Corbett v The State of Western Australia
[2020] WASCA 60
•23 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CORBETT -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 60
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 15 AUGUST 2019
DELIVERED : 23 APRIL 2020
FILE NO/S: CACR 213 of 2017
BETWEEN: KEVIN JAMES CORBETT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HALL J
File Number : INS 80 of 2014
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of murder - Whether a miscarriage of justice occurred as a result of defence counsel's failure to call an expert witness - Whether the police were obliged to conduct an electronic record of interview with a remand prisoner who gave evidence as a State witness - Whether the trial judge erred in relation to an 'intoxication direction' he gave to the jury - Whether the trial judge misdirected the jury in relation to their approach to the evidence of the remand prisoner - Whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 39, s 40
Criminal Code (WA), s 28(3), s 279
Criminal Procedure Act 2004 (WA), s 105, s 158, cl 4 of sch 3
Result:
Application for an extension of time within which to appeal dismissed
Applications for leave to adduce additional evidence in the appeal dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Clarke v The State of Western Australia [2018] WASCA 14
Colley v The State of Western Australia [2015] WASCA 79
Couzens v The State of Western Australia [2019] WASCA 54
DKA v The State of Western Australia [2019] WASCA 123
Huggins v The State of Western Australia [2018] WASCA 61
Impicciatore v The State of Western Australia [2020] WASCA 33
McMahon v The State of Western Australia [2010] WASCA 143
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was charged on indictment with one count of murder.
The count alleged that on or about 18 May 2013, at Narrogin, the appellant murdered Charmaine Lois Winmar, contrary to s 279 of the Criminal Code (WA) (the Code).
The appellant pleaded not guilty. Between 30 March 2016 and 20 April 2016 he was tried in the Supreme Court before Hall J and a jury. On 20 April 2016, the appellant was convicted as charged.
On 7 October 2016, the trial judge sentenced the appellant to life imprisonment with a minimum non‑parole period of 21 years. The sentence was backdated to 22 May 2013.
The appellant requires an extension of time within which to appeal.
The last date for appealing was 28 October 2016. The appellant did not file his appeal notice until 10 October 2017. His application for an extension of time is supported by his affidavit sworn 4 October 2017.
The appellant also requires leave to appeal.
The appellant's grounds of appeal are without merit. We would therefore refuse to grant an extension of time within which to appeal and we would refuse to grant leave to appeal. The appeal must be dismissed.
The relevant facts and circumstances of the offending
The relevant facts and circumstances of the offending, as found by the trial judge in his sentencing remarks, are as follows.
In 2012 the appellant commenced a relationship with Ms Winmar. Ms Winmar was from Katanning and had extended family there. The appellant spent time living in Katanning and also in Perth.
The relationship between the appellant and Ms Winmar was dysfunctional. The appellant was jealous, possessive and controlling. Ms Winmar complained to others that the appellant hurt her. However, Ms Winmar tolerated the appellant's treatment of her until about February 2013. At that time the appellant was remanded in custody on an unrelated charge.
While he was in custody the appellant communicated with Ms Winmar both by telephone and by letter. At the beginning, the tone of these communications was loving. However, his communications became increasingly jealous and threatening in nature as the appellant began to suspect that Ms Winmar was avoiding him.
On 4 April 2013, the appellant called Ms Winmar. He threatened, in abusive language, that he would kill her. In subsequent calls the appellant left messages in which he counted down the days to his release from custody and stated that when he was released Ms Winmar would be dead. In another call, the appellant said that he would hurt Ms Winmar, that she had nowhere to hide and that he would put her in a wheelchair.
On 12 April 2013, the appellant was released from custody. He resided at a hostel in Perth. The appellant had expected Ms Winmar to join him in Perth, despite the threats he had made. Between 1 and 18 May 2013, the appellant called Ms Winmar's telephone on more than 1,400 occasions. He also sent her abusive text messages.
On 16 May 2013, the appellant bought a one‑way bus ticket to Narrogin. The bus left the next day, 17 May 2013, from the East Perth bus terminal. Before he boarded the bus, the appellant went to the toilets at the terminal and wrote abusive graffiti about Ms Winmar and a man named Richard Penny.
By this time the appellant suspected that Ms Winmar had commenced a relationship with Mr Penny. He was correct. Ms Winmar and Mr Penny had formed a relationship and were living together in a house at Narrogin. The appellant had decided to travel to Narrogin to confront her about the new relationship.
The bus which the appellant boarded made a number of stops on the way to Narrogin. At Brookton the appellant wrote more abusive graffiti about Ms Winmar and Mr Penny in the toilets at a roadhouse. He did the same thing in public toilets at Narrogin when he arrived there at about 10.25 pm. During the journey from East Perth to Narrogin the appellant was overheard talking on the telephone about Ms Winmar and Mr Penny in derogatory terms.
After arriving at Narrogin the appellant enquired of people whom he met as to where Ms Winmar was living. The appellant had an address but it was incorrect. Sometime after 10.30 pm the appellant found Ms Winmar's house.
The appellant struck Ms Winmar multiple times with weapons, including a mop handle and an object with a sharp edge, probably a small axe. The weapon with a sharp edge inflicted a deep wound to her right forehead, which caused a skull fracture and a brain injury. The appellant used the mop handle to beat Ms Winmar repeatedly on various parts of her body. The mop handle left distinctive weals. Ms Winmar suffered multiple rib fractures and broken bones in her left hand, consistent with a defensive injury. Ms Winmar also had a punctured lung. The head injury or the punctured lung could have caused Ms Winmar's death. Her blood was found throughout the house.
When the appellant attacked Ms Winmar, Mr Penny was also present. Mr Penny suffered extensive injuries, including a head wound similar to that suffered by Ms Winmar. Later, Mr Penny was found unconscious in the bedroom. As a result of his head wound, Mr Penny had no memory of what had occurred.
The appellant's case at the trial
The appellant was represented at the trial by very experienced criminal defence counsel.
The appellant did not give evidence at the trial. Defence counsel called one witness, Robyn Stratton. The appellant's case was that Mr Penny had murdered Ms Winmar.
Leading defence counsel made submissions to the jury, in his opening address, to the following effect:
(a)There were only two people who could have killed Ms Winmar, namely the appellant and Mr Penny.
(b)The relationship between the appellant and Ms Winmar was dysfunctional.
(c)The appellant, Ms Winmar and Mr Penny were 'all alcoholics, drug users' (ts 172).
(d)Mr Penny had a history of violently assaulting Ms Winmar.
(e)On the night of the murder, a neighbour (namely Robert Carylon) heard two people 'swearing and cursing' at Ms Winmar's house. One was a man and the other was a woman. The neighbour identified the man's voice as that of Mr Penny. The neighbour had heard the man saying something like, 'you harlot' (ts 173).
(f)There was no dispute that on 17 May 2013 the appellant had travelled by bus to Narrogin. However, the appellant denied being responsible for the graffiti in the toilets at the East Perth bus terminal, the Brookton roadhouse, the Narrogin public toilets and Ms Winmar's house. The appellant acknowledged that on 17 May 2013 he went to Ms Winmar's house. According to the appellant, he had consensual sex with Ms Winmar.
(g)While the appellant was at Ms Winmar's house, he fought with Mr Penny. During the fight Mr Penny suffered a blood nose. The appellant was then attacked by two dogs. Mr Penny was the owner of the dogs. After being attacked by the dogs, the appellant departed from Ms Winmar's house, leaving his shoes behind. The arrangement which the appellant had made with Ms Winmar was that he and Ms Winmar would meet at a nearby park and would 'go away together'. In other words, according to the appellant, he and Ms Winmar would be 'reconciled' (ts 173 ‑ 174).
(h)A witness who was related to Mr Penny (namely Robyn Stratton) would give evidence that Mr Penny came to her house shortly after the murder and said that 'he thought he did it'. The witness would also give evidence that Mr Penny said 'he was arguing with [Ms Winmar] because she wanted to go back to [the appellant]'. Defence counsel submitted that, on the basis of that evidence, the appellant had no reason to kill Ms Winmar. She was 'coming back to him'. By contrast, Mr Penny had 'a reason to be angry, upset [and to] kill' (ts 174).
(i)A man who had been in prison on remand, while the appellant had been remanded in relation to the charged offence, would give evidence as a State witness. The remand prisoner would say that the appellant had made admissions to the effect that he had murdered Ms Winmar. However, the remand prisoner had 'every motive to make up lies'. When the appellant was arrested 'he had the right to remain silent and did so'. It was because of his silence that 'perhaps the police then recruited [the remand prisoner]' (ts 175).
(j)There was no dispute that the shoes found by police at Ms Winmar's house were the appellant's. However, a polo shirt found at the house did not belong to him.
(k)The tone and content of the telephone calls between the appellant and Ms Winmar were, without doubt, 'shocking', but they had to be considered 'in the context of … the dysfunctional aboriginal society' of which the appellant and Ms Winmar were part, 'where such language is the norm rather than the exception' (ts 176).
The trial judge's comments on the appellant's case in his Honour's sentencing remarks
The trial judge observed in his sentencing remarks that the suggestion that Mr Penny had murdered Ms Winmar was rejected by the jury. The jury's verdict against the appellant was supported by evidence of the threats the appellant had made to Ms Winmar and by evidence of his demeanour on the night in question. There was also other evidence which strongly implicated the appellant. In particular, there was graffiti on the bedroom wall at Ms Winmar's house that was similar in tone and content to the graffiti that the appellant had written earlier that night at several locations. Further, when Ms Winmar's body was examined it was determined that she had been vaginally and anally penetrated. Photographs of Ms Winmar lying motionless on her back while being sexually penetrated were found on her mobile telephone. The telephone had been discarded at the scene. The appellant's DNA was found at Ms Winmar's house and on her body. The DNA evidence confirmed that the appellant had been present at Ms Winmar's house and that he had sexual intercourse with her.
While he was in prison on remand, the appellant confessed to another remand prisoner what had happened. His Honour accepted that the confession was made and was truthful. The appellant told the other prisoner that he had gone to Ms Winmar's house and struck her on the head. The appellant said that Mr Penny was present at the time and that the appellant was going to endeavour to implicate him in the offending. The appellant told the other remand prisoner that he had anal sex with Ms Winmar and made Mr Penny watch. The appellant had endeavoured to clean the crime scene; in particular, he had washed Ms Winmar with the obvious purpose of removing blood. The appellant told the other remand prisoner that he had also struck Mr Penny and thought that he had killed him.
After killing Ms Winmar and making some effort to clean the crime scene, the appellant fled. He disposed of items as he fled, including clothes and the weapon he had used to inflict the head wounds to Ms Winmar and Mr Penny.
The appellant went to another part of Narrogin and then returned to Perth with a man to whom he was distantly related.
After he was arrested, the appellant made no admissions.
The grounds of appeal
The appellant was self‑represented in the appeal.
He relied on four grounds of appeal.
Ground 1 alleges, in essence, that a miscarriage of justice was occasioned at the trial by defence counsel's failure to call Dr Brian McDonald as a witness.
Ground 2 alleges, in essence, that the police did not conduct an electronic record of interview with the remand prisoner who gave evidence as a State witness at the appellant's trial.
Ground 3 alleges, in essence, that the trial judge erred in failing to give the jury an 'intoxication direction'.
Ground 4 alleges, in essence, that his Honour misdirected the jury in relation to how they should or should not use the evidence of the remand prisoner.
On 17 November 2018, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
The appellant's applications in the appeal for leave to adduce additional evidence
The appellant filed applications in the appeal on 30 November 2017, 12 September 2018, 6 December 2018 and 13 December 2018 for leave to adduce additional evidence.
On 29 March 2019, the appellant filed a statutory declaration dated 28 March 2019 (without a supporting application) seeking leave to adduce additional evidence, being a letter dated 13 March 2019 from Dr McDonald to the appellant.
Dr McDonald is a molecular geneticist. Dr McDonald's formal qualifications are a Bachelor of Science with Honours and a Doctor of Philosophy from the University of Western Australia. He has had more than 20 years experience in the testing, analysis and interpretation of DNA data. Dr McDonald has established and directed public and private laboratories.
The application filed on 30 November 2017 relates to a four‑page unsigned typewritten document dated 28 August 2015 which purports to have been written by Dr McDonald. In the document it is stated that the author was provided with a report dated 28 November 2014 and a report dated 3 July 2015 prepared by Dr Annette Broom in relation to DNA evidence found at Ms Winmar's house and relied upon by the State in its case against the appellant. The author said that he had been given part of a laboratory case file, but the documents he was given did not include 'the most critical documentation required to identify background and relevance of the [DNA] testing and its results'. The following appears under the heading 'Discussion points' at the end of the document:
All sites appear to have been gone over several times by staff taking samples at least 2 days after event [sic].
Only 3 persons compared with samples yet many results are mixtures with unidentified contributors. Williams needs to be put into the picture as someone who has clear [sic] been in the scene. If a possible offender then he has to be compared with other samples.
Several other profiles of unknowns identified.
In situations where blood is important then it must be confirmed by Hematrace testing as KM [that is, the Kastle Meyer presumptive test for blood] is clearly detecting material at the scene that is not blood. Bleach for example will produce positive results for some presumptive blood tests.
The donor of the 'blood' cannot be clearly determined when mixtures are encountered. It may be one, some or all of the DNA contributors. (original emphasis)
The reference in that passage to 'Williams' is to Edward Williams, whose DNA was found in a sample taken from a blind adjacent to the toilet in Ms Winmar's house.
The application filed on 12 September 2018 asserts, relevantly, that the appellant instructed his lawyers to engage Dr McDonald and to call him as a witness at the trial. However, his lawyers failed to act on those instructions. Dr McDonald was not called as a witness. An affidavit sworn by the appellant on 6 September 2018 in support of the application annexes a copy of the four‑page unsigned typewritten document dated 28 August 2015 which is the subject of the application filed on 30 November 2017.
The application filed on 6 December 2018 relates to an unsigned proof of evidence dated 30 March 2016 of the appellant. In a statutory declaration of the appellant made on 22 November 2018 in support of the application the appellant asserts that he instructed his lawyers to 'table' his unsigned proof of evidence at the trial. Defence counsel did not 'table' the document.
The application filed on 13 December 2018 also relates to the four‑page unsigned typewritten document dated 28 August 2015 which is the subject of the application filed on 30 November 2017.
The statutory declaration dated 28 March 2019 which the appellant filed on 29 March 2019 (without a supporting application) relates to a letter dated 13 March 2019 from Dr McDonald to the appellant. The letter reads, relevantly:
The DNA evidence disclosed by the State regarding your trial was incomplete in a number of documents.
The report dated 28 November 2014 involved testing of samples from Batches 1 to 23.
The report dated 14 September 2015 involved samples from Batch 28.
The report dated 10 November 2015 involved testing of samples from Batch 29.
The report dated 12 February 2016 involved testing of samples from Batch 30.
The last three reports were recently disclosed under subpoena.A further report dated 3 July 2015 has not been disclosed.
The Pathwest case notes disclosed prior to trial covered samples from Batches 1 ‑ 27. No documentation has been disclosed for batches 28 ‑ 30.
Case notes disclosed included 4357 pages however failed to include hundreds of pages based on the index of the file.
Amongst those missing pages were all those pages described as Request for Analysis RFA or Request for Examination RFE documents. These pages are prepared by Police and provide information regarding the submitted samples and the context underlying the analysis request.
On receipt of the RFA/RFE documents and the samples Pathwest staff will date stamp the RFA/RFE and indicate which samples were physically received. These documents then become part of the Pathwest case file and become the subject of disclosure with the rest of the case notes. To date, Pathwest has refused disclosure of this missing documentation.
In a letter to the Court of Appeal Office received on 29 October 2018, the appellant enclosed a copy of a letter dated 23 October 2018 from Dr McDonald to the appellant. In the letter Dr McDonald told the appellant that he would be 'happy to assist in [his] appeal and would also be agreeable to appear by video link' at the hearing. Dr McDonald said that he was 'still to receive various documentation from the case file refused by PathWest on the grounds that the documents were Police documents'. The specific documents were 'the "Request For Analysis" (RFA) forms that accompany samples for testing'.
In a letter to the Court of Appeal Office received on 6 August 2019, the appellant enclosed a letter dated 2 August 2019 from Dr McDonald to the appellant, a copy of the letter dated 13 March 2019 from Dr McDonald to the appellant referred to in the appellant's statutory declaration dated 28 March 2019 (see [45] above) and a copy of the letter dated 23 October 2018 from Dr McDonald to the appellant (see [46] above). In his letter dated 2 August 2019, Dr McDonald said:
Further to our recent telephone calls I now provide information regarding missing case file notes. The original disclosure contained 4357 [pages] based on the case file pagination in the front of the file. From counting what was received and this number there is [sic] 338 pages missing.
Subsequently further documentation was disclosed without a revised pagination page but pages up to at least 6776 pages. I have counted these to determine if any further are missing.
I have enclosed my notes regarding the missing page numbers, the pagination page 3 from the case file and a previous letter summarising the same issues which to date still do not appear to have been addressed.
As a consequence, I feel that I cannot effectively give evidence beyond that in my notes to [defence counsel] from your trial. I have enclosed those notes also.
Should disclosure of the missing material eventuate my position may well change.
It is apparent, from Dr McDonald's letter dated 2 August 2019 and from the four‑page unsigned typewritten document dated 28 August 2015 which purports to have been written by Dr McDonald, that Dr McDonald was retained prior to the appellant's trial (which began on 30 March 2016) to assist the appellant's case and that Dr McDonald assisted defence counsel by giving them notes.
Witness summonses issued in the appeal on the application of the appellant
On 5 September 2018, Mazza JA made orders, relevantly, as follows:
(a)The appellant's application for leave to issue a witness summons to Dr McDonald to give oral evidence filed on 9 April 2018 is granted.
(b)The appellant has leave to file and issue a new witness summons to produce a record or thing to Richard Utting.
(c)The appellant has leave to file and issue a new witness summons to produce a record or thing to Sandra De Maio.
Mr Utting and Ms De Maio were defence counsel at the appellant's trial.
On 5 June 2019, Mazza JA granted the appellant's application for Dr McDonald to appear and give oral evidence at the hearing of the appeal by video link.
It appears that the appellant did not in fact arrange for witness summonses to be served on Mr Utting or Ms De Maio. Neither Mr Utting nor Ms De Maio produced any records or things to the court.
On or about 15 January 2019, PathWest produced three documents in answer to a witness summons issued pursuant to an order made by Mazza JA on the application of the appellant. The documents comprised supplementary reports dated 14 September 2015, 10 November 2015 and 12 February 2016 prepared by Dr Broom, a forensic scientist employed by PathWest, in relation to items she had examined in connection with Ms Winmar's killing. Dr Broom gave evidence as a State witness at the appellant's trial.
Dr Broom's original report dated 28 November 2014 and her supplementary reports dated 14 September 2015, 10 November 2015 and 12 February 2016 were disclosed to the appellant prior to the trial. Another supplementary report dated 3 July 2015 was also disclosed to the appellant prior to the trial. Extracts from those reports were tendered, without objection, as part of the State's case at the trial. See exhibit P97 (ts 766), exhibit P98 (ts 784), exhibit P99 (ts 787), exhibit P100 (ts 788) and exhibit P101 (ts 788).
The organisation of the balance of these reasons
It is convenient to consider, first, ground 2, then ground 4, next ground 3 and, finally, ground 1.
Ground 2
Ground 2 complains that the police did not conduct an electronic record of interview with the remand prisoner who gave evidence as a State witness at the appellant's trial.
The appellant referred in his submissions to defence counsel's cross‑examination of Detective Sergeant Jamie Hutcheson as to why none of the interviews with the remand prisoner were audio or visually recorded. Detective Hutcheson explained that it was not normal practice for the police to audio or visually record interviews with witnesses who were not persons of interest or suspects (ts 1095).
Prior to the appellant's trial the remand prisoner had been in custody with the appellant at Hakea prison and Acacia prison.
In his opening address at the appellant's trial, leading defence counsel told the jury that the remand prisoner 'got a benefit for what he said about [the appellant] by a discount on his sentence' and that the remand prisoner 'had every motive to make up lies' (ts 175). Leading defence counsel also said that the police 'actively recruited [the remand prisoner] as their informant' (ts 175). According to leading defence counsel, the remand prisoner '[told] a tale that [sounded] convincing but [was] completely false' and it would be 'dangerous … to act on [the remand prisoner's] evidence' (ts 175).
At the appellant's trial, the remand prisoner gave evidence of various admissions the appellant had made to him in prison in relation to Ms Winmar's murder, namely:
(a)The appellant requested the remand prisoner to ask the remand prisoner's partner, who was studying nursing, how long semen lasted in a body and if 'they' (plainly, a reference to the police) could obtain DNA from semen in a body after 24 or 48 hours and whether 'they [would] know if it was [the appellant's] or not' (ts 1053 ‑ 1055).
(b)The appellant 'wanted to know … a bit more stuff about … forensics' and was 'worried that his fingerprint was on the tap at – at a residence in Narrogin' and he was worried because he thought the police had put his fingerprint on the tap (ts 1055 ‑ 1056).
(c)The house in Narrogin was a female's house, his 'former partner'. There was another man at the house (whom the appellant referred to as 'his uncle' but was plainly a reference to Mr Penny). '[T]hey were drinking at the - at the premises … all three of them' and 'it resulted into basically, yeah, more argument … in the house and then led into an assault happening at the premises' (ts 1056 ‑ 1057).
(d)The appellant said that he had assaulted the girl 'first by punching' and 'there was a second. That come later on … as he explained to me, that at a later time he'd stabbed the girl in the eye' and punched her in the eye and eye sockets as well (ts 1057, 1059).
(e)After the appellant had assaulted the girl 'before … the girl was stabbed in the eye with whatever … Kevin [that is, the appellant] told me that, you know, look, he assaulted her, it was a sexual assault that took place that he was worried about and he's led – let me to believe that that – that's what happened at the house'. Also, the appellant said that the sexual act '[b]etween himself and the deceased' was anal sex (ts 1058 ‑ 1059).
(f)The appellant said that he 'turned on … the uncle' after assaulting the girl. The appellant was 'getting the uncle to try and have sex with her as well'. The appellant said that he assaulted the uncle with 'fists and with a golf club'. There was a fight with the uncle and 'it ended up in the backyard' (ts 1057 ‑ 1059).
(g)The appellant was worried that there was 'all sand on him' (referring to the uncle) from the fight in the backyard. The appellant placed him in the bed at the rear of the house. The appellant was 'sure that the uncle was deceased as well, but he wasn't a hundred per cent' (ts 1059 ‑ 1060).
(h)The appellant said he 'placed her (referring to Ms Winmar) in the hallway on the bed'. He panicked after the assault and was worried about his fingerprints being on the bathroom '[b]ecause his fingerprints was there with – you know, with blood and stuff when – when he's tried to clean up the victim. That's why … Getting her into the bathroom and trying to wash her, clear her face' (ts 1059).
(i)The appellant said that when he left the house he went to a park a short distance away. He discarded 'clothing, mobile phone and - I don’t know, some – some type of a – a knife or end of a golf club and a jacket or something'. He put some of them down a drain and '[s]ome was skewered [sic] up the street on people's lawns'. The appellant said 'they'd (plainly a reference to the police) never find it', referring to a knife (ts 1060 ‑ 1061).
Leading defence counsel cross‑examined the remand prisoner in relation to, relevantly:
(a)written statements he gave to the police on 24 October 2013 and 26 November 2013 (ts 1067 ‑ 1069, 1072);
(b)his dealings with the police before he gave the written statements, including whether he had been promised a letter of comfort by police in connection with his sentencing (ts 1072 ‑ 1073, 1075 ‑ 1076); and
(c)the fact that he had been sentenced in the District Court on 29 May 2014 and had received a substantial discount on the sentence he would otherwise have received as a result of his agreeing to give evidence as a State witness at the appellant's trial (ts 1074 ‑ 1075).
Leading defence counsel cross‑examined the remand prisoner about his prior criminal record and put to him that the evidence he had given about the appellant's admissions in relation to Ms Winmar's murder were fabricated (ts 1084).
In his closing address, leading defence counsel submitted that the remand prisoner had 'lied and lied and lied' to get a 40% discount on his sentence (ts 1188).
During his summing up, the trial judge reminded the jury that leading defence counsel had submitted in his closing address that the remand prisoner was a liar and that he had fabricated his evidence about the appellant's admissions to secure a discount on his sentence (ts 1208, 1223).
The appellant's complaint in ground 2 that the police did not conduct an electronic record of interview with the remand prisoner is misconceived. The police were not, as a matter of law or otherwise, obliged to do so. There was evidence that it was not normal practice for the police to audio or visually record interviews with witnesses who were not persons of interest or suspects. The remand prisoner gave statements in accordance with s 158 read with cl 4 of sch 3 of the Criminal Procedure Act 2004 (WA). The statements were disclosed to the appellant prior to the trial.
Ground 2 is without merit.
Ground 4
Ground 4 asserts that the trial judge misdirected the jury in relation to how they should or should not use the evidence of the remand prisoner.
The appellant impugned the following passage in his Honour's summing up:
However, at the end of the day you [should not] act on [the remand prisoner's] evidence unless after carefully considering it you are convinced that he is telling the truth. If you are so convinced you should use that evidence. If you are not then you should put it aside and consider the rest of the evidence in the case (ts 1209). (emphasis added)
The appellant pointed out that earlier in his summing up the trial judge had told the jury that they were 'the sole judges of the facts', that it was 'up to [the jury] to decide what evidence [the jury accepted or rejected]' and that it was for the jury 'to determine what [was] proven on the evidence' (ts 1189).
The appellant submitted, relevantly, that:
(a)evidence that an accused has confessed to a fellow prisoner is 'tainted';
(b)evidence from prison informers is potentially unreliable;
(c)it is 'by no means certain' that every jury fully appreciates that the potential unreliability arises not so much because the fellow prisoner has been convicted of a serious crime, but because the character of the fellow prisoner has been altered for the worse by exposure to the values and culture of prison society; and
(d)if evidence from a prison informer is admitted, the jury must be given 'a stern warning about its dangers'.
It is well established that an impugned passage in a trial judge's summing up must be considered in the context of the summing up as a whole and as a jury listening to the summing up would be likely to understand the impugned passage. See DKA v The State of Western Australia.[1]
[1] DKA v The State of Western Australia [2019] WASCA 123 [43].
In the present case, his Honour made a number of relevant comments and gave a number of relevant directions to the jury in his summing up before the impugned passage.
The trial judge told the jury at the beginning of his summing up that:
(a)The jury were the sole judges of the facts.
(b)His Honour may make some comments to the jury about the evidence, but the jury were the sole judges of the facts.
(c)It was only what the jury found proven on the evidence that mattered.
(d)It was for the jury to decide what evidence the jury accepted or rejected; that is, it was for the jury to determine what was proven on the evidence.
(e)The jury were not obliged to accept anything his Honour may say about the evidence.
(f)If his Honour did make some comments on the evidence, he would make that clear to the jury by telling the jury that what his Honour said was a comment and it was a matter for the jury whether they accepted the comment or not (ts 1189).
His Honour summarised the evidence given by the remand prisoner and the submissions made by the prosecutor and defence counsel in relation to his evidence.
The trial judge instructed the jury that, before accepting the remand prisoner's evidence, they should give careful consideration to his evidence and the circumstances in which his evidence was given (ts 1208). His Honour reminded the jury that the remand prisoner had conceded that he had a long criminal record, including convictions for dishonesty and drug dealing (ts 1208). His Honour also reminded the jury that the remand prisoner had conceded that he had received a discount on his sentence for his cooperation with the police regarding the evidence he could give against the appellant and for his promised future cooperation with the authorities in relation to the charge against the appellant (ts 1208). His Honour further reminded the jury that it was the appellant's case that the remand prisoner had a powerful motive to tell lies to implicate the appellant in Ms Winmar's murder and that the appellant had indeed lied and fabricated his evidence (ts 1208). His Honour directed the jury about the remand prisoner's prior criminal record and the fact that he had received a discount on his sentence for his past and promised future cooperation with the authorities. His Honour said those were relevant matters which the jury should take into account in considering the remand prisoner's evidence (ts 1208).
His Honour then gave the jury the impugned direction (ts 1209).
Immediately after giving the impugned direction, the trial judge directed the jury that whether or not they believed the remand prisoner's evidence, that belief would not determine whether the appellant was guilty or not guilty of Ms Winmar's murder because the jury must consider all of the evidence and not merely the remand prisoner's evidence in isolation (ts 1209).
We are satisfied that his Honour did not err in law in giving the impugned direction. We are also satisfied that the impugned direction did not occasion a miscarriage of justice at the trial. Our reasons are as follows.
First, on a fair reading of the trial judge's summing up as a whole, the jury would have been in no doubt that they were the sole judges of the facts; that it was a matter for the jury to decide what evidence they accepted or rejected; and that it was for the jury to determine what facts were proven by the evidence they accepted.
Secondly, his Honour did not tell the jury that they should accept the remand prisoner's evidence. His Honour did not even suggest that the jury might accept his evidence. His Honour gave the jury clear and comprehensive directions as to the remand prisoner's history of dishonesty and his motive for giving false evidence against the appellant. His Honour told the jury that those matters were relevant factors which the jury should take into account in considering his evidence. His Honour emphasised that the jury should give the remand prisoner's evidence careful consideration.
Thirdly, it would have been blindingly obvious to the jury that the remand prisoner was a person of bad character and that the remand prisoner had a personal self‑interest in the evidence he gave which implicated the appellant. It is not apparent from the trial record that the remand prisoner had any attractive features or that there were any other circumstances which gave rise to a real risk that the jury might overlook the remand prisoner's status as a person of bad character with his own interests to serve. There was no hidden danger in relation to the remand prisoner's evidence which the jury might have been unable to appreciate without the assistance of a further direction or a warning from his Honour.
Fourthly, his Honour's statement in the impugned direction that the jury 'should use [the remand prisoner's] evidence' was made upon the express condition that the jury, after careful consideration, was convinced that the remand prisoner was telling the truth. His Honour clearly and emphatically told the jury that it was only if they were convinced, after carefully considering his evidence, that the remand prisoner was telling the truth, that the jury 'should use that evidence'. If the jury was not convinced, after carefully considering his evidence, that the remand prisoner was telling the truth, then the jury should put that evidence aside.
Fifthly, his Honour's statement in the impugned passage that if the jury, after carefully considering his evidence, was convinced that the remand prisoner was telling the truth, then the jury 'should use that evidence', was consistent with the oath taken or the affirmation made by each juror. By s 105 of the Criminal Procedure Act, each juror must take an oath or make an affirmation to give a true verdict 'according to the evidence' upon the issues to be tried by the juror.
Sixthly, if the jury, after carefully considering his evidence, was convinced that the remand prisoner was telling the truth, the jury would be acting perversely, and contrary to their oaths or affirmations to give a true verdict 'according to the evidence' upon the issues to be tried, if the jury did not take that evidence into account.
Seventhly, the appellant's competent and very experienced criminal defence counsel did not make any complaint to the trial judge about the impugned direction. Defence counsel did not request a further direction or a redirection. It appears that defence counsel, absorbed in the atmosphere of the trial, did not perceive that the appellant had suffered any prejudice from the impugned statement.
Eighthly, in all the circumstances, there was no perceptible risk of a miscarriage of justice in relation to the jury's assessment of the remand prisoner's evidence arising from the directions which his Honour gave or any direction or warning which his Honour did not give.
Ground 4 is without merit.
Ground 3
Ground 3 asserts that the trial judge erred in failing to give the jury an 'intoxication direction'.
The appellant noted, correctly, in his submissions, that during an adjournment in his Honour's summing up his Honour raised with defence counsel whether there was 'any need for an intoxication direction'. Leading defence counsel said that there was 'certainly evidence [that the appellant] had been drinking that night'. His Honour responded that 'in that case, I probably should give them an intoxication direction' (ts 1197). It is apparent that his Honour had in mind a direction in accordance with s 28(3) of the Code, which provides:
When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
The appellant's complaint is that the trial judge did not direct the jury that 'they needed to ask themselves [whether] the prosecution [had] proved beyond reasonable doubt that the intoxicated accused intended to act in the way [the prosecution claimed]'.
At the trial his Honour gave the jury a document headed 'Question Trail'. Question 4 of the document read, relevantly:
Did [the appellant] intend to kill or do a life endangering injury to [Ms Winmar]?'
During the trial judge's summing up:
(a)His Honour told the jury that one of the issues at the trial may be whether the appellant had an intention to do an injury that was life endangering, this being an issue raised by question 4 of the Question Trail document (ts 1202).
(b)His Honour instructed the jury that the law provides that where an intention to cause a specific result is an element of an offence, intoxication can be taken into account in ascertaining whether such an intention was held by the accused. Although being intoxicated or drunk is not in itself an excuse or a justification, it may affect whether the accused formed an intention to cause a specific result (ts 1202).
(c)His Honour reminded the jury that there was some evidence that the appellant had been drinking on the night in question. That was evidence that the jury could take into account in deciding whether the appellant had formed the specific intention referred to in question 4 of the Question Trail document (ts 1202).
(d)His Honour directed the jury that intoxication can affect a person's clarity of mind; that is, whether the person can think sufficiently clearly that he or she can form an intention to cause a particular injury. However, the fact that a person may be drunk does not necessarily mean that he or she is incapable of forming an intention. People who are drunk may do things that they would not do when sober, but that does not mean that at the time they do those things they did not intend to cause a particular result (ts 1202).
The appellant's competent and very experienced criminal defence counsel did not raise any issue with the trial judge about his Honour's directions in relation to intoxication. Defence counsel did not request a further direction or a redirection. It is apparent that defence counsel, absorbed in the atmosphere of the trial, did not perceive that there was any necessity for his Honour to elaborate upon the directions in order to avoid a perceptible risk of a miscarriage of justice.
We are satisfied that, in all the circumstances, the trial judge's intoxication direction was appropriate and in accordance with s 28(3) of the Code. No further direction was required in order to ensure that the appellant received a fair trial according to law.
Ground 3 is without merit.
Ground 1
Ground 1 asserts that a miscarriage of justice was occasioned at the trial as a result of defence counsel's failure to call Dr McDonald as a witness.
The appellant submitted that he had instructed defence counsel to call Dr McDonald as an expert witness at his trial. The appellant asserted that Dr McDonald is 'a specialist expert in matters regarding DNA evidence in courts throughout Australia'. The appellant said that, according to Dr McDonald, he was given only 'part of the critical information to identify part of the background and relevance of testing and its results'.
At the hearing of the appeal, the appellant said that, on the basis of Dr McDonald's correspondence, if the appellant had killed Ms Winmar in the manner alleged by the prosecution then there should have been more of his DNA throughout Ms Winmar's house (appeal ts 75).
This court has summarised on numerous occasions the law relating to a ground of appeal which alleges that a miscarriage of justice was occasioned by defence counsel's conduct of the defence case. See, for example, McMahon v The State of Western Australia;[2] Colley v The State of Western Australia;[3] Huggins v The State of Western Australia;[4] and Morgan v The State of Western Australia [No 2].[5] It is unnecessary to repeat the applicable legal principles. It is sufficient to note that an appellant who seeks to demonstrate that the conduct of defence counsel occasioned a miscarriage of justice at his or her trial undertakes a heavy burden which is not easily discharged. In general, an accused is bound by his counsel's conduct of the defence. Counsel has a broad discretion as to the manner in which to conduct the defence. Forensic decisions which are within counsel's discretion include what witnesses to call or not call; what questions to ask or not ask; what lines of argument to pursue or not to pursue; and what points to emphasise or abandon. If, on appeal, it is apparent that a decision made by defence counsel is capable of reasonable explanation on the basis that it was taken to obtain a forensic advantage or to avoid a forensic disadvantage, the decision will not ordinarily give rise to a miscarriage of justice.
[2] McMahon v The State of Western Australia [2010] WASCA 143 [24] ‑ [27].
[3] Colley v The State of Western Australia [2015] WASCA 79 [29] ‑ [33].
[4] Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401].
[5] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [205] ‑ [208].
As we have mentioned, defence counsel told the jury in his opening address that:
(a)There were only two people who could have killed Ms Winmar, namely the appellant and Mr Penny.
(b)The appellant acknowledged that on 17 May 2013 he went to Ms Winmar's house. According to the appellant, he had consensual sex with Ms Winmar.
Defence counsel repeated to the jury in his closing address that the appellant and Mr Penny were the only two people who could have killed Ms Winmar (ts 1179).
Although, as we have mentioned, the appellant did not give evidence at the trial, he contended through defence counsel that Mr Penny was the murderer.
At the trial, Dr Jodie White was called as a State witness. She is a forensic pathologist. Dr White is a Fellow of the Royal College of Pathologists of Australasia. At the time of the trial she had worked as a forensic pathologist for 11 years. Dr White performed a post mortem examination of Ms Winmar. She gave evidence about genital injuries suffered by Ms Winmar. There was diffuse bruising with swelling over Ms Winmar's mons pubis area down into the groin, consistent with blunt force injury or an impact to that area (ts 672). Dr White said it was not possible to determine whether sexual intercourse with Ms Winmar occurred pre mortem or post mortem (ts 672).
As we have mentioned, at the trial Dr Broom, a forensic scientist, was called as a State witness. At the material time she worked at PathWest. Dr Broom's formal qualifications are a Bachelor of Science with Honours from the University of Manchester and a Doctor of Philosophy from the University of Leicester. At the time of the trial she had worked as a forensic scientist at PathWest for more than 10 years (ts 706).
Dr Broom gave evidence that:
(a)statistical weight supported the conclusion that the appellant's DNA and Ms Winmar's DNA were contributors to DNA profiles found in swabs taken from Ms Winmar during the post mortem examination, including an outer labia swab, an anal swab and a low vaginal swab; and
(b)statistical weight supported the conclusion that the appellant's DNA was a contributor to DNA profiles found in swabs taken from Ms Winmar's neck, umbilicus, right inner thigh, left inner thigh, right breast, left breast and right ankle (ts 766 ‑ 772).
Dr Broom also gave evidence that statistical weight supported the conclusion that the appellant's DNA was a contributor to DNA profiles taken from swabs of the hot and cold laundry tap handles at Ms Winmar's house (ts 732 ‑ 733).
Further, Dr Broom gave evidence that:
(a)the appellant's DNA matched a single source DNA profile taken from a swab of the floor at the foot of the bed in the master bedroom at Ms Winmar's house;
(b)statistical weight supported the conclusion that the appellant's DNA and Ms Winmar's DNA were contributors to a mixed DNA profile taken from another swab of the floor at the foot of the bed in the master bedroom at Ms Winmar's house; and
(c)statistical weight supported the conclusion that the appellant's DNA was a contributor to another mixed DNA profile taken from a swab of the floor between the bed and the wall in the master bedroom at Ms Winmar's house (ts 777 ‑ 778).
At the trial, defence counsel conducted a detailed cross‑examination of Dr Broom (ts 789 ‑ 812). She was a cooperative witness. It is apparent from the content of the cross‑examination and the content of the four‑page unsigned typewritten document dated 28 August 2015 which purports to have been written by Dr McDonald, that defence counsel used the four‑page document in cross‑examining Dr Broom.
During cross‑examination Dr Broom accepted that:
(a)The Kastle Myer test is merely a presumptive test for human blood (ts 790).
(b)The HemaTrace test is a confirmatory test for human blood (ts 791).
(c)A very large number of swabs were taken from Ms Winmar's house and her body for testing. A HemaTrace test was carried out only in relation to about one in 20 of the swabs (ts 791).
(d)It was possible that the appellant's DNA on the laundry taps in Ms Winmar's house could have been put on the taps by secondary transfer. Dr Broom could not say how likely it was that secondary transfer had occurred. She said that it was 'a very complex subject that depends upon a large number of factors and so [she could not say] how likely it would be under any possible scenario' (ts 795).
(e)Similarly, it was possible that the appellant's DNA on the washing machine in Ms Winmar's house had been put on the machine by secondary transfer. Once again, Dr Broom could not say how likely it was that secondary transfer had occurred (ts 798).
(f)No HemaTrace test and no test for semen was performed on the swab of a stain at the foot of the bed in the master bedroom at Ms Winmar's house (ts 799 ‑ 800).
The prosecutor submitted in her closing address that:
(a)Ms Winmar's DNA was found on the hot water tap in the laundry; and
(b)the appellant's DNA was found on the laundry taps (ts 1169).
The prosecutor contended that that evidence could assist the jury to conclude that the appellant had undertaken a 'clean‑up' at Ms Winmar's house (ts 1170).
Leading defence counsel made the following submissions in his closing address based on Dr Broom's evidence:
[A]s I said no dispute [the appellant] was at [Ms Winmar's] house. You've got his palm prints there and you've got his DNA inside so there's no dispute about that and there's no dispute he had sex with her at some stage.
The DNA which is on the hot tap gives a single profile for [Ms Winmar]. … There's no HemaTrace test so you can't say, 'Well, that's blood'. [Constable] Malins took swabs two days later. On the hot tap [the appellant] to the highest probability with a mix of two. Cold tap [the appellant] to the highest probability.
Now, Dr Broom when she gave evidence talked about secondary transference of DNA. … And Dr Broom said with all of this, she couldn't say whether the DNA [on the taps] was from primary transfer or secondary transfer.
Now, washing machine lid. … [The appellant's] DNA is found in a mix of two, but a number low enough to suggest it was a finding by coincidence. That means it's meaningless, quite frankly.
And again, the secondary transfer aspect to that. At the foot of the bed in the main bedroom, which comes up in exhibit P25, swab LD159. Single profile, it's only a partial profile. No HemaTrace. It's described in the forensic exhibits matrix as an altered stain and transfer.
It wasn't tested for semen. The amount of DNA recovered was very low and again, the secondary transfer can't be discounted.
So have a look very carefully at this DNA evidence and be very careful. …
All the forensics tell you [is] what they've found after the events. They don’t tell you the sequence of events. They don't tell you who did what at all. So be very careful you're not intimidated by all of this volume of information (ts 1183 ‑ 1184).
At the trial, Senior Constable David Walker was called as a State witness. He is a fingerprint expert. Constable Walker gave evidence that the appellant's palm print had been found on the front door of Ms Winmar's house (ts 576 ‑ 577).
Accordingly, it was not in dispute at the trial that the appellant had been in Ms Winmar's house on the night of the murder. His palm print and his DNA were found on various items at the house. Also, it was not in dispute that at some stage the appellant had sexual intercourse with Ms Winmar. When Ms Winmar's body was examined it was apparent that she had been vaginally and anally penetrated. The appellant's DNA was a contributor to DNA profiles found in swabs taken from Ms Winmar's outer labia and anus. There was no evidence as to whether the sexual intercourse with Ms Winmar was consensual or not.
Part 4 of the Criminal Appeals Act 2004 (WA) is headed 'Provisions applicable to any appeal' and comprises s 36 to s 45.
Section 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.
Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following ‑
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence.
This court has summarised on numerous occasions the principles governing the admission on appeal of additional evidence not adduced at the trial. See, for example, Clarke v The State of Western Australia;[6] Huggins [384] ‑ [397]; and Impicciatore v The State of Western Australia.[7] It is unnecessary to repeat the applicable legal principles.
[6] Clarke v The State of Western Australia [2018] WASCA 14 [231] ‑ [246].
[7] Impicciatore v The State of Western Australia [2020] WASCA 33 [218] ‑ [232].
The appellant has not identified what relevant evidence Dr McDonald may have been able to give at the trial, apart from the appellant's assertion at the hearing of the appeal that, on the basis of Dr McDonald's correspondence, if the appellant had killed Ms Winmar in the manner alleged by the prosecution then there would have been more of his DNA throughout Ms Winmar's house. However, Dr McDonald's expertise is in the testing, analysis and interpretation of DNA data. There is no evidence that he has any expertise in the analysis of crime scenes. In any event, there is no statement in any of Dr McDonald's correspondence (including the four‑page unsigned typewritten document dated 28 August 2015) to the effect that if the appellant had killed Ms Winmar in the manner alleged then there would have been more of his DNA throughout Ms Winmar's house.
In these circumstances, we considered that no purpose would be served in hearing oral evidence from Dr McDonald. Accordingly, we declined to do so (appeal ts 85).
The principal facts in issue at the trial were whether the appellant had by any act or acts caused Ms Winmar's death and, if so, whether he had killed her with the requisite intent for murder. In circumstances where there was no dispute at the trial that the appellant had been at Ms Winmar's house at about the time of her death, that the appellant had had sexual intercourse with Ms Winmar at about the time of her death and that the appellant's DNA was found at Ms Winmar's house and on and in her body, the failure of the police forensic officers to find more of the appellant's DNA throughout the house does not, upon the evidence as a whole, make it less likely that the appellant killed Ms Winmar with the requisite intent for murder.
As we have mentioned, it is apparent from Dr McDonald's letter dated 2 August 2019 and from the four‑page document dated 28 August 2015, which purports to have been written by Dr McDonald, that Dr McDonald was retained prior to the appellant's trial to assist the appellant's case and that Dr McDonald assisted defence counsel by giving them notes. We are satisfied that there is a rational explanation for defence counsel's decision not to call Dr McDonald as a witness at the trial. Defence counsel had obtained answers from Dr Broom in cross‑examination which, having regard to the facts that were not in contest, were of assistance to the appellant's case. Also, on the information before this court, any evidence that Dr McDonald could have given would not have further advanced the appellant's case by diminishing the likelihood that the appellant had killed Ms Winmar or by increasing the possibility that Mr Penny had killed her.
The appellant has not established, having regard to the facts that were not in contest, how any evidence that Dr McDonald may have been able to give:
(a)would have been relevant to the facts in issue at the trial; or
(b)may have raised a reasonable doubt as to the appellant's guilt.
Further, the appellant has not established, having regard to the facts that were not in contest, how the absence of any evidence that Dr McDonald may have been able to give occasioned a miscarriage of justice at the trial.
There is no merit in the appellant's complaint that, according to Dr McDonald, he was given only 'part of the critical information to identify part of the background and relevance of testing and its results'. The appellant had ample opportunity prior to the trial and during the interlocutory proceedings in the appeal to obtain by witness summons all information which Dr McDonald may have needed to provide advice to the appellant.
Dr McDonald's correspondence (including the four‑page unsigned typewritten document dated 28 August 2015) does not materially advance the appellant's case in relation to ground 4.
We are not satisfied, on the information before this court, that Dr McDonald could have given any relevant evidence at the trial regarding the DNA actually found at the murder scene or the DNA actually found in or on Ms Winmar's body that was materially different from the evidence given by Dr Broom at the trial.
In his statutory declaration dated 13 December 2018 in support of his application to adduce the four‑page document dated 28 August 2015, the appellant refers to statements in the document that swabs taken from Ms Winmar at the post mortem included DNA attributable to the appellant. The appellant asserts that the existence of his DNA in those samples was consistent with his case at the trial that he had consensual sexual intercourse with Ms Winmar before he left her house. There is no merit in that assertion. As we have mentioned, there was no evidence at the trial as to whether the appellant's admitted sexual intercourse with Ms Winmar was consensual or not. Nothing in the document dated 28 August 2015 clarifies the position.
Dr Broom's original report dated 28 November 2014 and her supplementary reports dated 3 July 2015, 14 September 2015, 10 November 2015 and 12 February 2016 were consistent with the oral evidence she gave at the appellant's trial.
The unsigned proof of evidence dated 30 March 2016 of the appellant, which is the subject of the application filed on 6 December 2018, contains self‑serving statements by the appellant consistent with his innocence. In the unsigned proof of evidence it is asserted that the appellant's admitted sexual intercourse with Ms Winmar was consensual. It appears that the unsigned proof of evidence formed the basis on which defence counsel conducted the appellant's case at the trial. However, as we have mentioned, the appellant elected not to give evidence at the trial. There is no basis in ground 4, any of the other grounds of appeal or any of the information before this court for any suspicion (let alone any conclusion) that the appellant was not properly advised as to his right to give evidence or that the appellant did not make a fully informed and voluntary decision not to give evidence or that a miscarriage of justice arose at the trial as a result of his failure to give evidence. Nothing in the unsigned proof of evidence, apart from the appellant's self‑serving assertion, establishes that his admitted sexual intercourse with Ms Winmar was consensual. We would not grant the appellant leave to adduce the unsigned proof of evidence as additional evidence in support of ground 4.
Further and in any event:
(a)the four‑page document dated 28 August 2015, which purports to have been written by Dr McDonald;
(b)the letters dated 23 October 2018, 13 March 2019 and 2 August 2019 from Dr McDonald to the appellant;
(c)all of the admissible evidence at the trial in relation to the DNA actually found at the murder scene or the DNA actually found in or on Ms Winmar's body; and
(d)all of the other information before this court in relation to the DNA actually found at the murder scene or the DNA actually found in or on Ms Winmar's body,
do not establish that the appellant should not have been convicted or even the existence of a significant possibility that a jury, acting reasonably, would have acquitted the appellant.
It therefore cannot be said that a miscarriage of justice arose from the fact that:
(a)the four‑page document dated 28 August 2015 was not adduced into evidence at the trial;
(b)the correspondence from Dr McDonald to the appellant was not adduced into evidence at the trial; and
(c)Dr McDonald did not give evidence as a defence witness at the trial.
Ground 1 is without merit.
Should the verdict of guilty on which the conviction is based be set aside because, having regard to the evidence, it is unreasonable or cannot be supported?
There is no ground of appeal which asserts that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
However, the appellant claims in his written submissions that the verdict of guilty 'might' be regarded as unreasonable or unsupported by the evidence. We will consider that issue having regard to the appellant's status as a self‑represented litigant who has been convicted of a very serious offence.
This court has summarised on numerous occasions the law relating to a ground of appeal which alleges that the verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, within s 30(3)(a) of the Criminal Appeals Act. See, for example, Wells v The State of Western Australia;[8] and Couzens v The State of Western Australia.[9] It is unnecessary to repeat the applicable legal principles.
[8] Wells v The State of Western Australia [2017] WASCA 27 [13].
[9] Couzens v The State of Western Australia [2019] WASCA 54 [46] ‑ [54].
As we have mentioned, the unsigned proof of evidence dated 30 March 2016 of the appellant contains self‑serving statements by the appellant consistent with his innocence. Generally for the reasons we have given at [130] above, in the context of ground 4, we would not grant the appellant leave to adduce the unsigned proof of evidence as additional evidence in support of his contention in his written submissions that the verdict of guilty 'might' be regarded as unreasonable or unsupported by the evidence. We merely add that it was not, of course, open to defence counsel, as a matter of law, to 'table' (or tender) the appellant's unsigned proof of evidence at the trial even if, as the appellant asserts, he instructed his lawyers to 'table' (or tender) the document at the trial.
We are satisfied, after examining the trial record and weighing the evidence, that the State had a powerful circumstantial evidence case against the appellant. We note, in particular, the combined force of the evidence as to the following:
(a)the history of the dysfunctional relationship between the appellant and Ms Winmar;
(b)the appellant's jealous, possessive and controlling attitude in relation to Ms Winmar;
(c)the tone and content of the messages sent by the appellant to Ms Winmar shortly before his release from custody, including the threats to kill her, the threat to hurt her and the statement that she had nowhere to hide and that he would put her in a wheelchair;
(d)the tone and content of the graffiti about Ms Winmar and Mr Penny that was written in the toilets at the East Perth bus terminal, the Brookton roadhouse, the Narrogin public toilets and Ms Winmar's house, and the available inference that the appellant had written the graffiti;
(e)the appellant's admitted presence at Ms Winmar's house on the night of her murder;
(f)the fact that, on the appellant's case at trial, Ms Winmar must have been killed either by the appellant or by Mr Penny;
(g)the severe injuries suffered by Mr Penny and the absence of any serious injury to the appellant on the night in question;
(h)the similarity between the head injury suffered by Ms Winmar and the head injury suffered by Mr Penny; and
(i)the remand prisoner's evidence as to the admissions against interest made by the appellant.
At the trial:
(a)Mr Carylon gave evidence that at the material time he was a neighbour of Ms Winmar. On the night of Ms Winmar's death, at about 7.30 pm, he heard 'yelling and screaming and carrying on like wildfire' emanating from Ms Winmar's house (ts 432). Mr Carylon heard Mr Penny and Ms Winmar arguing every day. On the night in question he heard 'two angry voices' (ts 435). One of the voices 'sounded like [Mr Penny's] wife' (ts 435). They were 'yelling and swearing and carrying on like pork chops' (ts 435). Mr Penny 'sounded angry' (ts 436).
(b)Ms Stratton gave evidence that Mr Penny was her cousin. She spoke to him 'a couple of days' after Ms Winmar's death (ts 1139). She noticed that Mr Penny had a wound on his head. Mr Penny told her that he had been injured while he was fighting with the appellant. When she spoke to Mr Penny her former partner, Athol Michael, was present. Mr Penny said that he needed to talk to Ms Stratton and Mr Michael. Mr Penny told them that he thought he had killed Ms Winmar. Mr Penny said they had been arguing during the day. He had 'blacked out a couple of times' and he thought he had 'done it' (ts 1141). Mr Penny recounted that they had been arguing because they knew the appellant was travelling to Narrogin on a bus and that the appellant had said that he and Ms Winmar 'were going to get back together' (ts 1141). Mr Penny told them that he remembered arguing with Ms Winmar, 'that he blacked out and then … that was all he remembered' (ts 1141). Ms Stratton elaborated that the appellant had told them that he remembered 'starting to fight with [the appellant] and then he blacked out' (ts 1141).
The evidence given by Mr Carylon and Ms Stratton about Mr Penny's alleged out of court assertions was hearsay.
Mr Michael was a State witness at the trial. He recalled that in about November 2013 Mr Penny visited the house Mr Michael then shared with Ms Stratton. There was a conversation about the death of Ms Winmar. During the conversation Ms Stratton 'was in and out between the conversations and during the conversation' (ts 1129). Sometimes she would be there and sometimes she would not be there. During the conversation Mr Penny did not say that he thought he had killed Ms Winmar.
A jury, acting reasonably, was not precluded by the state of the evidence from convicting the appellant on the charge of murder. A jury, acting reasonably, was entitled:
(a)to accept the remand prisoner's evidence in all material respects;
(b)to reject the evidence of the other witnesses at the trial (in particular, the evidence of Mr Carylon and Ms Stratton) to the extent that it had any capacity to exculpate the appellant or inculpate Mr Penny; and
(c)to reject the appellant's defence.
A jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of the evidence as a whole, that the appellant killed Ms Winmar with the requisite intent for murder.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on the charge of murder. The verdict of guilty was not unreasonable. It was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the charge of murder or as to the correctness of his conviction on that charge. It would not be dangerous, in the circumstances, to permit the verdict of guilty of murder to stand.
Conclusion
The appellant's grounds of appeal are without merit.
We would therefore:
(a)dismiss the appellant's applications in the appeal for leave to adduce additional evidence in the appeal;
(b)refuse to grant the appellant an extension of time within which to appeal; and
(c)refuse to grant the appellant leave to appeal.
The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss23 APRIL 2020
0
6
3