to the Estonians.  Mr Ioasa said he believed that in 2010 the Estonians were actively seeking to pursue the debt.  Mr Ioasa expressed the view that the Estonians would do anything for money.  Detective Sergeant Paul Thornton gave evidence that in 2012 a number of the Estonians had been charged with allegedly demanding money or property by threats.  The charges were discontinued.  None of the Estonians gave evidence at the trial.

12. Ambrose Clarke denied being involved in the Deceased's death.  He also denied any knowledge of any of the Deceased's property having been at his (Ambrose Clarke's) house. 

13. Ambrose Clarke's defence counsel raised the possibility that Ambrose Clarke's DNA may have been deposited on the Deceased's property through transference.  His defence counsel also submitted that 'the Estonians' could have removed the piece of black plastic from the Fitzgerald Street, Northbridge site and that it was possible Ambrose Clarke had been framed by 'the Estonians' for the Deceased's death.

Xavier Clarke's case at trial

1. Xavier's case at the trial was, relevantly, as follows.

2. Xavier Clarke ran a positive case at the trial.  He gave evidence.

3. Xavier Clarke said:

   (a)He had no knowledge of the SIM card that Ambrose Clarke had registered in the false name of Albert Norrish.

   (b)He had handled the piece of black plastic on the night before the Deceased's death.  The black plastic had been in Ambrose Clarke's vehicle.  He had touched the plastic, thinking it was rubbish, while unloading items from Ambrose Clarke's vehicle.

   (c)On the morning of 30 May 2011 he was in Kewdale, hoping to see a man who owed him money and to network.

   (d)As at 30 May 2011, he had never heard of or met the Deceased.

   (e)On 30 May 2011 and 31 May 2011, he did not go to the Great Eastern Motor Lodge or any of the streets in the vicinity of those premises.

4. During cross‑examination:

   (a)Xavier Clarke denied that on 30 May 2011 he drove to the Malaga property (ts 10,456).

   (b)Xavier Clarke denied that he 'laid in wait' for the Deceased at the Malaga property (ts 10,456).

   (c)Xavier Clarke said that he was not at the Malaga property on the morning of 30 May 2011 (ts 10,456).

5. Xavier Clarke's defence counsel also raised the hypothesis that an Estonian criminal association may have been responsible for the altercation with the Deceased which resulted in the blunt force injuries he suffered.

6. Xavier Clarke denied being involved in the Deceased's death.

The medical evidence called by the State

1. The prosecutor called evidence from Dr Janusz Samborski, a general medical practitioner, Dr Moss and Professor David Joyce, a clinical pharmacologist and toxicologist.

2. Dr Samborski gave evidence in examination‑in‑chief to this effect:

   (a)Dr Samborski is a general medical practitioner.

   (b)In 2010 and 2011, the Deceased consulted Dr Samborski on four occasions.

   (c)On 4 October 2010, the Deceased saw Dr Samborski to renew his medications.  The Deceased suffered from high blood pressure, type 2 diabetes and depression.  He smoked cigarettes.  The Deceased told Dr Samborski that he had recently been under 'a lot of stress' (ts 8466).  Dr Samborski gave the Deceased prescriptions for medication to treat high blood pressure, high cholesterol, diabetes and depression.  Dr Samborski recommended that the Deceased have blood tests.

   (d)On 23 November 2010, the Deceased saw Dr Samborski again.  Blood tests revealed that the Deceased's diabetes was poorly controlled.  His blood pressure was normal.  Dr Samborski recommended that a care plan be developed that would enable the Deceased to consult a dietician and a diabetic educator to improve the control of his diabetes.

   (e)On 3 December 2010, the Deceased saw Dr Samborski again.  The purpose of this consultation was to discuss the Deceased's treatment and to ascertain whether there had been any improvement after the Deceased had consulted the diabetic educator.  The control of the Deceased's blood sugar levels had improved.  His blood pressure was satisfactory.  The Deceased was obese.  His height was 164 cm, his weight was 93 kg and his body mass index was 34.6.  Dr Samborski changed the medication used to treat the Deceased's diabetes.  The Deceased told Dr Samborski that he was smoking less.  Dr Samborski gave the Deceased prescriptions for the other medications he was taking.

   (f)On 26 May 2011, the Deceased saw Dr Samborski again.  The Deceased had a respiratory tract infection.  Dr Samborski gave the Deceased a prescription for an antibiotic and a cough suppressant syrup.  Dr Samborski also gave the Deceased, at his request, a prescription for Viagra.

3. Dr Samborski gave evidence in cross‑examination to this effect:

   (a)When the Deceased consulted Dr Samborski he did not complain of any symptoms of heart disease.

   (b)High blood pressure, type 2 diabetes, obesity and cigarette smoking are risk factors for heart disease.

   (c)Depression, anxiety and work‑related stress are also risk factors for heart disease.

   (d)Dr Samborski was surprised that the post‑mortem examination revealed that the Deceased was suffering from pulmonary oedema; that is, 'too much fluid in the lungs' (ts 8488).  Pulmonary oedema can develop suddenly.

   (e)The Deceased's chest infection could have put extra strain on his heart.

4. Dr Samborski said in re‑examination that the Deceased did not complain of chest pains at any of his consultations with Dr Samborski.

5. Dr Moss gave evidence in examination-in-chief to this effect:

   (a)Dr Moss carried out a post-mortem examination of the Deceased.

   (b)The Deceased had sustained 52 injuries.  Most of the injuries were recent and many were consistent with blunt force trauma.  Dr Moss explained the nature of each of the 52 injuries.

   (c)The Deceased's heart was 'too big, which is usually a sign of some kind of underlying heart disease' (ts 8585).

   (d)The Deceased did not suffer a heart attack.  However, the Deceased had 'extensive coronary artery atherosclerosis causing widespread areas of mild to moderate stenosis' (ts 8588).  Stenosis means narrowing of bodily passages such as, relevantly, the coronary arteries.

   (e)Dr Moss explained that people with significant narrowing of the coronary arteries can have multiple problems.  They may have no symptoms.  However, they may suffer chest pain (usually related to exertion or exercise); or chronic heart disfunction because the heart is receiving an inadequate supply of blood so that it begins to fail as a pump and results in heart failure; or cardiac death as a result of a sudden arrhythmia which involves the heart ceasing to beat properly because it cannot operate as a functioning pump (ts 8590).

   (f)Cardiac arrhythmia can result in death because, in essence, the heart stops beating.  Cardiac arrhythmia is not a heart attack (ts 8591).

6. Dr Moss also gave this evidence in examination-in-chief (ts 8591 ‑ 8592):

   On a very simplistic level what is ischemia?---Ischemia is a lack of bloody supply to an organ.

   And is that what effectively happens once all the coronary arteries have the narrowing from the stenosis?---Yes. There … is a limit to how much blood is getting to the muscle. Now in day-to-day functioning life as maybe you're sitting around doing not very much or sleeping or just gentle walking or whatever, a lot of people who have this coronary artery atherosclerosis don't know about it because there's enough … blood getting through those narrowings to supply enough to the heart muscle. And what often happens with people that we see in the coronial setting is that at some point in time their heart basically decompensates and what they have been coping with  … a lack of blood supply or that limited blood supply, something tips them over the edge so that suddenly their heart is not getting enough and it can't function anymore and it develops an arrhythmia.

   Something tips them over the edge. What do you mean by that?---So … usually what happens is that the heart is made to work harder. So if the heart is responding say to exercise then your heart … you want it to pump faster. You want to try and increase your blood pressure because you want to get blood to all of the tissues that are now trying to work harder for whatever exercise it is you're doing. And suddenly whereas your heart may have been functioning perfectly well at rest, suddenly the extra demand on the heart, … that limitation to blood supply becomes significant and the heart can't essentially cope with it.

   …

   So if there's something that …tips a person over the edge - - - ?---Yes.

   - - - is that - are you referencing an external factor?---It could be - it could be lots of things. In the coronial setting sometimes we know what it was or at least we can surmise what it was because, you know, if somebody was doing fine and then for example they took up an exercise program that they'd never done before and suddenly were stressing themselves the way they hadn't. It's associated with stress as most people would use the term 'stress' in, you know, a stressful situation. It can be associated with use of a particular drug, so stimulant drugs like cocaine and amphetamine, things that we know increase your heart's workload. They can be the sorts of things that tip it over the edge. So there can be intrinsic and extrinsic factors that can tip it over the edge. And it should also be said that in significant numbers of our coronial cases we never know … what that tipping point was. You know, some people if they're running for the bus and collapse dead it's relatively easy to see a link. Somebody who's found dead in bed, but we've given the same cause of death to it's much harder to sort of see what the link is. It's not always clear … what that event was that suddenly made the difference between being alive and being dead.

   And that event you refer to as a tipping point?---Yes.

   A tipping point for the heart?---Yes.

1. Further, Dr Moss said in evidence-in-chief:

   (a)None of the Deceased's coronary arteries were completely blocked.  However, the right coronary artery was 'virtually a complete occlusion' with a very small amount of blood passing through the vessel (ts 8592).  The other coronary arteries were about 75% occluded.

   (b)It is not 'an uncommon … presentation of heart disease like this to be sudden death'.  It may be that 'the first sign that [a person has] a problem with the heart is actually when they enter a lethal arrhythmia' (ts 8593).

   (c)X-rays taken of the Deceased's body did not identify any broken limbs or any skull or other fractures.

   (d)The cause of the Deceased's death was 'cardiac arrhythmia in a man with coronary artery atherosclerosis and multiple blunt force injuries' (ts 8595).  The cardiac arrhythmia involved an abnormality of the beating rhythm of the Deceased's heart which, in essence, caused his heart to stop. 

   (e)The Deceased had areas of bruising and abrasion as a result of the multiple blunt force injuries.  Both clinically and forensically, one of the risk factors for suddenly developing a cardiac arrhythmia in a person with underlying heart disease is 'physical and physiological and psychological stress that increases [the person's] heart rate, increases [the] heart's workload'.  That predisposes a person 'to developing a lethal arrhythmia'.  In Dr Moss' opinion, 'you cannot divorce the fact that [the Deceased] has suffered these [multiple blunt force] injuries, and that given his underlying heart disease is what led to his cardiac arrhythmia'.  That is what Dr Moss refers to as 'a tipping point' (ts 8596).

   (f)It was difficult to be precise about the extent to which the multiple blunt force injuries contributed to the Deceased's cardiac arrhythmia.  However, the Deceased suffered injuries 'that it is reasonable to presume would be causing physical and psychological stress' to the Deceased, 'both the injuries themselves and potentially the circumstances around that, and those things are going to increase the workload of the heart, which given [the Deceased's] underlying heart disease puts him at risk of a cardiac arrhythmia' (ts 8596).  However, Dr Moss was unable to quantify that risk of the Deceased sustaining a cardiac arrhythmia.  Dr Moss was also unable to quantify the increase in that risk.  However, the multiple blunt force injuries suffered by the Deceased could not be separated from the risk of the Deceased suffering a cardiac arrhythmia.

2. Dr Moss gave evidence in cross-examination to this effect:

   (a)Apart from the cuts and bruises that the Deceased had sustained, Dr Moss would have had no difficulty in finding that the Deceased died of a fatal cardiac arrhythmia against the background of severe cardiac disease.

   (b)Dr Moss' finding that the Deceased suffered heart disease was made upon Dr Moss' examination of the tissues and the arteries of the Deceased's heart.

   (c)The observations made by Dr Moss during his post‑mortem examination of the Deceased enabled him to describe the disease as severe.

   (d)The Deceased's heart disease 'was such that even in the absence of other evidence of injuries it would have itself provided [a] plausible explanation for his death' (ts 8599).

   (e)Obesity, diabetes and cigarette smoking are risk factors for heart disease.

   (f)Dr Moss noted during his post-mortem examination of the Deceased that the Deceased had pulmonary oedema; that is, 'excess fluid … that is in the lungs but that has come out of the blood vessels into the airspaces' (ts 8601 ‑ 8602).  Dr Moss explained that if the heart is not pumping properly, blood builds up in the lungs and eventually with pressure fluid can leak out of the vessels and into the airspaces.  The pulmonary oedema suffered by the Deceased provided an explanation for the Deceased's coronary artery disease.  The fluid build up in the Deceased's lungs would have made breathing more difficult and would have put more stress on his heart.

   (g)Dr Moss was not surprised to learn that the Deceased had a history of high blood pressure.  High blood pressure is a very significant risk factor for heart disease in the presence of diabetes, cigarette smoking and obesity.  Those risk factors have a cumulative effect.

   (h)If a person has narrowed coronary arteries and a big heart, the person is more likely to develop an arrhythmia and 'drop dead' (ts 8608).

   (i)Generally speaking, with the symptoms the Deceased suffered as at the date of his death, the Deceased was 'at severe risk of suffering from death' (ts 8608).  It could have happened at any time.  There is a connection between the kind of coronary heart disease suffered by the Deceased and disturbance of the heart pumping rhythm.

   (j)Ventricular fibrillation causes electrical disturbances in the heart.  If these disturbances occur then heart failure and death will follow very rapidly.  The time involved is 'seconds to unconsciousness' and 'seconds to minutes to death' (ts 8610).  Once ventricular fibrillation begins its impact on blood flow is immediate.

   (k)Physical and emotional stress are factors that may contribute to the occurrence of cardiac arrhythmias.

   (l)Dr Moss accepted that it could be inferred from the blunt force injury suffered by the Deceased that the Deceased must have been 'in some form of an altercation' (ts 8610).  It could be supposed that 'the altercation carried with it a degree of stress' (ts 8610).  It was possible that there was 'a direct link or tipping point between [the Deceased's] injuries and the fatal arrhythmia' (ts 8610).  Dr Moss added:

   [W]e know that circumstances whereby such injuries are occurring will cause physical and psychological stress.  And we know that that has a stress on the heart, and we know that that increases the risk of [the Deceased's] already diseased heart then going into an arrhythmia (ts 8610).

   However, Dr Moss accepted that he was unable with any certainty to assign 'direct causation' between the injuries and the fatal arrhythmia (ts 8610).

   (m)Dr Moss said that 'something has made the difference between [the Deceased] dying on this day versus the fact that he [did not] die the day before or the week before or the month before, because there would be virtually no difference in the degree of disease burden months before even let alone days before' (ts 8611).  It was possible that the Deceased's cardiac arrhythmia occurred in the context of an argument before any blow was struck because an argument would raise the 'stress factor' (ts 8611).

   (n)Dr Moss was not able to do more than draw an association between the injuries and the stress suffered by the Deceased and their contribution to his cardiac arrhythmia.

   (o)Dr Moss said that physical and psychological stress increases the risk of developing a cardiac arrhythmia when a person has an 'at risk heart' (ts 8614).  It was perfectly reasonable to assume that the Deceased was under a degree of psychological and physical stress irrespective of how his injuries occurred.  The circumstances in which the Deceased sustained his injuries would have been stressful and would have increased his heart's workload.  The Deceased was likely to have been under stress and the existence of that stress was a 'risk factor' for developing a cardiac arrhythmia.  However, 'exactly how much of a risk factor and whether … that risk factor [can be quantified] is a whole different point' (ts 8614).  However, the Deceased's cardiac arrhythmia happened at about the time that he was sustaining his injuries.  Although Dr Moss could not definitely attribute cause and effect, he thought there was an association between those events.

   (p)It was possible that the 'tipping point' in relation to the Deceased may have occurred during the course of a heated argument before any violence occurred.  However, 'the timing would have to be such that if ventricular fibrillation is going to cause unconsciousness within seconds, it [cannot have been] a huge amount of time before' (ts 8614).

   (q)Dr Moss reiterated that the risk of a fatal cardiac arrhythmia in people with significant cardiac disease is significantly increased by stress at various times.  But he accepted that the Deceased's cardiac arrhythmia 'may have happened anyway, even in the absence of blunt force injuries' (ts 8615).

   (r)Dr Moss agreed that the Deceased's pathological conditions could have culminated in a sudden and unexpected death at any time.  Dr Moss was in broad agreement with the proposition that it could not be excluded that the Deceased's abnormal heart rhythm was triggered or initiated, before the commencement of the physical altercation, by emotional stress and anger.

   (s)Dr Moss also agreed that possible contributing factors to the Deceased's cardiac arrhythmia included work‑related stress and drug or medication interactions.

   (t)Dr Moss accepted that many of the 52 injuries sustained by the Deceased were 'very minor' (ts 8623).  Many of the abrasions and bruises were 'superficial' (ts 8623).  Rocking and knocking during the course of movement after the Deceased's death could account for some of the 52 injuries.  None of the 52 injuries, either alone or in combination, were likely to be such as to endanger life.  Some of the smaller injuries could have resulted from scratching in response to the Deceased's history of dermatitis.  Some of the injuries could be consistent with 'the ordinary wear and tear of an active, working life' of a man, like the Deceased, who worked in 'a physical industry like concrete sealing' (ts 8625).

   (u)Dr Moss could not exclude the possibility that any of the 52 injuries occurred while the Deceased was unconscious.  It was also possible that one or more of the 52 injuries may have occurred in the minutes after the Deceased's death (ts 8653).

3. Dr Moss said in re-examination that physical stressors and psychological stressors are risk factors for the occurrence of a lethal cardiac arrhythmia in a person who has significant coronary artery disease.  All risk factors are significant in relation to contributing to a cardiac arrhythmia in a person with significant coronary artery disease.

4. Professor Joyce gave evidence in examination-in-chief to this effect:

   (a)Professor Joyce is a medical practitioner who specialises in clinical pharmacology and toxicology.

   (b)Professor Joyce was retained by the Office of the Director of Public Prosecutions (WA) to examine the relationship between medications taken by the Deceased, on the one hand, and the Deceased's death, on the other.

   (c)The materials received by Professor Joyce in connection with the formation of his opinion included a report and a supplementary report from Dr Moss to the coroner; a report from Dr Richard Collins (a forensic pathologist retained by the defence); a report from Dr Michael Robertson (a consulting pharmacologist, forensic toxicologist and chemist retained by the defence); a report from Dr Samborski; a toxicology report from ChemCentre; and details of the medications and dosages that had been prescribed for the Deceased.

   (d)Professor Joyce was given Dr Moss' post‑mortem examination report and was informed of Dr Moss' opinion as to the cause of the Deceased's death.

   (e)Professor Joyce was of the opinion that the concentration of citalopram (that is, the antidepressant Lexapro) found in the Deceased's blood as at the time of his death was a safe concentration 'and not one which would confer on him, under normal circumstances, a … risk of cardiac arrhythmia' (ts 8772).

   (f)Professor Joyce was of the opinion that the other medications and dosages taken by the Deceased, as revealed by the toxicology report, did not have any effect on or relationship with the Deceased's cardiac arrhythmia or death.

5. Professor Joyce gave evidence in cross‑examination to this effect:

   (a)The question of whether citalopram might have contributed to the Deceased's death by cardiac arrhythmia 'can never be emphatically ruled out' (ts 8783).

   (b)High blood pressure is one of the more important recognised risk factors for sudden cardiac death.

   (c)The incidence of cardiac death is increased in people who are depressed for a long period of time.

   (d)Heavy cigarette smoking is a long‑standing recognised risk factor for sudden cardiac death.

   (e)Elevated blood cholesterol is a risk factor for cardiac death.

   (f)The combination of risk factors in the case of the Deceased would have accumulated to an increased cardiovascular risk.

   (g)The QT interval is a measurement of heartbeat.  Broadly speaking, it is the interval between the heart ventricles beginning to contract and the heart ventricles having relaxed.  It is the time taken for heart cells to get their own electrical activity back to normal so they can contract again.

   (h)Medications that prolong the QT interval, depending on dosage and a number of other factors, can increase the risk of sudden cardiac death.

   (i)The Deceased had an intrinsically increased risk of having a lethal cardiac arrhythmia because of his coronary artery disease and his big heart.  However, the medications that the Deceased was taking would not of themselves have increased his QT interval.

   (j)A very big overdose of citalopram has been found to affect the heart rate.  However, citalopram, in conventional doses, and the kind of antibiotic taken by the Deceased, in conventional doses, do not affect the heart rate.

   (k)The concentration of citalopram found in the Deceased's blood at the time of his death was within the normal range that Professor Joyce would expect for someone taking that medication in ordinary doses.

   (l)One potential influence of taking citalopram is to extend the QT interval in some people.  If particular conditions of dosage and patient selection are not satisfied, that extension of the QT interval may lead or contribute to heart rhythm disturbance in some people.  A heart rhythm disturbance normally happens suddenly.

   (m)It is not possible to 'say emphatically' whether or not, in the weeks and months leading up to his death, the Deceased had problems relating to a prolonged QT interval (ts 8790).  However, normally, prolonged QT intervals are congenital in nature.  By and large, they will have become apparent before the age at which the Deceased died by sudden death.  Most people who have that underlying susceptibility would 'well know about it by [the Deceased's] age or would no longer be with us … at that age' (ts 8790).

   (n)No one could 'absolutely exclude' the possibility that, on the dosage of citalopram which the Deceased was taking, his QT interval may have been prolonged (ts 8791).  The possibility that citalopram contributed to the Deceased's cardiac arrhythmia could not be 'emphatically ruled out', but Professor Joyce could not point to any such event occurring in his own experience or in the world's reported literature (ts 8791).

   (o)The antibiotic effect of the antibiotic prescribed by Dr Samborski for the Deceased would have persisted for 48 hours after the last dose.  Professor Joyce was 'fairly confident' that at the time of the Deceased's death there was 'at least an antibiotic effect persisting' (ts 8794).  Given the potential for a connection between the kind of antibiotic the Deceased had been taking and the prolongation of the QT interval, the possibility that the medication affected the Deceased's QT interval could not be 'emphatically excluded' (ts 8795).  However, in Professor Joyce's experience and in the reported literature there has never been a demonstrated case of that occurring in a person taking the antibiotic at the dose prescribed for the Deceased.  The kind of drug which was prescribed for the Deceased had been prescribed throughout the world in hundreds of millions of doses.

   (p)It could not be 'predicted with certainty' to what extent the citalopram and the antibiotic taken by the Deceased contributed to his cardiac arrhythmia (ts 8800).

6. Professor Joyce said in re‑examination that a relationship between the Deceased's medication and his death could not be excluded because 'nobody's experience and not even cumulated literature experience can be absolutely exhaustive and can exclude any possibility that that might occur in the entire human population' (ts 8800).  So 'that acknowledges that in almost everything [there is] imperfect knowledge and imperfect knowledge has to be acknowledged here as well' (ts 8800).  Professor Joyce said that he could offer observations that he had never seen such an event (that is, a relationship between the dosages of the citalopram and the antibiotic taken by the Deceased and his cardiac arrhythmia) and such an event had not been reported in the literature in the context of 'world experience of both of these drugs now [running] to hundreds of millions of doses' (ts 8800).  So, 'if such an event does occur [it is] one of extraordinary rarity' (ts 8801).

The medical evidence called by the defence

1. Xavier Clarke's defence counsel called evidence from Dr Collins, a forensic pathologist, and Dr Robertson, a consulting pharmacologist, forensic toxicologist and chemist.

2. Dr Collins gave evidence in examination‑in‑chief to this effect:

   (a)The Deceased's cardiac arrhythmia may have occurred even in the absence of the blunt force injuries (ts 9690).

   (b)It was not possible to say to what extent the blunt force injuries may have contributed to the Deceased's cardiac arrhythmia (ts 9689).

   (c)It was difficult (in fact, impossible) to be precise about what the exact mechanisms were in the Deceased's death (ts 9690).

   (d)He could not exclude that the blunt force injuries had been inflicted after death (ts 9690).

3. Dr Collins said in cross‑examination:

   (a)Dr Moss' opinion as to the Deceased's cause of death was entirely reasonable (ts 9691).

   (b)However, Dr Moss' opinion as to the cause of death was 'not necessarily the only one' (ts 9691).

   (c)The 'tipping point' in the case of the Deceased may have been the blunt force injuries, but it may have been something else (ts 9691).

   (d)There are both intrinsic and external factors that can 'tip the heart over the edge' (ts 9691).

   (e)Those external factors may include a physiological stress, a physical stress and a psychological stress (ts 9692).

   (f)Dr Collins agreed that the blunt force injuries sustained by the Deceased and associated physiological, physical and psychological stress could have been the tipping point, but that was not necessarily the only tipping point (ts 9692). 

   (g)It was unknown whether and, if so, to what extent the blunt force injuries played a role, in combination with other factors, in causing the Deceased's cardiac arrhythmia (ts 9693).

   (h)Dr Collins accepted that physical stressors and psychological stressors are risk factors contributing to cardiac arrhythmia (ts 9694).

4. Dr Robertson said in evidence:

   (a)The medications taken by the Deceased increased one of the risk factors for cardiac arrhythmia. 

   (b)It was likely that the presence of the Deceased's medications at least contributed to any cardiac arrhythmia he suffered.  However, Dr Robertson could not say to what extent that was the case.

   (c)Dr Robertson 'predominantly concurred with Professor Joyce's opinions' (ts 9397).

   (d)Dr Robertson did not 'necessarily accept' Professor Joyce's opinion that nobody has reported that the antibiotic taken by the Deceased in appropriate dosages prolongs the QT interval (ts 9398).  However, Dr Robertson added that the 'product information' states that the antibiotic 'does cause issues with QT prolongation' (ts 9398).  The risk in relation to the antibiotic had been included 'in the prescribing information as a warning and a precaution' (ts 9399).

   (e)There are studies performed in clinical trials that have shown that the antibiotic in question extends or prolongs the QT interval. 

1. Xavier Clarke (and Ambrose Clarke) relied upon the evidence of Dr Collins and Dr Robertson in support of the contention that the State could not prove beyond reasonable doubt that the Deceased did not die from a fatal cardiac arrhythmia before any blunt force injuries were inflicted and, consequently, the State could not prove causation beyond reasonable doubt.

The trial judge's directions as to the possible verdicts

1. The trial judge directed the jury that the possible verdicts were guilty of murder, guilty of manslaughter, guilty of unlawful assault causing death and not guilty of any offence.

2. His Honour directed the jury (having regard to the manner in which the State had run its case) that the elements of the offence of murder which the State had to prove beyond reasonable doubt were these:

   (a)the accused whose case the jury was considering must have caused, directly or indirectly and by any means whatever, the death of the Deceased;

   (b)the killing of the Deceased was unlawful; and

   (c)at the time of doing the relevant act or acts, the accused intended to cause the Deceased's death.

3. His Honour also directed the jury in relation to the mental element on the charge of murder as follows:

   Now, as I’ve already directed you, the State’s case is that the [appellants] together planned to kill [the Deceased]. And that they implemented that plan by luring him to [the Malaga property] and together they either assaulted him or they were both present while one or other of them, or a possible third person, assaulted [the Deceased]. The State alleges that both [the appellants] were involved in luring [the Deceased] to [the Malaga property].

   The State further alleges that they had the plan to kill [the Deceased]. They had implemented the plan. And in implementing the plan, they intended that [the Deceased] would be killed. The State must prove beyond a reasonable doubt the existence of a plan that it says was made between the [appellants]. That they agreed to act together to kill [the Deceased] and that they implemented the plan.

   The existence of the plan and the implementation by the plan is an inference that the State requires you to draw from all of the facts and circumstances that you’ve found to be proven from evidence that you’ve accepted as being truthful and reliable. As I’ve already directed you, it’s an inference of guilt against each of the [appellants] and it’s an inference that must be established beyond reasonable doubt.

   You must be satisfied that the only reasonable inference open on the evidence that you’ve accepted as being truthful and reliable is that the [appellants] planned to kill [the Deceased] and that they together acted on that plan with the intention that he should be killed.

   And knowing that whoever assaulted [the Deceased] intended to kill him at the time that he was himself assaulted. Intended to kill him and knew that whoever assaulted [the Deceased] intended to kill him because that is what each of the [appellants] themselves intended pursuant to the plan that the State says they formed (ts 11,119).

   See also his Honour's directions at ts 11,094, 11,173 ‑ 11,174, 11,229 ‑ 11,231, 11,259, 11,265 ‑ 11,267.

4. His Honour further directed the jury that the State relied solely upon the acts of inflicting the blunt force injuries as the cause of the Deceased's death.  It was the assaults that the jury must focus on in determining whether the State had proved beyond reasonable doubt that those acts were a cause of the Deceased's death and, also, a substantial or significant, direct or indirect, cause of his death.  His Honour directed the jury that the State must prove beyond reasonable doubt that the Deceased experienced physical, physiological and psychological stress; that the assaults were a cause of the stress; that the stress was a reasonable and obvious consequence of the assaults; that the Deceased suffered a cardiac arrhythmia; and that the stress was a cause of the cardiac arrhythmia.  See his Honour's directions at ts 11,146 ‑ 11,149, 11,157, 11,162, 11,171 ‑ 11,173, 11,259.

5. His Honour directed the jury that the jury would only be required to deliver a verdict on whether the accused whose case they were considering was guilty of manslaughter if the State failed to prove beyond reasonable doubt that the accused was guilty of the offence of murder.

6. His Honour directed the jury that the jury would only be required to deliver a verdict on whether the accused whose case they were considering was guilty of the offence of unlawful assault causing death if the State failed to prove beyond reasonable doubt that the accused was guilty of murder or the alternative offence of manslaughter.

Grounds of appeal

1. As I have mentioned, Xavier Clarke and Ambrose Clarke rely upon two grounds of appeal which are, in substance, identical.

2. Ground 1 alleges that the jury's verdict as to the causation of Mr Davis' death was unreasonable and not supported by the evidence.

3. The particulars of ground 1 allege, in essence, in relation to each appellant:

   (a)The appellant was convicted of murder with intent to kill.

   (b) The medical evidence at the trial was that the cause of the Deceased's death was cardiac arrhythmia in a man with coronary artery atherosclerosis and multiple blunt force injuries.

   (c)The evidence as a whole did not establish to the requisite standard of proof that, given the pre-existing state of the Deceased's heart, the fatal cardiac arrhythmia that caused his death was caused by stress experienced by the Deceased which was caused by a deliberate physical assault (constituted by acts of inflicting blunt force injuries).

   (d)The evidence as a whole did not establish to the requisite standard of proof that:

   (i)the death was caused by a deliberate physical assault (constituted by acts of inflicting blunt force injuries); or

   (ii)that any of the 52 injuries, none of which were individually or collectively serious or life-threatening, had been:

   (1) inflicted during a physical assault; and/or

   (2)occurred pre-mortem.

   (e)The evidence established that there was a reasonable possibility that factors unrelated to any deliberate physical assault may have set in train the fatal cardiac arrhythmia or that the fatal cardiac arrhythmia may have occurred independently of any external factor, namely, prior to any confrontation between the appellant and the Deceased or during a mere confrontation between the appellant and the Deceased, but prior to any act of inflicting a blunt force injury upon the Deceased (other reasonable possibilities).

   (f)That the other reasonable possibilities were not negatived beyond reasonable doubt by the State.

   (g)The evidence considered as a whole, did not establish beyond reasonable doubt that the conduct of the appellant, if any, substantially or significantly contributed to the Deceased's death.

1. Ground 2 alleges that the jury's verdict as to the element of intent to kill was unreasonable or not supported by the evidence.

2. The particulars of ground 2 allege, in essence, in relation to each appellant:

   (a)The appellant was convicted of murder with intent to kill.

   (b)The State's case was that the appellant was a party to a plan to kill the Deceased.

   (c)A plan to kill was said to be the only reasonable inference open on evidence that (pre-offence circumstances and conduct):

   (i)Ambrose Clarke had a motive to kill;

   (ii) Ambrose Clarke had obtained a mobile telephone under a false name which was ultimately used by Xavier Clarke to call the Deceased in the days preceding the Deceased's death;

   (iii)Xavier Clarke arranged with the Deceased to meet at Full of Fun;

   (iv)The last place the Deceased attended alive was the Malaga property;

   (v)The piece of black plastic the Deceased was subsequently found wrapped in, in the back of his vehicle, had been obtained by Ambrose Clarke from Mr Reid on the evening before the meeting with the Deceased.

   (d)The pre-offence conduct at particulars (c) (ii) and (iii) and circumstances arising as to motive as pleaded at particular (c) (i) however were equally and reasonably consistent with:

   (i)A plan to lure the Deceased to a location in order to make demands for money in relation to an owed debt, a meeting which the Deceased might not have otherwise attended had he known who was going to be present.

   (ii)Ambrose Clarke having obtained the black plastic for a work‑related purpose but ultimately using it in the cover up of a meeting that went wrong in an unplanned way.

   (e)Post-offence conduct open on the evidence and consistent with a planned killing (not submitted by the State as demonstrating a consciousness of guilt) was:

   (i)The wrapping of the Deceased's body in the black plastic.

   (ii)The placing of the Deceased's body in the back of his own vehicle.

   (iii)The driving of the Deceased's car to a busy and surveilled location with a view to later collecting the vehicle and the body for disposal.

   (iv)The sending of messages from the Deceased's mobile telephone.

   (v)The removal of the Deceased's belongings and the retention of them at Ambrose Clarke's house in a filing cabinet in his garage.

   (f)The post-offence conduct was equally and reasonably consistent with moral culpability for a meeting which had gone wrong in an unplanned way and a panicked attempt at covering up an unexpected death following an acrimonious confrontation between the appellant and the Deceased.

   (g)Even if a plan to kill was in existence, such a finding of fact could never transform any deliberate physical assault (constituted by acts of inflicting blunt force injuries) which had been perpetrated upon the Deceased into a deliberate physical assault which was accompanied by an intention to kill the Deceased.

The organisation of the balance of these reasons

1. It is convenient to consider ground 2 before ground 1.

Ground 2:  Ambrose Clarke's submissions

1. Counsel for Ambrose Clarke noted that the State's case at trial was that Ambrose Clarke and Xavier Clarke were parties to a plan to kill the Deceased.

2. Counsel submitted that the evidence from which a murderous intent can ordinarily be inferred will generally be acts by an accused before, during and after the offence.

3. Counsel contended that, in the present case, the only evidence of conduct before the alleged murder comprised:

   (a)Evidence of a soured business relationship between Ambrose Clarke and the Deceased, which was alleged by the State to ground a motive to kill.

   (b)Evidence that Ambrose Clarke had sought to obtain an untraceable mobile telephone in the name of Albert Norrish; that Xavier Clarke had used the telephone to call the Deceased in the days leading up to the alleged murder; and that Xavier Clarke had used the telephone to call Ambrose Clarke immediately after Xavier Clarke had called the Deceased.

   (c)Evidence from Mr Reid that on the Sunday before the alleged murder Ambrose Clarke had come to his home to borrow some black plastic.  Ambrose Clarke may also have enquired about some coveralls.

   (d)Evidence that Xavier Clarke had arranged with the Deceased to meet at the Malaga property.

   (e)Evidence that Ambrose Clarke and Xavier Clarke met at Rivervale, in order to travel together to the Malaga property, on the morning the Deceased was killed.

   (f)Evidence that the Malaga property was the last place which the Deceased attended while he was alive.

4. Counsel contended that, in the present case, the only evidence of conduct during the alleged murder comprised inferences to be drawn from the injuries sustained by the Deceased as revealed by the post-mortem examination.

5. Counsel contended that, in the present case, the only evidence of conduct after the alleged murder comprised:

   (a)Evidence of Xavier Clarke's thumbprints on the black plastic used to wrap the Deceased's body before he was placed in the rear of the Deceased's vehicle.

   (b)Evidence of Xavier Clarke's DNA on the Deceased's clothing.

   (c)Evidence from Kurt Davis and Ms Klanjscek that they saw Ambrose Clarke in the vicinity of the Deceased's vehicle and body at a time when the Deceased would have been dead and in the rear of his vehicle.

   (d)Evidence from police officers that when Ambrose Clarke was later stopped while leaving the area in his utility vehicle, he had chemical containers and a shovel in the tray of his vehicle.

   (e)Evidence of items belonging to the Deceased which police officers found on 28 July 2011 in a filing cabinet in the garage at Ambrose Clarke's home.

6. It was submitted that the requisite intent to kill had to exist at the time of the act that factually caused and was a significant contributor to the Deceased's death.  It was also submitted that it was not open to the jury to be satisfied beyond reasonable doubt that the requisite intent to kill existed because there were alternative reasonable inferences equally open on the evidence.

7. As to the evidence of conduct before the alleged murder, counsel argued:

   (a)An inference open on the evidence was that Ambrose Clarke and Xavier Clarke made a plan to lure the Deceased to the Malaga property in order to make demand for money which Ambrose Clarke alleged was owing by the Deceased because Ambrose Clarke and Xavier Clarke knew that the Deceased may not have attended the Malaga property if he was aware that he would be meeting them.

   (b)An inference open on the evidence was that Ambrose Clarke obtained the black plastic from Mr Reid for a work-related purpose but, in the event, the plastic was used by Ambrose Clarke and Xavier Clarke to wrap the Deceased after a meeting which had gone wrong in an unplanned way.  It is unlikely that Ambrose Clarke would have obtained the black plastic from Mr Reid (a business associate of Ambrose Clarke and a friend of the Deceased) if Ambrose Clarke had intended that the plastic should be used to wrap the Deceased's dead body.  If that had been Ambrose Clarke's intention then it is likely that he would have purchased the plastic from a retail outlet (for example, Bunnings) because the purchase would be untraceable and apparently innocent.

   (c)It is true that one inference open on the evidence was that, as the Deceased knew and could identify Ambrose Clarke, there was no reason for Ambrose Clarke to obtain the Albert Norrish mobile telephone, which could not be traced to Ambrose Clarke, if the Deceased was expected to survive his encounter with Ambrose Clarke and Xavier Clarke at the Malaga property.  However, the evidence of Ambrose Clarke's obtaining of the Albert Norrish mobile telephone was equally consistent with Ambrose Clarke seeking to minimise independent evidence which might support any allegations made by the Deceased after his encounter with Ambrose Clarke and Xavier Clarke.

   (d)It is true that one inference open on the evidence was that the meeting between Ambrose Clarke and Xavier Clarke at Rivervale, in order to travel together to the Malaga property, was for the purpose of enabling one of them to drive the Deceased's vehicle from Malaga after the Deceased had been rendered incapable of doing so.  However, the evidence of the meeting between Ambrose Clarke and Xavier Clarke at Rivervale, in order to travel together to the Malaga property, was equally consistent with Ambrose Clarke and Xavier Clarke, acting in concert for whatever purpose, deciding to arrive at and leave a scene together, especially having regard to the evidence that the Deceased's liveried car was driven later from a secluded location in Malaga to a far more conspicuous location as part of the plan to act in concert.

8. As to the evidence of conduct during the alleged murder, counsel argued that the most compelling factor that must have caused the jury to entertain a reasonable doubt as to intent to kill is the fact that none of the 52 blunt force injuries sustained by the Deceased were severe enough, either individually or collectively, to break or fracture a bone, let alone endanger life.  Most of the injuries were sustained under the Deceased's clothing. 

9. Further, counsel submitted:

   (a)The State's case was that when the Deceased sustained the 52 blunt force injuries Ambrose Clarke was no longer motivated by money.  At that time he was motivated by revenge.

   (b)That Ambrose Clarke and Xavier Clarke, in an assault on the Deceased, would not even break the Deceased's nose was at odds with the carrying out of a plan to kill.

   (c)It was remarkable that Ambrose Clarke and Xavier Clarke would have been 'lightly assaulting' the Deceased in the 'hope' that one of the blows would cause his death, especially in circumstances where there was no evidence of asphyxiation or suffocation.

10. As to the evidence of conduct after the alleged murder, counsel argued that the post-offence conduct was equally and reasonably consistent with Ambrose Clarke and Xavier Clarke feeling a sense of moral culpability for a meeting with the Deceased which had gone wrong in an unplanned way and a panicked attempt by Ambrose Clarke and Xavier Clarke to avoid any responsibility for being associated with the Deceased's death.

11. Counsel argued, further and in the alternative, that even if the existence of an intent to kill was open on the evidence, a finding to that effect could not be made beyond reasonable doubt.

Ground 2:  Xavier Clarke's submissions

1. Counsel for Xavier Clarke's submissions in relation to ground 2 were not materially different from the submissions made by counsel for Ambrose Clarke.

Ground 2:  the State's submissions

1. Counsel for the State noted that ground 2 is based on two propositions.

2. The primary proposition is that the verdict of the jury in relation to the element of intent to kill was unreasonable or unsupported by the evidence because the conduct of Ambrose Clarke and Xavier Clarke was equally and reasonably consistent with a plan to lure the Deceased to a location in order to make demands for the payment of money or with moral culpability for a meeting which had gone wrong in an unplanned way, followed by a panicked attempt at covering up the unexpected death.

3. The alternative proposition is that even if a plan to kill was in existence, a finding as to the existence of that plan could never transform acts of inflicting blunt force injuries into an assault accompanied by an intent to kill.

4. Counsel for the State contended that the primary proposition advanced by Ambrose Clarke and Xavier Clarke on appeal impermissibly invited this court to examine a hypothesis as to the circumstances of the Deceased's death by disregarding the evidence given by Ambrose Clarke and Xavier Clarke at the trial.

5. First, counsel submitted that Ambrose Clarke and Xavier Clarke's hypothesis that the Deceased was lured to a location in order (merely) to make demands for the payment of money or that there had been a meeting which had gone wrong in an unplanned way, followed by a panicked attempt at covering up the unexpected death, was excluded as a possibility by Ambrose Clarke and Xavier Clarke's evidence at trial.

6. Secondly, counsel submitted that Ambrose Clarke and Xavier Clarke's hypothesis that the Deceased was lured to a location in order (merely) to make demands for the payment of money or that there had been a meeting which had gone wrong in an unplanned way, followed by a panicked attempt at covering up the unexpected death, was contrary to and excluded by the case for Ambrose Clarke and Xavier Clarke that was put to the jury.

7. Thirdly, counsel submitted that, on the whole of the evidence adduced at the trial, including evidence as to motive and evidence of pre‑offence and post‑offence conduct, it was reasonably open for the jury to conclude that Ambrose Clarke and Xavier Clarke acted with an intent to kill.

1. After Ambrose Clarke left Top Seal, he established a new business called Pure Coat Pty Ltd, which he intended to run in competition with Top Seal.  Ambrose Clarke entered into a business relationship with Ron Spiteri for the operation of that business and Pure Coat was registered as a company in July 2009.[48]

   [48] Trial ts 5943, 5945, 5984, 5988, 6026 ‑ 6027, 9536 ‑ 9537.

2. Ambrose Clarke believed Peter Davis owed him over $300,000.  Between May 2009 and March 2011, Ambrose Clarke tried, unsuccessfully, to recover that claimed debt by both conventional and unconventional means, including by hiring an unlicensed debt collector who made demands to Peter Davis.  In March 2011, Ambrose Clarke engaged lawyers to send a letter to Peter Davis demanding payment of $330,000.[49]

   [49] Trial ts 4811 ‑ 4819, 4822 ‑ 4824, 4881 - 4882, 4967 ‑ 4968, 5329 ‑ 5334, 5337 ‑ 5338, 5345, 5352 ‑ 5353, 5406, 5960 ‑ 5961, 9358 ‑ 9362, 9407 - 9408, 9546 ‑ 9457, 9549.

3. Ambrose Clarke's relationship with Mr Spiteri came to an end on 13 May 2011, after Mr Spiteri identified some financial discrepancies in the business activities of Pure Coat.  On that date, Mr Spiteri advised Ambrose Clarke that Ambrose Clarke's involvement with Pure Coat was at an end.[50]

   [50] Trial ts 5991 ‑ 5992, 6003.

4. Subsequently, in mid-May 2011, Mr Spiteri engaged Peter Davis to assist him in the completion of some of Pure Coat's outstanding contracts.[51]

   [51] Trial ts 6003 ‑ 6005.

5. In May 2011, Ambrose Clarke was experiencing serious financial difficulties.  He and his wife owed credit card debts of more than $115,000 and tens of thousands of dollars on other loans.  Family expenses significantly exceeded annual income, and Ambrose Clarke sought to defer certain expenses such as school fees.  He also applied for credit facilities for the business and borrowed money from other sources, including family members, to meet day-to-day household expenses.[52]

The Albert Norrish phone

[52] Trial ts 6483, 7549 ‑ 7551, 9357, 9733 ‑ 9737, 9825 - 9828.

1. In early May 2011, Ambrose Clarke contacted an associate, Geoff Joyce, and asked Mr Joyce whether he could get a phone in someone else's name.[53]

   [53] Trial ts 5188 ‑ 5189, 9781 - 9785.

2. On Sunday 22 May 2011, Ambrose Clarke bought a Virgin Mobile service number ending in 819 from Affinity Allphones in Kingsway.   At 10.07 am that day, Ambrose Clarke made his first call, from his own phone number, to Virgin Mobile Customer Service Centre.   He inquired about how to set up a mobile SIM card for his son's mobile phone.[54] 

   [54] Trial ts 4897, 4898, 8716 - 8717, 8726, 9054 ‑ 9055, 9444; exhibit 20; exhibit 327.

3. Later that same day, at 1.12 pm and 1.20 pm, Ambrose Clarke made his second and third calls, from the phone of the apartment of his friend, Adrian Lee, in Highgate, to the Virgin Mobile Customer Service Centre.  He activated the number ending in 819 by providing a false name, 'Albert Norrish', address and date of birth.[55]

   [55] Trial ts 9055, 9059, 9444 ‑ 9445, 9447, 9448, 9790 ‑ 9791, 9796; exhibit 20; exhibit 327.

4. Ambrose Clarke and Xavier Clarke spoke on the phone between 1.59 pm and 2.16 pm on 22 May 2011.[56]

   [56] Trial ts 9059, 9791; exhibit 327.

5. At 5.28 pm on 22 May 2011, Ambrose Clarke mistakenly purchased a $20 Vodafone prepaid voucher, instead of a Virgin prepaid voucher, from Woolworths Petrol in South Lake.  At 8.26 pm, Ambrose Clarke used the 819 number to call his old work number, a call which was unanswered.  At 8.28 pm, Ambrose Clarke used the 819 number to call a business called the Paint Place in Osborne Park, with which he was familiar.[57]

   [57] Trial ts 6009 ‑ 6011, 7239, 7240, 8941 - 8942, 9448, 9791, 9792, 9796; exhibit 166 pt 2.

6. At 2.13 pm on Monday 23 May 2011, Ambrose Clarke made his fourth call to the Virgin Mobile Customer Service Centre, inquiring how to use a recharge voucher.  He referred to himself as Albert Norrish and gave the same false address and the same false details as in the previous calls.[58]

   [58] Trial ts 4899 ‑ 4900, 8718, 9055, 9792, 9796; exhibit 20; exhibit 327.

7. At 2.46 pm on 23 May 2011, Ambrose Clarke used his own phone to call Full of Fun, a call which lasted 33 seconds.[59] At 5.40 pm, Xavier Clarke called Ambrose Clarke, and they spoke for about 5 minutes.[60]

   [59] Trial ts 8732 ‑ 8733, 9059 ‑ 9063, 9440 ‑ 9442, 9832 ‑ 9833, 9837 ‑ 9838, 10066 ‑ 10068; exhibit 327.

   [60] Trial ts 10351; exhibit 327.

8. At 2.42 pm, 2.43 pm and 2.44 pm on Tuesday 24 May 2011, the 819 number was used to make three calls to Peter Davis' mobile phone, all of which went through to voicemail.  At 2.56 pm, Ambrose Clarke purchased a Virgin mobile recharge voucher for $19 from Good Guys Malaga.  The voucher was used to recharge the 819 number.[61]

   [61] Trial ts 8719, 8726, 8939 - 8940, 9060, 9445, 9449, 9793 - 9794; exhibit 188; exhibit 294(i); exhibit 309; exhibit 327.

9. Between 10.30 am and 10.43 am on Thursday 26 May 2011, Xavier Clarke searched the internet for two electrical appliance stores, Good Guys and Retravision.  Between 10.46 am and 10.49 am, Xavier Clarke searched Google Maps for Townsend Street, Malaga, and then zoomed in on 7 Townsend Street, Malaga.[62] 

   [62] Trial ts 7831 ‑ 7837, 10298 - 10301.

10. At 10.56 am on 26 May 2011, a call was made from the 819 number to Peter Davis' number, which went through to voicemail.  At 11.43 am, Xavier Clarke went to Retravision in O'Connor and purchased a heater.  At 11.46 am, a call was made from the 819 number to Peter Davis' phone, and there was a connection for a period of 107 seconds.  At the time the call was made, the phone using the 819 number was registering off a cell tower in O'Connor.[63]

    [63] Trial ts 8344, 8719, 8944 - 8945, 9061; exhibit 327.

11. At 11.49 am on 26 May 2011, Xavier Clarke called Ambrose Clarke and they spoke for about 12.5 minutes.[64]

    [64] Trial ts 9806, 10361; exhibit 327.

12. The jury could reasonably infer from the above facts, and the parties' subsequent movements outlined below, that Xavier Clarke used the 819 number to call Peter Davis from, or near, Retravision O'Connor at 11.46 am on 26 May 2011.  The jury could also reasonably infer that, at this time, Xavier Clarke arranged to meet Peter Davis at 7 Townsend Street, Malaga in the early morning of Monday 30 May 2011 to provide a quotation for concrete sealing work at that premises.  That is, Ambrose Clarke purchased a phone using false details and arranged for Xavier Clarke (who Peter Davis did not know and whose voice he would not recognise) to lure Peter Davis to the Full of Fun premises under the false pretext of quoting for work.

The black plastic

1. Trevor Reid, an associate of Ambrose Clarke, operated his own high‑pressure cleaning and industrial surface coating business.  Ambrose Clarke called Mr Reid at about 9 am and 12.45 pm on Sunday 29 May 2011.  The calls were not answered, but the two men spoke on the phone at about 1 pm.  Ambrose Clarke told Mr Reid that he had a 'little job to do' and wanted to know if Mr Reid could give him some plastic.[65]  The two men arranged to meet at Mr Reid's residence in Bateman at 5.30 pm that day.  Later that day, at about 5 pm, Ambrose Clarke called Mr Reid again and asked if he could come earlier, but Mr Reid said to 'keep it at 5.30'.[66]

   [65] Trial ts 5228, 5237 - 5239.

   [66] Trial ts 5239 - 5240; exhibit 327.

2. Mr Reid had a roll of black plastic at his residence which was 4 m wide and 100 m long, which he had purchased from Bunnings.  The use of black plastic ground covers was common in the industry, and Mr Reid had plenty of it.  He also had a plastic sheet that was approximately 4 m x 8 m, which Mr Reid had used on a previous job, folded up under his patio.[67]

3. Mr Reid arrived home at about 5.15 pm - 5.30 pm.  He unfolded the 4 m x 8 m black plastic sheet on his back lawn.[68]  Ambrose Clarke arrived in his ute at about 5.40 pm - 5.45 pm.  His son, who Mr Reid thought was about 14 years old, remained in the ute.  Mr Reid gave Ambrose Clarke some scissors which he then used to cut a section of black plastic from the 4 m x 8 m sheet.  He took the width plus about 2 m into the length.  Ambrose Clarke folded up the section of plastic he had cut and put it in the back of the ute.  He then covered the ute with a 'tarp', effectively covering the black plastic from view.  Ambrose Clarke told Mr Reid that the plastic was for a job the next day.  He also mentioned Peter Davis in passing in a conversation about the Top Seal business.[69] 

   [68] Trial ts 5241, 5243 - 5244.

   [69] Trial ts 5244 - 5248.

4. Ambrose Clarke also asked Mr Reid if he had any protective covers.  Mr Reid declined to provide Ambrose Clarke with protective covers.[70]  Mr Reid accepted, during cross‑examination, that Ambrose Clarke might have referred to protective 'clothing' rather than protective 'covers'.[71]

Appellants' and Peter Davis' movements on 30 May 2011

[70] Trial ts 5251 - 5253.

[71] Trial ts 5255, 5556.

1. Ambrose Clarke's telephone records indicate that he made six phone calls to various numbers from his regular mobile phone between 5.44 am and 5.56 am on 30 May 2011.  None of these six calls connected. At 6.01 am, Ambrose Clarke telephoned Xavier Clarke and they spoke for 10 seconds.  All of Ambrose Clarke's calls registered off the Maylands Peninsular cell tower, while Xavier Clarke's phone registered off the Rivervale cell tower.[72]

   [72] Trial ts 8733 ‑ 8735, 9949 ‑ 9954; exhibit 327.

2. At about 6.15 am on 30 May 2011, Peter Davis left his family home in High Wycombe.  He was wearing his work attire and driving his business vehicle, a silver Mitsubishi Pajero with the words 'Top Seal' written on the side and rear and a ladder on the roof.  At about 6.20 am, he stopped at a deli in High Wycombe, where he was a regular customer.  Peter Davis purchased a pack of cigarettes and a can of cola.  After Peter Davis exited the deli, he can be seen on CCTV footage entering his car which then remains stationary for a time.  The CCTV footage does not show what Peter Davis was doing in his vehicle.[73]  However, at some point while in the vicinity of the deli, he programmed into his TomTom navigation device the route from the road the deli was on to 7 Townsend Street, Malaga.[74]  At about 6.50 am, Peter Davis' vehicle was recorded on CCTV travelling along Oxleigh Drive, Malaga towards Townsend Street, Malaga.[75]

   [73] Trial ts 4846, 4850 ‑ 4851, 4852, 4854 - 4855, 5437 ‑ 5442, 5468, 5472, 5474, 5476, 5481, 5643; exhibit 42.

   [74] Trial ts 5474, 5480 - 5481, 5492.

   [75] Trial ts 9017 ‑ 9018; exhibit 40.

3. Based on CCTV footage, it can be inferred that Peter Davis would have arrived at the Full of Fun premises at 7 Townsend Street, Malaga shortly after 6.50 am on 30 May 2011.  The front of the premises was not gated or fenced, and driveway access was available to the gravel area at the secluded rear of the premises.  The premises were not covered by CCTV.[76]

   [76] Trial ts 6128; exhibits 74 - 82.

4. At 7.12 am on 30 May 2011, Peter Davis' son, Kurt Davis, sent a text message to Peter Davis' business phone advising that he would be late for work.  Uncharacteristically, Peter Davis did not, at any stage, acknowledge his son's text message by a return phone call.  Peter Davis' business phone was subsequently found on his body and the text message was unread.  At the time the message was sent, Peter Davis' business phone registered off the Lockridge cell tower, which was a cell tower along a possible route from Malaga to the Great Eastern Motor Lodge, suggesting that at that time the phone was on the move with Peter Davis' body.[77]

   [77] Trial ts 5645 ‑ 5647, 6626, 8698 ‑ 8699; exhibit 298.

5. The next call between Ambrose Clarke and Xavier Clarke was at 7.33 am on 30 May 2011 and lasted for over 8 minutes.  At this time, Ambrose Clarke's phone again registered off the Maylands Peninsular cell tower, while Xavier Clarke's phone registered off the Rivervale North cell tower.[78]

   [78] Trial ts 8735, 9479 - 9480, 10432, 10433; exhibit 327.

6. At 7.50 am on 30 May 2011, Ms Zantarietha Doman, an employee of the Great Eastern Motor Lodge, arrived at work and saw Peter Davis' vehicle reverse‑parked in the rear carpark of the premises.[79] 

   [79] Trial ts 7194 ‑ 7197.

7. At 8.18 am on 30 May 2011, Mrs Davis called Peter Davis' business phone.  The call, which went through to voicemail, registered off the Belmont cell tower.  The Great Eastern Motor Lodge is within the coverage area of the Belmont cell tower.  Peter Davis' business phone continued to register off the Belmont cell tower, and another cell tower in close proximity to the Belmont cell tower, until Peter Davis' body was moved from the Great Eastern Motor Lodge by police the following day.[80]

   [80] Trial ts 4855 ‑ 4856, 6626; exhibit 265 (page 135 of 232); exhibit 327.

8. Ambrose Clarke was scheduled to do some work at 9 am on 30 May 2011 at the Perth City unit of Ms Joyce Ellemor.  At 8.33 am, Ambrose Clarke called Ms Ellemor to cancel his appointment with her.  Ambrose Clarke's cell phone registered off the South Perth freeway cell tower at this time.[81]

   [81] Trial ts 5546 - 5552; 9482 - 9483; exhibit 327.  Ms Ellemor's evidence that she is the one who called Ambrose Clarke at about 9 am on 30 May 2011, asking where he was as he had not turned up, can be shown by the phone records to be incorrect.  Exhibit 327 shows that it was Ambrose Clarke's phone that called Ms Ellemor's landline number at 8.33 am.  Ambrose Clarke's evidence was that he was due at Ms Ellemor's property by 9 am that morning, but that the weather made the job too risky, so he rang her to cancel.

9. At 9.28 am on 30 May 2011, Peter Davis' 'Bali' phone, an iPhone that Peter Davis would use when he was on holiday,[82] was used to send an email to an email address in the name of 'chestybabe'.  'Chestybabe' was Jo-Anne Green, a friend of the Davis family, who was then in Karratha.  The message, with the subject line 'Coming over now', said 'I am really horny'.  At 9.33 am, Peter Davis' Bali phone, registering off the Malaga cell tower, was used to send a text message to his wife stating, 'takin [sic] day off'.  This message was uncharacteristic of Peter Davis as he rarely took a day off work and would not use his Bali phone to communicate with his wife via text message when they were both in Western Australia.  The Bali phone was subsequently located during a police search in a filing cabinet in Ambrose Clarke's garage.[83]

   [82] Trial ts 4833.

   [83] Trial ts 4856 - 4857, 4882 ‑ 4883, 4911 ‑ 4912, 7277, 7283, 7576, 7772 ‑ 7773, 8395, 8414, 8446, 8449, 8451, 9061 ‑ 9062; exhibit 272; exhibit 327.

1. At 10.12 am - 10.13 am on 30 May 2011, Ambrose Clarke exchanged phone calls with his sister, Gabrielle Bauskis.  At this time his phone registered off the Rivervale and Maylands Peninsula cell towers.  Ambrose Clarke's phone subsequently registered off the Mount Lawley South cell tower at 10.15 am, the Highgate WA 1 cell tower at 10.17 am, the Claisebrook 3 cell tower at 10.18 am, and the Highgate WA 1 cell tower again at 10.18 am.[84] 

   [84] Trial ts 9987 - 9988; exhibit 327.

2. At 10.20 am, Ambrose Clarke called Xavier Clarke and the brothers spoke for about 4.5 minutes.  At this time, Ambrose Clarke's phone registered off the Highgate West cell tower, and Xavier Clarke's phone registered off the Hilton cell tower (which was consistent with Xavier Clarke being at his Hamilton Hill home).[85]

   [85] Trial ts 9988, 10442; exhibit 327.

3. Ambrose Clarke attended the Winthrop Post Office at 10.46 am on 30 May 2011 to collect a money order, and was at his Murdoch home from about 11 am until the early afternoon.[86]

   [86] Trial ts 7764, 9487 ‑ 9489, 10106 ‑ 10107.

4. Xavier Clarke, who worked for Toll as a truck driver, arrived at work at 2.34 pm on 30 May 2011.  He received a call from Ambrose Clarke at 10.09 pm, when Ambrose Clarke's phone registered off the Kewdale South cell tower and Xavier Clarke's phone registered off the Dianella West cell tower.  Xavier Clarke finished work at the Kewdale distribution centre at 12.01 am on Tuesday 31 May 2011.[87]

Discovery of Peter Davis' body on 31 May 2011

[87] Trial ts 5524 ‑ 5527; exhibit 47; exhibit 327.

1. At about 12.13 am on 31 May 2011, Kurt Davis (Peter Davis' son) and his partner, Natasha Klanjscek, were driving along Great Eastern Highway looking for Peter Davis' vehicle.  They first looked in the carpark of the Flag Motor Inn.  When they returned to Great Eastern Highway, Kurt Davis noticed a man in hi-visibility clothing 'power walking' into Toorak Road, Rivervale.  Kurt Davis then turned his vehicle left into Toorak Road.  Parked on Toorak Road facing away from Great Eastern Highway were, the jury could infer, Ambrose Clarke's blue Hi‑Lux utility and Xavier Clarke's silver hatchback.  Kurt Davis noticed Ambrose Clarke sitting in the passenger seat of the Hi‑Lux and another person sitting in the driver's seat.  Kurt Davis turned his vehicle around further down the street.  On his way back towards Great Eastern Highway, Kurt Davis noticed the person dressed in hi‑visibility workwear (who the jury could infer to be Xavier Clarke) talking to Ambrose Clarke through the car window.  The person then opened the boot of the silver hatchback and removed a Billabong backpack, which Kurt Davis recognised to be the one he had given his father the previous Christmas.  The person in the hi‑visibility clothing then walked back to the passenger side of the Hi‑Lux and passed something to Ambrose Clarke.  Kurt Davis was able to see all of this at first while driving past the parked vehicles and then through his rear‑view mirror whilst he was stopped at the intersection of Toorak Road and Great Eastern Highway.[88]

   [88] Trial ts 5657 - 5669.

2. Kurt Davis turned left onto Great Eastern Highway.  His intention was to drive around the block and return to see what Ambrose Clarke was doing in that area at that hour of the morning.  Kurt Davis mistakenly turned left into the Great Eastern Motor Lodge entrance and went through the motel driveway leading into the rear carpark.  The gates to the carpark that opened onto Toorak Road were closed at the time so he couldn't get back out onto Toorak Road.[89]

   [89] Trial ts 5669 - 5671.

3. On realising he was unable to exit the rear carpark, Kurt Davis started to reverse his vehicle to drive out of the carpark.  As he was doing so, he looked in his rear vision mirror and noticed his father's vehicle, with the ladder on the roof and Top Seal stickers on the door, reverse‑parked in a corner bay of the carpark.  This corner bay was concealed from Toorak Road by a high brick wall.  Kurt Davis stopped his car in the middle of the carpark.[90]

   [90] Trial ts 5671 - 5673, 5690; exhibit 58.1.

4. Ambrose Clarke's blue Hi-Lux utility vehicle then entered the same rear carpark of the Great Eastern Motor Lodge.  Ambrose Clarke's vehicle stopped directly in front of, and facing towards, Kurt Davis' silver Mitsubishi Triton.  Kurt Davis noticed that Ambrose Clarke was wearing white hooded overalls with the hood down.  Ambrose Clarke, who was sitting in the passenger seat of the Hi-Lux, spoke to the driver who then put the headlights on high beam and 'revved' the engine.  He at first 'nudged' the Hi-Lux into Kurt Davis' vehicle.  As the driver of the Hi‑Lux attempted to reverse out of the carpark, Kurt Davis moved his vehicle forward to block the exit.   The driver of the Hi-Lux then high beamed Kurt Davis' vehicle and rammed them repeatedly, 'coming at [them] pretty hard'.  The Hi-Lux then got 'stuck' against the Triton, with the wheels spinning.  The driver of the Hi-Lux continued to force his way through and was eventually able to escape from the rear carpark and onto Great Eastern Highway.[91] 

   [91] Trial ts 5673 - 5680, 5691.

5. At 12.21 am on 31 May 2011, Ambrose Clarke's Hi-Lux was captured on CCTV driving along Acton Avenue, Rivervale heading towards Great Eastern Highway.  As the vehicle turned onto Great Eastern Highway, it was stopped by police for a traffic infringement.  Police observed that Ambrose Clarke was the only occupant of the Hi‑Lux, which was damaged.  One of the officers observed a shovel, other tools and some small containers in the rear of Ambrose Clarke's vehicle.  Ambrose Clarke was wearing a white long‑sleeved jacket with a hood and a full‑length zip up the front, dirty light-green cargo-type trousers and sneakers.  In response to police questioning, Ambrose Clarke told the police that he had been in an accident about half an hour earlier and was going to report it.  He told police that he had not spoken to the other people involved.[92]

   [92] Trial ts 6077 - 6083, 6086 - 6087, 6258 - 6263, 9010, 9016, 9021 ‑ 9022; exhibit 93.

1. At 12.23 am on 31 May 2011, Kurt Davis parked his vehicle at the front of the Great Eastern Motor Lodge and called 000.[93]

   [93] Trial ts 5684 - 5686; exhibit 327.

2. The police who had stopped Ambrose Clarke's vehicle heard a report of a traffic incident at Great Eastern Motor Lodge over the police radio.  Ambrose Clarke was questioned about the incident and confirmed being involved in an incident at the Great Eastern Motor Lodge.  Ambrose Clarke advised police he was at the motor lodge with the intention of booking a room and denied knowing where Peter Davis was.  Police allowed him to continue his journey.[94]

   [94] Trial ts 6083 - 6087, 6089, 6261 - 6262.

3. Peter Davis' body was found wrapped in black plastic in the rear of his vehicle.[95]  The black plastic used to cover Peter Davis' body was the same plastic which Ambrose Clarke had cut from the larger sheet at Mr Reid's premises on 29 May 2011.[96]  When the vehicle and body were subsequently examined, items Peter Davis usually carried with him were absent, including his Bali phone, keys, wallet, diary, camera and an iPod.[97] These items were subsequently located in Ambrose Clarke's filing cabinet.[98]  Xavier Clarke's DNA was found on Peter Davis' trousers, and two of his thumbprints were located on the black plastic used to cover Peter Davis' body.[99]

   [95] Trial ts 6318 ‑ 6319.

   [96] Trial ts 6654, 6656, 6789 - 6796, 6819 - 6826; exhibit 132.

   [97] Trial ts 4829 ‑ 4830, 4882 - 4895, 7217 - 7219.

   [98] Trial ts 7274 - 7293.

   [99] Trial ts 7095, 7100, 7102, 8250, 8252 - 8254, 8260 - 8266.

4. Police attended Ambrose Clarke's residence in Murdoch at about 3.45 am on 31 May 2011.  Police found the washing machine running and wet sneakers in the laundry tub.  They also located a Blackberry phone with the 'Albert Norrish' SIM card in it.[100]

   [100] Trial ts 6293, 6296, 6348 - 6350, 6362, 6367, 6375, 8432 - 8433, 8435 - 8438, 8716, 8720 - 8723, 8725 ‑ 8726.

5. A subsequent search of Ambrose Clarke's residence on 28 July 2011 located the following items belonging to Peter Davis in an envelope in a filing cabinet in Ambrose Clarke's garage: the Bali phone and charger; credit cards; driver's licence; camera; and a page ripped from his diary which had Ambrose Clarke's DNA on it.[101]

   [101] Trial ts 7274 - 7293, 8039.

Basis on which the jury could be satisfied that the appellants intended to kill Peter Davis

1. In my view, there was a combination of circumstances from which a jury could find that the only reasonable inference was that the appellants intended to kill Peter Davis, and that prior to 30 May 2011 they had formed a plan to do so. 

Motive

1. The jury could reasonably conclude that the circumstances referred to at [256] - [263] above gave Ambrose Clarke a motive to kill Peter Davis. Ambrose Clarke could, by mid-May 2011, have given up all reasonable hope of recovering the money which he claimed Peter Davis owed to him. Ambrose Clarke was in very difficult financial circumstances, for which he blamed Peter Davis. In addition, Peter Davis had recently begun doing the work that Ambrose Clarke would otherwise have done for Pure Coat. The jury might infer that Ambrose Clarke was angry at this situation and, with attempts at getting money from Peter Davis having proved ineffective, decided to seek revenge. The jury could reasonably consider that Xavier Clarke's close relationship with his brother provided motivation for him to assist.

The Albert Norrish phone

1. As described at [264] - [275] above, the jury could conclude that Ambrose Clarke went to considerable lengths to acquire a phone number registered in a false name, which was used to make the phone calls to arrange to meet Peter Davis at the Full of Fun business in Malaga.

2. It is understandable that, if Ambrose Clarke wanted to lure Peter Davis to that premises under a false pretext, he would have a person whose voice Peter Davis would not recognise, using a phone number that Peter Davis would not recognise, make the call. 

3. However, there would be no point in acquiring a phone using false details if Peter Davis was expected to survive the encounter.  Peter Davis would immediately recognise Ambrose Clarke who, the jury could find, must have been present at the Malaga premises at the time of the assault.  There would be no purpose to the subterfuge involving the 'Albert Norrish' phone unless the intention was to kill Peter Davis. 

The black plastic

1. The fact that Ambrose Clarke obtained approximately 2 m x 4 m of black plastic from Mr Reid the evening before Peter Davis' death points strongly to a plan to kill Peter Davis after luring him to the Malaga premises.  The only role which black plastic could have in the plan involving Peter Davis would be to wrap or cover his body in a non‑porous material.  There would be no call for the black plastic if it were intended to assault Peter Davis in a non-lethal manner.

2. The appellants point to evidence that the black plastic was readily obtainable from Bunnings.[102]  That raises the question of why Ambrose Clarke did not simply purchase some plastic from Bunnings if he required it for a job, rather than expending so much effort to obtain a sheet from Mr Reid (who found the request unusual).  One obvious answer to that question, suggested by the State in its submissions, is that Bunnings stores are covered by CCTV and record transactions.[103]  The jury could infer that the reason why Ambrose Clarke needed to obtain the black plastic from Mr Reid was that he required it to wrap or cover Peter Davis' body when they met early the next morning.

Request for protective covers

[102] Appellant's submissions (Ambrose Clarke) par 39(e)(i); appellant's submissions (Xavier Clarke) par 74.

[103] Appeal ts 59.

1. The fact that Ambrose Clarke asked Mr Reid for protective covers the evening before Peter Davis' death also points to a plan to kill Peter Davis.  Ambrose Clarke was seen by Kurt Davis wearing protective covers at about midnight on 30 May 2011 when, it is alleged, he was preparing to dispose of Peter Davis' body.  The request to Mr Reid suggests that, on the evening before Peter Davis' death, Ambrose Clarke anticipated needing protective covers to dispose of Peter Davis' body.

Movements on the morning of 30 May 2011

1. The phone records referred to at [280] and [284] above support an inference that the appellants were each in the vicinity of the Great Eastern Motor Lodge when they spoke at about 6 am on 30 May 2011.  They were again in that vicinity when they spoke at about 7.30 am on 30 May 2011.  That evidence is consistent with the appellants having met in separate vehicles at or near the Great Eastern Motor Lodge, driving together in a single car to Malaga to meet Peter Davis, and then returning to the area of the Great Eastern Motor Lodge and speaking to each other after parking Peter Davis' car at the Great Eastern Motor Lodge. 

2. The only obvious reason for the appellants to have met in the vicinity of the Great Eastern Motor Lodge before travelling to Malaga was that they planned to return Peter Davis' car to the area.  If the plan was to kill Peter Davis and store his body in his own vehicle before returning to dispose of the body that night, then one of the brothers would need to drive Peter Davis' vehicle back to the Great Eastern Motor Lodge after Peter Davis had been rendered incapable of doing so himself.  That would be facilitated by the brothers meeting in the vicinity of the Great Eastern Motor Lodge with their separate vehicles and driving to Malaga in a single vehicle.  One of the appellants could then drive Peter Davis' vehicle to the Great Eastern Motor Lodge and then retrieve their own vehicle which had been left parked in the vicinity.  The evidence as to the appellants' movements on the morning Peter Davis died are consistent with, and suggestive of, the appellants executing a plan they had previously formulated to kill Peter Davis at Malaga and store his body at the Great Eastern Motor Lodge.

Post-offending conduct

1. The jury might reasonably have concluded that the evidence as to Ambrose Clarke's and Xavier Clarke's conduct after Peter Davis' death supported the conclusion that there existed a plan to kill Peter Davis.

2. The jury could infer that Ambrose Clarke and Xavier Clarke took the following steps after Peter Davis was either dead, or close to death, at the rear of the Full of Fun premises in Malaga between about 6.50 am to 7.12 am on 30 May 2011:

   1. They wrapped Peter Davis in the black plastic and placed his body in the rear of his Pajero. 

   2. They drove the Pajero to the rear carpark of the Great Eastern Motor Lodge, arriving before 7.50 am. 

   3. They removed items, including Peter Davis' phone, keys, wallet, diary and camera, at some point before leaving the Pajero at the Great Eastern Motor Lodge. 

   4. They sent messages from the Bali phone intended to divert concern about where Peter Davis was to 'Chestybabe' and Mrs Davis at about 9.30 am. 

   5. They returned to the Great Eastern Motor Lodge at about midnight for the purpose of disposing of the body. 

   6. They left no forensic evidence of value, with the exception of Peter Davis' Pajero, at either the Full of Fun premises or the Great Eastern Motor Lodge.

3. The jury could reasonably have regarded the steps taken after Peter Davis' death to be consistent with the implementation of a pre‑arranged plan as opposed to what might be expected of a panicked response to an unexpected death.  If there was a plan to make Peter Davis disappear mysteriously in a way that could not be connected to the appellants, then these steps were likely to lead to that result.  Indeed, the plan would probably have succeeded but for the extraordinary coincidence that Kurt Davis happened to be passing by, recognised Ambrose Clarke and mistakenly drove into the rear carpark of the Great Eastern Motor Lodge at the very same time that Ambrose Clarke and a third person returned to collect the body.

4. An additional aspect of the evidence against Xavier Clarke (although not admissible against Ambrose Clarke) was the written statement which Xavier Clarke gave to police on 28 August 2011 and confirmed in a recorded interview with police on 31 January 2013.  In that statement, Xavier Clarke said that he did not see Ambrose Clarke from around lunchtime on 29 May 2011 until after Ambrose Clarke was arrested.[104]

   [104] Trial ts 10307 - 10311, 10366; exhibit 261; exhibit 262.

5. There is no challenge in this appeal to the proposition that this statement was capable of being regarded by the jury as a lie from which guilt of the charged offence could be inferred.  That is, the jury might regard the lie as being one which a person not involved in the killing of Peter Davis would not have told.  In my view, it might also have been regarded as a lie which a person involved in the intentional killing of Peter Davis would have told.

6. In my view, to adapt the language used in R v Baden-Clay,[105] it was open to the jury, in this case, to regard the lengths to which the appellants went to conceal Peter Davis' body and to conceal their part in his demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed Peter Davis.  The jury could reasonably regard the steps taken by Ambrose and Xavier Clarke to be inconsistent with a reaction to an unintended death.

No contradictory account by the appellants

[105] R v Baden Clay [2016] HCA 35; (2016) 258 CLR 308 [76].

1. In considering the hypotheses reasonably open on the evidence considered as a whole, the jury were also entitled to have regard to the fact that:

   1.the appellants were the only witnesses who would have known if Peter Davis' death was unintended;

   2.both appellants gave evidence at trial; and

   3.neither appellant gave evidence that Peter Davis died an unintended death.

2. That is, as was noted in Weissensteiner v The Queen,[106] and affirmed in Baden-Clay,[107] in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.  Where an accused gives evidence, and does not in the course of doing so give evidence of an unintended death in circumstances of which only the accused would be aware, the accused's evidence may narrow the range of hypotheses reasonably available upon the evidence as to the circumstances of the death.

   [106] Weissensteiner v The Queen (1993) 178 CLR 217, 227 - 228.

   [107] Baden-Clay [50] - [54].

3. In the present case, the jury could reasonably conclude that the evidence as a whole excluded the reasonable possibility that Peter Davis died while being assaulted by the appellants without an intention to kill him.  The appellants were the only persons aware of the precise circumstances in which Peter Davis died.  They both gave evidence denying that Peter Davis suffered an unintended death in the course of an assault which they did not intend to be fatal.  Combined with the other evidence referred to above, the appellants' evidence was capable of excluding an alternate inference, consistent with the appellants' innocence of the offence of murder, that they assaulted Peter Davis without intending to kill him.

Conclusion

1. In my view, a jury could consider the cumulative effect of the evidence to leave, as the only reasonable inference capable of being drawn from the evidence considered as a whole, the existence of a plan to kill Peter Davis which was implemented by luring him to the Full of Fun premises in Malaga.  The jury could find the only reasonable inference was that the appellants formed the plan to kill Peter Davis before he arrived at the Full of Fun premises.  The jury could also find that the only reasonable inference was that this plan was being implemented when Peter Davis was assaulted at the Full of Fun premises.  That is, the jury could find that the only reasonable inference to be drawn from all of the evidence was that the intention to kill Peter Davis was formed prior to the appellants doing the act which caused his death, and was maintained while that act was done.  On that basis, the jury could properly be satisfied beyond reasonable doubt that, at the time they did the act which caused Peter Davis' death, the appellants intended to kill him, even if they did not intend the precise mechanism by which Peter Davis actually died.

2. The above evidence leaves me in no doubt that the appellants committed the offence of murder. 

3. Further, the jury in this case had a very considerable advantage over this court in understanding and assessing the evidence.  The trial was very lengthy and much of the evidence was of a technical nature.  The jury had the advantage of seeing and hearing all of the evidence as it was given.  They received often detailed first-hand explanations from witnesses given by reference to photographs, diagrams and other recorded or documentary exhibits.  The jury had the capability to appreciate and understand all the evidence in a way that this court cannot replicate from a review of the transcript and exhibits.  Even if my review of the evidence left me in doubt as to the appellants' guilt (which it does not), the advantages enjoyed by the jury in this case would stand as a substantial impediment to any conclusion by this court that the verdicts were unreasonable or unsupported by the evidence.

Orders

1. For the above reasons, I agree with the orders proposed by Buss P.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BS

Associate to the Honourable Justice Buss

1 FEBRUARY 2022