Colbung v The State of Western Australia - [2025] WASCA 41

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   COLBUNG -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 41
CORAM:   MAZZA JA
VAUGHAN JA
VANDONGEN JA

HEARD:   14 NOVEMBER 2024
DELIVERED          :   25 MARCH 2025
FILE NO/S:   CACR 17 of 2024
BETWEEN:   MICHAEL TROY COLBUNG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MacLEAN DCJ
File Number            :   IND 2183 of 2021

Catchwords:

Criminal law - Appeal against conviction - Whether guilty verdicts are unreasonable or cannot be supported because they are inconsistent with not guilty verdicts - Whether the different verdicts can be logically and reasonably explained - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 27(3), s 30(3)(a)
Criminal Code (WA), s 7, s 8, s 371A, s 378, s 392, s 401(1)(a)

Result:

Application for extension of time refused
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	J Jackson
Respondent	:	K C Cook

Solicitors:

Appellant	:	James Jackson Criminal Defence
Respondent	:	Director of Public Prosecutions (WA)

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

AKG v The State of Western Australia [2024] WASCA 139
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
MHS v The State of Western Australia [2024] WASCA 85
Sturniolo v The State of Western Australia [2023] WASCA 147

JUDGMENT OF THE COURT:

During the evening of 27 June 2019, and then in the early hours of 28 June 2019, a small group of men broke into five houses located in various suburbs in the south metropolitan area of Perth. The State case was that some or all of the men were looking for car keys so that they could steal a car that was parked outside each house. All five houses were occupied when they were broken into. The occupants of some of the houses were confronted by the intruders when that occurred. However, no one was able to positively identify the offenders and only some of the occupants were able to provide very limited descriptions of the men.
The appellant was charged with a series of offences committed at the five houses. The appellant did not dispute that the charged offences had been committed. He contended that the State was unable to prove that he was one of the men who had been involved in the commission of those offences.
The appellant was found guilty by a jury of only some of the charged offences. Those offences were committed at three of the five houses.
The appellant contends that the guilty verdicts were unreasonable or cannot be supported, having regard to the evidence, because they were inconsistent with certain other not guilty verdicts. On that basis, the appellant says that the guilty verdicts, and the judgments of conviction which were based upon those verdicts, should be set aside and substituted with judgments of acquittal.
The appellant's argument cannot be accepted. The jury's verdicts do not reveal any relevant inconsistency because the different verdicts can be logically and reasonably explained. Neither ground has reasonable prospects of succeeding. It follows that the appeal must be taken to be dismissed.
To properly understand the appellant's contentions, it is first necessary to say something about the respective cases that were relied on at the appellant's trial. We will then identify the grounds of appeal, before going on to explain why we have reached the conclusion that the grounds of appeal do not have reasonable prospects of succeeding.

The State case

The State case was that during the evening of 27 June 2019, and into the early hours of the following morning, a small group of about two or three men were moving around suburbs in the south metropolitan area of Perth, intent on stealing cars. Specifically, the State case was that over the course of several hours the men targeted five houses in Wellard, Secret Harbour, Dudley Park, Mandurah and Baldivis, because they wanted to steal a car that was parked out the front of each house. However, before stealing the cars, the men had to break into the houses to find the keys to each car.
Because of the time of night, people were at home when the offences were committed.
The first house the group of men came across was the home of Ms T, which was in Wellard (Wellard house). At the time there was a Holden Commodore SS V8 parked out the front of the house.
At around 8.30 pm or 9.00 pm, the occupants at the Wellard house noticed two men inside their house. One of the men appeared to be armed with a firearm. After they had been disturbed by the occupants, the men then ran away.
One of the occupants of the Wellard house, Mr H, gave evidence that he noticed that there was a third man outside the house. However, Mr H had not mentioned this third man when he originally spoke to police.
Ms T gave evidence that she saw two men get into a car that had driven up and stopped at the front of the house. Ms T said that she saw the two men get into the back seat of the car. It may therefore be inferred that there was at least one other person in the car, who was the driver.
Only a few minutes after Ms T and Mr H had gone back inside their house, a silver Toyota HiLux with Mandurah number plates, which had been parked in the garage of the Wellard house, was stolen using keys that had earlier been taken from inside their house.
Neither Ms T nor Mr H were able to identify the men they saw inside or outside their home that night, although Ms T said that the two men she saw in her house appeared to be Aboriginal.
The appellant was charged with three offences arising out of the events at the Wellard house:
(a)one count of aggravated burglary, contrary to s 401(1)(a) of the Criminal Code (WA) (Code) (count 1);
(b)one count of stealing a motor vehicle, contrary to s 371A and s 378 of the Code (count 2); and
(c)one count of armed robbery in company, contrary to s 392(c) of the Code (count 3).
The appellant was found guilty of count 2, but he was found not guilty of counts 1 and 3.
Ms W lived with her family in a house a short distance to the south of Wellard, in the suburb of Secret Harbour (Secret Harbour house).
Ms W arrived home after work at about 10.00 pm to 10.15 pm. A black Holden HSV GTS sedan was parked on the front lawn of the Secret Harbour house at the time. As Ms W drove up to her home, she noticed that there was a dual‑cab utility parked in an unusual place on her next‑door neighbour's verge. When Ms W pulled into her garage, she could see that there was a man crouching down in the backyard of her house. The man appeared to be looking into the house through a door.
As soon as Ms W saw the man, he took off around the back of her yard. As Ms W pulled her car into the garage, she saw a second man walking past the garage, as her garage door was closing behind her.
After getting out of her car, Ms W noticed that the sliding door to her kitchen was open, which was unusual. She then ran inside to find her husband, who was asleep on a couch. After checking on her children, Ms W and her husband then tried to find the men she had seen.
When she went out the front of her house, Ms W saw one of the men. She said that the man came from the side of her house and ran at her. Ms W said that he hit her with his hand or with his elbow on the left side of her face, and that he knocked her glasses off in the process. Ms W said in her evidence that the man then pretended to be holding a firearm and said, '[y]ou know we're going to get that fucking car, don't you?'
Mr W gave evidence that after his wife woke him up, he went to the front door of the Secret Harbour house and saw that there was a silver dual‑cab utility parked on the neighbour's verge. This car was unfamiliar to him. Mr W said that the car had Mandurah number plates and that he thought it was a Nissan Navara.
Mr W then went to look for the men around the back of his house. There, he found one man in the backyard. Mr W then gave chase, but he was unable to catch the man as he ran around the side of the house. Mr W then came back through the house to the front door. By the time Mr W reached the front of the house, there was nobody except his wife there and the silver utility had gone.
Ms W later discovered that two handbags had been stolen from inside her home.
The appellant was charged with two offences arising out of the events at the Secret Harbour house:
(a)one count of aggravated burglary, contrary to s 401(1)(a) of the Code (count 4); and
(b)one count of robbery in company, contrary to s 392(d) of the Code (count 5).
The appellant was found guilty of count 5, but not guilty of count 4.
Later that same evening, further offences were committed at a house in Dudley Park in the Mandurah area, which is further to the south of Secret Harbour (Dudley Park house).
After Mr and Ms B had gone to bed at the Dudley Park house, they were confronted in their bedroom by a man who had broken into their home. This man was shouting at them. He was armed with what appeared to be an axe and was demanding that they hand over the keys to their son's Mitsubishi Evolution. When Mr B exited the bedroom, he realised there was a second man in his house. When the keys to the car were handed over to the men, Mr B realised that there were in fact three men in his house.
The intruders drove the Mitsubishi Evolution away from the house in Dudley Park and it was later found on the morning of 28 June 2019, after it had been dumped in Mandurah.
The appellant was charged with three offences arising out of the events at the Dudley Park house:
(a)one count of aggravated burglary, contrary to s 401(1)(a) of the Code (count 6);
(b)one count of stealing a motor vehicle, contrary to s 371A and s 378 of the Code (count 7); and
(c)one count of armed robbery in company, contrary to s 392(c) of the Code (count 8).
The appellant was found guilty of counts 6, 7 and 8. The appellant does not challenge any of those verdicts.
The appellant was also charged with offences that took place after the offences committed at the Dudley Park house. Those offences were committed at two other houses, in Mandurah and in Baldivis respectively (counts 9 ‑ 13). However, the appellant was acquitted of all of those offences. Having regard to the scope and nature of the grounds of appeal, it is unnecessary to refer to those offences in any further detail. As the primary issue at the appellant's trial was whether the jury were satisfied that the appellant was 'involved' in the commission of any of the charged offences, the jury's verdicts in relation to counts 9 ‑ 13 suggest that the jury were not satisfied beyond reasonable doubt that he was relevantly 'involved' in those offences.
To understand the bases on which the State invited the jury to infer that the appellant committed counts 1 ‑ 8, it is necessary to look more closely at the evidence relevant to those offences.
There was no direct evidence that the appellant committed any of the offences that occurred at Wellard, Secret Harbour or at Dudley Park. The State case against the appellant in relation to those offences was entirely circumstantial.
The only forensic evidence that was capable of establishing that the appellant had committed any of the offences was evidence that related to the offences committed at the Dudley Park house. In that respect, a mixed DNA profile was found to have been deposited onto the point where forced entry had been made to the Dudley Park house. That profile was 100 billion times more likely if the appellant had been a contributor to the DNA mixture rather than if the contributor had been a random member of the public. This evidence strongly suggested that the appellant had been both present and actively involved in the commission of offences at that address.
To prove that the appellant was involved in the offences committed at the Dudley Park house, the State also relied on evidence relating to a mobile telephone that was seized from the appellant's de facto partner when the appellant was arrested in October 2020. A photograph of the appellant was found on that mobile telephone. Metadata linked to that photograph demonstrated that the photograph had been taken at about 5.56 pm on 27 June 2019, the day of the offending. The metadata also suggested that the photograph had been taken at an address in Forrestfield, which was then occupied by the appellant's mother.
Other evidence established that the same mobile telephone had connected to a Telstra network cell tower in Mandurah at about the same time as the offences were committed at the Dudley Park house occupied by Mr and Ms B. That cell tower in Mandurah was located relatively close to the Dudley Park house. Further, the Mitsubishi stolen from the Dudley Park house was found early on the morning of 28 June 2019, where it had been abandoned near the same cell tower in Mandurah.
The State case was that by the time the appellant had committed the offences at the Dudley Park house, he had already committed offences at both the Secret Harbour house (counts 4 ‑ 5) and the Wellard house (counts 1 ‑ 3). However, the State case that the appellant had committed those earlier offences depended upon the jury being satisfied that the appellant was a party to the offences committed at the Dudley Park house. Proof that the appellant had been present at, and had actively participated in, the offences committed at the Dudley Park house was a necessary starting point for the jury from which to then consider whether other evidence that connected the appellant to the commission of the offences that took place in Secret Harbour and Wellard satisfied them beyond reasonable doubt that he had also committed those offences.
A critical link between the offences committed at the Dudley Park house and the offences that were committed earlier in the night in Secret Harbour and Wellard, which the State relied on to establish that the appellant had also been involved in those earlier offences, was the silver Toyota HiLux that was stolen during the offences committed at the Wellard house. That link can be explained by reference to the following factors:
(a)A silver dual‑cab Toyota HiLux utility, with Mandurah number plates, was taken from the garage of the Wellard house, without the owner's consent, and immediately after a burglary and robbery had taken place at that address.
(b)A silver dual‑cab utility, with Mandurah number plates, was seen parked on the verge next door to the Secret Harbour house, when the offences in counts 4 and 5 were committed. The man who Ms W said knocked her glasses off her face, and then pretended to hold a gun, left the scene in that car.
(c)The Toyota HiLux stolen from the Wellard house was later found dumped in a canal near the Dudley Park house. Inside the HiLux, police found an item that was connected to the offences that had earlier been committed at the Secret Harbour house.
Apart from evidence relating to the HiLux, there was a further link between the offences committed at the Dudley Park house and those committed at the Secret Harbour house. In that regard, when the Mitsubishi Evolution stolen from the Dudley Park house was found in Mandurah early on the morning of 28 June 2019, police located a handbag in that car that had been stolen during the offences committed at the Secret Harbour house.
Finally, at about the time the offences were committed at the Secret Harbour house, the mobile telephone seized from the appellant's de facto partner had connected to cell towers on the Telstra network at both Secret Harbour and Golden Bay. The Secret Harbour house where counts 4 and 5 took place was located roughly in the middle of the areas covered by those two cell towers.
It was in this evidentiary context that the State argued that the jury should find the appellant guilty of counts 1 ‑ 8 on the basis that he was a principal offender under s 7(a) of the Code. In the alternative, the State case was that the appellant was an accessory in respect of each of those counts because he aided another person to commit those offences, under s 7(c) of the Code.
The State also argued, again in the alternative, that the appellant was guilty of the robbery offences charged in counts 3, 5 and 8 on the basis that he had formed a common intention to prosecute an unlawful purpose in conjunction with at least one other person, and in the prosecution of that purpose an offence of robbery in company, and armed robbery in company in the case of counts 3 and 8, was committed, each of which was of such a nature that its commission was a probable consequence of the prosecution of that purpose, under s 8 of the Code. The prosecutor explained in his opening address that the particular unlawful purpose relied on by the State was 'to go into each of those premises and burgle and take those motor vehicles'.[1]
[1] ts 100.
The State was forced to rely on these alternative grounds of criminal liability because there was insufficient evidence to establish that the appellant did any specific act at any of the houses where offences had been committed, other than evidence that suggested that he had at least done something that brought him into contact with a damaged flyscreen at the Dudley Park house.
The prosecutor explained in his opening address that he anticipated that there would be evidence that suggested that there may have been one, two or three men who broke into the houses the subject of the counts on the indictment, depending on the offences to which the evidence related. He said that in some instances there may be evidence that one or two men stood by while another man confronted the occupants. He also said that in other instances, the jury would hear evidence from some witnesses that they saw a third man outside a house, as well as evidence that someone drove the offenders away from the scene of a burglary in a car. The prosecutor told the jury that the State did not have to prove which of those men the appellant was. He further explained that the State only had to prove that the appellant was one of the men who was 'involved' in the offences for the jury to find him guilty of those offences.
It is important, however, to appreciate that the prosecutor also told the jury that the State case was that the appellant was 'either the person involved, or he aided the person involved - that he was present at the time that the offences occurred, and he was actively participating in the offence[s]'.[2] Accordingly, the State case that the appellant was a principal offender or an accessory depended upon proof that he had been present and actively participating in the offences at the time those offences were committed.
[2] ts 100.
However, in relation to the robbery offences alone, the State relied on a further alternative case. In that regard, the State case was that the appellant was
part of the group who formed a common purpose to go into each of those premises and burgle and take those motor vehicles and that it was a probable consequence that once they formed that common purpose and once he assisted in that common purpose that if people were inside, they would be threatened to get their property from [sic].[3]
[3] ts 100.
This alternative case, which relied on s 8 of the Code, did not require the jury to find that the appellant had been present or actively involved in the robbery offences. The jury were only required to be satisfied that the appellant was a party with at least one other person to the unlawful purpose alleged by the State and that an offence of robbery was committed that was a probable consequence of the prosecution of that unlawful purpose.
The trial judge gave detailed directions to the jury about the various ways in which the State alleged that the appellant was criminally liable for the offences charged on the indictment. The appellant makes no complaint about any of those directions.

Significantly, the trial judge told the jury:[4]
The State's case in relation to the counts on the indictment is that there were at least three people involved in those offences. They say that [the appellant] was one of those people. They do not know who the others were, and they do not know what specific role [the appellant] undertook in the offending.
[4] ts 372.
The trial judge also told the jury that the State alleged that either the appellant was the person who actually committed the charged offences or that he aided the person who committed those offences. Then, in terms that are not the subject of any criticism, his Honour gave the jury directions about what they were required to be satisfied of before finding the appellant guilty on either of those grounds.
The trial judge directed the jury that for the appellant to be found guilty of any offence, they were required to be satisfied that either the appellant actually did the act constituting the particular offence they were considering, or that he aided another person in committing that offence. In relation to aiding, the trial judge said further that a person is guilty of an offence if they do any act for the purpose of enabling or aiding another person to commit an offence, or if they aid another person in committing an offence. In that regard it may be observed that the trial judge broadened the scope of the State's case to include reliance on s 7(b) of the Code. However, there was no objection to the trial judge's directions, and the grounds of appeal do not turn on this aspect of those directions.
The trial judge also said that to be found guilty on this basis, the jury were required to be satisfied beyond reasonable doubt about four matters:
(a) that a person has actually committed the offence;
(b) that the alleged aider had actual knowledge of the facts amounting to that offence;
(c) that the aider did something with the intention of aiding or assisting in the doing of the acts that made up the offence; and
(d) that what the aider did actually aided or assisted the commission of the offence.
As will be seen, it is important to note in this context that the trial judge also gave the following direction to the jury:[5]
The State must also prove that [the appellant] did something, such as actively participating, or assisting, or encouraging the principal in the commission of the offence. Merely being present at the scene of a crime does not constitute aiding.
The State must prove that [the appellant] intended to give encouragement to the commission of the offence. [The appellant] would not be guilty as an aider unless the State proves that what he did was willed or intentional, and that his purpose in doing what he did was to aid or to assist the principal in the doing of the acts which constitute the offence.
And, finally, the State must prove that what [the appellant] did actually aided in the commission of the offence. (emphasis added)
[5] ts 373.
In relation to the counts of robbery, the trial judge told the jury that the State also relied on an additional basis of criminal liability. In that respect, his Honour explained that '[i]n certain circumstances the law also provides that a person is guilty of a criminal offence even though he has not personally done all of the acts which constitute the offence… sometimes referred to as common intent'.[6] His Honour then went on to direct the jury, in some considerable detail, and in terms that are not challenged on appeal, that for this basis of criminal liability the State had to prove that:
(a) the appellant and at least one other person had formed a common intent to prosecute an unlawful purpose in conjunction with each other;
(b) in the prosecution of that unlawful purpose, the offence of robbery in company (or armed robbery in company, in the case of counts 3 and 8) was committed; and
(c) this offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
[6] ts 374.
The trial judge's expression of the relevant common unlawful purpose was different when compared to the way in which it had been explained by the prosecutor in his opening address. In that regard, his Honour told the jury that the State case was that the group of men, including the appellant, had a common intent to 'prosecute the offences of stealing car keys and that they had the intent at the time that the items were stolen'.[7] The trial judge also encapsulated the State case based on s 8 of the Code as follows:[8]
The State say that in this case it was clear when you have regard to what it was that the group did, namely targeting houses that had the high performance cars parked out the front of them and the demand for keys, that the common intent and aim was demonstrated. Again, the real issue seems to be whether or not the State can demonstrate that [the appellant] was engaged in this activity.
The State position is that the shared common intent was, in essence, to do whatever was necessary to obtain the keys to be stolen, and that the nature of the offence of stealing with violence whilst armed and in company, or simply in company, as in the case of count 5, included the use of physical force to obtain the property of another person without their consent whilst in company, and with the use of the weapon or offensive instrument in the counts where that particular is alleged.
The State's case is that the offence of stealing with violence whilst armed and in company in counts 3, 8 and 13, and in company in count 5 was, in each case, an offence of such a nature that its commission was a probable consequence of the common intent to steal property, namely keys to cars, from the owner in each case.
[7] ts 375.
[8] ts 377.
The appellant also does not raise any issues about the trial judge's directions about s 8 of the Code.
Before summarising the defence case at trial, it is necessary to say something further about the State case in relation to the counts in which it was alleged that the appellant committed an offence of stealing a motor vehicle, namely counts 2 and 7.
In his opening address the prosecutor explained that a person steals something when they take anything capable of being stolen with an intention to permanently deprive the owner of the thing taken. However, the prosecutor also told the jury that in the context of a motor vehicle, the prosecution did not have to prove that an accused person actually took the motor vehicle to establish a charge of stealing a motor vehicle. The prosecutor explained that it is sufficient to prove that a person simply used a motor vehicle without the owner's consent for them to be found guilty of stealing a motor vehicle.
The prosecution did not confine the State case to any one of the grounds on which the jury might be satisfied that the appellant had stolen the cars the subject of counts 2 and 7 on the indictment. The State case was that the appellant either did the acts that may amount to the offence of stealing a motor vehicle, or he aided the person who did those acts.
The trial judge gave the jury specific directions concerning the charged offences of stealing a motor vehicle that were consistent with the State case. In that regard, his Honour told the jury, relevantly, that they were required to be satisfied that the appellant 'stole the motor vehicle by using, taking, driving, or otherwise assuming control of the vehicle without the owner's consent',[9] or that the appellant aided the person who did one of those acts.[10]
[9] ts 367.
[10] ts 366.
Having identified the particular bases on which the State alleged the appellant was guilty of the offences charged in counts 1 ‑ 8, it is now necessary to briefly summarise the defence case.

The defence case

The appellant did not give nor adduce any evidence at his trial.
As the appellant's trial counsel explained in her closing address, the fact that the incidents the subject of the counts on the indictment took place was not in issue. The defence case was that the appellant was not involved in the commission of any of the offences. The appellant's trial counsel provided the jury with the following pithy summary of the appellant's case: '[the appellant] says it wasn't him, that he wasn't one of these men, that he wasn't present'.[11]
[11] ts 35.
In her cross‑examination, the appellant's trial counsel tested the reliability of the evidence given by the victims of the offences committed. She also relied on the absence of any direct evidence that the appellant had been involved in the offending, the lack of any positive identification, the absence of any clear description of the offenders, and differences in the witness' accounts about how many offenders had been involved.
In relation to the DNA evidence, the defence case was that the appellant's DNA may have been transferred to the flyscreen or the lock on the door at the Dudley Park house by indirect or secondary means, and not because the appellant had come into contact with either of those items.
The appellant's trial counsel also made submissions about the mobile telephone evidence. In those submissions, counsel suggested that the evidence demonstrated that there were many factors that may have influenced the recording of data by the cell towers, and suggested that little weight should be attached to this evidence.
Finally, counsel sought to undermine the State case that there were evidentiary links between the offences that proved the appellant had been involved in all of the offences charged.
Ultimately, the defence case was that it was not open to the jury to conclude that the only rational inference to be drawn from all of the evidence was that the appellant was guilty of any of the charged offences.
Having summarised the respective cases that were relied on by the parties at trial, it is now necessary to refer to the appellant's grounds of appeal.

The grounds of appeal

The appellant relies on the following grounds of appeal:
1.The jury's verdict of guilty on count 2 was unreasonable or cannot be supported because it was factually inconsistent with the verdict[s] of not guilty for counts 1, 3 and 4.
Particulars
a.A verdict of guilty on count 2 required the jury to be satisfied that [the appellant] used a Toyota Hilux stolen during a burglary at the complainant's home;
b.The jury's not guilty verdicts on counts 1 and 3 meant that the jury were not satisfied [the appellant] was present at the burglary during which the Toyota Hilux was stolen, and he must have used the vehicle after that burglary occurred;
c.The only other evidence that the Toyota Hilux had been used by [the appellant] was during counts 4 and 5, and the jury's finding of not guilty on count 4 meant that the jury were not satisfied [the appellant] was present at this incident; [and]
d.There was other no [sic] evidentiary basis to find that [the appellant] used the stolen Toyota Hilux.
2.The jury's verdict of guilty on count 5 was unreasonable or cannot be supported because it was factually inconsistent with the verdict of not guilty on count 4.
Particulars
a.A verdict of guilty on count 5 meant that the jury were satisfied [the appellant] was criminally liable for an offence of robbery, which involved stealing items from inside the complainant's house, and then using force to the complainant outside the home in order to escape with the stolen property;
b.The jury's verdict of not guilty on the burglary the subject of count 4 could only mean that the jury were not satisfied [the appellant] was present at the house when the robbery the subject of count 5 occurred; [and]
c.The finding that [the appellant] was not present at the scene of the burglary the subject of count 4, cannot stand with a finding that [the appellant] was guilty of the robbery the subject of count 5.
The question of whether leave to appeal should be granted in respect of both of those grounds of appeal has been referred to the hearing of the appeal.
The appellant filed his notice of appeal approximately four months out of time. The question of whether time within which to appeal should be extended was also referred to the hearing of the appeal.
In support of his application to extend the time within which to appeal the appellant relies on an affidavit sworn by his counsel on 27 February 2024. It is unnecessary to refer to the contents of that affidavit in any detail. As the balance of these reasons will show, we would not grant an extension of time within which to appeal because the grounds of appeal do not have a reasonable prospect of succeeding.

The relevant principles

The principles to be applied when it is contended that a verdict of guilty is unreasonable or cannot be supported, having regard to the evidence, on the basis that it is inconsistent with one or more other verdicts, are settled. It is unnecessary for us to rehearse those well‑known principles. They were recently summarised in MHS v The State of Western Australia.[12]
[12] MHS v The State of Western Australia [2024] WASCA 85 [89] ‑ [92]. See also AKG v The State of Western Australia [2024] WASCA 139 [16].
The appellant asserts that the verdicts of guilty for counts 2 and 5 demonstrate factual, as opposed to legal, inconsistency. The relevant questions are therefore whether, as a matter of logic and reasonableness:
(a)the verdict of guilty for count 2 cannot sit together with the verdicts of not guilty for counts 1, 3 and 4; and
(b)the verdict of guilty for count 5 cannot be reconciled with the verdict of not guilty for count 4,
such that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at those verdicts.
If there is a proper way to reconcile the verdicts, such that it can be concluded that the jury performed their functions as required, the relevant verdicts of guilty cannot be said to be unreasonable or unsupportable, having regard to the evidence.
In deciding whether, as a matter of logic and reasonableness, verdicts cannot sit together, all of the circumstances of the case must be taken into account. Those circumstances include the context of the system within which juries function and the jury's role in that system.
Relevant circumstances also include the directions given to juries, including directions to give separate consideration to individual counts, directions that the evidence of a witness may be accepted in whole or in part, directions about the onus and standard of proof, and directions about the need to reach unanimous verdicts.
In deciding whether verdicts cannot logically or reasonably sit together, appellate courts must be alive to the possibility that different verdicts may be the product of the jury's advantage of having seen and heard the witnesses give evidence. The record of the trial that is assessed by an appellate court may not reveal all the factors the jury took into account in arriving at their verdicts.
Ultimately, a complaint that a jury has reached inconsistent verdicts is a contention that a verdict or verdicts of guilty are unreasonable or cannot be supported, having regard to the evidence for the purposes of s 30(3)(a) of the Criminal Appeals Act 2004 (WA). That is why the test is unreasonableness, not inconsistency.[13]
[13] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [35] ‑ [36].
Having summarised the principles to be applied we will now deal with the grounds of appeal.

Determination of the grounds of appeal

In determining the grounds of appeal, it is convenient to commence by considering ground 2 before turning to deal with ground 1.

Ground 2

At the heart of the appellant's argument in relation to ground 2 is a contention that having found the appellant not guilty of count 4, the jury must therefore have had a reasonable doubt that the appellant was physically present at the time that offence was committed. Based on that proposition, the appellant then contends that as the offences in counts 4 and 5 were committed during what was essentially one course of conduct, the different verdicts cannot be reconciled because the verdict of guilty on count 5 necessarily demonstrates that the jury were satisfied beyond reasonable doubt that the appellant was present at the time that offence was committed.
The appellant's argument cannot be accepted.
As we have already explained, one aspect of the State case against the appellant in respect of count 4 was that he was a principal offender under s 7(a) of the Code. Accordingly, the verdict of not guilty necessarily establishes that the jury were not satisfied beyond reasonable doubt that the appellant actually did the acts that constituted the offence charged in count 4. However, it does not follow that the jury were not satisfied beyond reasonable doubt that the appellant was physically present when that offence was committed.
In the alternative to the allegation that the appellant was a principal offender, the State alleged that the appellant aided in the commission of count 4 and that he was therefore criminally liable under s 7(c) of the Code. In that context, it is important to recall that in his directions to the jury, the trial judge made it clear that if the appellant was merely present at the scene of a crime, this would not constitute aiding. The trial judge also told the jury that to prove that the appellant was guilty as an aider, the State was required to satisfy the jury beyond reasonable doubt that the appellant 'actually aided in the commission of the offences'.
Accordingly, it can be seen that the jury may well have been satisfied beyond reasonable doubt that the appellant was present at the time count 4 was committed, but, acting cautiously, they were not satisfied to the same standard of proof that the appellant had been more than merely present or that he had done anything that actually aided in the commission of count 4.
That the jury may have reached this conclusion is unsurprising. It was well open to the jury to consider that the evidence relied on by the State did not positively establish that the appellant was one of the two men Ms W saw at her home in Secret Harbour at the time counts 4 and 5 were being committed. However, the jury may nevertheless have at least been satisfied that the appellant was physically present at, or very close by, the Secret Harbour house at the time counts 4 and 5 were committed.
The jury were obviously satisfied beyond reasonable doubt that the appellant had been present and actively involved in the offences committed at the Dudley Park house, as he was convicted of counts 6, 7 and 8. Therefore, in light of:
(a)the evidence relating to the HiLux, which provided a link between the offenders involved in the Dudley Park offences and the offenders who committed similar offences on the same night at the nearby suburb of Secret Harbour; and
(b)the evidence that a mobile telephone connected to the appellant had been used in the general area of the Secret Harbour house at about the time counts 4 and 5 were committed,
it is understandable that the jury may have been persuaded that the appellant was physically present at the Secret Harbour house at the time of the commission of counts 4 and 5 but, at the same time, concluded that there was a reasonable possibility that he had only merely been present at that time and that he had not actually aided or assisted in the commission of count 4.
In our view, had the jury reached the verdict of not guilty in respect of count 4 on that basis, which it was plainly open for them to do, that verdict may logically and reasonably be reconciled with the jury's verdict of guilty for count 5, having particular regard to the State's alternative case in relation to count 5 that the appellant was guilty of that offence under s 8 of the Code.

As we have already explained, the State case in relation to count 5 was, in the alternative, that the appellant was criminally liable under s 8 of the Code. The trial judge's directions, which have not been challenged, expressly left it open to the jury to convict the appellant on that basis. In that context, a finding that the appellant had formed a common intention with at least one other person to prosecute an unlawful purpose in conjunction with one another (namely, to steal car keys from their owners), and that in the prosecution of that purpose count 5 was committed (being an offence of such a nature that its commission was a probable consequence of the prosecution of such purpose), can, as a matter of logic and reasonableness sit together with a conclusion that there was a reasonable possibility that although the appellant was present at the time counts 4 and 5 were committed, he had not actually done the acts constituting count 4 or aided in the commission of count 4.
In other words, the verdicts for counts 4 and 5 may be reconciled on the basis that, in the absence of any cogent evidence that the appellant actually did anything at the Secret Harbour house, the jury cautiously drew back from finding, beyond reasonable doubt, that the appellant had in fact actually committed count 4 or aided in the commission of the burglary the subject of count 4. At the same time, the jury were satisfied beyond reasonable doubt of the following matters:
(a)the appellant was one of a group of people who had together formed a common intention to steal car keys from the Secret Harbour house;
(b)an offence of robbery in company was committed in the prosecution of that unlawful purpose; and
(c)that offence was of such a nature that its commission was a probable consequence of the prosecution of that unlawful purpose.
In our view, it follows that ground 2 does not have reasonable prospects of success. We would refuse to grant leave to appeal in respect of this ground.

Ground 1

Although ground 1 gives the impression that the appellant's contention is that the verdict of guilty on count 2 is inconsistent with the verdicts of not guilty on counts 1, 3 and 4, the particulars of the ground and the oral and written submissions made in support of the ground suggest otherwise.
The steps in the appellant's argument in support of ground 1, which are reflected in the particulars to that ground, appear to be as follows:
1.A verdict of guilty for count 2 depended upon the jury being satisfied that the appellant used the HiLux that was stolen from the Wellard house.
2.The not guilty verdicts on counts 1 and 3 meant that the jury were not satisfied that the appellant was present at the Wellard house when the HiLux was stolen, and that the jury must have found that he used the vehicle after counts 1 and 3 had been committed.
3.The only basis on which it would have been open to the jury to find that the appellant had used the HiLux was on the basis that he was present at the Secret Harbour house during the offences charged in counts 4 and 5. However, the jury's verdict of not guilty for count 4 meant that they were not satisfied beyond reasonable doubt that the appellant was present at the Secret Harbour house during the offences charged in counts 4 and 5.
4.As there was no other evidentiary basis to find that the appellant used the stolen HiLux after counts 1 and 3 had been committed, the verdict of guilty for count 2 should be set aside.
When the steps in the appellant's argument are exposed in this way, it can be seen that, contrary to the terms of ground 1, the appellant does not actually contend that the verdict of guilty for count 2 is inconsistent with the verdicts of not guilty for counts 1 and 3. What the appellant in fact contends is that the verdict of guilty for count 2 was unreasonable or cannot be supported, having regard to the evidence, because it was not open to the jury to be satisfied beyond reasonable doubt that the appellant used the HiLux after it was taken from the Secret Harbour house.
It is unnecessary to refer to the principles that must be applied in the context of a ground in which it is argued that a verdict of guilty is unreasonable or cannot be supported, having regard to the evidence. They were comprehensively summarised in Sturniolo v The State of Western Australia.[14]
[14] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA).
This ground can be dealt with in short order.
The first step in the appellant's argument may be accepted, in part. Having regard to the State case, as we have already explained it, before finding the appellant guilty of count 2 the jury were required to be satisfied beyond reasonable doubt that the appellant had unlawfully either used the HiLux, or had taken it for the purposes of using it, or that he had driven or otherwise assumed control of that motor vehicle. Alternatively, the jury were required to find that the appellant had aided or assisted someone else to unlawfully use, take, drive or otherwise assume control over, the HiLux.
The second step in the appellant's argument may also be accepted. The State case in relation to all counts on the indictment was based on an allegation that the appellant had been present when all of those offences were committed. In that context, the jury's verdicts in relation to counts 1, 2 and 3 can be reconciled on the basis that the jury, acting cautiously, were not prepared to find that the appellant had been present at the Wellard house when those offences were committed, but they were prepared to find that the appellant had either stolen the HiLux, or had aided or assisted someone else to steal it, after the offences in counts 1 and 3 had been committed at the Wellard house.
However, the third step in the appellant's argument cannot be accepted. This is because the third step amounts to the same argument that the appellant relies on in support of ground 2. As we have already explained in the context of ground 2, and contrary to the third step in the appellant's argument in support of ground 1, the verdict of not guilty for count 4 did not mean that the jury were not satisfied beyond reasonable doubt that the appellant was present at the Secret Harbour house during the offences charged in counts 4 and 5.
As the appellant's counsel properly accepted at the hearing of the appeal, if ground 2 is dismissed, ground 1 must also be dismissed.[15]
[15] Appeal ts 15.
As we would refuse to grant leave in respect of ground 2, we would also refuse to grant leave to appeal for ground 1.
In circumstances in which we would not grant leave to appeal on any of the grounds of appeal relied on by the appellant, the appeal is taken to have been dismissed.[16] It follows that we would not grant an extension of time within which to appeal.
[16] Criminal Appeals Act, s 27(3).

Orders

For the foregoing reasons, we would make the following orders:
1.The application for an extension of time within which to appeal is refused.
2.Leave to appeal is refused.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Hon Justice Vaughan
25 MARCH 2025