Egan v The State of Western Australia - [2024] WASCA 3

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   EGAN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 3
CORAM:   QUINLAN CJ
BUSS P
HALL JA

HEARD: 19 JULY 2023,
FINAL SUBMISSIONS FILED 21 DECEMBER 2023

DELIVERED          :   18 JANUARY 2024
FILE NO/S:   CACR 73 of 2022
BETWEEN:   JAMES EGAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
File Number            :   IND 456 of 2021

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of aggravated burglary, stealing firearms and stealing a motor vehicle - Where prosecution case was circumstantial - Whether verdict of guilty was unreasonable or cannot be supported by the evidence

Criminal law - Appeal against conviction - Where co-accused gave evidence exculpating the appellant - Where co-accused was cross-examined in relation to exercise of right to silence - Whether cross-examination impermissible - Whether directions by trial judge sufficient to address prejudice

Criminal law - Appeal against conviction - Where co-accused gave evidence exculpating the appellant - Whether trial judge's directions to carefully scrutinise co-accused's evidence due to his self-interest were erroneous or gave rise to a miscarriage of justice - Whether real or perceptible risk that directions deflected jury from recognising and applying the presumption of innocence and the burden and standard of proof

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (WA), s 143, s 371A, s 378, s 401(2), s 444(1)

Result:

Leave to appeal granted
Appeal allowed
Judgments of conviction set aside
New trial ordered

Category: B

Representation:

Counsel:

Appellant	:	D Grace KC with A C Morrow
Respondent	:	R G Wilson

Solicitors:

Appellant	:	Tudori Hager Grubb
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Austic v The State of Western Australia [2020] WASCA 75; (2020) 57 WAR 39
Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Boxer v The Queen (1995) 14 WAR 505
Bunning v Cross (1978) 141 CLR 54
Challis v The State of Western Australia [2014] WASCA 8
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
Davy-Russo v The State of Western Australia [2022] WASCA 140
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65
Evans v The State of Western Australia [2012] WASCA 13
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
Gray v The State of Western Australia [2015] WASCA 108
Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257
HCF v The Queen [2023] HCA 35
Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351
Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
Kazemi v The State of Western Australia [2003] WASCA 301; (2003) 28 WAR 176
Kitto v The State of Western Australia [2019] WASCA 161
Lang v The Queen [2023] HCA 29
Lowery v The Queen [1974] AC 85
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mansfield v State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233
McNamara v The King [2023] HCA 36
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Petty and Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Bauer [2018] HCA 40; (2018) 266 CLR 56
R v Dookheea [2017] HCA 36; (2017) 262 CLR 402
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531
Russell v State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Sorby v The Commonwealth (1983) 152 CLR 281
Stafford v The Queen (1993) 67 ALJR 510
Sturniolo v The State of Western Australia [2023] WASCA 147
Taylor v The State of Western Australia [2020] WASCA 113
Wark v The State of Western Australia [2023] WASCA 66
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Weissensteiner v The Queen (1993) 178 CLR 217
Winning v The Queen [2002] WASCA 44
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
XHA v The State of Western Australia [2022] WASCA 8
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

Table of Contents

QUINLAN CJ & HALL JA:

Introduction and overview

Indictment

State case at trial

State case against Mr Egan

State case against Mr Christensen

State case against Mr Ronzitti

Defence case at trial

Mr Christensen's evidence in chief

Cross‑examination of Mr Christensen by Mr Egan

Cross‑examination of Mr Christensen by Mr Ronzitti

Mr Christensen's application to discharge the jury

Cross‑examination of Mr Christensen by the State

Trial judge's directions to the jury

Verdicts

Grounds of appeal

Ground 1

Ground 1: unreasonable verdict – legal principles

Ground 1: unreasonable verdict – disposition

The elaborate nature of the burglary
Mr Christensen's involvement in the burglary and the use of the Toyota HiLux
Mr Egan's DNA on the handgun and holster
The combined effect of the circumstantial evidence

Ground 2

Ground 2: disposition

Was the cross examination by Mr Ronzitti's counsel impermissible?
Did the cross‑examination result in a miscarriage of justice?

Ground 3

Ground 3: legal principles

Ground 3: disposition

Ground 3: application of the proviso

Conclusion

BUSS P:

The background facts and circumstances, the State's case at trial, the appellant, Mr Christensen and Mr Ronzitti's cases at trial, the relevant evidence at trial, the trial judge's summing up and the submissions of the parties in the appeal

The organisation of my reasons

Ground 2

Ground 3: the circumstantial nature of the State's case at the trial

Ground 3: the relevant evidence at the trial

Ground 3: the trial judge's relevant directions in his summing up

Ground 3: the relevant legal principles

Ground 3: its merits

Ground 1

Conclusion

QUINLAN CJ & HALL JA:

Introduction and overview

Shortly before midnight on 21 November 2019, Claremont Firearms, a firearms store in Yangebup, was the subject of an elaborate and sophisticated burglary. The vault of the store was broken into via two concrete walls that were cut through using cutting tools. The holes in the concrete walls looked like this:[1]
[1] Exhibit 7 (p 57).
Over 200 firearms were stolen, along with holsters and other items. The timing of the burglary was between 11.35 pm on 21 November 2019, when the alarm in the vault was activated, and 12.15 am on 22 November 2019, when the manager arrived.
A couple of hours later, at approximately 1.26 am on 22 November 2019, a Toyota HiLux utility was found burning in a scrub fire in Beeliar Regional Park, not far from Claremont Firearms (HiLux Burn site). The utility had been stolen from a business in Cockburn over the course of an earlier weekend.
A few days later, on 25 November 2019, a number of items stolen from Claremont Firearms, including guns and holsters, were found buried in bushland in another part of Beeliar Regional Park (Burial site).
The three locations can be seen depicted in the following plan:[2]
[2] Exhibit 43 (detail).
The appellant, James Egan, was charged on indictment with aggravated burglary, stealing firearms and stealing the Toyota HiLux. The State alleged that the Toyota HiLux had been used in the burglary. Mr Egan was charged along with two associates of his, Ashley Kane Christensen and Nicholas Ronzitti.
The State case against each of the accused was circumstantial. In relation to Mr Egan, the evidence included his DNA being found on one of the handguns and one of the holsters found at the Burial site. The State also relied upon, amongst other matters, the close association of the three co‑accused and the fact that Mr Egan and Mr Ronzitti attended Bunnings Bibra Lake together at about 5.50 pm on the day of the burglary. On that occasion, Mr Egan purchased work gloves, a roll of gaffer tape and a torch. Similar torches were found at Mr Egan's home a month later, one of which had concrete residue on it.
Neither Mr Egan nor Mr Ronzitti gave evidence at trial. Mr Christensen, however, elected to give evidence. He gave evidence that he was not involved in the burglary but that he and Mr Ronzitti had assisted another person to bury the firearms at the Burial site in the hours after the burglary. Mr Christensen also gave evidence that he and Mr Ronzitti took Mr Egan to the Burial site in the days following the burglary, as he thought Mr Egan might be able to sell some of the firearms. Mr Christensen said that, while they were at the Burial site, Mr Egan touched one of the guns and a number of the holsters.
Following a 21‑day trial before Staude DCJ and a jury from 12 May 2022 to 20 June 2022, Mr Egan and Mr Christensen were each convicted of aggravated burglary, stealing firearms and stealing the Toyota HiLux. Mr Christensen was also convicted of arson in relation to the destruction of the Toyota HiLux. Mr Egan was sentenced to a total effective sentence of 9 years imprisonment and Mr Christensen to a total effective sentence of 10 years imprisonment.
Mr Ronzitti was acquitted of each of the charges on the indictment but was convicted of an alternative charge of being an accessory after the fact to the stealing of the firearms. He was sentenced to 12 months imprisonment, wholly suspended for 2 years.
Mr Egan now appeals his conviction, on three grounds.
First, by ground 1, Mr Egan contends that, having regard to the evidence, the verdicts of guilty are unreasonable and cannot be supported. Mr Egan contends that, notwithstanding the advantages enjoyed by the jury in the assessment of the evidence, the jury, acting rationally, ought nonetheless have entertained a reasonable doubt as to proof of his guilt.
By ground 2, Mr Egan contends that he suffered significant prejudice as a result of impermissible cross‑examination of Mr Christensen by counsel for Mr Ronzitti. He contends that the prejudice caused by that cross‑examination could not be cured by the learned trial judge's directions and that the jury ought to have been discharged. Accordingly, Mr Egan submits that there was a miscarriage of justice.
Finally, by ground 3, Mr Egan contends that the learned trial judge's directions in relation to the jury's assessment of Mr Christensen's evidence gave rise to a miscarriage of justice. In particular Mr Egan submits that by giving a warning to the effect that the jury should give Mr Christensen's evidence careful scrutiny, because of his evidence implicating Mr Ronzitti, the learned trial judge's directions were liable to deflect the jury from its task in assessing the evidence that Mr Christensen gave exculpating Mr Egan, thereby occasioning a miscarriage of justice.
In relation to ground 1, while we would grant leave to appeal, in our view the ground has not been made out. It was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that Mr Egan was guilty of the three offences for which he was convicted. In that regard, leaving aside Mr Christensen's evidence (for the moment), the evidence of Mr Egan's DNA on one of the handguns and one of the holsters at the Burial site was strong circumstantial evidence that he was involved in the burglary, the theft of the firearms and the use of the stolen Toyota HiLux in the burglary. In combination with all of the other circumstances, and in the absence of some other explanation for the presence of Mr Egan's DNA on the firearms, the only reasonable inference was one of guilt.
In that regard, it was open to the jury, having regard to its advantage in seeing and hearing the witnesses, to reject Mr Christensen's evidence and, indeed, to be satisfied beyond reasonable doubt that it was not true. Once that is accepted, and Mr Christensen's evidence put to one side, we are not left with a reasonable doubt as to Mr Egan's guilt. Nor must the jury have entertained such a doubt.
Similarly, while we would grant leave to appeal on ground 2, we would not uphold that ground. Assuming that the cross‑examination of Mr Christensen by counsel for Mr Ronzitti was impermissible, it did not lead to a miscarriage of justice. The clear directions by the learned trial judge to disregard the suggestion that Mr Christensen's account should be rejected as false because he chose not to give it to anyone earlier, removed any risk that the jury might reason impermissibly from the exercise of Mr Christensen's right to silence prior to trial.
We would, however, in the peculiar circumstances of this case, uphold ground 3. As reflected in our conclusions in relation to ground 1, in this case it was critical to a finding of guilt on the part of Mr Egan that the jury be satisfied beyond reasonable doubt that Mr Christensen's explanation for how Mr Egan's DNA came to be on the handgun and holster was untrue.
The learned trial judge directed the jury that they should give Mr Christensen's evidence 'careful scrutiny' and that '[they] might not want to accept his evidence without seeing some independent evidence that confirms his account'. While there can be little question that his Honour gave that direction by reason of Mr Christensen's evidence implicating Mr Ronzitti as an accessory after the fact to stealing the firearms, the direction to give Mr Christensen's evidence 'careful scrutiny' was not expressly, nor in our view implicitly, confined to the evidence implicating Mr Ronzitti. There was in our view a real and perceptible risk that the learned trial judge's direction had the effect of deflecting the jury from its task in applying the presumption of innocence and the burden and standard of proof.
We would therefore allow the appeal and order that there be a retrial on counts 1, 2 and 3 of the indictment against Mr Egan.
Our reasons for those conclusions are as follows.

Indictment

The indictment in this matter charged Mr Egan with five offences, four of which were alleged to have been committed with Mr Christensen and Mr Ronzitti. The five counts on the indictment were as follows:
(1)Between 20 November 2019 and 23 November at Hamilton Hill and elsewhere James Egan, Ashley Kane Christensen and Nicholas Ronzitti stole a motor vehicle, namely a Toyota Hilux motor vehicle registration 1GPM 241, the property of Central West Refrigeration Pty Ltd.
(2)On 21 November 2019 at Yangebup James Egan, Ashley Kane Christensen and Nicholas Ronzitti while in the place of Finesse Corporation Pty Ltd trading as Claremont Firearms without its consent, committed the offence of stealing
And that James Egan, Ashley Kane Christensen and Nicholas Ronzitti were in company with each other.
(3)On the same date and at the same place James Egan, Ashley Kane Christensen and Nicholas Ronzitti stole a quantity of firearms the property of Finesse Corporation Pty Ltd trading as Claremont Firearms.
(4)On 22 November 2019 at North Lake James Egan, Ashley Kane Christensen and Nicholas Ronzitti wilfully and unlawfully destroyed property, namely a Toyota Hilux motor vehicle registration 1GPM 241
And that the Toyota Hilux motor vehicle registration 1GPM 241 was destroyed by fire.
(5)On 30 November 2019 at Hamilton Hill James Egan attempted to pervert the course of justice by taking a CCTV hard‑drive from 33 Hamilton Road, Hamilton Hill so as to prevent James Egan being prosecuted on a charge of burglary.
The State case in relation to each of counts 1, 2 and 3 was presented on the basis that the guilt of each of the accused could be established by proof that each of them either stole the firearms from the premises or aided in the stealing.
The State opened on the basis that the 'highly sophisticated nature of the burglary and the way that it was carried out' were such that the jury could be satisfied that more than one person must have been involved. The prosecutor submitted that as long as the jury were 'satisfied that somebody entered and stole firearms and somebody aided, and each accused was either one of those people, they would be guilty'.[3]
[3] ts 171.
The State then identified a wide variety of acts that it alleged would, with the necessary intention to do so, involve 'aiding' in the commission of the offence of burglary. Those acts ranged from performing reconnaissance on Claremont Firearms, purchasing items used in the burglary, cutting the holes enabling access, taking hold of firearms as they were handed through the holes, or driving to the vicinity of Claremont Firearms for the purposes of committing the burglary.[4]
[4] ts 172 ‑ 173.
It will be apparent, then, that the State case at trial depended upon the jury being satisfied as to an act of aiding by each of the accused (including Mr Egan) with the intention of aiding in the burglary, up to and including the use of the Toyota Hilux in the burglary. In this way, the State case in relation to the theft of the Toyota HiLux (count 1) relied upon the same evidence as that in relation to the burglary and the stealing (counts 2 and 3). That is, the case in relation to count 1 was opened on the basis of the extended definition of 'stealing' in s 371A of the Criminal Code; namely that the Toyota HiLux was 'used' in the commission of the burglary and that anyone involved in the burglary would thereby be guilty of 'stealing the vehicle'.[5]
[5] ts 170.
By count 5, the State contended that Mr Egan had attempted to pervert the course of justice by taking the hard drive containing CCTV footage belonging to a person who lived across the street from Mr Egan. The State alleged that Mr Egan took the hard drive because it contained evidence that would implicate him in the burglary. Mr Egan was ultimately acquitted of that charge.

State case at trial

The State case at trial against each accused (including Mr Egan) in relation to counts 1 to 4 was a circumstantial one, relying upon the combined effect of all of the circumstances to establish guilt beyond reasonable doubt. The State case in relation to each of the accused is summarised below. The following summary does not include all of the circumstances relied upon by the State. The State, for example, adduced a substantial body of evidence to establish that the Toyota HiLux was used in the commission of the burglary.[6] To that end, the State adduced evidence from a series of CCTV cameras to establish the movement of a vehicle matching the Toyota HiLux in and around Claremont Firearms on the night of 21 November 2019, including travelling towards Beeliar Regional Park.[7]

State case against Mr Egan

[6] Summarised at ts 1377 ‑ 1386.

[7] See e.g. exhibit 42.

Salient features of the circumstantial evidence relied upon by the State in relation to Mr Egan included the following.
First, the State adduced evidence that each of the accused were known to, and closely associated with, each other at the time of the burglary. In relation to Mr Egan, in particular, the State relied upon evidence (and admissions)[8] that:
(a)before 23 October 2019, Mr Christensen and Mr Ronzitti were known to Mr Egan;
(b)on 23 October 2019, Mr Egan, Mr Christensen and Mr Ronzitti were together in a car being driven by Mr Ronzitti that was stopped by police at 1.20 am; and
(c)on 21 November 2019 (that is, the day of the burglary), Mr Egan and Mr Ronzitti were together, including attending Bunnings in Bibra Lake together.
[8] See ts 194; exhibit 2.
Secondly, on 21 November 2019 (the day of the burglary), at Bunnings, Bibra Lake, Mr Egan purchased Mechanix brand gloves, a small Energizer torch and grey gaffer tape. Photographs of Mr Egan and Mr Ronzitti in the Bunnings store were tendered in evidence, as were photographs of the receipts for the gloves and the torch, and the gaffer tape, respectively.[9] The invoices recorded the transactions as occurring at 5.44 pm and 5.49 pm.
[9] Exhibit 7.1 ‑ 7.7; ts 275 ‑ 283.

There was also evidence of Mr Christensen and Mr Ronzitti attending Bunnings, Bibra Lake on an earlier occasion (11 November 2009), when Mr Christensen purchased a green (khaki) 'Rhino' Cargo Box and two cans of grey primer spray paint.[10] A green 'Rhino' Cargo Box containing firearms was later found at the Burial site and grey paint and tape was found on the cut concrete at the scene at Claremont Firearms.[11]
[10] Exhibit 5; ts 253.
[11] ts 1089.
Thirdly, on 24 December 2019 a search warrant was executed at Mr Egan's address in Hamilton Hill. During that search, police seized two small Energizer torches in the main bedroom of the house.[12] Those torches were examined by a forensic chemist and one of them was found to have residue on it. Analysis of the residue revealed that it was concrete with a composition consistent with the concrete collected from the damaged wall at Claremont Firearms, although it could not be excluded as having come from another sample of concrete.[13]
[12] ts 864.
[13] See sample MLE18 referred to at ts 671; ts 1074 ‑ 1081, ts 1084.
Fourthly, the State adduced evidence of a variety of certificates held by Mr Egan from Auswest Specialist Education and Training Services and the Great Southern Institute of Technology.[14] Those certificates were located at Mr Egan's former partner's house. The certificates certified that Mr Egan had met the requirements for a Certificate 1 in Construction, which included attainment in handling construction materials and using construction tools and equipment. The State contended that the certificates supported the conclusion that Mr Egan had the necessary technical skills to carry out the burglary.
[14] ts 1106 ‑ 1107; exhibit 7 (pages 559 ‑ 574).
Fifthly, also at the former partner's house police seized a balaclava able to be used as a face covering,[15] and a 'snake' (or inspection) camera,[16] able to be used to survey the interior of the burgled premises. The significance of the balaclava was that the State also adduced CCTV evidence of two figures apparently conducting reconnaissance at premises near to Claremont Firearms (Pole Industries) on 24 and 31 October 2019 (see further below at [37]). The significance of the 'snake' camera was that a small hole was identified in the roof of Claremont Firearms, through which a 'snake' camera could have been inserted to view the inside of the premises. DNA analysis of these items did not provide a match for Mr Egan.
[15] ts 860, ts 1107.
[16] ts 1179.
It may also be noted in this context that evidence was also adduced of a balaclava and snake camera being recovered at Mr Christensen's address. Those items were shown to have mixed DNA samples that included Mr Christensen.
Sixthly, the State produced CCTV footage from Pole Industries from 24 and 31 October 2019.[17] That footage depicted two figures in black (including with face coverings). The State contended that Mr Egan's build was consistent with one of the figures. The other figure was alleged to be consistent with the build of Mr Christensen (who had a similar build to Mr Ronzitti). One of the figures was carrying a backpack, which the State contended was a backpack belonging to Mr Christensen.[18]
[17] ts 236 ‑ 242, ts 319; exhibit 4.1; exhibit 4.2.
[18] See 1397 ‑ 1398.
Seventhly, a mixed DNA profile including that of Mr Egan was found on a Browning handgun and a Walther brand holster at the Burial site. The following matters of context are important for understanding the significance of that DNA evidence for the State case.
The Burial site was discovered by a civilian witness, John Henry, who noticed disturbed ground in the area at around midday on 25 November 2019. After initially investigating the scene (including handling a number of items), Mr Henry called the police. Police attended at the Burial site later that day, which was declared a protected forensic area.[19] Search warrants were obtained and the area searched.[20]
[19] ts 705.
[20] ts 713.
In the course of the search seven areas were dug up and identified as holes 1, 2, 3, 3A, 4, 4A and 5. Those seven areas were depicted on a sketch drawn by Detective Senior Constable Benjamin Lawson, as follows:[21]
[21] Exhibit 19 (see ts 717).
Various firearms, and related paraphernalia, were found in the holes, including:
(a)in hole 1, a number of leather firearm holsters. There were 60 holsters in total from which swabs were taken;[22]
(b)in hole 2, a Green 'Rhino' Cargo Box. The Cargo Box contained a number of items including five firearms;[23]
(c)in holes 3 and 3A, various containers and firearms;[24] and
(d)in holes 4 and 4A, various clips, containers and firearms.[25]
[22] ts 656 - 658, ts 776; exhibit 7 (page 315).
[23] ts 774; exhibit 7 (pages 325 ‑ 329).
[24] ts 789; exhibit 7 (page 453).
[25] ts 789 ‑ 790.
DNA analysis of the holsters found in hole 1 revealed the following:[26]
(a)a DNA profile could not be recovered from nine of the holsters;
(b)a reportable DNA profile could not be recovered from 32 of the holsters;
(c)a complex mixed DNA profile not suitable for further investigation was recovered from 16 of the holsters;
(d)a mixed DNA profile assumed to have originated from two individuals was recovered from one holster. One contributor matched an unknown male and the profile was otherwise not suitable for further examination;
(e)a mixed DNA profile assumed to have originated from three individuals was recovered from one holster. One contributor matched an unknown male and the profile was otherwise not suitable for further examination; and
(f)a mixed DNA profile assumed to have originated from two individuals was recovered from one holster. One contributor matched to Mr Egan and the profile was otherwise not suitable for further examination.
[26] See exhibit 17.
DNA analysis of the firearms found in hole 2 revealed the following:[27]
(a)a complex mixed DNA profile not suitable for further investigation was recovered from 16 of the firearms;
(b)a mixed DNA profile assumed to have originated from two individuals was recovered from one firearm. One contributor matched an unknown male and the profile was otherwise not suitable for further examination; and
(c)a mixed DNA profile assumed to have originated from three individuals was recovered from one firearm. One contributor matched to Mr Egan and the profile was otherwise not suitable for further examination.
[27] See exhibit 17.
DNA analysis of the items recovered from holes 3, 3A, 4 and 4A either did not recover a reportable DNA profile or recovered a complex mixed DNA profile unable to identify a particular individual.
Finally, the State also relied upon the evidence adduced as proof of count 5 (against Mr Egan), as post‑offence conduct that demonstrated consciousness of guilt. The evidence was to the effect that Mr Egan had taken a hard drive containing CCTV footage belonging to his neighbour after police had attended at her home and asked her to download the footage. Proof of those facts relied principally on the evidence of the neighbour.[28] As noted above, Mr Egan was acquitted of count 5.
[28] ts 924 ‑ 936.
In addition to these individual circumstances relied upon to prove Mr Egan's guilt in respect of the burglary, the State also relied generally upon the sophisticated nature of the burglary and the inference that the planning and execution of it was likely to involve more than one person, each of whom would have trusted the other or others.
We will address the combined effect of these circumstances as they relate to Mr Egan in the context of ground 1.
Before turning to the defence case, as it related to Mr Egan, it is necessary to say something of the State case against Mr Christensen, as the strength of the State case in relation to Mr Christensen bears upon the grounds of appeal generally. We will also briefly address the State case against Mr Ronzitti.

State case against Mr Christensen

The circumstantial case against Mr Christensen can properly be described as strong. In addition to the matters we have already referred to above (his association with the other accused, the backpack, his purchase of the green 'Rhino' Cargo Box and grey paint on 11 November 2019 and his possession of a balaclava and 'snake' camera bearing his DNA), the State's case against Mr Christensen included the following additional circumstantial evidence.
First, on 22 November 2019 (the day after the burglary) police attended the HiLux Burn site and searched the area. The Vehicle Identification Number (VIN) of the burnt vehicle corresponded with the registration of the stolen Toyota HiLux referred to in counts 1 and 4 of the indictment.[29] Approximately 200 m from the Toyota HiLux, police located a vehicle key, consisting of a HiLux key fob, metal key ring and a metal key.[30] Analysis of the surfaces of the metal key ring and a metal key revealed a single DNA profile that matched Mr Christensen.[31]
[29] ts 589 ‑ 590.
[30] ts 598, ts 1160; exhibit 7 (page 185).
[31] ts 1113; exhibit 17.
Secondly, at around 2.30 am on 22 November 2019, Mr Ronzitti's Holden Rodeo utility was driven through the drive‑through of a Hungry Jack's restaurant in Spearwood.[32] A receipt from Hungry Jack's, Spearwood, dated 22 November 2019 at 2.39 am for two 'Triple Super Stunner' meals (and a large onion rings) was located at Mr Christensen's home at 34 Bradbury Road, Hamilton (34 Bradbury Road).[33]
[32] ts 318; exhibit 4.5.
[33] ts 857; exhibit 7 (p 420).
Thirdly, Mr Christensen's DNA profile was present on a sock found in close proximity to holes 4 and 4A at the Burial site.[34]
[34] ts 1113; exhibit 17.
Fourthly, a camera was located on the roof of business premises next to Claremont Firearms, known as Bellagio Homes. The camera was pointing at Claremont Firearms.[35] A SIM card was taken out of the camera and analysed for DNA.[36] A mixed DNA sample was present on the SIM card, which included Mr Christensen as a contributor.[37]
[35] ts 634, ts 661.
[36] ts 886, ts 1015 ‑ 1016.
[37] ts 1113; exhibit 17.
Fifthly, during a search of Mr Christensen's home at 34 Bradbury Road police located a piece of paper with a sketch on it.[38] The State contended that the sketch was consistent with a drawing of Claremont Firearms.[39] The paper had a complex DNA profile not suitable for further investigation.[40]
[38] ts 863; exhibit 7 (pages 423 – 424).
[39] ts 1402.
[40] ts 1131.
Sixthly, the search of 34 Bradbury Road also revealed a that a section of the wall in the storeroom had been cut into the brickwork.[41] A dustpan outside the storeroom also contained rubble or pieces of brick.[42] The hole in the storeroom wall looked like this:[43]
[41] ts 877.
[42] ts 1329.
[43] Exhibit 7 (page 429).
A search conducted at the home of Mr Christensen's aunt, Christina Christensen, in Oxalis Grove, Beeliar on 26 November 2019 located a firearm stolen from Claremont Firearms. Mr Christensen and Mr Ronzitti were observed attending at that residence on 23 November 2019.[44] A mixed DNA sample was present on that firearm, including Ms Christensen's partner, Karl Brassat.[45] DNA found on a cigarette butt at the Burial site was also a potential, although not a strong, match for Mr Brassat ('quite a low figure').[46]

State case against Mr Ronzitti

[44] ts 838 – 840.

[45] ts 1103.

[46] ts 1102.

The circumstantial case against Mr Ronzitti was considerably weaker.
It was based principally on his association with Mr Christensen and Mr Egan, his presence with each of them at Bunnings on 11 November 2019 and 21 November 2019, respectively, and his car travelling to Hungry Jack's, Spearwood at around 2.39 am on 22 November 2019. In that regard, CCTV footage of the area surrounding 34 Bradbury Road showed that Mr Ronzitti's vehicle was at those premises from 6.27 pm on 21 November 2019 to 2.27 am on 22 November 2019. The vehicle was therefore at 34 Bradbury Road at the time of the burglary.
Unlike Mr Egan and Mr Christensen, there was no evidence of Mr Ronzitti's DNA linking him to the Burial site (and in Mr Christensen's case the HiLux Burn site and the vicinity of Claremont Firearms) nor the other circumstances relied upon in relation to the case against Mr Egan and Mr Christensen.
The State also sought to rely upon a lie Mr Ronzitti had told the police in an interview (to the effect that he did not know Mr Egan) as evidence of consciousness of guilt. The learned trial judge, however, ruled that the lie was not capable of being an admission and was only relevant to the jury's assessment of Mr Ronzitti's credibility in the interview (in otherwise denying involvement in the offences).[47]
[47] ts 1362 ‑ 1363.

Defence case at trial

As noted at the beginning of these reasons, neither Mr Egan nor Mr Ronzitti gave evidence, or adduced evidence, at trial (although police interviews with Mr Ronzitti were adduced as part of the State case).
Mr Christensen did elect to give evidence. Given the significance of his evidence to all of the grounds of appeal it is necessary to summarise it in some detail.

Mr Christensen's evidence in chief

Mr Christensen gave his evidence over two days, on 9 and 10 June 2022, which were days 15 and 16 of the trial.
Mr Christensen gave evidence that in around October 2019 he was living at 34 Bradbury Road, which was his 'mum's house'. He gave evidence that Mr Ronzitti was living there at the time.[48]
[48] ts 1187.
Mr Christensen described Mr Egan as a good friend who he had known for about 10 years. He would see Mr Egan once or twice a week during the period surrounding October 2019.[49]
[49] ts 1188 ‑ 1189.
Mr Christensen shared a number of interests with Mr Ronzitti, including riding motorbikes and using drugs such as methamphetamine and cannabis. The main person from whom Mr Christensen would buy methamphetamine was a person by the name of Cameron Anderson, who lived nearby.[50]
[50] ts 1190 ‑ 1191.
When asked about the footage of him purchasing the Green 'Rhino' Cargo Box from Bunnings on 11 November 2019, Mr Christensen said that he had brought it for his friend, Cam (i.e. Mr Anderson), as a favour.[51] He said that he left it at Christina Christensen's house and that Mr Anderson had said that he would 'grab it off [him] after'.[52]
[51] ts 1192 ‑ 1193.
[52] ts 1194.
Mr Christensen said that on 21 November 2019 he was at home. He said that he went to sleep early and was asleep until he was woken in the early hours of the next morning ('about 1.30, 2 o'clock') by Mr Ronzitti. He gave evidence that Mr Ronzitti said that 'Cam's rang and he wants us to bring him that box'. Both men left in Mr Ronzitti's car and drove to Ms Christensen's house, stopping at Hungry Jack's on the way to pick up something to eat.[53]
[53] ts 1196 ‑ 1197.
When they arrived at Ms Christensen's house, Mr Christensen said that Mr Brassat was asleep in the carport out the front. Mr Christensen said that he asked Mr Brassat if 'he wanted to come for a cruise with us', which he did. Mr Christensen, Mr Ronzitti and Mr Brassat then left, with the 'crate', to meet with Mr Anderson at a location in Yangebup.[54]
[54] ts 1197 ‑ 1198.
When they arrived at the location, the group met with Mr Anderson who, after some discussion about the presence of Mr Brassat, asked the group to follow him to a location in the bushland in the Bibra Lake area. Mr Anderson was driving a Nissan Patrol. Mr Christensen said the group ultimately parked up on a track and exited their cars. His evidence continued:[55]
And when you got out of the car, did you see anything?‑‑‑I seen him [i.e. Mr Anderson], he went to the back of his car. He grabbed some shovels out and then we followed him like maybe 15, 20 metres into the bush on our left. And that's, yeah, where I seen this bunch of guns just on the floor.
Okay. Can you just describe to the jury what it is that you've seen, what – what is the visual situation? You mentioned guns. What are you looking at?‑‑‑I seen there was two crates that were pretty much full, black rectangle‑shape crates. I think they would have had about 30, 20 to 30 handguns in each one. There was a bag of rifles that was on the floor. There was plastic boxes and cardboard scattered everywhere. And yeah, that's about it.
[55] ts 1199.
Mr Christensen said that Mr Anderson told them to bury the guns. He said: [56]
And were you asked to do anything?‑‑‑Yeah. So after that I just – I asked him, 'Where do we start?' and he told us to empty – empty the crates into the box, the cargo box, and he said, 'Bury the cargo box right here,' and he stabbed the shovel in the ground where he wanted it buried. And then he said to put all the rifles – bury them behind a log that was there. And then he said all the rest of the stuff – he goes, 'Just dig a big hole and chuck it all in there.' And he said, 'Make sure all the plastic boxes are empty, yeah, before you chuck them away.'
And did you do anything in response to those instructions?‑‑‑Yeah, well, I started digging. I grabbed a shovel, [Karl] grabbed a shovel, and me and him started digging.
And how many holes did you dig, do you think, in ‑ ‑ ‑?‑‑‑I don't know. We dug heaps of holes. He told us to dig like a big hole, but we were trying to dig and it was like tree roots and it was a mission to dig, so we ended up just digging a whole bunch of holes everywhere.
[56] ts 1200.
Mr Christensen said that in the process of digging he needed 'to use the toilet' and substituted toilet paper for one of his socks.[57]
[57] ts 1201 ‑ 1202.
Mr Christensen said that Mr Anderson told him to check all the boxes to make sure that they were empty and to bring any guns to him in the morning if they found any. He said that after they had finished digging (at around 6.00 am), they found four handguns, which they took.[58]
[58] ts 1202.
After they left the Burial site, Mr Christensen said that they dropped Mr Brassat off in the Bibra Lake industrial area, visited Mr Christensen's father's house in Samson and then went to Mr Anderson's house. Mr Christensen said that he gave the four handguns to Mr Anderson and Mr Anderson gave them 'half a ball' of methamphetamine 'for doing it'. He said that Mr Anderson also told them that they could have all of the rifles at the Burial site, saying:[59]
'Just give it a day or two before you go down – back down there though' And he said, 'After you go back down there, anything – whatever's left down there youse can have.'
[59] ts 1203.
Mr Christensen and Mr Ronzitti then returned to 34 Bradbury Road.
Mr Christensen was asked whether he ever returned to the Burial site. He said that he had and gave the following evidence:[60]
[60] ts 1207 ‑ 1208.
And do you recall how long after your first attendance at the dig site this was?‑‑‑It was a couple of days. Yeah, I don't know the exact date.
If you can describe the circumstances of you returning to the dig site?‑‑‑Well, I wanted to show James [i.e. Mr Egan] what was down there because I told him about it. And I was hoping maybe that he could try sell some for me or I offered him one. So we just went to go have a look what was left.
And how did you get there? How did you travel?‑‑‑In Nick's ute.
So who was there at this point in time?‑‑‑Me ‑ ‑ ‑
The second – the second time that you were at the dig site?‑‑‑Me, Nick and James.
And when you've arrived, can you describe what you see when you arrive?‑‑‑So we – I opened up the container to see what was in there and it was just full of like holsters. When I opened up the container it – it – sand started fall – falling in, the hole started caving in. So we pulled it out of the hole and I decided to dig another hole for it and we chucked the holsters in the hole that was caving in and put it in another hole, yeah.
Okay. Now, you said something was caving in. What was that?‑‑‑That was the hole that the – the cargo box was first buried in.
So you removed it?‑‑‑Yeah.
And you said you chucked something into the old hole?‑‑‑Yeah, it was just all the empty holsters that were filling up the cargo box.
And who did that?‑‑‑Empty it?
Who – who chucked the stuff?‑‑‑James and Nick were emptying it, the holsters, and I was digging the new hole.
And when you opened the crate, the one(?) crate on this occasion, were its contents the same or different from when you last recall seeing on the first occasion at the dig site?‑‑‑It was different.
How so?‑‑‑There was – all – all the holsters that were in there, previously had guns in them.
And when you looked in it the second time?‑‑‑The holsters were just empty.
And did anyone take anything from the dig site on this second occasion?‑‑‑No, we didn't take anything.
And what time of the day roughly do you think this was that you attended on the second time at the dig site?‑‑‑Maybe 5 o'clock in the afternoon.

Mr Christensen then gave evidence of a practice that he had around that time of setting up 'burner phones' using mobile telephone parts and SIM cards. He also said that his inspection camera was used for looking inside engine blocks and that his balaclava was used for motor bike riding.[61]
[61] ts 1211 ‑ 1212.
Mr Christensen was asked about the hole in the brick wall depicted at [55] above. He said that it was a 'little door' he made to get into an old shed consisting of three panels without doors, which had been put straight up against the brick wall of the house. Mr Christensen said that the hole was cut into the wall using a nine‑inch grinder and that this was done at the 'end of 2016, 2017'.[62]
[62] ts 1214 ‑ 1215.
Mr Christensen was shown the sketch found in his bedroom referred to at [54] above. He said that he knew nothing about it and that he did not draw it.[63]
[63] ts 1217.
When shown the SIM card from the camera (referred to at [55] above) that bore his DNA, Mr Christensen said that it looked like the SIM cards he used to set up burner phones. He said that he had never seen the camera before.[64]
[64] ts 1217 ‑ 1218.
When asked about the set of keys found at the HiLux Burn site said to bear his DNA (referred to at [50] above), Mr Christensen said he had no recollection of ever seeing the key and did not know how his DNA was on it.[65]
[65] ts 1218.
Mr Christensen denied stealing the Toyota HiLux, he denied conducting a burglary or stealing weapons from Claremont Firearms and he denied burning out a vehicle.[66]

Cross‑examination of Mr Christensen by Mr Egan

[66] ts 1218.

Mr Egan's trial counsel briefly cross‑examined Mr Christensen. That cross‑examination was generally directed to adducing evidence from Mr Christensen that provided innocent explanations for a number of the circumstances relied upon by the State in its case against Mr Egan.
Mr Christensen said that Mr Egan did not use methamphetamine.[67]
[67] ts 1220.
He said that he had seen Mr Egan riding dirt bikes, including at night‑time. He said that, as the dirt bikes did not have lights, Mr Egan would 'just tape a torch to it'.[68]
[68] ts 1221.
Mr Christensen agreed that, when he attended the Burial site with Mr Egan a couple of days after the first occasion that he had been there, he saw Mr Egan touch holsters at the Burial site. When asked how many, he said 'I don't recall how many. He was shovelling them out into a hole'. Mr Christensen said that Mr Egan also handled a firearm. He said that the firearm was a pistol and that it was put back into the cargo box.[69]

Cross‑examination of Mr Christensen by Mr Ronzitti

[69] ts 1222.

Mr Christensen was also cross‑examined by Mr Ronzitti's trial counsel. That cross^_examination had a distinctly different tone and directly attacked Mr Christensen's credibility.
Counsel commenced by asking Mr Christensen when it was that he had decided to give the explanation that he had been woken in the early hours of the morning by Mr Ronzitti to dispose of rubbish for Cameron Anderson. A short time later, the cross‑examination continued as follows:[70]
[70] ts 1224 ‑ 1225.
Now, when I asked you that first question, what I was getting at is that you've always known what had happened that night, what had happened in the early hours of that morning, haven't you?‑‑‑Yep.
You've always known that you were innocent of a crime that you've been charged with which you didn't commit?‑‑‑Yep.
Okay, you've always known that because you're charged with the burglary of the – of the Claremont Firearms and the theft of the – of the guns that were inside the vault?‑‑‑Yep.
You know that. You've been charged with the theft of the Toyota HiLux and its destruction by fire?‑‑‑Yep.
You know that?‑‑‑Yep.
And you've known that for, what, at least two years or more?‑‑‑Yep.
And you've been in custody all of that time, haven't you?‑‑‑Yep.
Yes. So did you ever think that perhaps you should tell the police or tell the DPP that you're innocent of those charges. Did you ever think about that?‑‑‑Well, I thought it would be most appropriate to wait until my day in court so I can speak about it.
Yes, but you could speak to them about it. You could tell the police what happened and say, 'It wasn't me'?‑‑‑Yeah.
Yes. You could have told the story that you've told today and you could have – could have ‑ ‑ ‑?‑‑‑I was – I was advised by my lawyer at the time that it's probably best I shouldn't speak to the police about it.
What, to tell them about your innocence?‑‑‑Yes.
So you're blaming your lawyer?‑‑‑No, my lawyer just told me, 'Don't make any comment to the police'.
Okay. Did – did you want to tell the police and tell the DPP that you were innocent of these charges?‑‑‑Yeah, of course.
Yes. But you just decided to wait your time, two and a half years, so you would get your day in court, is that it?‑‑‑Yep.
Well, I suggest to you, Mr Christensen, that the reason that this story didn't emerge sooner is because it's a recent invention on your part?‑‑‑No, that's not true.
Do you know what I mean by that? Just something you've made up, right, to sail your way through this trial?‑‑‑That's not true.
Counsel for Mr Ronzitti also cross‑examined Mr Christensen generally as to his evidence, including to the effect that there were parts of guns in his possession at his workshop. Mr Christensen agreed that he did have such items and that he was 'trying to make a gun'.[71] Mr Christensen was also generally cross‑examined to the effect that his account was improbable, including the risk of going out to the Burial site a couple of days after 21 November 2019 in circumstances in which the 'police would be right onto [it]'.[72]
[71] ts 1241.
[72] ts 1243 ‑ 1244.
It was put to Mr Christensen that the sketch found in his bedroom referred to at [54] above was a drawing of Claremont Firearms[73] and that the hole depicted at [55] above was a practice run to see how he could cut out the hole at the Claremont Firearms vault.[74] Mr Christensen denied both propositions.
[73] ts 1248.
[74] ts 1252.
At the conclusion of the cross‑examination by Mr Ronzitti's trial counsel, the learned trial judge (of his own motion) gave the jury a direction in relation to the reference in the cross‑examination of Mr Christensen to the fact that he had been in custody since he was arrested. His Honour directed the jury that it should not treat that evidence as probative or as proof of anything in the trial, that it should not prejudice Mr Christensen and that they should not speculate as to why Mr Christensen had been in custody rather than on bail.[75]

Mr Christensen's application to discharge the jury

[75] ts 1259.

Shortly after the commencement of the State's cross‑examination of Mr Christensen, counsel for Mr Christensen made an application to discharge the jury, on the basis of prejudice caused to Mr Christensen as a consequence of the cross‑examination of him by counsel for Mr Ronzitti, and in particular the cross‑examination reproduced at [88] above.
As the learned trial judge aptly described it, the prejudice identified by Mr Christensen was that, by that cross‑examination, 'the jury was invited to doubt the truthfulness of [Mr Christensen's] evidence on the basis that it was not merely a fabrication constructed over time, but that it can be demonstrated to be false by his failure to give his account earlier, when it would have been in his interests to do so'.[76] That suggestion, the learned trial judge found, 'was conveyed to the jury by the form and sequence of the questions that were asked'.[77]
[76] ts 1297.
[77] ts 1297.
The learned trial judge accepted that the cross‑examination was in that regard 'improper' and tended to infringe Mr Christensen's right to silence and create unfair prejudice. His Honour then turned to whether that prejudice could be overcome by a direction. In that regard his Honour concluded:[78]
The jury could expect a robust attack to be made on the credibility of Mr Christensen, in the interests of Mr Ronzitti. It is salient, in my view, that what I find to be impermissible questions going to Mr Christensen's failure to speak when he had a fundamental right not to, came from counsel for a co‑accused in the context of a necessary challenge to Mr Christensen's credibility.
It bears, I think, if only slightly on the question of remediation, perhaps it is no more than a nuance, but it is not without significance that the court is dealing with the question of whether unfair prejudice caused by a co‑accused in a cutthroat defence case can be remedied by a direction. I am not without some misgiving, but after due consideration of the issue, of the opinion that a jury can be given directions that would remedy the prejudice that I accept has likely been caused. And they can be given those directions without necessarily highlighting the point that was made by the impugned questions.
[78] ts 1297 ‑ 1298.
The learned trial judge, accordingly, dismissed the application to discharge the jury.

Cross‑examination of Mr Christensen by the State

The State cross‑examined Mr Christensen, generally focussing on the improbability of a number of his explanations for the evidence that implicated him in the burglary, including as to the circumstances of his buying the cargo box and then leaving it at his aunt's house,[79] of his evidence as to Mr Anderson taking him to the Burial site at 2.30 am,[80] and, of his account of taking Mr Egan to the Burial site.[81] The prosecutor cross‑examined Mr Christensen in relation to the hole depicted at [55] above as to the improbability of rubble from cutting that hole still being present if it had been made in 2016 or 2017.[82]
[79] ts 1309 ‑ 1311.
[80] ts 1315 ‑ 1318.
[81] ts 1322 ‑ 1323.
[82] ts 1328 ‑ 1330.
Towards the conclusion of the prosecutor's cross‑examination, it was put to Mr Christensen that the three accused were the ones who committed the burglary and buried the firearms and that he had burnt the Toyota HiLux, all of which he denied. The cross‑examination at that point continued:
You've come here, you've tried to give an explanation for the evidence against you?‑‑‑Yes.
You've tried to give an explanation for some of the evidence against Mr Egan. Isn't that right?‑‑‑Yes.
Well, you accept you've given an explanation for how his DNA could have gotten on the firearm?‑‑‑Yes.
How it could have gotten on the holster?‑‑‑Yes.
And as far as you're concerned, you don't see that the story you've told in court implicates Mr Ronzitti in the burglary, do you?‑‑‑No.
No. You don't see that, do you?‑‑‑No.

Trial judge's directions to the jury

The learned trial judge commenced his directions to the jury by addressing the presumption of innocence and the onus and standard of proof.
At an early point in his directions, the learned trial judge addressed the need to guard against sympathy and prejudice. In that context his Honour referred to the cross‑examination of Mr Christensen by counsel for Mr Ronzitti reproduced at [88] above. Consistent with his Honour's earlier direction at [91] above, his Honour gave the following directions:[83]
I mentioned during the trial in relation to Mr Christensen's cross‑examination that his admission that he'd been in custody signifies nothing. It is not proof of anything in this trial. You cannot draw any inference against him from that fact.
You've also heard evidence from him of illicit drug use, drug dealing, setting up burner phones for illegal purposes, and even attempting to make a gun. And he said he took Mr Egan to the dig site because he thought that he could sell some guns to him or get him to sell guns for him.
[83] ts 1543.
Following a number of general directions as to the assessment of the witnesses' evidence, the learned trial judge turned to the right to silence and the accounts given by Mr Ronzitti (in his police interviews) and Mr Christensen (in his evidence).
In relation to Mr Ronzitti's denial of the offending in his police interviews, his Honour gave an orthodox Liberato direction:[84]
As to his denial of involvement, it may be that you accept what he told the police and in that event you would obviously acquit him. If you had difficulty accepting what he told the police but thought that it might be true, then you would acquit him because you would have a reasonable doubt.
[84] ts 1548.
Shortly after, the learned trial judge turned to Mr Christensen's evidence. Given its significance for ground 3 it is necessary to set it out in some detail:[85]
I turn now to Mr Christensen's election to give evidence. As a consequence of choosing to give evidence, Mr Christensen was cross‑examined by Mr Trowell and Ms Christian. His evidence is part of the body of evidence that you have to consider in this case. And his evidence, being given in court, can be used by you in considering the cases against Mr Egan and Mr Ronzitti.
Now, the fact that Mr Christensen chose to give evidence does not in any way detract from the principle that the onus is on the State to prove the charges against him beyond reasonable doubt and that he bears no onus of proof in terms of establishing his innocence.
The effect of his evidence is that he was not involved in planning or carrying out the burglary or stealing offences committed at Claremont Firearms, or stealing or destroying the Toyota HiLux, or assisting in any way in the commission of those offences, but that he did help another person to conceal a number of firearms and other items that he had reason to believe had been stolen.
On his account that occurred well after the Toyota HiLux was destroyed at Bibra Lake. That is, in time, probably on his evidence at about 3 am or later on the morning of 22 November, the HiLux being destroyed at about half past 1 according to the evidence of the DFES officers who gave evidence.
Now, I need to give you the same directions about Mr Christensen's evidence as I gave you with respect to Mr Ronzitti's answers in his police interviews. If you accepted Mr Christensen's evidence that he was not involved in the charged offences or thought that it might be true as a reasonable possibility, then you would obviously acquit him.
If you were not to accept his evidence and rejected as a reasonable possibility that it was true, it would not follow automatically that you would find him guilty of any offence as charged. Mr Christensen does not have to prove his innocence. That means that if you reject his evidence you should put it to the side as evidence that you do not accept. And the question would remain, 'Has the State, on the basis of evidence that I do accept, proved his guilt beyond reasonable doubt?'
Now, it's very important for you to remember that the question for you to consider is whether on the evidence before you, evidence that you do accept, the State has proved guilt beyond a reasonable doubt. So if Mr Christensen's evidence or any other evidence gives rise to a reasonable doubt with respect to any of the counts against him, then you cannot convict him of those counts. (emphasis added)
[85] ts 1549 ‑ 1550.
As is apparent, his Honour gave an orthodox Liberato direction in relation to Mr Christensen's evidence, including to the effect that if the jury thought that his evidence might reasonably be true, then it should find him not guilty.
The learned trial judge then turned to the cross‑examination by counsel for Mr Ronzitti reproduced at [88] above. His Honour directed the jury as follows:[86]
Now, I want to say something briefly, members of the jury, in the context of Mr Christensen's evidence about the challenge that was made to his credibility by Mr Trowell on behalf of Mr Ronzitti.
Now Mr Christensen, you'll recall, was challenged quite vigorously by Mr Trowell on the basis that he had fabricated his account of being called to the scene, in fact asked to go to the scene or to at least meet Cameron Anderson by Mr Ronzitti in the early hours of 22 November.
It was put to him that he had made that story up to explain away evidence that was against him in the prosecution case and that he had the opportunity of doing so over a period of time since his arrest. He denied doing so. He maintained that it was Mr Ronzitti who woke him at about half past 1 or 2 o'clock on the morning of 22 November 2019 and asked him to go and assist Anderson.
Christensen said that he went along with Ronzitti and he thought that if he helped Anderson out, there would be some benefit to him, there would be some gear in it for him, meaning drugs. I think his evidence was that he eventually got half a ball of methylamphetamine from him which he said was one and a half grams or so, worth about $500.
Now it was put to him by Mr Trowell on behalf of Ronzitti that if his account were true, he would have given it earlier than in the trial, that is he would have told the police or the DPP his version of events.
Now those questions did not respect Mr Christensen's right to silence and you shouldn't draw any inference against him by reason of him having exercised his right of silence up to the time of giving evidence. His explanation, you will recall, was that he acted on legal advice. That advice was entirely proper. He wasn't obliged to talk to the police or the DPP before the trial and he was entitled to elect to give evidence once the prosecution case was closed. Now Mr Trowell properly did not challenge that explanation.
Now in this State, as a matter of law, an accused person is entitled to remain silent and no adverse inference can be drawn against that person for doing so. So I direct you to disregard the suggestion that his account should be rejected as false because he chose not to give it to anyone earlier. It would be wrong to reject his evidence on that basis.
On the other hand, it would be quite proper and it was quite proper for it to be suggested to him that he had an opportunity over a period of time to come up with an account that was tailored to the case against him. And that, as I understand it, was the main thrust of Mr Trowell's challenge, that he'd come up with a false account implication Ronzitti having had the benefit of seeing all the evidence against him.
[86] ts 1550 ‑ 1551.
His Honour then gave an 'accomplice warning' in relation to Mr Christensen's evidence:[87]
[87] ts 1551 ‑ 1554.
There is something that I need to say about Mr Christensen's evidence, members of the jury, as a matter of law because of what he said implicating Ronzitti, really as an accessory after the fact to the stealing offence committed at Claremont Firearms.
The three accused are charged together as accomplices. Now you do need to carefully scrutinise the evidence of Mr Christensen and that is because you may consider that he has a certain degree of self‑interest in giving his evidence. He may be seeking to justify or at least minimise his own conduct in this case and by doing so, he's implicated Ronzitti. His position is that he was not involved at all.
Basically it's Mr Christensen's position that Ronzitti woke him to tell him that Anderson had a job for them and that they subsequently, with [Karl Brassat], assisted Anderson by burying a number of handguns and rifles that were in Anderson's car, which was described as a Nissan Patrol.
By his evidence he admits that he thought the guns were stolen and that he, [Brassat] and Ronzitti, helped to hide them by burying them. That, you might well conclude, amounts to him being an accessory after the fact to an offence of stealing, but a less serious offence than those with which he and the others are charged.
Mr Ronzitti's position, consistent with his police interviews, is that he was not involved at all. So the effect of Christensen's evidence is to contradict Ronzitti and to implicate him, at least to the extent of being an accessory after the fact.
The fact that there is a degree of self‑interest in giving that evidence is not a reason of itself for you to reject the evidence of Christensen, but it is a reason for you to give it careful scrutiny and to compare it with what is known about the circumstances of the charged offences from other evidence, and what other facts are accepted by you as reliable.
You should consider whether there is any other evidence which confirms the evidence of Mr Christensen, and that is because you might not want to accept his evidence without seeing some independent evidence that confirms his account.
Now, in this case there is evidence that Mr Ronzitti's Rodeo motor vehicle was seen leaving 34 Bradbury Road at about 2.27 am on 22 November which would correspond with what Mr Christensen said occurred, and that vehicle was later seen at Hungry Jack's where they said that, or where Mr Christensen said that they went. But, of course, those are matters that were known to Mr Christensen.
At the burial site or dig site as I may describe it, there was a sock that was found to have Mr Christensen's DNA on it. That would place him at that site. And he gave an explanation of that. And then there was also DNA evidence that a profile matching [Karl Brassat] was found on a stolen firearm that was found at 10 Oxalis Way, a place that Christensen and Ronzitti went to on 23 November 2019, according to the covert operatives that carried out surveillance on that day.
What is put against Mr Christensen is that he has made up a narrative to fit the case against him, that he has, in effect, tailored his evidence in that regard. It is a matter for you to consider whether you accept the evidence of Christensen, but because of what I've told you, you must carefully scrutinise that evidence, particularly in view of its prejudicial effect on Ronzitti.
Now, it is clear from Mr Christensen's evidence that by the time he came to bury the guns in the Rhino cargo box, he knew that they had been stolen. He admitted as much in cross‑examination. By that admission you may find, and it is a matter for you, but not one that I think you would find difficult, that he admitted being an accessory after the fact to stealing, and by his evidence, as I've said, he implicated Ronzitti in that regard.
Being an accessory after the fact, in this case by dealing with property knowing that it was stolen, and in order to protect the thief, is an alternative offence to stealing. So I will, in due course, give you some directions about that.
In short, if, on the basis of Christensen's evidence, you were not satisfied that he and the others were actually involved in the commission of counts 1 to 4, you might well be satisfied that Christensen and Ronzitti assisted in the disposal of some of the stolen guns in a way that made them accessories after the fact, having done so to assist another person who had stolen or received them.
Obviously the State's case is that each accused is criminally responsible for the burglary, stealing and motor vehicle offences. It is only if you found them not guilty of the burglary and stealing offences on the basis that you accepted Christensen's account as truthful, that you would have reason to consider the alternative, but I'll come back to that later. (Emphasis added)

During a morning break, counsel for Mr Ronzitti submitted that, unlike the evidence that Mr Ronzitti's vehicle was seen leaving 34 Bradbury Road at 2.27 am on 22 November, the evidence of Mr Christensen's DNA at the Burial site could not amount to corroboration of Mr Christensen's evidence implicating Mr Ronzitti. Following the morning break, the learned trial judge returned to the issue:[88]
Members of the jury, I just want to return ever so briefly to what I said by way of a direction as to the scrutiny you should give to Mr Christensen's evidence and that it implicates Mr Ronzitti, and I was talking about the need to – well, suggesting you might look for some confirmation or corroboration in other evidence of Mr Christensen's account.
I mentioned the evidence of the Rodeo vehicle owned by Mr Ronzitti being seen to leave 34 Bradbury at 2.27 in the morning, and I also mentioned that there was a sock containing or carrying Mr Christensen's DNA found at the dig site. Of course that doesn't implicate Mr Ronzitti. There's no evidence at the dig site that corroborates Mr Christensen's account that Ronzitti was there as he said. I make that point by way of clarification.
[88] ts 1558.
The learned trial judge then summarised the State case and the defence case to the jury at some length. In the context of count 5, his Honour addressed the State's reliance on the conduct alleged to constitute count 5 as post‑offence conduct demonstrating a consciousness of guilt of the other charges. His Honour directed the jury that 'to be able to use that conduct as evidence of guilt of another offence, you would have to be satisfied beyond reasonable doubt that [Mr Egan] did commit count 5 and you wouldn't use that evidence unless you were so satisfied'.[89]
[89] ts 1580.
In the course of summarising the State case in relation to Mr Egan, the learned trial judge said the following, in relation to the DNA evidence:[90]
A DNA profile matching his was found on a Browning hand gun found in the Rhino cargo case at the dig site and on a Walther holster, and that evidence is said to be consistent with him being involved in the theft of the firearms.
Of course Mr Christensen's evidence gives a different explanation for the presence of those profiles. Christensen said that he saw Egan touch a firearm and a holster, but the State submits that Christensen's evidence in this regard should be rejected and you're asked to infer that Mr Egan's profile was found – his DNA was put on those items because he was involved in stealing them.
[90] ts 1618 ‑ 1619.
Towards the conclusion of his directions, the learned trial judge addressed the possibility of alternative verdicts to count 3, with respect to Mr Christensen and Mr Ronzitti. His Honour did not leave an alternative verdict in relation to Mr Egan. In that context, his Honour referred to the earlier warning he had given in relation to Mr Christensen's evidence. His Honour said:[91]
[91] ts 1623 ‑ 1624.
But the reason for leaving the alternative is that if the basis of your acquittal of Mr Christensen and Mr Ronzitti is that you accept Mr Christensen's account, then you would have to consider whether his evidence proves beyond reasonable doubt that he, knowing that the firearms were stolen by Anderson or had been received by him as stolen, dealt with those items in a way that was intended to assist Anderson avoid detection, that is by concealing the firearms. In other words, to enable the actual offender or offenders to get away with the crime.
It is not an automatic verdict. You might reject Christensen's evidence and other reasons to acquit him and Mr Ronzitti. In other words, there may be other reasons for acquittal than an acceptance of his evidence.
If you do not accept his evidence but you're nevertheless not satisfied beyond reasonable doubt that he committed the burglary, then you would return a verdict of not guilty to the alternative also. But he has admitted that he thought the guns that he was asked to bury were stolen and that with Ronzitti and [Karl Brassat] he buried them at Cameron Anderson's request in order to help him. So he's made those admissions.
And in relation to Mr Ronzitti, I have given you a warning about giving careful scrutiny to Mr Christensen's evidence to the extent that it implicates him on the basis that it may be seen to be given out of self‑interest to give an account that minimises his involvement and distances himself from the burglary but in a way that necessarily implicates Ronzitti.
He and Ronzitti are jointly charged on the indictment as accomplices and the court's experience is that an accomplice may have an interest in minimising their own involvement by giving evidence implicating another to a greater degree.
And I've told you to look in giving careful scrutiny to Mr Christensen's evidence [for evidence] that might corroborate or confirm it and I've mentioned the evidence that Ronzitti's Rodeo can be seen to have left Christensen's house in Bradbury Road at a time that would fit in with Mr Christensen's evidence that they went out about that time.
But of course you'll know that what's put against Mr Christensen is that he has tailored his evidence to what he knows about the State case, which is a criticism that's made by Mr Trowell and Ms Christian.
If after careful scrutiny you accept Mr Christensen's evidence and on that basis find that Ronzitti was not involved in the burglary but merely helped Anderson, then you will need to decide on the evidence whether you are satisfied beyond reasonable doubt of his guilt as an accessory after the fact.
On Christensen's account Ronzitti assisted by enlisting Christensen's help, and otherwise assisting at the dig site, although to a limited extent because of his arm injury, to conceal the firearms in order to help Anderson. You would have to be satisfied that he did so and that he did so knowing that an offence of stealing had been committed to assist the offender.
As to his knowledge. Obviously, his state of mind can only be proved by inference, to draw an inference of knowledge that the guns were stolen you would have to consider what he did and all the circumstances in which he came to be at the site that night. It's a matter for you, but just as Christensen admitted that he thought the firearms must have been stolen, you might think that Ronzitti must also have known that they were stolen in the circumstances.
Now, he has not given evidence in relation to this. By his answers to the police questions he has denied any involvement whatsoever, he said he was at home all night and he did not know what Christensen got up to at night. The evidence that his Rodeo motor vehicle left Christensen's house at 2.23 or thereabouts does not prove conclusively that he was driving it but there is evidence that Ronzitti used to drive Christensen around, and others, he pretty much characterised himself as a driver.
If the basis of your acquittals of Christensen and Ronzitti, or either of them, on count 3 is that you accept Christensen's evidence, then you will need to decide whether one or other of them, as the case may be, is guilty of being an accessory after the fact.
In relation to Mr Egan the situation is different. Mr Christensen's evidence is that he invited Egan to the site a day or so later and offered him a gun that Mr Egan touched but did not accept. Egan, according to Christensen, also with Ronzitti, emptied some holsters from a cargo box. But Christensen said that he then reburied the box and nothing was taken from the site.
So there is no evidence that Egan, if he knew, as you think he must have known that the guns and other items were stolen, did not do anything in relation to those items that would be capable of constituting assistance to the offender. So I'm not going to ask you for an alternative verdict as to whether he was an accessory after the fact as there's simply no evidence of that.
It may be observed, in this context, that the learned trial judge did not leave an alternative verdict in relation to Mr Egan because the charge of stealing (count 3) 'was completed when the guns were taken from the premises of Claremont Firearms'.[92]
[92] ts 1634.

Verdicts

The jury returned the following verdicts:
(a)Mr Egan was found guilty of counts 1, 2 and 3 (stealing the Toyota Hilux, aggravated burglary and stealing firearms); and not guilty of counts 4 and 5 (destroying the Toyota HiLux and attempting to pervert the course of justice);
(b)Mr Christensen was found guilty of counts 1, 2, 3 and 4 (stealing the Toyota HiLux, aggravated burglary, stealing firearms and destroying the Toyota HiLux); and
(c)Mr Ronzitti was found not guilty of counts 1, 2, 3 and 4 but guilty of the alternative charge of accessory after the fact to the stealing in count 3.

Grounds of appeal

The grounds of appeal are as follows:
Ground 1
The verdicts of guilty upon which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported. (Section 30(3)(a) of the Criminal Appeals Act2004 (WA)).
Ground 2
The Learned Trial Judge erred in refusing the defence application to discharge the jury as a result of impermissible cross‑examination of the Accused Ashley Christensen by Senior Counsel for the co‑accused Ronzitti thereby giving rise to a miscarriage of justice. (Section 30(3)(b) and/or Section 30(3)(c) of the Criminal Appeals Act 2004 (WA)).
Particulars
(i)The co‑accused's Counsel cross‑examined Christensen in an impermissible way;
(ii)The undermining of Christensen's right to silence in the context of him being in custody was so significant that the Learned Trial Judge's directions were not capable of curing the prejudice that flowed which undermined his credibility;
(iii)The Applicant was significantly prejudiced as the evidence of Christensen was crucial and relied upon by the Applicant in his defence.
Ground 3
The Learned Trial Judge erred in law in his directions to the jury in relation to the evidence of the co‑accused Christensen thereby giving rise to a substantial miscarriage of justice (Section 30(3)(b) and/or sectionb30(3)(c) of the Criminal Appeals Act 2004 (WA)).
Particulars
(i)The directions requiring the jury to consider carefully the evidence of Christensen because 'he has a certain degree of self‑interest in giving his evidence' (Transcript at 1552 — 1553);
(ii)The directions requiring the jury to 'consider whether there is any other evidence which confirms the evidence of Mr. Christensen, and that is because you might not want to accept his evidence without seeing some independent evidence that confirms his account' (Transcript at 1553).
Ground 1, if successful, would result in a substituted verdict of acquittal, whereas success on grounds 2 or 3 would result in a retrial. It is, therefore, convenient to deal with the grounds of appeal in that order.
We turn to ground 1.

Ground 1

Mr Egan submitted that the various pieces of circumstantial evidence adduced against him could not amount to proof beyond reasonable doubt of his involvement in the crimes charged. He submitted that 'the evidence led by the State was simply not strong enough to allow the convictions to stand'.
In that context, Mr Egan submitted, consistent with the approach taken by the learned trial judge (see [110] above), that the burglary (and therefore the stealing) were 'complete at the time that the [stolen] items were loaded onto the vehicle'.[93] We accept that approach as being correct.
[93] Appeal ts 16.
In his submissions in support of ground 1, Mr Egan made the following particular submissions in relation to a number of the circumstances relied upon by the State:[94]
(a)Mr Christensen's simple explanation as to how Mr Egan's DNA came to be on the holster and firearm should be accepted;
(b)Mr Egan's girth, as revealed in the video footage from Bunnings on 21 November 2019, would make it impossible for him to enter the hole cut into Claremont firearms;
(c)the State's contention that the items purchased by Mr Egan at Bunnings on 21 November 2019 were used in the burglary could not be sustained;
(d)there was no evidence of cutting equipment found at Mr Egan's home or in any place associated with him;
(e)the video recording of the search of Mr Egan's home tendered in evidence revealed that it was being renovated and that those renovations would have provided a source of the dust found on the torch at his house; and
(f)there was no DNA or fingerprints of Mr Egan at the scene of the burglary and the State's reliance on Mr Egan's body shape as indicative of his involvement in the reconnaissance at Pole Industries could not be relied upon with any degree of certainty.
[94] Appellant's outline of submissions [31] ‑ [39] (WAB 17 ‑ 20).
The State submitted that the trial record did not require that the jury must necessarily have entertained a reasonable doubt as to Mr Egan's guilt on counts 1, 2 or 3. It submitted that the combined force of all of the evidence shows that Mr Egan aided the other two accused or others and that the jury, who had the advantage of seeing and hearing Mr Christensen testify, were entitled to reject his evidence that Mr Egan was not an offender.[95]

Ground 1: unreasonable verdict – legal principles

[95] Respondent's outline of submissions [66] (WAB 143 ‑ 144).

The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well known. Those principles have been outlined by this Court many times, most recently in Sturniolo v The State of Western Australia.[96] The principles are, relevantly and in summary, as follows:
(a) the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(b) the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(c) that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(d) in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court;
(e) the question for the appeal court is whether, upon its examination of the record ‑ by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence ‑ the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt;
(f) a doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(g) if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict; and
(h) the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
[96] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA).
In the present case, the State case against Mr Egan was circumstantial. The principles relating to criminal cases turning upon circumstantial evidence were restated in R v Baden‑Clay in the following terms:[97]
(a) when the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused;
(b) the jury can be satisfied of the accused's guilt only where guilt is not simply a rational inference but, rather, the only rational inference that the circumstances permit;
(c) for an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence;
(d) in considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[97] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 (R v Baden-Clay) [46] ‑ [47] (French CJ, Kiefel, Bell, Keane & Gordon JJ).
As to this last point, as has been explained by the High Court many times, including in R v Hillier:[98]
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.
[98] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 (R v Hillier) [48] (Gummow, Hayne & Crennan JJ).
In applying these principles in the context of ground 1, this Court's function is therefore to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that the appellant was guilty of the offence.[99] The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial'.[100] The task of this Court is to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was as alleged by the State and, if not so satisfied, to determine whether the jury's satisfaction could be attributed to some identified advantage that the jury had over this Court.[101]
[99] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 (Dansie) [7].
[100] Dansie [16].
[101] Dansie [37] ‑ [38]; Lang v The Queen [2023] HCA 29 [143], [251].
In this context, the jury's advantage will vary from case to case. As the High Court said in Dansie:[102]
The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.
[102] Dansie [17].

Later in his summing up, his Honour told the jury that he wanted 'to return … to what [his Honour had] said by way of a direction as to the scrutiny [the jury] should give to Mr Christensen's evidence and that it implicates Mr Ronzitti' and to his Honour's suggestion that '[the jury] might look for some confirmation or corroboration in other evidence of Mr Christensen's account' (ts 1558). There were, relevantly, two aspects to that statement. First, his Honour referred to the direction he had previously given about the scrutiny the jury should give to Mr Christensen's evidence. Secondly, his Honour referred to the direction he had previously given about Mr Christensen's evidence implicating Mr Ronzitti. The first aspect of his Honour's statement, in referring to the direction he had previously given about the scrutiny the jury should give to Mr Christensen's evidence, would likely have been understood by the jury as a statement about Mr Christensen's evidence generally and not merely a statement about Mr Christensen's evidence solely to the extent that it implicated Mr Ronzitti.
Towards the end of his summing up, his Honour mentioned 'in relation to Mr Ronzitti' the warning his Honour had given the jury 'about giving careful scrutiny to Mr Christensen's evidence to the extent that it implicates him on the basis that it may be seen to be given out of self‑interest' in that Mr Christensen was giving 'an account that minimises his involvement and distances himself from the burglary but in a way that necessarily implicates Ronzitti'. That recapitulation by his Honour of his previous direction about carefully scrutinising Mr Christensen's evidence expressed the warning in a manner that confined the warning to Mr Christensen's evidence solely to the extent that it implicated Mr Ronzitti.
Shortly afterwards, his Honour contrasted Mr Christensen's evidence which implicated Mr Ronzitti with Mr Christensen's evidence which exculpated the appellant. In particular, his Honour said, in effect, that the situation in relation to the appellant was 'different' from the situation in relation to Mr Ronzitti (ts 1624). His Honour told the jury that, on the basis of Mr Christensen's evidence, the appellant 'did not do anything in relation to [the guns and the other items that had been stolen] that would be capable of constituting assistance to the offender' and that there was no evidence that the appellant was 'an accessory after the fact' (ts 1624 ‑ 1625).
I am of the opinion, after considering the trial judge's directions and comments which I have set out at [403] ‑ [411] above (and the summing up) as a whole, that the jury would likely have understood that:
(a)Mr Christensen had 'a degree of self‑interest' in giving his evidence; and
(b)consequently, the jury should carefully scrutinise Mr Christensen's evidence and should consider whether there is any other evidence which confirms his evidence.
The jury should reasonably have understood his Honour's directions to require the jury to have regard to Mr Christensen's self‑interest in giving his evidence and not to accept and act upon Mr Christensen's evidence, to the extent that it exculpated the appellant on counts 1, 2 and 3, unless the jury, after carefully scrutinising Mr Christensen's evidence and considering whether there was any other evidence which corroborated his evidence, were satisfied that his evidence exculpating the appellant was truthful, reliable and accurate.
Those directions were wrong in law.
Mr Christensen's credibility, to the extent that his evidence exculpated the appellant on counts 1, 2 and 3, was significant in the jury's evaluation of whether the State had proved the appellant's guilt on those counts beyond reasonable doubt. The jury were not precluded, as a matter of law, from acting upon Mr Christensen's evidence, to the extent that it exculpated the appellant, unless the jury had regard to Mr Christensen's self‑interest in giving his evidence and, after carefully scrutinising his evidence and considering whether there was any other evidence which corroborated his evidence, were satisfied that Mr Christensen's evidence exculpating the appellant was truthful, reliable and accurate. The question for the jury in this connection was whether the jury were satisfied that Mr Christensen's evidence, to the extent that it exculpated the appellant on counts 1, 2 and 3, raised a reasonable doubt about the appellant's guilt on counts 1, 2 and 3.
I am satisfied that the trial judge's erroneous directions in relation to Mr Christensen's evidence, to the extent that his evidence exculpated the appellant on counts 1, 2 and 3, had the capacity to undermine the presumption of innocence in relation to the appellant and to deflect the jury from their task of determining whether the State had proved beyond reasonable doubt that the appellant was guilty of counts 1, 2 and 3.
His Honour should have given separate directions in relation to Mr Christensen's evidence having regard to the State's case against each of Mr Christensen, the appellant and Mr Ronzitti. See, generally, the observations of Gageler CJ and Jagot J in Huxley [31]. Although Gageler CJ and Jagot J were in dissent in the result of Huxley, there is no reason, with respect, to doubt the correctness of those observations.
The trial judge's erroneous directions constituted a wrong decision by his Honour on a question of law within s 30(3)(b) of the Criminal Appeals Act 2004 (WA). I am not persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him on counts 1, 2 and 3. See Baini v The Queen;[208] Filippou v The Queen.[209] The conviction of the appellant on those counts was not inevitable.
[208] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [49] (Gageler J).
[209] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15], [48] (French CJ, Bell, Keane & Nettle JJ).
Ground 3 has been established.
Counsel for the State conceded, in effect, that if the trial judge misdirected the jury in the manner that I have found then the proviso in s 30(4) of the Criminal Appeals Act could not be applied. The concession was properly made.

Ground 1

In Wark v The State of Western Australia,[210] Mazza and Vaughan JJA and I explained the function of an appeal court in determining whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. It is convenient to reproduce at [422] ‑ [435] below what was written on that occasion.
[210] Wark v The State of Western Australia [2023] WASCA 66 [329] ‑ [342].
It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[211] Zaburoni v The Queen;[212] GAX v The Queen.[213]
[211] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493 (Mason CJ, Deane, Dawson & Toohey JJ).
[212] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).
[213] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).
An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[214]
[214] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[215]
[215] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].
The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[216] SKA [13].
[216] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).
Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier.
In R vBaden‑Clay,[217] French CJ, Kiefel, Bell, Keane and Gordon JJ made these observations in relation to determining whether, in a circumstantial evidence case, a reasonable inference consistent with the accused's innocence is open:
For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (Peacock v The King (1911) 13 CLR 619, 661, quoted in Barca v The Queen (1975) 133 CLR 82, 104) (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (R v Hillier (2007) 228 CLR 618, 637 [46] (footnote omitted)) (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535).
[217] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [47].
In Pell v The Queen,[218] the High Court made these statements about the assessment of the credibility of a witness by a jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)
[218] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. See Dansie.[219] The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the [fact finding tribunal] can be taken to have had by reason of having seen and heard the evidence at trial': Dansie [16].
[219] Dansie [7] (Gageler, Keane, Gordon, Steward & Gleeson JJ).
The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. See M (494 ‑ 495); Hillier[20]; Fitzgerald v The Queen;[220] Baden‑Clay [66].
[220] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).
The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[221] GAX [25].
[221] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).
The nature and extent of the appellate court's task, in a particular case, will be informed by:
(a)the elements of the offence;
(b)the accused's defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the tribunal of fact;
(f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.
In Austic v The State of Western Australia,[222] the prosecution sought to prove, on the basis of circumstantial evidence, that the appellant was guilty of wilful murder. Mazza JA, Sofronoff AJA and I noted at [73] that circumstantial evidence, as distinct from direct evidence, is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. See Festa v The Queen.[223] Mazza JA, Sofronoff AJA and I also said [75]:
Direct evidence is not necessarily more reliable than circumstantial evidence. Indeed, in some cases, circumstantial evidence can be more persuasive than direct evidence. As McHugh J noted in Shepherd v The Queen (Shepherd v The Queen (1990) 170 CLR 573 at 592), there will often be cases 'where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances'. Circumstantial evidence cumulatively eliminates other possibilities.
[222] Austic v The State of Western Australia [2020] WASCA 75; (2020) 57 WAR 39.
[223] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ).
Ground 1 must be evaluated having regard to my reasons and conclusions in relation to ground 3. It is apparent from the jury's verdicts of guilty on counts 1, 2 and 3 that the jury rejected the evidence of Mr Christensen that exculpated the appellant on those counts. However, no weight can be given to the jury's verdicts in considering ground 1 because the jury's approach to that part of Mr Christensen's evidence was tainted by the trial judge's misdirection the subject of ground 3.
In my opinion, the State had a strong circumstantial case against the appellant based upon the evidence I have summarised at [341] above. Although defence counsel for the appellant sought to explain some of that evidence in his closing address at the trial, the accuracy of the circumstantial evidence was not challenged or seriously challenged.
I agree with Quinlan CJ and Hall JA's analysis of the objective evidence at the trial including the circumstantial evidence relied upon by the State in relation to the appellant.
Subject to my reasons and conclusions in relation to ground 3, on my examination of the trial record, a properly directed jury would have been entitled to form the view and (subject to this court's significant disadvantage in not having seen and heard the witnesses, in particular Mr Christensen, give their evidence) I incline to the view, having regard to the objective evidence at the trial including the circumstantial evidence relied upon by the State in relation to the appellant, that Mr Christensen's evidence was in material respects untruthful, unreliable or inaccurate. Subject to the qualifications I have mentioned, I am inclined to reject those parts of Mr Christensen's evidence that exculpated the appellant. However, in the absence of seeing and hearing Mr Christensen give his evidence, I am unable to reach a concluded view in relation to the truthfulness, reliability and accuracy of that evidence.
Subject to my reasons and conclusions in relation to ground 3, if Mr Christensen's evidence that exculpated the appellant were to be rejected and put aside, a properly directed jury would be entitled to be satisfied beyond reasonable doubt and I would be satisfied beyond reasonable doubt, based upon the objective evidence at the trial including the circumstantial evidence relied upon by the State in relation to the appellant, that the only reasonable inference is that the appellant committed each of counts 1, 2 and 3.
Subject to my reasons and conclusions in relation to ground 3, I am satisfied, after reviewing the trial record and weighing the whole of the evidence, that it would be reasonably open to a properly directed jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1, 2 and 3. The trial record does not require the conclusion that a properly directed jury must necessarily entertain a reasonable doubt in relation to the appellant's guilt on any of those counts. Verdicts of guilty would be supported by evidence that a properly directed jury would be entitled to accept and by inferences that a properly directed jury would be entitled to draw. My assessment of the matters complained about by the appellant, in the context of ground 1, does not persuade me that a properly directed jury, acting reasonably, should decide that the State had not proved all of the elements of counts 1, 2 and 3. A properly directed jury, acting reasonably, would not be precluded by the state of the evidence at trial from convicting the appellant. The nature and quality of the evidence would be sufficient to remove any doubt that the appellant was guilty.
Ground 1 has not been made out.

Conclusion

Counsel for the appellant, in the appellant's orders wanted, contended that if ground 2 or ground 3 was made out, but ground 1 failed, then a new trial on counts 1, 2 and 3 should be ordered. Counsel also contended that if ground 1 was made out then this court should set aside the judgments of conviction on counts 1, 2 and 3 and substitute judgments of acquittal. Those contentions are correct.
I would grant leave to appeal on each of the grounds. Grounds 1 and 2 have not been made out. However, ground 3 has been established. The judgments of conviction must be set aside and a new trial of the appellant must be had.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Associate to the Hon Chief Justice Quinlan
18 JANUARY 2024