Dodd v The State of Western Australia
[2007] WASCA 86
•30 APRIL 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DODD -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 86
CORAM: STEYTLER P
PULLIN JA
BUSS JA
HEARD: 7 DECEMBER 2006
DELIVERED : 30 APRIL 2007
FILE NO/S: CACR 62 of 2006
BETWEEN: LAURIE JOHN DODD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY ACJ
File No :INS 230 of 2004
Catchwords:
Criminal law - Appeal against conviction - DNA evidence - Identification evidence - Unsafe and unsatisfactory verdicts - Failure properly to put the defence case - Judicial comment - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Application for leave to appeal on ground 5 dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M R Hall
Respondent: Mr S Vandongen
Solicitors:
Appellant: Hall & Hall Lawyers
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Anderson (2001) 127 A Crim R 116
Bradshaw v The State of Western Australia [2006] WASCA 41
Flowers v The Queen (2005) 153 A Crim R 110
Hiemstra v The State of Western Australia [2006] WASCA 70
Liberato v The Queen (1985) 159 CLR 507
Milat (1996) 87 A Crim R 446
R v Doheny and Adams [1997] 1 Cr App Rep 369
R v Noll [1999] 3 VR 704
R v Sinanovic [2000] NSWCCA 396
R v Zorad (1990) 19 NSWLR 91
RPS v The Queen (2000) 199 CLR 620
S (2002) 132 A Crim R 326
Tsigos v The Queen (1965) 39 ALJR 76
STEYTLER P: I agree with Buss JA.
PULLIN JA: I agree with Buss JA.
BUSS JA: After a trial before Murray ACJ and a jury on 26 - 27 April 2006, the appellant was convicted on the following counts:
(1)Count 1: On 9 January 2000, the appellant entered the place of the complainant, without his consent, armed with a dangerous weapon, namely, a knife, with intent to commit an offence (aggravated burglary);
(2)Count 2: On the same date and at the same place as in count 1, the appellant, armed with a dangerous weapon, namely, a knife, attempted to steal from the complainant, with threats of violence, a quantity of money the property of the complainant (attempted armed robbery); and
(3)Count 3: On the same date and at the same place as in count 1, the appellant, armed with a dangerous weapon, namely, a knife, stole from the complainant's mother, with threats of violence, a handbag containing cash and personal effects the property of the complainant's mother (armed robbery).
The appellant was sentenced to three years' imprisonment on count 1, 2 years' imprisonment on count 2 and 4 years' imprisonment on count 3, to be served concurrently, but cumulatively upon existing terms, with eligibility for parole.
The appellant appeals against the convictions on counts 2 and 3. He also appeals against the conviction on count 1, but only as to the circumstance of aggravation, namely, being armed with a knife.
The respondent's case
The respondent's case was that, in the early hours of 9 January 2000, the appellant, wearing a balaclava, smashed an exterior glass door and entered the complainant's house. In so doing, he cut his hand and left a smear of blood on an adjacent curtain. Armed with a knife, the appellant entered the complainant's bedroom, and demanded money, without success. Upon leaving the complainant's bedroom, an alarm in the house sounded. The appellant then went into the bedroom of the complainant's mother, threatened her and stole her white handbag, before returning to
the complainant's bedroom and threatening him again. In the course of entering or leaving the complainant's bedroom, the appellant left blood on the bedroom door. The appellant then left the house by the route he had entered. Outside the house, the appellant entered a motor vehicle and was driven away by another person, who had been sitting in the vehicle. His departure was witnessed by a neighbour, across the road from the complainant's house.
Later that morning, in a nearby suburb, a motorist found the white handbag on a road, and handed it to the police. Soon afterwards, the complainant attended a police station and identified the handbag as the one stolen from his mother. The handbag contained a balaclava, which the complainant also identified as the one worn by the intruder.
A DNA profile was obtained from the blood on the complainant's bedroom door, and from blood on the balaclava found in the white handbag. Those profiles matched that of the appellant. No DNA profile was able to be obtained from the blood on the curtain.
The appellant's case
At the time of the offences, the appellant was an escaped prisoner from Broome Regional Prison. He escaped on 9 December 1999 and was not recaptured until 24 February 2000.
The appellant's case was that he, a family member, and a friend of the family member, agreed to commit a "simple burglary". They manufactured two balaclavas from the sleeves of a shirt which had been worn by the appellant. The appellant and the family member were driven to the scene by the friend, who parked the vehicle down the road from the complainant's house, and waited. The appellant and the family member walked to the house, and one of them smashed an exterior glass door to gain entry. Shortly after they entered the house, the alarm sounded, and the appellant fled the scene, leaving the family member behind. The appellant ran to the getaway vehicle, removed his balaclava and left it in the vehicle, and ran away. The family member then threatened the complainant, stole from the complainant's mother, and was seen by the neighbour when leaving the premises.
The appellant suggested that the family member and the friend may have "set him up", by putting his balaclava in the handbag and leaving it on the road to be found, as revenge for his desertion from the scene of the burglary. Alternatively, the appellant suggested that the balaclava found in the handbag was the one worn by the family member and had been placed in the handbag inadvertently, when the handbag was discarded. As both balaclavas had been cut from the appellant's shirt, both would contain his DNA.
The appellant refused to disclose the identity of the family member, except to say the family member was a very close male relative and a couple of years older than him (T 104 ‑ 105).
Grounds of appeal
On 18 July 2006, Wheeler JA granted leave to appeal on grounds 1 to 4, and referred the application for leave to appeal on ground 5 to this Court for determination at the hearing of the appeal.
The grounds of appeal are:
"The relevant verdicts of the jury should be set aside on the ground that they are unsafe and constitute a miscarriage of justice by reason of the following:
1 ‑ DNA Profile
The only evidence capable of supporting the conviction of the appellant was a DNA profile said to have been taken from the complainant's bedroom door and which matched that of the appellant but which was disputed by the appellant who alleged that it belonged to 'a family member' who had taken part in the burglary. The learned trial judge misdirected the jury as to the effect of that evidence by incorrectly inferring that 'an unrelated person' meant only an identical twin and excluded any brother or other family member.
2 ‑ Physical Identification
The prosecution case was that the man seen by the complainant at the foot of his bed and the man seen leaving the premises by another witness were one and the same and was the appellant. Both witnesses gave differing identifications, neither of which matched the appellant. The learned trial judge warned the jury against convicting on that evidence but failed to explain the relevance of it to the defence case, namely, that it supported the appellant's claim that another intruder had been involved.
3 ‑ Convictions Unsafe and Unsatisfactory
There were issues relating to knowledge, the accuracy of the blood sample, the interpretation of the DNA profile, and physical identification which were not resolved conclusively in favour of the prosecution and which supported the appellant's case.
4 ‑ Failure to Properly Put the Defence Case
None of the foregoing issues was properly put to the jury by the learned trial judge.
5 ‑ Unwarranted Judicial Comment
The learned trial judge referred to the appellant's case and said, without giving any reasons or explanation '… it seems to me rather extraordinary, but having said that, I immediately add it's nothing to do with me; it's a matter for you'. In the circumstances of the case this comment was unwarranted and could have influenced the jury to return the verdicts of guilty."
Ground 1 - DNA evidence
Dr Paula Hallan, a forensic scientist, gave evidence in relation to the DNA profiles. She examined three items: a piece of sleeve or balaclava; a swab labelled "ARN 1", described as "from curtain"; and a swab labelled "ARN 2", described as "from office door". She also received a buccal sample from the appellant and submitted it for DNA analysis to obtain his DNA profile. Dr Hallan said, during examination-in-chief, relevantly, that (T 94 - 96):
"Just to put it very broadly, each individual has a unique DNA profile ‑ is that correct ‑ save, I think, for identical twins or other complications?---Yes.
Yes, but in general terms?---Yes.
Thank you. Did you then carry out analysis of the two swabs that I have referred to and also the sleeve or balaclava?---Correct.
In relation to swab ARN1, which was described as, 'From curtain,' did you screen that chemically for blood?---Yes.
Did it give a result or reaction?---It gave a positive reaction.
Was it submitted for DNA analysis?---It was.
And was any DNA profile recovered?---No.
Was there any further work that you were able to do so far as that swab or sample was concerned?---No.
In relation to swab ARN2 which was described as coming, 'from office door', was that tested for blood?---It was.
Did it give a positive reaction?---It did.
Was it submitted for DNA analysis?---It was.
What was the result of that?---The DNA profile that was recovered from that swab indicated that the DNA present was a mixture of DNA from more than one person.
Yes?---There was much more DNA present from one person than another and we call the DNA that's present the most ‑ that's called the major component and so we were able to define the major component from this mixture.
So were you able to tabulate a DNA profile for the major component?---Yes, we were able to generate a DNA profile from that major component.
Were you able to do the same for the minor component?---No. The minor component was present in such small amounts that we couldn't interpret it.
…
The areas around the cut-out holes [of the balaclava], were they then sampled for cellular material?---They were.
And submitted for DNA analysis?---Yes.
What was the result of the DNA analysis so far as that item was concerned?---Again, the DNA profile that we recovered suggested that there was DNA present from more than one person and again there appeared to be much more DNA present from one person so we called that the major component and we were able to generate a DNA profile for the major component of the mixture.
Were you able to do the same for the minor component or not?‑‑‑No. Again, the minor component was so minor that we couldn't interpret it.
So the position was that you had a DNA profile for [the appellant] which you obtained from the sample that had been submitted relating to him?---Yes.
And you had DNA profiles in relation to the major contributor to both the swab from the office door and the sleeve or balaclava?---Yes.
Did you make a comparison between [the appellant's] DNA profile and the DNA profile that you had taken from the swab from the office door?---Yes.
And what was the result of that comparison?---The DNA profile comprises 10 separate tests and we generate a test result for each of those. When comparing the two profiles, they matched at every one of the 10 test areas.
So that was a match between the DNA profile recovered from the office door swab and from [the appellant's] DNA profile?---Yes.
Were you able to reach a conclusion as to the probability of finding that major component DNA profile of the material on the office door swab had come from someone other than and unrelated to [the appellant]?---Because not everybody in the world has been DNA profiled, we can't categorically say that DNA comes from a particular person. In a situation like this where you have two profiles that match, there are two possible explanations, firstly that [the appellant] did leave the DNA that was collected on the swab, or the alternative is that somebody else with an identical profile did, and we can do a statistical calculation to see how likely it is that somebody else would have that identical profile, and I did that in this case and the probability that somebody else has an identical profile is less than one in 10 billion.
And that's based on the Western Australian population data. Is that correct?---That's correct.
Thank you. Similarly, in relation to the sleeve or balaclava, did you conduct the same comparison that you have just described?‑‑‑Exactly the same.
And what conclusion did you reach?---Again, the two profiles matched at each of the 10 test areas and again the same two possible explanations exist, either that [the appellant] left the DNA, or that somebody else with an identical profile did, and again the likelihood that somebody else has an identical DNA profile is less than one in 10 billion."
Accordingly, Dr Hallan found that the major component of the DNA profiles obtained from the blood on the complainant's bedroom door and from the balaclava matched the appellant's DNA profile.
The cross-examination of Dr Hallan was brief (T 97):
"Dr Hallan, I have your report here of 6 October 2004, and in fact your finding as to the probability in relation to the swab taken from the office door reads: 'The probability of finding this major component DNA profile if the cellular material on the office door swab had come from someone other than' ‑ comma ‑ 'and unrelated to' ‑ comma ‑ '[the appellant] is less than one in 10 billion based on West Australian population data'?---Correct.
And you made the same finding in respect of the sleeve of the balaclava?---Correct."
Dr Hallan was not asked in examination-in-chief, cross‑examination or re‑examination about the probability of someone other than and related to the appellant (but not an identical twin) having a DNA profile identical to the appellant's profile. It can be inferred that the probability in question would have been higher than the probability of "less than one in 10 billion".
The learned Judge said, in relation to this issue, in summing up (T 144 ‑ 145):
"You will recall [Dr Hallan's] evidence was that there were 10 different components of matching which can be measured in relation to DNA and the match was complete in relation to all of them. So she said that the probability of finding this major component DNA profile, so that's from that particular material isolated out from the deposit in each case ‑ the probability of finding this DNA profile, if the cellular material on the office door swab and on the sleeve or balaclava had come from someone other than and unrelated to Dodd, is less than one in 10 billion based on Western Australia population data.
So she wasn't asked anything particularly about this notion of 'and unrelated to,' but it was just put to her that that was her view and that was what the statistical projection depended upon, and she agreed, but she did give some evidence about it and it's worthwhile, I think because of the importance it assumed in counsel's addresses and the importance it assumes in the evidence of the case, to just mention it to you briefly. I'm quoting from 94 of the transcript. You won't have the transcript but this is the evidence that she gave. You will recall really towards the beginning of her evidence about the DNA material she was asked some general questions about it, and Mr Troy put to her:
Just to put it very broadly, each individual has a unique DNA profile ‑ is that correct ‑
And you will recall that as he put that, and there's some pauses, she was obviously uncomfortable to agree in an unqualified way with that proposition, and so counsel went on and he said:
Save, I think, for identical twins or other complications?
was the way the question concluded. Then she agreed and she said:
Yes.
So the evidence that she has given is that the DNA profile is unique to a particular individual save for identical twins or other complications, and she agreed with that. Now, there was no attention given to what other complications might be, but certainly there's no evidence that the other family member who went to the place with Mr Dodd was an identical twin. Indeed, quite the opposite. An older brother, I understood ‑ or an older relative, not a brother ‑ an older relative a couple of years older was the way in which I think that was developed in the evidence that was obtained from him about that.
So whether there is the possibility that that material might have been deposited on the door by the [family member], [the appellant] having left during the course of the robbery which was committed upon [the complainant], or whether the [family member] might have been the person who deposited the material on the sleeve or balaclava is a matter for you."
The learned Judge did not specifically draw the jury's attention to the absence of evidence as to the probability of the DNA profile coming from someone other than and related to the appellant, or that such a probability could be inferred to be higher than "less than one in 10 billion".
Ground 1 comprises, in essence, two aspects. First, the DNA profile from the complainant's bedroom door which matched the appellant's DNA profile was the "only evidence" capable of supporting his conviction. Secondly, the learned Judge misdirected the jury in relation to the effect of the DNA evidence.
I will deal, first, with the allegation that the DNA evidence was the "only evidence" capable of supporting the appellant's conviction.
The evidence in relation to the stolen handbag and the balaclava found inside it was, relevantly, as follows:
(a)In the early hours of 9 January 2000, a motorist (Sharon Maloney) found a white handbag in the middle of a street, and arranged for the police to collect it from her house (T 84).
(b)The complainant said he attended a police station on the morning of 9 January 2000, and identified the white handbag as the one stolen from his mother (T 54).
(c)Senior Constable Staples gave evidence, (inconsistent with the complainant's evidence), that after collecting the handbag from Ms Maloney, he returned it to the complainant at the complainant's house (T 85).
(d)The complainant identified the balaclava found in the handbag as the one worn by the intruder at the material time (and the complainant was not cross-examined on this point) (T 55).
(e)Dr Hallan's notes described the balaclava as blue in colour (T 95), the appellant described his shirt, the sleeves of which were used to make the balaclavas, as dark blue (T 100, 116), and the complainant described the balaclava as grey (T 54).
The evidence in relation to the time at which the alarm sounded in the complainant's house was, relevantly, this:
(a)The complainant said the alarm was activated on the western side of the house, where the family room, kitchen and formal lounge room were situated, but de-activated on the eastern side of the house, where the bedrooms and bathroom were located (T 46).
(b)The complainant said the alarm sounded upon the intruder leaving his bedroom for the first time (T 50).
(c)The complainant said there was a delay in the alarm sounding after it had been set off, so that it could be de-activated if it was set off accidentally (T 50).
(d)The complainant said he tended to keep the door leading to the passageway, which separated the western and eastern sides of the house, closed at night, because if the door was open, and someone walked past it on the eastern (de-activated) side of the house, the alarm on the western (activated) side would be set off (T 63).
(e)The appellant said, in effect, that shortly after he entered the complainant's house, he opened the door leading to the passageway, which separated the western and eastern sides of the house, the family member walked through, the alarm then sounded, and the appellant fled, leaving the family member behind (T 102, 107, 110, 111).
(f)The appellant said that after fleeing from the house, he ran down the street to the waiting car, told the driver the alarm had gone off, and the driver went to collect the family member (T 103, 113). The appellant suggested that the only way the driver would have known the alarm had gone off, in order to collect the family member, was because the appellant told him (T 113).
(g)The statement of a neighbour, Mrs Lenzo, who lived opposite the complainant, was, by consent, read into evidence. She said she heard the alarm sound, and she then looked out of her bedroom window, which faced the appellant's house. After the alarm had been sounding for a minute or so, Mrs Lenzo saw a car drive up the street and stop opposite the complainant's house and at the front of her house, for a few seconds, before someone ran from the complainant's house and got into the car (T 83).
The appellant admitted, in evidence, that he had been in the complainant's house and that he was wearing a balaclava made from a sleeve of his shirt.
The learned Judge directed the jury as to the consequences if they were to accept the appellant's evidence, or if they were to reject his evidence, or if they were uncertain whether his evidence was true or not (T 130):
"The important thing in relation to the accused person's evidence is that if you accept that body of evidence, then there would be no basis upon which you could return any verdict other than not guilty in relation to counts 2 and 3. That's if you accept that evidence.
If you reject that evidence, then it simply falls out of the equation of evidence that's available to you to establish guilt and available to the prosecution to establish guilt, so you simply put that to one side. If you reject that, you say, 'All right. That body of evidence falls out of the equation. We pay no further attention to that and we concentrate on the evidence that we do accept,' so that's the other way. That may or may not in the end, circumstantial evidence rules being applied as I directed you, get you to the point of saying, 'Yes, we are satisfied beyond reasonable doubt of guilt,' of any offence, but that's the process in which you engage.
There's a third situation and that is at the end of the day you may say, 'All right. Well, we looked at him. We heard him. What he says may be right. We're unable to reject it. On the other hand, we are not prepared to say affirmatively we accept it to be true, but we can't reject it. It might be right.' You see, if you are in that position, then when you come to apply the onus and burden of proof, you have to accept that what he says in evidence is an open account which may be an account which is true. If you are unable to reject it, you have to accept that it may be right and if you are in that position also, I think in the circumstances of this case you could not possibly get to a verdict of guilty of counts 2 and 3 unless you are able to reject the evidence that he gives positively about those matters."
No complaint was made about this direction. See Liberato v The Queen (1985) 159 CLR 507 at 515; Anderson (2001) 127 A Crim R 116 at 120 ‑ 121 [25].
In my opinion, there was evidence, apart from the contentious aspects of the DNA evidence, which was capable of supporting the appellant's conviction. If the jury rejected the appellant's exculpatory evidence and put that evidence to one side in accordance with the learned Judge's direction (as they must have done), there was evidence which, if accepted by the jury, was capable of proving the appellant's guilt beyond reasonable doubt. The evidence in question was as follows:
(a)the appellant's admission that he entered the complainant's house;
(b)the appellant's admission that he was wearing a balaclava made from a sleeve of his shirt;
(c)a balaclava made from the sleeve of a shirt was found in the discarded handbag;
(d)the complainant identified the discarded handbag as the one stolen from his mother;
(e)the complainant identified the balaclava found in the stolen handbag as that worn by the intruder;
(f)the complainant's evidence, as to the time at which the alarm sounded, supported the respondent's case that the intruder entered the house and set off the alarm, which sounded after a delay, when the intruder was leaving his bedroom for the first time;
(g)Mrs Lenzo's evidence, which supported the respondent's case that there was only one intruder in the house; and
(h)Dr Hallan's evidence, which was, relevantly, to the effect that the major component of the DNA profile obtained from the blood on the complainant's bedroom door, and from the balaclava found in the stolen handbag, matched the appellant's DNA profile and, as a result, the appellant could not be excluded as the source of the blood found on the complainant's bedroom door and on the balaclava in the stolen handbag.
I turn now to consider whether the learned Judge misdirected the jury as to the effect of the DNA evidence by incorrectly inferring that "an unrelated person" meant only an identical twin and excluded any brother or other family member, as alleged in ground 1.
As Callaway JA observed in R v Noll [1999] 3 VR 704 at 711, DNA profiling may establish that the accused could be the offender, but does not establish that he or she is the offender, and judges and prosecutors should exercise care to avoid the fallacy mentioned in Milat (1996) 87 A Crim R 446 at 451 (footnote 22), and R v Doheny and Adams [1997] 1 Cr App Rep 369 at 372 ‑ 373.
The learned Judge made the following points to the jury in relation to the DNA evidence:
(a)Dr Hallan gave evidence that the probability of the DNA profile coming from someone other than and unrelated to the appellant was less than one in 10 billion;
(b)Dr Hallan was not asked anything in particular about the notion of "and unrelated to", but that was what her statistical projection was based on;
(c)Dr Hallan said that a DNA profile is unique to a particular individual "save for identical twins and other complications";
(d)there was no evidence that the family member was the appellant's identical twin, in fact, the evidence was to the contrary; and
(e)whether the DNA profile obtained from the complainant's bedroom door and the balaclava came from the appellant or from the family member was a matter for the jury.
In my opinion, the learned Judge accurately summarised the substance of Dr Hallan's evidence. As I have mentioned, neither party questioned her as to the probability of someone other than and related to the appellant (but not an identical twin) having a DNA profile identical to the appellant's profile. It is apparent, on a fair reading of his Honour's direction as a whole, that he did not expressly or impliedly state that "an unrelated person" meant only an identical twin and excluded the family member referred to by the appellant in evidence (that is, a very close male relative who was a couple of years older than him). His Honour did not misdirect the jury.
Ground 1 fails.
Ground 2 ‑ Identification evidence
The complainant gave evidence as to the physical appearance of the intruder in his bedroom (T 49 ‑ 52):
"The next thing is the bedroom light suddenly turned itself on and a figure appeared before me. I was not sleeping in my glasses so it was not a distinct ‑ it was an outline ‑ ‑ ‑
All right?--- - - - shouting at me, 'The money, the money, I want the money.' I could see it looked more like a scarecrow. It was clad in long trousers and a jacket and there was a grey‑coloured face. It flummoxed me …
… I do suffer ‑ I'm of fair complexion and I am short-sighted, and people with that condition are very prone and susceptible to glare and the bright light and lack of glasses completely flummoxed me. I was just sitting in bed blinking …
…
You have given us some evidence as to what you perceived the person was wearing. Were you able to form any estimate as to his height?---Yes, sir. From previous employment experience and other experiences I was able to guess the person would be a male in the vicinity of six feet tall, of a reasonable build but not heavily built, but not exactly looking as though they were emaciated either.
…
Did you see the person again?---Yes, sir. Once I had my spectacles on ‑ and wearing those I am legally qualified to be a commercial airline pilot ‑ the person came into my room and I was more accurately able ‑ he was standing within six to eight feet of me, menacing me with this knife, which I was then able to deduce was what in catering terms would be called a long‑bladed ham slicing knife. It is a long, thin blade with a rounded end on it. I was again menaced with the knife and the person then said to me, 'The money; the money. I want the money.' The person was carrying tucked under his arm my mother's ‑ one of my mother's white leather day-use handbags which she had used that day … "
The complainant was not cross‑examined as to the physical appearance of the intruder.
Mrs Lenzo said, in relation to the appearance of the intruder (T 83):
"After the alarm had been going off for a minute or so, I saw a sporty type car drive over the hill quickly along our street travelling in the direction of Milton Street. The car pulled up opposite [the complainant's house], out the front of our house. The engine stayed running.
The car had been there only a matter of seconds before a male figure ran from [the complainant's house] over the road to the passenger side of the car. As the male got close to the car, I heard him say, 'I got the money; I got the money.' The man hopped into the passenger side of the car which immediately sped off toward Milton Street. [I] moved quickly to my lounge room window to get a better view. The car then turned left onto Milton Street.
All I can remember is that the male had a fairly slim build. He was white skinned and of average height. He was wearing jeans. I don't think he had anything over his face at the time. I cannot remember if he was carrying anything.
The male was definitely the only one who ran from the house and entered the car. I could not see the driver or any other person in the car."
The defence, in closing (at T 11), brought to the jury's attention the discrepancy between the description of the appellant given by Mrs Lenzo and the actual physical appearance of the appellant:
"What does Mrs Lenzo ‑ how does she describe the chap ‑ 'Fairly slim build, white skinned and of average height'. Well, his [sic] white skinned as far as I'm concerned; there's no need to worry about that. He's part Aboriginal, but so what? It's very hard to tell with a lot of these people. But he's not fairly slim build and he's not average height: it's [sic] six foot three and he's a big boy. You can tell it just looking at him. She describes someone of fairly slim build and average height; that's not [the appellant]."
Before the jury retired to consider their verdict, counsel for the appellant said to the learned Judge, in relation to his Honour's summing up (T 149):
" … given that identity is so important, the jury perhaps should be reminded that the physical identification by [the complainant and Mrs Lenzo] should be compared with the actual appearance of the [appellant] today."
His Honour then said to the jury (T 149 ‑ 150):
" … [Counsel for the appellant] is quite right. I had ignored that completely. You could not for a minute draw a conclusion that the accused was the person implicated by having regard to the description of the person's physical appearance given by [the complainant]. It just doesn't get you anywhere near. It's a very general description and you wouldn't get there. It may of course have differences from the accused person, you may think, that may be of significance but it would seem to me ‑ and it's a matter entirely for you in that regard but it would seem to me that two things are important.
Firstly, by itself that could never carry you to a conclusion that he was the person who was committing the offences. It's the other evidence upon which you would need to rely if you are to find that fact established beyond a reasonable doubt. The other aspect of it, the question of whether there are differences, again it's so general. This is a matter for you but it would seem to me that that doesn't carry you anywhere either way so bear those observations in mind. [Counsel for the appellant] is quite right to remind me to mention that to you specifically. … "
The learned Judge warned the jury against convicting the appellant on the basis of the identification evidence. His Honour did not specifically state that the discrepancies between the identification evidence of the complainant on the one hand, and the identification evidence of Mrs Lenzo on the other, was capable of supporting the appellant's claim that another intruder was involved. In my opinion, his Honour was not obliged, in the circumstances, to include a statement to that effect in his summing up. A trial Judge is not bound to repeat to the jury each and every argument advanced by the accused's counsel. In the present case, his Honour accurately and fairly put to the jury the appellant's defence. See Hiemstra v The State of Western Australia [2006] WASCA 70 at [63].
Ground 2 fails.
Ground 3 ‑ Convictions unsafe and unsatisfactory
The appellant's counsel, in his submissions to this Court, said that "there were numerous unsatisfactory elements to the prosecution case", in that:
(a)"The police had 'lost' the file (Davies T64E, Humphries T88D) but the learned trial Judge told the jury that it didn't matter (T122C). The recollection of one policeman was 'somewhat vague' (Evans T79E) and another was not prepared to reconstruct his evidence (Staples T86D) but the forensic officer was not effected [sic] by the loss (Norton T71B-73B)."
(b)"It was implicit in the prosecution case that the robbers were aware that the complainant and his mother ran a lottery kiosk in Dianella and on Saturdays brought the takings home with them (Troy T41B and Davies T45E, T66B). However, the appellant had only recently escaped from Broome Regional Prison, was keeping a low profile and would not have had that information (Dodd T98C-99E). This confirms his claim that he went there to do a simple break-in and left when the alarm went off."
(c)"The prosecution case had to fail unless it was established that the blood sample used for the DNA analysis had come from the complainant's door. The evidence in that regard was ambiguous and could not have been established beyond reasonable doubt.
…
The appellant could not remember who had broken the glass door or whether he had cut himself. If he had, and if it was his blood on the wall and if the blood sample had come from the wall and not the curtain or the door, then the DNA analysis would match and the account would be consistent with the appellant's evidence.
It is possible that the evidence of Norton was incorrect and that the blood samples were taken from the curtain and the wall and not from the curtain and the door."
(d)"In relation to count 3 a white handbag had been stolen from the victim. Shortly after the burglary, while driving her car, a witness (Maloney) had seen the white handbag 'in the middle of the road', stopped, picked it up and advised the police (read in by Brookes, T 84). When opened by the police it contained a ‘home made' balaclava identical in appearance to that worn by the intruder observed by [the appellant] and contained a DNA profile matching that of the appellant.
In explanation, the appellant posited that the accomplice and the driver had set him up for his desertion of the burglary by placing his balaclava in the handbag and leaving it in a conspicuous position so as to be found. A further explanation was that the balaclava found in the handbag was that worn by the accomplice and put in the handbag inadvertently when the handbag was discarded after the small amount of money it contained had been extracted.
The evidence was that the recovered balaclava was the sleeve of a shirt (Hallan T93C and Dodd T100B). There was no basis upon which the prosecution could refute the appellant's explanations and no basis, short of complete disbelief of the appellant's evidence based solely upon his demeanour and his disclosed criminality, that the jury could reject either explanation."
(e)"The appellant was interviewed 'cold' by the police at Casuarina Prison on 27 May 2004, more than four years after the offence. [The appellant] denied all knowledge of the offence and while denials could be regarded as self-serving, the manner in which he said it was evidence which supported what he said at the trial. The video was not played to the jury. The appellant's non-videoed statements were led in cross-examination of the police (Humphries T91A)."
Lost file
The offences in question occurred in January 2000, and were investigated at that time by the police. Further investigations were carried out in 2004, when some DNA evidence was found (T 79). However, in the intervening period, the police case file was "lost".
Detective Sergeant Humphries, the investigating officer as from January 2004 (4 years after the date of the offences), said, in cross-examination (T 89), that he made attempts to locate the police case file, without success, and had concluded that it was lost.
The complainant said, in cross-examination (T 64 ‑ 65), that he was informed by the investigating officer (Detective Sergeant Humphries) that the file had "gone missing". The complainant had made a statement to the police after the offences occurred in January 2000, but, as that statement was lost with the case file, he made another statement, from memory, in May 2004, and an additional statement in April 2006. The complainant had not kept a copy of his original statement.
Detective First-Class Constable Evans said, in cross-examination (T 79), that his recollection of the events was "somewhat vague", but that he based it on an "action report" he was required to make after the burglary in 2000, a copy of which he used, in or around 2004, to prepare his statement.
Senior Constable Norton, the forensic officer who attended the crime scene in January 2000, was apparently unaffected by the lost case file. He said, in cross-examination (T 71, 73), that he was not involved with the case file as such, but only with forensic issues, and he had made his own notes as well as notes on the swab tubes. Senior Constable Norton had a copy of the original statement he made in 2000. (He made a further statement in 2004, in order to clarify that the room he described as an "office" in his original statement, was in fact the complainant's bedroom, which contained a desk.)
Senior Constable Staples was the police officer on duty in January 2000, who collected the stolen handbag from the motorist who found it on the road. He recalled returning the handbag to the complainant at the complainant's residence that morning, but had no recollection if he had seized a balaclava from the handbag (T 86 ‑ 87).
The learned Judge, in his summing up, said, in relation to the lost file (T 122):
"[T]he loss of the police file from the original investigation is a matter which doesn't assist you one way or the other. You certainly wouldn't punish the police investigator, so to speak, because you thought that that was careless or you surmised that there was something of that kind behind it. You would just ignore that material. It simply means that here we are, dealing with people whose recollections were refreshed so far as they needed to be for the first time in the circumstances which had been described in 2004 and who made statements after that, so that's the significance of that and that's its really [sic] only significance in my view."
The jury was aware that the case file had been lost, and it was a matter for them as to whether the evidence, including the evidence obtained after the loss, satisfied them beyond reasonable doubt as to the appellant's guilt.
Simple break-in
The appellant's evidence was to the effect that the burglary was the idea of the family member and the family member's friend, who had "inside information" that there would be money in the house (T 99). The family member's friend also had information that the house would be unoccupied (T 106). The appellant said in evidence (T 106) he was unaware that anybody had been at home until the police told him. The appellant also gave evidence that he had only recently escaped from Broome Regional Prison (T 98), and that he fled when the alarm sounded (T 102, 107) because he was "an escapee. I couldn't hang around. I know that if I did and the police see me, well, I'd probably get caught. I was pretty ‑ I was all over the news at the time and, yeah, I just didn't want to get caught. I didn't want to hang around. Once the alarm went off, I took off".
The respondent was not obliged to prove that the appellant knew the complainant and his mother ran a lottery kiosk or they had brought the takings home. It was open to the jury, on the basis of the evidence I have described at [25] above, and the evidence as a whole, to reject the appellant's account that he had only committed a "simple break-in", and had left when the alarm sounded.
Location of blood samples
Blood samples were collected from the curtain (next to the smashed glass door), and from near the handle of the door of the complainant's bedroom. As I have mentioned, a DNA profile was not obtained from the blood on the curtain, but the blood on the complainant's bedroom door contained a DNA profile that matched the appellant's DNA profile. In closing, the appellant's counsel said, relevantly, that as a result of the police case file having been lost, and evidence having to be "reconstructed", it could not be proved beyond reasonable doubt that blood was obtained from the handle of the complainant's bedroom door.
The evidence in relation to the location of blood was:
(a)The complainant said in evidence and in his earlier statements that there was a blood smear on the wall near the smashed glass door (T 54, 56 ‑ 57, 67). He said in cross-examination (T 67) that there was also a small blood smear on the curtain, and that this evidence did not appear in any of his statements because the police had for some reason chosen to exclude it, despite the appellant having told them about it. The complainant also said that he did not find blood anywhere else in the house (T 67).
(b)Detective Norton gave evidence that he did not have a strong recollection of the exact location of the blood found on the curtain, but he had recorded in his notes that he located blood on the curtain next to the smashed glass door (T 69, 75). Detective Norton also gave evidence that, although he couldn't precisely say where on the complainant's door he obtained the blood, he had recorded in his notes that the blood was near the handle of the door (T 70, 73 ‑ 74). However, Detective Norton did not record that there was blood on the wall, next to the point of entry (T 75).
(c)Detective Evans said he noticed a small smear of blood on the curtain next to the point of entry (T 77). He did not recall if he saw a bloodstain on the wall next to the point of entry or not (T 81).
Again, the jury were aware that the case file had been lost, and it was a matter for them to evaluate whether the evidence, including the evidence obtained after the loss of the file, satisfied them beyond reasonable doubt as to the appellant's guilt.
The balaclava and the handbag
The appellant gave evidence (T 103) that after he fled from the house, he threw his balaclava into the getaway car and departed on foot. He said (at T 117), in relation to the balaclava found in the handbag:
(a)" … they've got dirty on me or something for leaving, and they've put it in the handbag or something. I can't understand why they done that"; and
(b)"Obviously they're dirty that I ran out of [sic] them and left them. I can't ‑ no, I can't understand it, why they put my balaclava inside a handbag with my DNA on it. That's ‑ who would really do that purposely?"
When asked whether he had seen the family member or the family member's friend after the event, the appellant said he had seen the family member, who "was a little bit dirty, yeah. He was ‑ not too much, but, yeah, he did mention a few things". The appellant also said (at T 105) that he had spoken to the family member on the telephone about the appellant's pending trial.
In closing, the appellant's counsel reiterated (at T 11 ‑ 12) the hypothesis that the family member and his friend had purposely placed the appellant's balaclava in the handbag and left it on the road to be found. The proposition that the balaclava found in the handbag might have been that worn by the family member, and put in the handbag inadvertently when it was discarded, was not referred to at trial.
It was open to the jury, after considering the evidence I have mentioned at [25] above, and the evidence as a whole, to reject the explanation proffered by the appellant as to the circumstances in which the balaclava was placed in the handbag.
Video record of interview
On 27 May 2004 (about four years after the commission of the offences), Detective Sergeant Humphries conducted a video record of interview with the appellant in prison. After the interview, the appellant made some further comments, of which Detective Sergeant Humphries later made notes.
Detective Sergeant Humphries agreed, in cross-examination (at T 90), that the respondent chose not to play the video at trial because the appellant did not make any admissions in the interview. Also, in cross‑examination (at T 91), the following portion of Detective Sergeant Humphries' statement, documenting what the appellant said off‑video, after the interview, was read:
"Dodd makes admissions after video that he was at the premises in question, smashed the back door in. A co-offender entered and committed the other offences alleged. Dodd states he wants to participate in a further video interview with police and provide the identity of the co-offender but needs to speak with his de facto wife first as the information he is to provide to the police may place her in danger, as his co‑offender is a family member currently in another prison."
Detective Sergeant Humphries attempted to interview the appellant again, but was unsuccessful.
In S (2002) 132 A Crim R 326, defence counsel sought to introduce evidence of, and give emphasis to, self-serving elements in a record of interview. Parker J (with whom Anderson and Steytler JJ agreed), said, at 330:
"The prevailing overall flavour of the interview was, however, distinctly self-serving. The law is well settled, however, that by virtue of those parts of the interview which may be accepted as against the applicant's interests, or 'confessional in character', the statement, that is, the whole record of the interview, might have been led in evidence by the prosecution: Middleton v The Queen (1998) 19 WAR 179 at 182, 189. But if the prosecution determines against introducing the record of interview it could not have been led in evidence or be the subject of questions in cross-examination by the defence: R v Callaghan [1994] 2 Qd R 300 at 303-304. This position has been well settled for approaching two centuries: R v Higgins (1829) 3 C & P 603 at 604; 172 ER 565 at 565."
Also see Flowers v The Queen (2005) 153 A Crim R 110 at 117 ‑ 120 [32] ‑ [45], 120 ‑ 121 [51] ‑ [56].
The video record of interview did not contain any admissions by the appellant (apart from the admission that he was at the premises in question, which, in any event, was not in dispute), and the respondent was not obliged to tender it. Further, the out‑of‑court statements made by the appellant off-video, after the interview, were self‑serving.
The convictions were not unsafe and unsatisfactory as a result of the issues raised by the appellant. None of the issues precluded a finding by the jury beyond reasonable doubt that the appellant was guilty.
Ground 3 fails.
Ground 4 ‑ Failure properly to put the defence case
This ground and the submission in support of it assert, in effect, that none of the issues set out in ground 3 was properly put to the jury by the learned Judge.
In Hiemstra, Roberts-Smith JA (with whom Malcolm CJ and McLure JJA agreed) said, at [63] ‑ [66]:
"Failure to adequately put the defence case is a well recognised ground of appeal (R v Schmahl [1965] VR 745 at 748). However, a trial Judge is not bound to discuss all the evidence nor to analyse all the conflicts in the evidence, although the requirement of fairness means that the respective cases for the prosecution and the defence must be accurately and fairly put to the jury, so that they have the necessary understanding of the evidence to determine the case according to the evidence (Domican v R (1992) 173 CLR 555 at 561).
The task of a trial Judge in summing-up was explained in the joint judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v R (2000) 199 CLR 620:
'[41] … The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
[42] But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.' (Citations omitted)
In Fingleton v R (2005) 79 ALJR 1250, McHugh J said the following about the requirements of a summing-up (at [77] ‑ [80]):
'[77] Section 620 of the Criminal Code declares that, after the evidence has concluded and counsel have addressed the jury, "it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make". The court does not discharge that duty by merely referring the jury to the law that governs the case and leaving it to them to apply it to the facts of the case. The key term is "instruct". That requires the court to identify the real issues in the case, the facts that are relevant to those issues and an explanation as to how the law applies to those facts (cf Alford v Magee (1952) 85 CLR 437 at 466). As McMurdo P said in R v Mogg (2000) 112 A Crim R 417 at 427 [54]; [2003] QCA 244, ordinarily the duty imposed on a trial judge in respect of a summing-up requires the judge to identify the relevant issues and relate those issues to the relevant law and facts of the case. In the same case, after referring to s 620 Thomas JA said (Mogg (2000) 112 A Crim R 417 at 430 [70]; [2003] QCA 244):
"The consensus of longstanding authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken." [Footnote omitted]
[78] The statements of the learned President and Thomas JA show that the law concerning a summing-up in trials under the Criminal Code is no different from the law in trials at common law. Their Honours' statements are consistent with the statements of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v R (2000) 199 CLR 620 at 637 [41]; 168 ALR 729 at 741; [2000] HCA 3 concerning the duty of a trial judge in jurisdictions that have no counterpart to s 620.'
His Honour then set out most of [41] from the judgment in RPS, and continued:
'[79] As Diplock LJ pointed out in R v Mowatt [1968] 1 QB 421 at 426; [1967] 3 All ER 47 at 50 the "function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence". (Emphasis added.)
[80] A summing-up is radically defective unless it adequately explains "to the jury the nature and essentials of" the offence with which a person is charged (McBride v R (1966) 115 CLR 44 at 47). Where the offence involves statutory terms, it is usually "imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining" whether particular conduct is within the terms of the section (McBride v R (1966) 115 CLR 44 at 50).'"
In the present case, the learned Judge put the appellant's case as a whole to the jury (T 140 - 141). Even though a trial Judge is not bound to discuss all the evidence, in the present case, his Honour nevertheless, during summing up, referred to four of the five matters raised in ground 3:
(a)the loss of the police file (T 122);
(b)the location of the blood samples (T 141-142);
(c)the circumstances leading to the balaclava and handbag being found (T 145); and
(d)the evidence of Detective Sergeant Humphries as to the appellant's off‑video remarks (T 147).
His Honour did not specifically address the issue of the appellant's knowledge of the money that might be at the complainant's house, but he was not bound to do so. It could not be said that the failure to address this particular issue meant that the case for the defence was not adequately put to the jury, or that the overriding requirement of fairness was not satisfied.
Ground 4 fails.
Ground 5 ‑ Judicial comment
During summing up, the learned Judge said, relevantly (T 145):
"When [the appellant] was asked about the circumstances in which [the balaclava] was recovered, he said, 'Well, it must have been that when I abandoned the thing by putting it in the car, that afterwards they were crooked on me for running off and not staying with them.' So his view was ‑ or his suggestion was ‑ it's a matter for you to give some consideration to ‑ that the others might have put the material in the hand bag as a plant really, I suppose - it seems to me rather extraordinary, but having said that, I immediately add it's nothing to do with me; it's a matter for you ‑‑ to get him into trouble for having run off rather than something which relates to his use of the material and his wearing of it as a disguise during the commission of the offence of robbery, at least on Mr Davies, but also because of the way in which he was seen later by Mr Davies in relation to the offence, which was count 3 in the indictment, committed, if so you find in relation to Mrs Davies." [emphasis added]
The appellant complains about his Honour's statement: " … it seems to me rather extraordinary, but having said that, I immediately add it's nothing to do with me; it's a matter for you … ".
In RPS v The Queen (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ said, at 637 [42], in the context of judicial instructions in criminal trials:
"But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues (See, eg, Tsigos v The Queen (1965) 39 ALJR 76 (n))."
Their Honours referred to Tsigos v The Queen (1965) 39 ALJR 76 (n), which was reported in a note. The note said, relevantly:
"On a point not raised before the Court of Criminal Appeal, namely whether the summing up was vitiated by a statement that 'on the evidence before the court it is my duty to tell you that you will be flying in the face of the oath you took, namely to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape from the verdict of murder or manslaughter', the Court (Kitto J dissenting) held, that in the context of the whole summing up, the statement was not such as might have led the jury to think that they were being told in point of law that they could not acquit the accused (Barwick CJ, Taylor, Windeyer and Owen JJ, Kitto J dissenting) … "
In R v Zorad (1990) 19 NSWLR 91, the trial Judge made a statement that the jury may not have any difficulty at all in deciding that it was the appellant who was involved in the attack upon the victim. This was a matter which was in dispute. Hunt, Enderby and Sharpe JJ, in a joint judgment, said at 106 ‑ 107:
"It was submitted that a trial judge should always refrain from expressing his view on such an issue (at least where it was contrary to the accused), and that he should be all the more careful not to appear to do so where the accused is unrepresented. We do not accept either of those submissions. A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury's function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts."
R v Sinanovic [2000] NSWCCA 396 was concerned with whether the trial Judge's summing up was unbalanced and the defence case not fairly put. In dismissing the appeal, the Court considered RPS, Tsigos, and the following cases, at [77] ‑ [83]:
"In R v Clewer (1953) 37 CAR 37 at 40, in a passage quoted with approval by Owen J in R v Martin (1960) 60 SR (NSW) 286 at 288, it was said:
'The more improbable the defence, the more difficult it is for counsel to discharge his duty to his client adequately, and, provided he keeps within the bounds of fair advocacy … it is highly desirable that he should be allowed to do his best in presenting his case, leaving it to the judge to deal with, and maybe to demolish, it in his summing up.'
In Babbage (1982) 7 A Crim R 243 at 245 where numerous citations to like effect are quoted, it was said:-
' … it has been many times said by courts that a trial judge in summing up may comment strongly upon the evidence and in doing so may leave little doubt about his personal views of its weight provided that he makes it clear to the jury that the decision of these and all issues of fact in the case is for them and not for him.'
In R v Penberthy (unreported, CCA, 26 October 1978), this Court had to consider a comment by the trial judge in the following terms:-
'It is, I suppose open to you to say that each one of them (the accused) is not guilty, that is your legal right. How you could do it in this case, consistent with the oath you have taken to find a true verdict, I would not know but that is your business and not mine. You have the right to do it.'
Acknowledging that the comment was a strong one, Lee and Slattery JJ ‑ at p29 - found no error in circumstances where the Crown case was strong and the trial judge had made it clear to the jury that the decision was one for them. The third member of the Court, Lusher J, referred to the passage that I have quoted, but made no comment about it. ‑ p22
In light of these authorities, and others to like effect, it is clear that a judge is entitled to express views calculated, and indeed designed, to influence a jury. How far may a judge go? A guide, although I do not suggest it is exhaustive, is provided in R v Hamilton (1969) Crim LR 486 where it is noted:
'Interventions which may lead to the quashing of a conviction are (1) those which invite the jury to disbelieve the defence evidence in such terms that they cannot be cured by telling the jury that the facts are for them; (2) those which make it impossible for counsel to present the defence properly; (3) those which have the effect of preventing the defendant from doing himself justice and telling his story in his own way.'
To these might be added apparent partiality so as to lead to the conclusion that justice was not, or was not seen to be, done although even in that situation, it must not be forgotten that it is the jury that is the ultimate tribunal. I can think of no other bases having conceivable relevance to this case."
In Bradshaw v The State of Western Australia [2006] WASCA 41, a ground of appeal was that there was a miscarriage of justice when the trial Judge made the following comments in relation to the evidence given by a witness called by the applicant:
"Speaking for myself, I found it completely surprising that this witness, who claimed to have seen what was obviously a crucial incident on the night in question, should have kept this information to herself for many years and, even knowing a person had been charged with the offence, still kept it to herself without approaching the police. I find that absolutely incredible. My feelings of course are not relevant in this trial. You must assess her testimony and come to your own view as to how you are to approach it and what view you have of it."
Murray AJA (with whom McLure and Pullin JJA agreed) said, at [35] ‑ [36], in relation to this ground, that:
"In my opinion, complaints of this type are too frequently made about the comments upon the facts made by trial Judges. In making such comments, the Judge performs the function entrusted to the trial Judge by the Criminal Procedure Act 2004 (WA), s 112, which relevantly provides:
… the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.
In my opinion, the interests of justice are served when, in commenting upon the evidence, the Judge identifies for the jury matters or considerations which may legitimately affect their judgment about whether to accept or reject the evidence given by a witness. The comments by his Honour on this occasion went no further, while leaving the matter squarely within the responsibility of the jury."
After referring to RPS and Tsigos, his Honour concluded, at [40]:
"For us in this jurisdiction, the touchstone remains the interests of justice. I am strongly of the view that [a] jury is entitled to have a judge identify, if appropriate in strong terms, matters affecting the credibility of a witness to which the jury may give attention in making their decision about the evidence they accept and reject. What was said by his Honour the trial Judge on this occasion is not only not established to have been wrong, but in my opinion, it was clearly right and appropriate that the comment should be made."
McLure JA said, at [3]:
" … the High Court authorities to which Murray AJA refers establish that a trial judge is entitled to comment, and comment strongly, on factual issues provided the jury is clearly told it is for the jury and the jury alone to decide the facts. Of course, a judge can identify matters that may legitimately affect their judgment about the credibility of a witness without going the further step, as the trial Judge did in this case, of expressly stating his conclusion as to the credibility of the witness. However, there is no appealable error because the jury can have been left in no doubt that the question was solely for them."
Pullin JA added, at [11]:
" … I would add however, that the more critical a trial Judge is about the evidence of an accused person, the greater the importance of the Judge's instruction to the jury members that the evidence they choose to believe is a matter for them. This type of instruction is often given by a Judge at the beginning of a summing-up. In my view, if a Judge is very critical of the evidence of an accused, it would be advisable for the Judge to repeat, at that time, that the assessment of the accused's evidence, and whether the accused is to be believed, is a task for the jury and that the Judge's comments are not binding on the jury."
In the present case, the learned Judge also told the jury, on numerous occasions, during the course of his summing up, in effect, that they were the sole judges of the facts (T 120, 131, 136, 138, 142, 143, 145, 146, 149, 150). His Honour did not err in commenting on the evidence in the manner complained of by the appellant.
I would refuse the application for leave to appeal on this ground.
Count 1 ‑ Circumstance of aggravation
The circumstance of aggravation in relation to count 1 is referred to in the appeal notice but not in the grounds. I will, nevertheless, deal with it.
The appellant said he did not carry a knife, did not see anybody with a knife, and only saw the family member with a screwdriver, which the family member used to force the glass door to gain entry (T 103, 111).
The complainant, however, gave a detailed description of the knife which he said the intruder was carrying (T 51):
" … he was standing within six to eight feet of me, menacing me with this knife, which I was then able to deduce was what in catering terms would be called a long-bladed ham slicing knife. It is a long, thin blade with a rounded end on it."
The learned Judge directed the jury as to this element of count 1, and the evidence which had been adduced in relation to it (T 133-134).
It was open to the jury, on the evidence, to reject the appellant's case that nobody was carrying a knife and that it was the family member who had gone into the complainant's bedroom, and instead to accept the respondent's case and to be satisfied beyond reasonable doubt that the intruder was carrying a knife, that the appellant was the only intruder in the house at the material time, and therefore that the appellant must have been carrying the knife.
Conclusion
I would dismiss the application for leave to appeal on ground 5. Also, I would dismiss the appeal.
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