Egitmen v The State of Western Australia - [2016] WASCA 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: EGITMEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 214

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 11 MAY 2016

DELIVERED : 2 DECEMBER 2016

FILE NO/S: CACR 38 of 2014

BETWEEN: HUSEYIN EGITMEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
File No  :INS 122 of 2013

Catchwords:

Criminal law - Appeal against conviction - Murder - Selfdefence - 'Excessive' selfdefence - Relationship between s 248(3)(b), s 248(4)(b) and s 248(4)(c) of the Criminal Code (WA) - Where appellant admitted that he killed the deceased by stabbing him multiple times in the torso and that this was not a reasonable response in the circumstances as he believed them to be - Whether error in trial judge's direction - Whether proviso applicable

Criminal law - Appeal against conviction - Discretion to reject statement contained in a business record - Whether trial judge erred in refusing to admit medical records - Risk of confusing or misleading the jury - Primacy of oral evidence in criminal trials

Criminal law - Appeal against conviction - New evidence - Expert evidence which could establish that the deceased had ceased taking his psychiatric medication at the time of the offence - Whether miscarriage of justice occasioned by absence of evidence at trial or counsel's failure to adduce it

Criminal law - Appeal against conviction - Whether verdict unsafe or unsatisfactory - Whether trial judge required to direct jury as to alleged inconsistencies in the evidence

Legislation:

Criminal Code (WA), s 248(3)(b), s 248(4), s 279
Criminal Law Amendment (Homicide) Act 2008 (WA), s 8
Evidence Act 1906 (WA), s 79C(6)

Result:

Leave to appeal refused on grounds 1, 2 and 5
Leave to appeal granted on ground 4
Appeal dismissed
Application for leave to adduce evidence in the appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Mr L M Fox

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Anderson v The State of Western Australia [2014] WASCA 230
Beamish v The Queen [2005] WASCA 62
Bibovic v The State of Western Australia [2016] WASCA 22
Bolton v The State of Western Australia [2012] WASCA 2
Cavill v The State of Western Australia [2008] WASCA 108
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Crawford v The Queen [2008] NSWCCA 166
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Director of Public Prosecutions (Vic) v Parker [2016] VSCA 101
DPJB v The State of Western Australia [2010] WASCA 12
Driscoll v The Queen (1977) 137 CLR 517
EAGD v The State of Western Australia [No 2] [2014] WASCA 68
Edmunds v The Queen [2004] WASCA 70; (2004) 144 A Crim R 582
Elias v The Queen [2006] NSWCCA 365
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
George v Rockett (1990) 170 CLR 104
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
L v The State of Western Australia [2016] WASCA 101
Lawless v The Queen (1979) 142 CLR 659
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272
M v The Queen (1994) 181 CLR 487
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Mansell v The State of Western Australia [No 6] [2013] WASCA 120
Marwey v The Queen (1977) 138 CLR 630
Masciantonio v The Queen (1995) 183 CLR 58
Mason v The State of Western Australia [2005] WASCA 125; (2005) 30 WAR 205
McMahon v The State of Western Australia [2010] WASCA 143
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minniti v The Queen [2001] WASCA 148; (2001) 120 A Crim R 531
Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325
Pearce v The State of Western Australia [2014] WASCA 156
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219
Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; (2008) 73 NSWLR 241
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Quartermaine v The State of Western Australia [2008] WASCA 22; (2008) 36 WAR 384
R v Burgess [2005] NSWCCA 52; (2005) 152 A Crim R 100
R v Conlon (1993) 69 A Crim R 92
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Gray [1998] QCA 41; (1998) 98 A Crim R 589
R v Howe (1958) 100 CLR 448
R v Katarzynski [2002] NSWSC 613
R v Muratovic [1967] Qd R 15
R v Oblach [2005] NSWCCA 440; (2005) 65 NSWLR 75
R v Smith [2005] QCA 1; [2005] 2 Qd R 69
Randle v The Queen (1995) 15 WAR 26
Ratten v The Queen (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
Ritchie v The State of Western Australia [2016] WASCA 134
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280
Stingel v The Queen (1990) 171 CLR 312
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Viro v The Queen (1978) 141 CLR 88
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645

Table of contents

Buss P

The State's case at trial
The appellant's case at trial
The grounds of appeal
The organisation of the balance of these reasons
Ground 4 as particularised: its terms
Ground 4: s 248 of the Code
Ground 4: the proper construction of s 248(4) of the Code
Ground 4: the trial judge's directions on self‑defence and 'excessive' self‑defence
Ground 4: the proper construction of s 248(3) of the Code: counsel for the appellant's submissions
Ground 4: the proper construction of s 248(3) of the Code: the merits of counsel for the appellant's submissions
The appellant's application for leave to adduce additional evidence in the appeal
Grounds 1, 2, 3 and 5
The proviso

Conclusion

Mazza JA

Mitchell JA

Summary
Uncontentious facts
Contentious issues at trial

Intention
Excessive self-defence

Parties' positions at trial
Evidence of the deceased's mental illness

Appellant's statements to police
Mr and Mrs Osman's evidence
Evidence of Dr Johri

Evidence of past violence by the deceased

Mr Osman's evidence
Mrs Osman's evidence
Appellant's statements to police
Evidence of Mrs Egitmen
Evidence of Ali Egitmen
Police records

Evidence of events prior to the stabbing
Evidence of events at the time of the stabbing

Grounds of appeal
Ground 5: discretion under s 79C(6) of the Evidence Act

Documents which the appellant sought to tender at trial
Section 79C of the Evidence Act
The trial judge's decision
The appellant's submissions on ground 5
Disposition of ground 5

Ground 2: new evidence

Evidence on which the appellant relies
New evidence and miscarriage of justice
Disclosure by the prosecution
Incompetence of trial counsel
Disposition of ground 2

Ground 4: adequacy of direction about excessive self-defence

Section 248 of the Criminal Code
The constructional issue
Principles of statutory construction
General concepts
The common law of self-defence
Model Criminal Code

Repealed Criminal Code provisions
The Commission's Report
Section 248(4) of the Criminal Code
Section 248(3) of the Criminal Code
Conclusion as to the proper construction of s 248 of the Criminal Code
The trial judge's direction
Adequacy of the trial judge's direction
Directions as to elements of self‑defence
Characteristics of the appellant
Disposition of ground 4

Ground 1: direction as to inconsistencies

Inconsistencies in Mr Osman's evidence
Inconsistencies in Mrs Osman's evidence
The trial judge's direction
Adequacy of the direction as to inconsistencies

Ground 3: unreasonable verdict

Appellant's contentions
General principles
Disposition of ground 3

Proviso

Orders

BUSS P: On 19 November 2013, the appellant was convicted, after a trial in the Supreme Court before Simmonds J and a jury, of one count in an indictment which alleged that on 19 August 2012, at Thornlie, the appellant murdered Osman Kana Osman (the deceased), contrary to s 279 of the Criminal Code (WA) (the Code).
When he was arraigned, at the commencement of the trial, the appellant said he was not guilty of murder but guilty of manslaughter.
It was not in dispute that the appellant stabbed the deceased six times with a knife.
There were, in substance, two real issues at the trial, namely:
(a)the appellant's intention when he stabbed the deceased; and
(b)whether the State had negatived 'excessive' self‑defence, so that the appellant was guilty of murder rather than manslaughter.
I would dismiss the appeal. My reasons are as follows.

The State's case at trial

The deceased was the youngest child of Ali Osman and his wife, Sultan Osman. At the time of his death he was aged 36.
The appellant is the deceased's nephew. Ali Osman and Sultan Osman are his maternal grandparents. At the time of the offence he was aged 28.
The deceased suffered from paranoid schizophrenia and a paranoid personality disorder. He was prone to aggressive speech and behaviour. This was well known to family members including the appellant. There had been previous incidents between the deceased and the appellant involving both verbal and physical aggression.
On 19 August 2012, the deceased was living temporarily with his parents in their home at Spencer Road, Langford. Earlier that day, there had been a lunch to celebrate the end of Ramadan. Apart from Ali Osman and Sultan Osman, those at the lunch included the deceased and his sister, Keziban Egitmen. Keziban Egitmen is the appellant's mother. The appellant was not present.
By 6.00 pm all the guests had departed. The deceased went to purchase a take‑away meal. At about 6.30 pm, the appellant arrived at Ali Osman's and Sultan Osman's home. About 5 or 10 minutes later, the deceased returned with his meal. Shortly after, the appellant left the house, intending to drive away. However, the deceased had parked his car behind the appellant's vehicle. The deceased was asked to move his car. He left the house, apparently for that purpose.
The appellant and the deceased began arguing on the front porch. Each threatened to kill the other.
The appellant produced a folding knife, opened it to the locked position and stabbed the deceased six times. The deceased was unarmed.
Dr Daniel Moss, a forensic pathologist who conducted a post‑mortem examination of the deceased, noted five stab wounds to his front torso and one to his lower back (exhibit 8). Of the five front stab wounds, one was on the left side of his chest, two were on the central part of his abdomen and two were on the lower left side of his abdomen. The stab wound to the deceased's back was on his lower left back. One of the wounds, labelled 'wound 1', penetrated the diaphragm, liver and portal vein, causing extensive bleeding into the right chest (ts 263 ‑ 264). According to Dr Moss, this wound could itself have been fatal, but he attributed the cause of death to multiple stab wounds. In his opinion, they all caused blood loss and contributed in some way to the deceased's death (ts 283).
None of the witnesses saw the appellant inflict the stab wounds. However, Ali Osman and Sultan Osman each testified as to events immediately before and after the stabbing.
Ali Osman gave evidence that after the deceased went outside to move his car, he heard the deceased and the appellant yelling and screaming at each other. He went to the front door of the house and saw them standing face to face on the front porch. Each was yelling at the other, 'I kill you, bastard. I kill you, bastard' (ts 113). Ali Osman said he tried to separate the two men, who were punching each other. He touched the deceased and noticed blood on his (Ali Osman's) hand. The deceased fell to the ground. Ali Osman told the appellant to stay away. Ali Osman then rushed inside and telephoned the emergency services.
Sultan Osman gave evidence that after the deceased went outside to move his car, she heard screaming. She went outside and saw her son in 'a bloodbath' (ts 322). She also saw the appellant point towards the deceased, who was still alive, and say, 'I'm going to kill you' (ts 322).
The appellant also telephoned the emergency services at about the same time as Ali Osman. When asked by the telephone operator if the person who had stabbed the victim was there, the appellant replied to the effect that he did not know where that person was (exhibit 10).
Police and ambulance services attended shortly after the telephone calls were made. The appellant was arrested. The deceased was treated by paramedics and conveyed by ambulance to Royal Perth Hospital. He was pronounced dead upon or shortly after arrival.
Photographs taken at the scene revealed a large area of blood on the front porch of the house.
Senior Constable Suttie testified that, before his arrest, the appellant said he did not know anything about what had happened (ts 215). However, the appellant did not maintain that stance and admitted, at the scene, that he had stabbed the deceased. The appellant told Constable Gilbert that there had been an argument concerning the cars parked in the driveway and that the deceased had run at him 'to knock [him] out' (ts 232). The appellant then stabbed him with the knife. The appellant made no mention of being punched by the deceased. He told the police that he threw the knife into a bush. The knife was found later in a bush in the front yard of Ali Osman's and Sultan Osman's house (ts 252).
The appellant was conveyed by police to the Cannington police station. Some forensic photographs of him were taken. The appellant was placed in an interview room to await the arrival of the interviewing detectives. While there, the appellant said several times to Constable Dhillon:
It shouldn't have been like this. Why didn't he leave me alone (ts 242)?
The appellant agreed to participate in a video-recorded interview with Detective Sergeant Thompson and Detective Sergeant Mansell (exhibit 11). The interview was conducted on 20 August 2012.
The appellant told the interviewing officers, amongst other things, that:
1.When inside the Langford house, the deceased claimed that the appellant was spying on him and gave the appellant 'a very angry aggressive look'.
2.The appellant knew the deceased was 'on psycho antidepressants' and felt intimidated by him.
3.The appellant left the house and then asked the deceased to move his car.
4.The deceased objected to the appellant taking his parking spot and walked up to him and started swearing and abusing him.
5.The deceased told the appellant, 'I'm going to execute you. I'm going to kill you'.
6.The appellant responded, 'Look … leave me alone. I don't want to fight you'. At this point, the appellant pulled out his knife and said, 'Leave me alone'.
7.The deceased pushed and punched the appellant. The appellant then stabbed the deceased.
8.After the stabbing, the appellant said to the deceased, 'I'm sick and tired of your abuse. You've abused me all my life. You've attempted to kill me'.
9.When the deceased dropped to the ground, the appellant called the emergency services and asked for an ambulance to be sent to his grandparents' house.
When Detective Sergeant Thompson asked the appellant, 'Why did you stab him?', the appellant answered:
Why? Because I believed him when he said that he was going to kill me. He's attempted to kill me before. He's pulled knives onto me … and I've had to run away.
The appellant told the police that 'about six years ago' the deceased put him in a headlock and attempted to kill him. He said that when he was aged about 12, the deceased punched him and knocked him to the ground, as a result of which he sustained a concussion. The appellant described an incident which occurred '6 years ago' when the deceased came to his family home and smashed the back windows because he wanted to attack the appellant and his brother.
The appellant told the police that the deceased was 'not right in the head'. He was aware that the deceased had mental health issues.
The appellant explained to the police that he carried the knife to cut apples and oranges.
The appellant said that he did not feel he could run away from the deceased.
Towards the end of the interview, Detective Sergeant Thompson informed the appellant of the contents of Ali Osman's statement to the police. The appellant denied saying to the deceased, 'I'm gonna kill you.' Further, the appellant told the police that Ali Osman did not come between him and the deceased during the altercation. The appellant denied punching the deceased.
The State's case was that, based on 'the number and nature of the stab wounds and the circumstances', the appellant intended to kill the deceased. Alternatively, the appellant intended to inflict a bodily injury that was life‑threatening (ts 60). The prosecutor acknowledged that the appellant had, in his video‑recorded interview with the police, sought to justify the stabbing as self‑defence. As to this, the prosecutor said:
Despite the deceased's bad temper and any past aggression on his part towards the accused, the stabbing had nothing to do with self‑defence (ts 59 ‑ 60).

The appellant's case at trial

As I have mentioned, the appellant pleaded guilty, on arraignment, to manslaughter. The State did not accept the plea in satisfaction of the indictment.
During her opening address, defence counsel admitted that the appellant used the knife in such a way as to cause the deceased's death and that he was guilty of manslaughter (ts 65).
The appellant elected not to give evidence at the trial. However, he adduced evidence in his defence.
His mother, Keziban Egitmen, testified about the deceased's past behaviour. She described the deceased as 'very violent' (ts 468) and said he was a man who angered easily (ts 469). The deceased 'used to make a lot of trouble in the family' (ts 468). He had been violent towards her and she had seen him push the appellant. She referred to an occasion 'nine years ago' when the deceased came to her house and smashed the back windows. She said the deceased had wanted to kill her other son, Ali (ts 470 ‑ 471).
As to the events of 19 August 2012, Keziban Egitmen said that despite an incident before lunch when the deceased was screaming and yelling, after lunch he was 'happy' (ts 476). She left her parents' house at about 3.00 pm.
The appellant also called his brother, Ali Egitmen. Ali is 3 years younger than the appellant. Ali Egitmen testified that the deceased was 'very easily angered' (ts 485) and that, when angered, he would 'always start yelling and threatening people' (ts 485). He had witnessed the deceased physically hurt the appellant. He had seen the deceased punch the appellant in the face (ts 487 ‑ 488). On another occasion when he (Ali) was aged between 5 and 10, he saw the deceased choking the appellant.
Ali gave evidence of an occasion on which the deceased smashed the back windows of his family home. The deceased was armed with a knife. The deceased screamed that he wanted to kill him (ts 489 ‑ 490).
The appellant called Dr Navneet Johri, the psychiatrist who had most recently treated the deceased. Dr Johri was, at the relevant time, a consultant psychiatrist employed by the South Metropolitan Health Service. He treated the deceased between 2008 and 2012. He diagnosed that the deceased was suffering from paranoid schizophrenia and cluster A personality disorder (ts 534). Dr Johri was referred to two letters he wrote to the deceased's general practitioner, Dr Jag Singh, dated 27 May 2009 and 7 May 2012. In his letter of 7 May 2012, Dr Johri wrote of the deceased that:
There is a longitudinal risk of aggression to others.

When asked to explain what he meant by that statement, Dr Johri said he recalled that it was a 'classic thing' for the deceased, when standing at a checkout counter, to feel that he was being insulted or not taken seriously. This would agitate him, but the deceased always knew that 'this is not the right thing' and he would 'back off' (ts 542). As a result, the deceased would, according to Dr Johri, avoid social interaction with strangers.
Dr Johri said the deceased had been prescribed an antipsychotic drug and an antidepressant and antianxiety medication. If a person abruptly ceases such medication, it takes 'a few weeks to a few months' for the person to display the symptoms which the medication had been controlling (ts 546).
Dr Johri said the deceased generally appeared to be more stable and in better control towards the end of the period he had seen him.
During cross‑examination by the prosecutor, Dr Johri said that throughout the time he had treated him, the deceased always had insight into the potential consequences of acting on his aggression. Dr Johri put it this way:
… for [the deceased], the most times I have seen him, he always knew what not to do because he knew he will run into trouble or there would be legal consequences. And that is how he avoided a lot of confrontations. He must have avoided hundreds or thousands of such potential confrontations in that 2, 3, 4‑year period that I have seen him (ts 550).
Dr Johri was referred to the notes of his consultation with the deceased on 7 May 2012. Dr Johri had noted that the deceased's schizophrenia was still in remission and that he retained a degree of insight and avoided confrontations (ts 553).
The defence tendered a number of police reports from 2005, 2007, 2011 and 2012 in respect of incidents of aggressive behaviour by the deceased towards Ali Osman.
The appellant's case was that the appellant was not guilty of murder, but guilty of manslaughter. Defence counsel submitted to the jury that it could arrive at a verdict of manslaughter either on the basis that the appellant did not intend to kill the deceased or to cause him a bodily injury of such a nature as to endanger or be likely to endanger his life (ts 592). Alternatively, if the appellant unlawfully killed the deceased in circumstances which would, but for s 248(3) of the Code, constitute murder, the appellant had acted in 'excessive' self‑defence, pursuant to s 248(3). That is, where the act that caused the death would be an act done in self‑defence, pursuant to s 248(4) of the Code, but for the fact that the act was not a reasonable response by the appellant in the circumstances as the appellant believed them to be (ts 593 ‑ 595). Specifically, the appellant's case as to this alternative route to manslaughter was that the deceased attacked the appellant, but, in stabbing him as he did, the appellant 'overreacted' (ts 595).

The grounds of appeal

The appellant relies on five grounds of appeal.
Ground 1 alleges that the trial judge erred in law by not directing the jury that the evidence of Ali Osman and Sultan Osman was 'unreliable due to inconsistencies'.
Ground 2 alleges that a miscarriage of justice occurred at the trial 'due to the jury not receiving evidence that the deceased had ceased taking his psychiatric medication prior to the incident in question and was therefore more likely to be psychotic, paranoid, agitated and aggressive, and there was therefore a greater likelihood of the deceased being violent'.
Ground 3 alleges that the verdict was unreasonable and cannot be supported having regard to the evidence.
Ground 4 alleges that his Honour erred in law when directing the jury on 'excessive' self‑defence.
Ground 5 alleges that his Honour erred in law in deciding not to admit into evidence the psychiatric records of the deceased.
On 19 September 2015, Mazza JA granted leave to appeal on ground 3 and referred the application for leave to appeal on grounds 1, 2, 4 and 5 to the hearing of the appeal.

The organisation of the balance of these reasons

It is convenient to consider ground 4 before dealing with the other grounds.

Ground 4 as particularised: its terms

Ground 4, as particularised, reads:
The learned trial Judge erred in law when directing the jury on 'excessive' self‑defence.
Particulars
(i)It was an error to direct the jury on the complete defence of self‑defence and not confine the directions to 'excessive' self‑defence when the appellant had conceded that the complete defence of self‑defence was not available.
(ii)The directions did not clearly delineate the questions for determination by the jury in relation to 'excessive' self-defence.
(iii)The directions risked conflation in the jury's mind of the elements of 'excessive' self-defence and self-defence generally, in relation to the element of reasonable response.
(iv)The learned trial Judge erred in not directing the jury that whether there are reasonable grounds for a belief is to be assessed by the standard of a reasonable person of the same age, background and level of intellect as the accused and familiar with the circumstances known to him at the relevant time.
However, at the hearing of the appeal, the focus in the context of ground 4 was on the proper construction of s 248(3) of the Code and whether the trial judge's directions to the jury on 'excessive' self‑defence were in accordance with s 248(3), properly construed. The parties filed and served supplementary written submissions on those issues after the hearing.

Ground 4: s 248 of the Code

Section 248 of the Code, as currently enacted, was inserted by s 8 of the Criminal Law Amendment (Homicide) Act 2008 (WA). It commenced operation on 1 August 2008.
Section 248(1) provides that, in s 248, the term 'harmful act' means an act that is an element of an offence under pt V other than ch XXXV.
Section 279 creates an offence under ch XXVIII of pt V.
By s 248(2), a harmful act done by a person is lawful if the act is done in self-defence under s 248(4).
Section 248(3) provides:
If -
(a)a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and
(b)the person's act that causes the other person's death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,
the person is guilty of manslaughter and not murder.
Section 248(4) provides:
A person's harmful act is done in self‑defence if -
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
It is unnecessary to refer to s 248(5) or s 248(6).

Ground 4: the proper construction of s 248(4) of the Code

In Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328, I examined s 248(4) of the Code and determined its proper construction [84] ‑ [98]. Martin CJ agreed generally with my reasons [1]. Mazza JA's reasons as to the proper construction of s 248(4) were not materially different from my reasons [170] ‑ [174].
It is convenient to restate what I wrote in Goodwyn about the proper construction of s 248(4).
Section 248(4)(a) specifies, as an element of self-defence, that 'the [accused] believes the act is necessary to defend the [accused] or another person from a harmful act, including a harmful act that is not imminent'.
Section 248(4)(a) prescribes a single subjective requirement, namely the accused must, subjectively, believe that his or her harmful act is 'necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent'.
By s 248(4)(a), therefore, the accused must, subjectively, believe that his or her harmful act is necessary to defend the accused or another person from a harmful act (including a harmful act that is not imminent).
Section 248(4)(a) incorporates a single concept in relation to the accused's belief. The concept is not divisible. It is not concerned with two separate beliefs.
Section 248(4)(b) specifies, as an element of self-defence, that 'the [accused's] harmful act is a reasonable response by the [accused] in the circumstances as the [accused] believes them to be'.
Section 248(4)(b) incorporates two concepts. First, the concept of the accused's belief as to the circumstances. Secondly, the concept of whether the accused's harmful act is a 'reasonable response'. The composite requirement embodied in s 248(4)(b) from these concepts is that the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be.
By s 248(4)(b), therefore, the accused's harmful act must be, objectively, a reasonable response by the accused in the circumstances as the accused, subjectively, believes them to be.
Section 248(4)(c) specifies, as an element of self-defence, that 'there are reasonable grounds for those beliefs'.
The beliefs to which s 248(4)(c) refers are the beliefs of the accused as stated in s 248(4)(a) and s 248(4)(b).
By s 248(4)(c), there must be, objectively, reasonable grounds for each of the subjective beliefs of the accused stated in pars (a) and (b).
That is, there must be, objectively:
(a)reasonable grounds for the accused's subjective belief, within s 248(4)(a), that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent; and
(b)reasonable grounds for the accused's subjective belief, within s 248(4)(b), as to the circumstances.
So, it is apparent that s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
If the accused satisfies the evidential onus in relation to self-defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond reasonable doubt.

Ground 4: the trial judge's directions on self‑defence and 'excessive' self‑defence

The trial judge directed the jury on self‑defence and 'excessive' self‑defence by reference to a 'handout' he gave them. The handout merely reproduced the relevant text of s 279, s 280 and s 248 of the Code.
His Honour explained s 248(4) by reference to what he described as the 'three parts' of the provision (that is, s 248(4)(a), s 248(4)(b) and s 248(4)(c)) (ts 657).
As to the 'third part' (that is, s 248(4)(c)), the trial judge said:
What are the beliefs? There are two sets of them. The beliefs in paragraph A, the belief that it's necessary - the accused's belief it's necessary - to defend himself from a harmful act including a harmful act that's not imminent, and the beliefs in paragraph B, the circumstances as the accused believed them to be in which what the accused did was a response. So there must be reasonable grounds for the beliefs of both kinds (ts 658). (emphasis added)
So, in that passage, his Honour directed the jury, in substance, that there must be reasonable grounds (within s 248(4)(c)) for the accused's belief (within s 248(4)(a)) that the act is necessary to defend the accused from a harmful act, including a harmful act that is not imminent, and, also, reasonable grounds (within s 248(4)(c)) for the accused's belief (within s 248(4)(b)) as to the circumstances.
The trial judge told the jury that the State could prove that the appellant was not acting in self‑defence, within s 248(4), if the State proved beyond reasonable doubt that 'any one of [the three parts of s 248(4)] is missing' (ts 658). His Honour referred to defence counsel's admission, on behalf of the appellant, on the first day of the trial that 'the second part of [s 248(4)] is missing' (ts 658).
In my opinion, the statement, in that passage, that 'any one of [the three parts of s 248(4)] is missing' (ts 658) was a reference to any one of s 248(4)(a), s 248(4)(b) or s 248(4)(c) being 'missing'.
His Honour then reminded the jury that, on the State's case, the jury should be satisfied beyond reasonable doubt that:
(a)the appellant 'lacked the belief in [s 248(4)(a)] and, therefore, [the first] part … is missing'; and
(b)there were 'no reasonable grounds [within s 248(4)(c)] for such beliefs as [the appellant] had in terms of [s 248(4)(a)] or in terms of [s 248(4)(b)]' (ts 659).
Next, the trial judge gave the jury various general directions about self‑defence and summarised the submissions of the prosecutor and defence counsel (ts 659 ‑ 662).
After dealing with the element of intention for the offence of murder, his Honour directed the jury in relation to 'excessive' self‑defence.
The trial judge instructed the jury that 'the exception to self‑defence' (that is, the concept of 'excessive' self‑defence in s 248(3)) would apply if the jury were satisfied beyond reasonable doubt:
(a)as to the elements of causation and intention; and
(b)that the second part of s 248(4) (that is, s 248(4)(b)) was 'missing',
but were not satisfied beyond reasonable doubt that 'either of the other two parts' of s 248(4) (that is, either s 248(4)(a) or s 248(4)(c)) was missing (ts 665 ‑ 666).
His Honour then gave this 'short restatement' in relation to 'excessive' self‑defence:
If the accused unlawfully killed the victim in circumstances which, but for the exception, would constitute murder and the accused's act that caused the victim's death, the deceased's death, would be an act done in self-defence as I have defined it [but] for the fact that the act was not a reasonable response by the accused in the circumstances as the accused believed them to be, then the accused is not guilty of murder but guilty of manslaughter, remembering the burden and standard of proof (ts 666).
A little later, the trial judge recapitulated:
If you're satisfied beyond a reasonable doubt that [the part in s 248(4)(b)] is missing, but you're not satisfied beyond a reasonable doubt that the other two, that either of them, is missing, then, provided you're satisfied beyond a reasonable doubt as to killing and intention, your verdict will be not guilty of murder, but guilty of manslaughter (ts 667).
After his Honour completed his summing up and the jury retired to consider their verdict, he had a discussion with the prosecutor and defence counsel about the directions he had given. As a result of that discussion, his Honour gave the jury this additional direction in relation to self‑defence:
You'll recall what I said to you about the parts of the definition of self‑defence in section 248(4) and in particular the matter of the beliefs of the accused. And I told you as well about considering the video record of interview and the recorded 000 call and whether you did or did not accept the truth of what the accused said or might be taken to have been saying as to his beliefs relevant to the matter of self-defence.
It is important, however, that you realise this: you may accept the evidence of the accused as to his beliefs being matters which would prevent you being satisfied beyond reasonable doubt that the matter of those beliefs was missing for the purpose of self-defence and yet still find that the prosecution had excluded self-defence in this way: that the third matter in section 248(4) the third part of the definition of self-defence is that there are reasonable grounds for the accused's beliefs.
So even though a belief may be honestly held and you may be satisfied that that is the case or not; don't consider it's proved beyond reasonable doubt that it wasn't the case, nonetheless you may be satisfied beyond reasonable doubt, and that was part of the prosecution in this trial, that there were no reasonable grounds for the beliefs. The beliefs of the accused in paragraph (a), the necessity to defence or the beliefs as to the circumstances in which the accused's act was a response for the purpose of paragraph (b).
Paragraph (c) is an objective test, as I indicated, but it's important that I reinforce it, that it's an objective test. Honesty is not the determinant of paragraph (c). That deals with the first two points, which as you will have seen are related (ts 684 ‑ 685).

Ground 4: the proper construction of s 248(3) of the Code: counsel for the appellant's submissions

Counsel for the appellant referred to the text of s 248(3)(b) and noted that 'excessive' self‑defence, within s 248(3), assumes that the accused's harmful act 'is not a reasonable response by [the accused] in the circumstances as [the accused] believes them to be'.
It was submitted that the elements of 'complete' self‑defence, within s 248(4), which relate to the accused's harmful act being a 'reasonable response' are:
(a)the accused's harmful act being 'a reasonable response by [the accused] in the circumstances as [the accused] believes them to be': (s 248(4)(b)); and
(b)there being 'reasonable grounds for those beliefs' (s 248(4)(c) referring, relevantly, to the belief in s 248(4)(b)).
Counsel argued that the phrase, 'the act is not a reasonable response by [the accused] in the circumstances as [the accused] believes them to be', within s 248(3)(b), incorporates not merely the element of 'complete' self‑defence in s 248(4)(b) (that is, the accused's harmful act is 'a reasonable response by [the accused] in the circumstances as [the accused] believes them to be'), but also the element of 'complete' self‑defence in s 248(4)(b) read with s 248(4)(c) (that is, there are reasonable grounds for that belief).
Consequently, so it was submitted, to negative 'excessive' self‑defence, within s 248(3), the State must exclude beyond reasonable doubt one of the two remaining elements of 'complete' self‑defence, within s 248(4), namely:
(a)the accused 'believes the act is necessary to defend [the accused] or another person from a harmful act, including a harmful act that is not imminent' (s 248(4)(a)); or
(b)there are reasonable grounds for those beliefs (s 248(4)(c) referring, relevantly, to the belief in s 248(4)(a)).
According to counsel for the appellant, the trial judge directed the jury that the State could negative 'excessive' self‑defence, within s 248(3), by excluding beyond reasonable doubt any one of three alternative elements, namely:
(a)the appellant did not subjectively believe that his harmful act of stabbing the deceased was necessary to defend himself against a harmful act by the deceased, including a harmful act that was not imminent (s 248(4)(a));
(b)there were no reasonable grounds for the appellant to believe that his harmful act of stabbing the deceased was necessary to defend himself against a harmful act by the deceased, including a harmful act that was not imminent (s 248(4)(a) read with s 248(4)(c)); or
(c)there were no reasonable grounds for the appellant to believe that the circumstances referred to in s 248(4)(b) were such as he believed them to be (s 248(4)(b) read with s 248(4)(c)).
Counsel argued that his Honour erred in failing to confine his directions on the way in which the State may negative 'excessive' self‑defence 'to the question of whether [the State] had established beyond reasonable doubt either that the [subjective] belief in s 248(4)(a) … was not held or that there were no reasonable grounds for that belief'. In other words, it was contended that his Honour erred in directing the jury that the third alternative way of negativing 'excessive' self‑defence (s 248(4)(b) read with s 248(4)(c)) was available.

It was submitted that his Honour's directions on 'excessive' self‑defence should 'simply have asked the jury to consider' whether the State had proved beyond reasonable doubt that:
(a)the appellant did not subjectively believe his harmful act of stabbing the deceased was necessary to defend himself against a harmful act by the deceased, including a harmful act that was not imminent; or
(b)there were no reasonable grounds for that belief.

Ground 4: the proper construction of s 248(3) of the Code: the merits of counsel for the appellant's submissions

Section 248(3) is predicated on the assumption that:
(a)the State has negatived 'complete' self‑defence under s 248(4); or
(b)the accused has conceded that 'complete' self‑defence under s 248(4) is not an available defence.
By s 248(3), if:
(a)an accused unlawfully kills another person in circumstances which, but for s 248, would constitute murder (s 248(3)(a)); and
(b)the accused's act that causes the other person's death 'would be an act done in self‑defence under [s 248(4)] but for the fact that the act is not a reasonable response by [the accused] in the circumstances as [the accused] believes them to be' (s 248(3)(b)),
the accused is guilty of manslaughter and not murder.
So, by s 248(3)(b), the critical finding which precludes the fact‑finding tribunal from concluding that the accused acted in 'complete' self‑defence, pursuant to s 248(4), is the finding that the State has negatived the element of 'complete' self‑defence in s 248(4)(b) by proving, beyond reasonable doubt, that the accused's act that caused the other person's death was not 'a reasonable response by [the accused] in the circumstances as [the accused] believes them to be'.
It is significant that the relevant text in s 248(3)(b) (that is, the concluding part of the provision which begins with the words 'but for') mirrors, and only mirrors, in substance, the text of s 248(4)(b).
There are four discrete elements of 'complete' self‑defence in s 248(4), and s 248(3)(b) incorporates only one of them; namely, the element in s 248(4)(b).
The relevant text of s 248(3)(b) does not expressly or impliedly incorporate the text of s 248(4)(a) or the text of s 248(4)(c). In particular, the relevant text of s 248(3)(b) does not expressly or impliedly incorporate:
(a)the element of 'complete' self‑defence in s 248(4)(a);
(b)the element of 'complete' self‑defence in s 248(4)(a) read with s 248(4)(c); or
(c)the element of 'complete' self‑defence in s 248(4)(b) read with s 248(4)(c).
It follows that if the fact‑finding tribunal finds that the State has excluded beyond reasonable doubt one or more of the elements of 'complete' self‑defence, within s 248(4), apart from the element in s 248(4)(b), then s 248(3)(b) will not be engaged and 'excessive' self‑defence will not be available to the accused. In other words, s 248(3)(b) will not be engaged, and 'excessive' self‑defence will not be available to the accused, unless the only fact that defeats 'complete' self‑defence within s 248(4) is the fact that the accused's act that caused the other person's death was not 'a reasonable response by [the accused] in the circumstances as [the accused] believes them to be' (s 248(3)(b)).
So, in my opinion, it is open to the State to negative 'excessive' self‑defence, within s 248(3), by excluding beyond reasonable doubt any one of the three alternative elements of 'complete' self‑defence, within s 248(4), which are not incorporated in the relevant text of s 248(3)(b), including by proof beyond reasonable doubt that there were no reasonable grounds for the accused to believe that the circumstances referred to in s 248(4)(b) were as the accused believed them to be.
The text of s 248(3), in the context of s 248(4) and s 248 as a whole, is plain. There is no relevant ambiguity or obscurity. The ordinary meaning conveyed by the text of s 248(3), taking into account its statutory context, is inconsistent with the construction of s 248(3) advanced in the present case by counsel for the appellant.
The part of ground 4, and the submissions in support of it, which are based on counsel for the appellant's contention as to the proper construction of s 248(3) are without merit.
Subject to what I have written concerning the proper construction of s 248(3), the other parts of ground 4, as particularised, are without merit generally for the reasons given by Mitchell JA.
Ground 4 fails.

The appellant's application for leave to adduce additional evidence in the appeal

I agree with Mitchell JA, generally for the reasons he gives, that the appellant's application for leave to adduce additional evidence in the appeal should be dismissed.

Grounds 1, 2, 3 and 5

I agree with Mitchell JA, generally for the reasons he gives, that each of grounds 1, 2, 3 and 5 fails.

The proviso

Each of the parties made submissions in relation to the application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) in the event the court decided that ground 4 had been made out.
Although I have concluded that ground 4 fails, I will, for the sake of completeness, consider whether a substantial miscarriage of justice has actually occurred if, contrary to my opinion, ground 4 has merit.
The principles governing the application of the proviso are set out in my reasons (Mazza JA relevantly agreeing) in Ritchie v The State of Western Australia [2016] WASCA 134 [116] ‑ [120].
I am satisfied, on my examination of the trial record and after weighing the evidence, that the State proved beyond reasonable doubt that the appellant murdered the deceased.
In particular, I am satisfied beyond reasonable doubt that:
(a)the appellant, in stabbing the deceased multiple times in the torso, intended to cause the death of the deceased; alternatively, intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the deceased (s 279(1)(a) and (b));
(b)the appellant did not subjectively believe that stabbing the deceased multiple times in the torso was necessary to defend himself from a harmful act of the deceased, including a harmful act that was not imminent (s 248(4)(a));
(c)in any event, there were no reasonable grounds for any such subjective belief the appellant may have had (s 248(4)(a) read with s 248(4)(c)); and
(d)the killing of the deceased by the appellant was not authorised or justified or excused by law (s 268).
On my examination of the trial record and after weighing the evidence, the only conclusion reasonably open is that the appellant was guilty of murder. In particular, the only findings reasonably open are that the appellant had the requisite intent for murder and that the appellant did not subjectively believe, on reasonable grounds, that stabbing the deceased multiple times in the torso was necessary to defend himself from a harmful act of the deceased, including a harmful act that was not imminent. No other reasonable conclusion or findings are open on the trial record as a whole.
After paying full regard to:
(a)the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence; and
(b)the jury's advantage in having seen and heard the witnesses,
I do not have a reasonable doubt as to the appellant's guilt on the count of murder pleaded in the trial indictment or as to the correctness of his conviction on that count. I remain of that view even if, contrary to my opinion, there is merit in ground 4.
I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has in fact occurred. First, as I have mentioned, I am persuaded to the criminal standard of proof, on my examination of the trial record and after weighing the evidence, as to the appellant's guilt on

the charge of murder. The jury properly rejected the appellant's defences, including his exculpatory statements and account of relevant events in his video‑recorded interview. I am persuaded to the criminal standard that the appellant has not been denied a chance of acquittal that was fairly open to him. Secondly, I am satisfied that even if, contrary to my opinion, there is any merit in ground 4, nothing at or in the conduct of the trial precludes this court from deciding that no substantial miscarriage of justice has in fact occurred. The proviso is able to be engaged.

Conclusion

I would grant leave to appeal on ground 4, but refuse leave to appeal on grounds 1, 2 and 5. The application for leave to adduce additional evidence in the appeal should be dismissed. The appeal must be dismissed.
MAZZA JA: I agree with Buss P and Mitchell JA that this appeal must be dismissed. I agree with the orders proposed by their Honours. I agree with Mitchell JA, for the reasons he gives, that each of grounds 1, 2, 3 and 5 must be dismissed. I agree with Buss P, for the reasons that he gives, that ground 4 should also be dismissed. Had ground 4 been upheld, I agree with their Honours that no substantial miscarriage of justice occurred. I would have applied the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). On this matter, I gratefully adopt the reasoning of Buss P.
MITCHELL JA:

Summary

The appellant stabbed his uncle five times in the torso with a knife, during the course of an argument between the two men outside the house of the appellant's grandparents. The stab wounds combined to cause the death of the appellant's uncle. The appellant claimed that he stabbed his uncle out of fear that he would himself be killed. The appellant was charged with murder. The appellant accepted that he was guilty of manslaughter, and that he had not acted in self‑defence on the basis that his conduct was not a reasonable response in the circumstances as he believed them to be.

The State did not accept the appellant's plea of guilty of manslaughter in satisfaction of the indictment. The appellant was convicted of murder after trial.
The principal issues at trial were whether the appellant acted with the requisite intention for murder and whether he acted in 'excessive self‑defence' as provided for in s 248(3) of the Criminal Code (WA). Unless the State proved that the appellant was not acting in excessive self‑defence, the appellant could not properly be found guilty of murder as opposed to manslaughter.
The appellant now appeals against his conviction on various grounds. He alleges that the trial judge erred in exercising his discretion, under s 79C(6) of the Evidence Act 1906 (WA), to reject the tender of medical records concerning the deceased's psychiatric condition. He also asserts that a miscarriage of justice arose by reference to new evidence suggesting that the deceased was not taking his psychiatric medication at the time of the offence. The appellant contends that the trial judge misdirected the jury in relation to the manner in which the State could prove that the appellant was not acting in excessive self-defence. He also contends that the trial judge erred by failing to direct the jury that the evidence of his grandparents was unreliable due to inconsistencies. Finally, the appellant contends that the verdict of guilty of murder was unreasonable and could not be supported by the evidence.
For the following reasons, in my view all of these grounds fail, and the appeal must be dismissed.

Uncontentious facts

On 19 August 2012, which was the end of Ramadan, the appellant visited the Langford house of his maternal grandparents, Ali and Sultan Osman, to pay his respects. Mr and Mrs Osman were the only people present at the Langford house when the appellant arrived. Mr and Mrs Osman were aged in their early 70s, and had immigrated to Australia from Cyprus in the early 1970s. Their first language was Turkish. The appellant was aged 28 years at this time.
The deceased was the son of Mr and Mrs Osman and the appellant's maternal uncle. The deceased was eight years older than the appellant, and was 36 years old on 19 August 2012. At that time, the deceased was living with Mr and Mrs Osman while his house was being built in Southern River.
The deceased suffered from paranoid schizophrenia and a paranoid personality disorder. He had been prescribed medication for this condition. He was prone to aggressive speech and behaviour. This was well known to family members, including the appellant. There had been incidents in the past between the deceased and the appellant involving both verbal and physical aggression.
The deceased had left the Langford house to buy some fish and chips shortly prior to the appellant's arrival at about 6.30 pm on 19 August 2012.
The deceased returned to the Langford house with his fish and chips a short time after the appellant arrived. Not long thereafter, the appellant decided to leave the house. The deceased was asked, either by the appellant or Mr Osman, to move his car, which was blocking the exit of the appellant's vehicle. The deceased went outside the house to where the appellant was standing, while Mr and Mrs Osman were inside.
A short but violent altercation then erupted between the appellant and the deceased. The appellant produced a folding knife that he was carrying in his pants pocket, and opened it to the locked position. The appellant forcefully stabbed the deceased five times in the abdomen and once in the lower left back. Of the five front stab wounds, one was on the left side of the chest, two were to the central part of the abdomen and two were to the lower left side of the abdomen. One of the wounds to the central abdomen cut through the diaphragm, the liver and then into the portal vein, causing extensive bleeding into the right chest. This wound could have itself been fatal.
The appellant called an ambulance at 6.58 pm, shortly after the stabbing. He advised the operator that the deceased had been stabbed. In response to inquiry by the operator, the appellant said that he did not know where the person who stabbed the deceased was. Mr Osman called an ambulance at about the same time.
Police and emergency services attended at the scene shortly after the calls were made. The appellant was immediately arrested. Before his arrest, the appellant told Senior Constable Suttie that he did not know anything about what had happened (ts 215). He told Constable Gilbert that the deceased had gone outside and came back injured, and he was not sure where it happened (ts 231). After speaking with Mr Osman, Senior Constable Suttie directed Constable Gilbert to arrest the appellant.
As he was being handcuffed and moved to a police vehicle, the appellant told Constable Gilbert that there had been an argument regarding the cars parked in the driveway and that the deceased had run at him 'to knock me out'. The appellant then struck the deceased with the knife. The appellant made no mention of being punched by the deceased. He asked whether his knife hit an artery. The appellant told the police that he threw the knife into a bush (ts 232 ‑ 233). The knife was later found in a bush in the front yard of the Langford house (ts 252).
The deceased was treated at the scene by paramedics and taken to Royal Perth Hospital by ambulance. He was pronounced dead at or shortly after his arrival. The deceased died from the multiple stab wounds inflicted by the appellant, all of which caused blood loss and contributed to his death.
The police conveyed the appellant to the Cannington police station and took some forensic photographs of him. The appellant was placed in an interview room to await the arrival of the interviewing detectives. While there, the appellant said several times to Constable Dhillon, a police officer who was sitting with him:
It shouldn't have been like this. Why didn't he leave me alone (ts 242)?
The appellant agreed to participate in a video record of interview with Detective Sergeant Thompson and Detective Sergeant Mansell. The interview was video-recorded and commenced at 3.22 am on 20 August 2012. Including breaks, the interview concluded at 6.13 am.
During the course of the recorded interview, the appellant admitted forcefully stabbing the deceased multiple times in the torso, but claimed to have done so because he feared the deceased was going to kill him. I shall return to the detail of the appellant's account to police later in these reasons.
The appellant was subsequently charged with murder. On arraignment, the appellant pleaded guilty to manslaughter. The State did not accept the plea in satisfaction of the indictment.
In the course of her opening address, the appellant's trial counsel admitted that the appellant used the knife in such a way as to cause the deceased's death and that he was guilty of manslaughter (ts 65). She indicated, in effect, that the appellant accepted that his stabbing the deceased was not a reasonable response by the appellant in the circumstances as he believed them to be. Consequently, the appellant could not rely on self‑defence for a complete acquittal.[1] Counsel for the appellant accepted this in her opening address, but said that the jury would be able to find the appellant not guilty of murder and guilty of manslaughter on the basis that the appellant 'did what he needed to do to save himself, but that a person standing watching over it would have thought he went too far' (ts 64).
[1] Section 248(4)(b) of the Criminal Code.

Contentious issues at trial

Given the appellant's admissions, the contentious issues at trial were whether the State had proved beyond reasonable doubt that:
1.at the time of stabbing the deceased, the appellant either:
(a)subjectively intended to cause the death of the deceased;[2] or
(b)subjectively intended to cause a bodily injury to the deceased, which bodily injury was objectively of such a nature as to endanger, or be likely to endanger, the deceased's life;[3] and
2.the appellant did not believe, on reasonable grounds, that stabbing the deceased multiple times in the torso was necessary to defend himself from a harmful act of the deceased (assaulting and killing the appellant).[4]
[2] Section 279(1)(a) of the Criminal Code.
[3] Section 279(1)(b) of the Criminal Code.
[4] Section 248(4)(a) and (c) of the Criminal Code.
If the State failed to prove either of these two matters beyond reasonable doubt, then the appellant would properly be found guilty only of manslaughter, not murder. This would be on the basis that either the requisite intention for murder had not been established or on the ground of excessive self‑defence.[5]
[5] Section 248(3) of the Criminal Code.
Appeal ground 4 challenges the trial judge's directions on excessive self‑defence. I will explain the way I have formulated the second issue above when I deal with that ground.

Intention

The State argued that, from the number and nature of the stab wounds and the circumstances, there was no doubt that, at the time the appellant stabbed the deceased, he intended to kill him. Alternatively, the State argued that the appellant must have intended to inflict a bodily injury which was, objectively, likely to endanger the deceased's life (ts 60).
In addition to the nature of the wounds and the admitted circumstances in which the wounds were inflicted, the State relied on the evidence of Mr and Mrs Osman as indicating that the appellant intended to kill the deceased.
Mr Osman testified that, after the deceased went outside to move his car, he heard the deceased and the appellant yelling and screaming at each other. He said that he went to the front door of the house where he saw them standing face to face on the front porch. He said each was yelling at the other, 'I kill you, bastard. I kill you, bastard'. Mr Osman testified that he tried to separate the two men who were punching each other. Mr Osman said that he saw the deceased punch the appellant, causing him to lose his balance, after which the appellant punched the deceased. He stated that, in the attempt to separate the two men, he touched the deceased and noticed blood on his hand. The deceased fell to the ground. At this point, Mr Osman said that he told the appellant to stay away. He then rushed inside and telephoned emergency services (ts 113 ‑ 115; 184 ‑ 185, 189 ‑ 191).

Mrs Osman testified that she heard screaming. She said she went outside and saw her son in what she described as 'a bloodbath'. She said that she saw the appellant point towards the deceased, who was at that point still alive, and say, 'I'm going to kill you' (ts 322).
In his recorded interview, the appellant denied saying he was going to kill the deceased.
The appellant's trial counsel submitted to the jury that this evidence did not establish beyond reasonable doubt that the appellant intended to kill the deceased (ts 592 - 593).

Excessive self-defence

Parties' positions at trial

The State's case was that, despite the deceased's bad temper and any past aggression on his part towards the appellant, the stabbing had nothing to do with self‑defence (ts 59 ‑ 60). Prosecuting counsel argued that the evidence proved that the appellant did not really believe that it was necessary to stab the deceased six times in order to defend himself. The State invited the jury to reject the appellant's account of the event because of his initial lies to police and what was said to be his exaggerated account of the deceased's history of violence and aggression. The State contended that the appellant rather stabbed the deceased out of anger and frustration in relation to the deceased's past conduct. The State also contended that there were no reasonable grounds for any belief by the appellant that he needed to stab the deceased six times in order to defend himself (ts 579 ‑ 580). The State contended that there were no reasonable grounds for the appellant to believe that the deceased was actually going to kill or seriously injure him. The State also contended that, given the other options available to the appellant, there were no reasonable grounds for the appellant to believe that stabbing the deceased multiple times was necessary to defend himself from any harmful act of the deceased (ts 581 ‑ 582).
The appellant's trial counsel argued that the State had not proven that the appellant did not believe that stabbing the deceased was necessary to defend himself from a harmful act by the deceased, and that he in fact had that belief. She also argued that the deceased's prior violence, his unstable mental condition and the things the deceased did just prior to the stabbing provided reasonable grounds for that belief (ts 594). She said:
What he did that night he did because he was terrified. He did because he thought that [the deceased] was a time bomb about to explode. He did because he thought if he didn't that [the deceased] was going to kill him because he believed the words that came out of [the deceased]'s mouth and he did what he had to do to make [the deceased] stop and the only reason he stabbed him as many times as he did was because [the deceased] kept going and he did all of that because he believed that's what he had to do to stop the threat (ts 607).

Evidence of the deceased's mental illness

Appellant's statements to police

The appellant's answers to questions asked in his recorded interview with police indicated that he was aware that the deceased had mental health issues for which he was taking medication.

Mr and Mrs Osman's evidence

Mr Osman's evidence was that he was aware that the deceased was taking medication and was calm when doing so. The deceased was different when he was not taking medication, and at those times Mr Osman could not talk to the deceased directly (ts 192 ‑ 193).
Mrs Osman accepted that the deceased would get angry quickly and scream, but only for a short time (ts 366). Mrs Osman also accepted that there were times the police came and took the deceased away from the Langford house (ts 366 ‑ 367). She said that there were no problems between her and the deceased (ts 323, 367). She denied seeing the deceased get angry with, or try to hurt, the appellant, or act in a threatening way with a knife (ts 371 ‑ 372).

Evidence of Dr Johri

The appellant called Dr Navneet Johri, the psychiatrist who had most recently treated the deceased. Dr Johri was, at the relevant time, a consultant psychiatrist employed by the South Metropolitan Health Service. He said that he treated the deceased between 2008 and 2012. He diagnosed the deceased as suffering from paranoid schizophrenia and cluster A personality disorder (ts 534). Dr Johri was referred to two letters that he wrote to the deceased's general practitioner, Dr Singh, dated 27 May 2009 and 7 May 2012. In his letter of 7 May 2012, Dr Johri wrote of the deceased that:
There is a longitudinal risk of aggression to others.
When asked to explain what he meant by this, Dr Johri said that he recalled that it was a 'classic thing' for the deceased, when standing at a checkout counter, to feel that he was being insulted or not taken seriously. This would agitate him, but the deceased always knew that 'this is not the right thing' and he would 'back off'. As a result, the deceased would, according to Dr Johri, avoid social interaction with strangers (ts 542).
Dr Johri said that the deceased had been prescribed an antipsychotic drug, paliperidone, and an antidepressant and anti‑anxiety medication, sertraline. He said that if a person abruptly stops taking such medication, it takes 'a few weeks to a few months' for a person to display all the symptoms which the medication had been controlling (ts 545 ‑ 546).
Dr Johri said that 'generally' over the period he had seen him, the deceased appeared to be more stable and in better control towards the end of that period (ts 547).
In cross‑examination by the State prosecutor, Dr Johri said that throughout the time he treated the deceased, he always had insight into the potential consequences of acting on his aggression. Dr Johri put it this way:
for [the deceased], the most times I have seen him, he always knew what not to do because he knew he will run into trouble or there would be legal consequences. And that is how he avoided a lot of confrontations. He must have avoided hundreds or thousands of such potential confrontations in that two, three, four‑year period that I have seen him (ts 550).
Dr Johri was referred to the notes from his consultation on 7 May 2012. On that occasion, Dr Johri noted that the deceased's schizophrenia was still in remission and that he retained a degree of insight and avoided confrontations (ts 553). When he last saw the deceased, the deceased indicated that he was taking his medication, and Dr Johri had reason to think he was taking the medication (ts 554).

Evidence of past violence by the deceased

Mr Osman's evidence

Mr Osman's evidence was that he and the deceased used to argue a lot. He said that the deceased had a really bad temper and would verbally abuse Mr Osman in an angry tone and on occasion raise his hand to mimic punching Mr Osman. On a number of occasions police had been called and the deceased had been asked to leave the house (ts 120 - 122). Many years ago, in 1997 or 1998, the deceased had pulled a knife on Mr Osman and threatened to kill him. Mr Osman denied that there were other occasions on which the deceased had threatened to kill him, but admitted being scared of him when he was angry (ts 166 ‑ 169).
Mr Osman accepted that, in May 2012, the deceased was angry at construction workers having placed the wrong gutters at his house in Southern River. The deceased was angry with Mr Osman for not helping, to such an extent that police were called and the deceased was ordered away from the Langford house. Mr Osman accepted that the deceased raised his arm but did not strike him on this occasion, and he was worried the deceased would hurt him if he stayed at the house (ts 173 - 177).
Mr Osman said that the deceased could very quickly become angry, screaming and on occasion threatening to hurt him (ts 177 ‑ 178). Mr Osman said that there were also times when the deceased threatened to kill himself when angry (ts 181). Mr Osman said that the deceased would say he hated the appellant, although Mr Osman had never seen the appellant and the deceased have an argument before the day of the deceased's death (ts 182). Mr Osman later accepted that he had seen the deceased scream at the appellant a few times, a long time ago (ts 193).

Mrs Osman's evidence

Mrs Oman said that the deceased got on well with her and his sisters (ts 323). She accepted that sometimes her son would get angry and would scream, but only for a short time. She also accepted that there were occasions when they could not calm the deceased down and police would come to take him away (ts 366 ‑ 367). She denied seeing the deceased get angry with the appellant or hurt the appellant, and could not remember the deceased holding a knife other than for reasons in the kitchen (ts 372).

Appellant's statements to police

The appellant told the police that 'about 6 years ago' the deceased put him into a headlock and attempted to murder him. He told the police that when he was approximately 12 years of age, the deceased punched him and knocked him to the ground, as a result of which he sustained a concussion (interview ts 41). The appellant also described an incident which occurred '6 years ago' when the deceased came around to his house and smashed the back windows because he wanted to attack the appellant and his brother.

Evidence of Mrs Egitmen

The appellant's mother, Mrs Egitmen, gave evidence about her brother's past behaviour. She described the deceased as 'very violent' and that he was a man who angered easily. She said that the deceased 'used to make a lot of trouble in the family' (ts 468 ‑ 469). She said that the deceased had been violent towards her in the past and that she had seen him push the appellant. She testified about an occasion '9 years ago' when the deceased came to her house and smashed her back windows. She said that the deceased wanted to kill her other son, Ali (ts 470 ‑ 471).

Evidence of Ali Egitmen

The appellant's brother, Ali Egitmen, is three years younger than the appellant. Ali Egitmen testified that the deceased was 'very easily angered' and that he was 'always … yelling and threatening people' (ts 485). He said that he had witnessed the deceased physically hurt the appellant. He said that he witnessed the deceased punch the appellant in the face. On another occasion when he (Ali) was between 5 and 10 years of age, he testified that he saw the deceased choking the appellant. Ali Egitmen testified as to the occasion on which the deceased smashed the back windows of his family home. He said that on this occasion the appellant was armed with a knife and that he screamed that he wanted to kill him (ts 487 ‑ 490).

Police records

The defence tendered a number of police reports from 2003, 2005, 2007, 2011 and 2012 in respect of incidents of aggressive behaviour by the deceased towards Mr Osman. The behaviour principally consisted of verbal aggression, and there was no indication that the deceased had been physically violent to Mr Osman. There was a report that on 13 October 2011 the appellant was chasing an imaginary person with a knife in the backyard of the Langford house.

Evidence of events prior to the stabbing

Mr Osman recalled the deceased being happy on 19 August 2012. He did not recall any significant conversation between the appellant and the deceased prior to the argument (ts 111 ‑ 112).
Mrs Osman gave evidence of a conversation between herself, the deceased and Keziban Egitmen, the appellant's mother and deceased's sister, at the gathering in the Langford house on the afternoon of 19 August 2012. The deceased asked Mrs Egitmen why the appellant was walking past his property in Southern River. According to Mrs Osman, Mrs Egitmen replied that the appellant and his brother, Ali Egitmen, were there because they were going to build a mosque in Southern River. Mrs Egitmen gave the deceased a hug and said she would make him a coffee (ts 311).
Mrs Osman also gave evidence that when the deceased came home with his fish and chips, they were sitting in the Langford house and there was no conversation. She said that they were all happy because it was the Ramadan Eid (ts 319).
Mrs Egitmen said that, despite an incident before lunch where the deceased was screaming and yelling, after lunch he was 'happy' (ts 476). Mrs Egitmen said the deceased told her he had seen the appellant and his brother, Ali Egitmen, walking in Southern River the previous Friday. Mrs Egitmen told the deceased that her sons were going to build a mosque in Southern River. The deceased indicated that this was not true. Mrs Egitmen said that they finished eating lunch, had some coffee and sweets and she left her parents' house at about 3.00 pm. When she got home, Mrs Egitmen told the appellant about this conversation (ts 477 ‑ 478).
In his recorded interview, the appellant said that in the Langford house, the deceased accused him of spying on the deceased and gave the appellant 'a very angry aggressive look'. The appellant said that he knew the deceased was 'on psycho antidepressants' and that he felt intimidated by him, and left the house (interview ts 10).

Evidence of events at the time of the stabbing

Mr and Mrs Osman's and the appellant's accounts of the events they witnessed at the time of the stabbing are outlined above.
The State also called evidence from Mr Ayling, a neighbour of Mrs and Mrs Osman. As he was making dinner, he heard a couple of 'thud' noises and shouting from the direction of the Langford house. The only thing he could make out was an angry male voice shouting 'enough's enough' (ts 196 ‑ 198).
In his recorded interview, the appellant told police that he asked the deceased to move his car. The deceased objected to the appellant taking his parking spot and walked up 'into my face and started screaming and he started swearing'. The appellant told police that the deceased said things about the appellant's Muslim religion which the appellant did not want to repeat. According to the appellant, the deceased said:
I'm going to execute you. I'm going to kill you (interview ts 11).
The appellant said that he responded:
Look, ah, leave me alone. I don't want to fight you (interview ts 11).
The appellant told police that the deceased repeated 'I'm gonna kill you', and the appellant pulled his knife out. The appellant said that he flicked the knife open and showed and told the deceased that he had a knife and told the deceased to leave him alone and that he wanted to go. According to the appellant, the deceased pushed him in the chest and punched him on the temple. The appellant admitting stabbing the deceased 'hard' with the knife up to five times. The appellant said:
And after stabbing him, I said to him, 'I'm sick and tired of your abuse. You've abused me all your life. You've attempted to kill me.' And no‑one has ever done anything to stop, stop him. I'm not going to put up with any more. I'm fed up.
The appellant told police that the deceased's last words to him were:
Why did you do it?
to which the appellant responded:
Look, I'm very sorry. I truly am very sorry. I didn't want it to end, end like this (interview ts 11).
The appellant told police that he feared for his life, believed that the deceased was going to kill him and felt that his life was in danger. The appellant said that he didn't see the deceased with any weapon but told police that 'if he got his hands onto me he would have strangled me to death'. When asked, 'Why did you stab him?', the appellant answered:
Why? Because I believed him when he said he was going to kill me. He's attempted to kill me before. He's pulled knives onto me … and I have had to run away (interview ts 35).
The appellant denied saying that he told the deceased that he was going to kill him, and denied punching the deceased.

Grounds of appeal

The appellant appeals against his conviction on the following five grounds (omitting particulars):
1.The learned trial judge erred in law by not directing the jury that the evidence of [Mr and Mrs Osman] was unreliable due to inconsistencies.
2.A miscarriage of justice occurred due to the jury not receiving evidence that the deceased had ceased taking his psychiatric medication prior to the incident in question and was therefore more likely to be psychotic, paranoid, agitated, and aggressive, and there was therefore a greater likelihood of the deceased being violent.
3.The verdict was unreasonable and could not be supported having regard to the evidence.
4.The learned trial judge erred in law when directing the jury on 'excessive' self-defence.
5.The learned trial judge erred in law in deciding to exclude the psychiatric records of the deceased from evidence.
It is convenient in these reasons to deal with ground 5, then ground 2, then ground 4, then ground 1 and finally ground 3.

Ground 5: discretion under s 79C(6) of the Evidence Act

Documents which the appellant sought to tender at trial

On the first day of trial, the appellant's counsel provided the prosecution and the court with copies of medical documents which she would seek to tender as business records under s 79C of the Evidence Act 1906 (WA). She did not seek any ruling at that time (ts 49 ‑ 53). The seven documents which counsel anticipated tendering were (ts 422 ‑ 423):
1.A report of a psychological assessment of the deceased on 7 April 2009 by Michael Philp, a clinical psychologist (registrar) (Document 1).
2.A letter from Dr Johri to the deceased's general practitioner dated 27 May 2009 (Document 2).
3.A report of an initial psychological assessment of the deceased on 26 February 2009 by Mr Philp (Document 3).
4.A discharge summary for the deceased from the Armadale Kelmscott Hospital Department of Emergency Medicine dated 14 October 2011 (Document 4).
5.A psychiatric assessment and service plan in respect of the deceased dated 28 March 2012 (Document 5).
6.A letter written by Dr Johri to the deceased's general practitioner on 7 May 2012 (Document 6).
7.A briefing note in relation to the deceased dated 18 December 2012 prepared by the executive director of the Armadale Kensington Mental Health Service to the Director General of the Department of Health (Document 7).
The appellant's trial counsel anticipated that, in the event the court had concerns under s 79C(6) on the basis that an expert witness was required to explain the meaning of aspects of the documents, she anticipated Dr Johri being available to attend court (ts 424). She explained that the appellant wanted to put before the jury material that demonstrated that what the appellant told police about the mental health of the deceased and its connection to the deceased's violence was true (ts 425 ‑ 428).
The appellant's counsel said that she at least wanted to be able to tender the briefing note which she said would give the jury a useful chronological mental health history of the deceased. She submitted that there was no need for a medical witness to be called because the briefing note was expressed in a way that expert opinion was not required to 'enable the jury to extract from it sufficient information' (ts 429).

Section 79C of the Evidence Act

Section 79C(2a) of the Evidence Act provides for the admission, on production, of 'statements' in documents which are or are derived from 'business records' and tend to establish a fact or opinion of which direct oral evidence would be admissible. Where the statement is made by a 'qualified person' that person shall not be called as a witness unless the court orders otherwise: s 79C(2b). Section 79C(6)(b) of the Evidence Act relevantly empowers the court, in its discretion, to reject a statement which satisfies the requirements of s 79C if it is of the opinion that the probative value of the statement is outweighed by the consideration that its admission 'may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury'.

Adequacy of the trial judge's direction

The appellant's principal complaint about this direction is that the trial judge directed that there were three ways in which the State could exclude excessive self‑defence, when there were actually only two ways in which excessive self‑defence could be disproven. The three ways which the appellant contends the trial judge identified were:
1.the appellant did not subjectively believe that stabbing the deceased was necessary to defend himself against a harmful act by the deceased: s 248(4)(a);
2.there were no reasonable grounds for the appellant to believe that stabbing the deceased was necessary to defend himself against a harmful act by the deceased: s 248(4)(c) read with s 248(4)(a); and
3.there were no reasonable grounds for the appellant to believe that the circumstances were such as he believed them to be: s 248(4)(c) read with s 248(4)(b).
The appellant contends that the third way was not available, and that the trial judge erred in directing the jury to the contrary.
I have agreed with the appellant's construction of s 248 of the Criminal Code on the basis that s 248(4)(c) only applies in relation to s 248(4)(b) where the accused person may have a subjective belief as to the existence of circumstances which make the accused's response reasonable. As s 248(3) is predicated on the absence of a subjective belief as to those circumstances, the question of reasonable grounds for any such belief does not arise when considering whether excessive self‑defence has been excluded.
However, in the present case there is no practical difference in the content of the subjective beliefs referred to in s 248(4)(a) and s 248(4)(b) of the Criminal Code. The believed circumstances relied on to characterise the accused's response as reasonable is the same as those relied on to characterise the stabbing as necessary to defend the appellant from a harmful act. The only relevant belief which the appellant asserted in his recorded interview was that the deceased was going to assault and kill him.
The appellant invited the jury to find that he may have believed, on reasonable grounds, that stabbing the deceased in the torso multiple times was necessary to defend against that harmful act. The only evidence of the appellant holding a belief as to circumstances which might have made stabbing the deceased in the torso multiple times a reasonable response was his statements to police that he believed that the deceased was going to assault and kill him. In this case the evidence did not suggest the appellant held any belief as to circumstances that might be relevant under s 248(4)(b) but not s 248(4)(a) of the Criminal Code. If the State had proven that there were no reasonable grounds for believing the stabbing was necessary to prevent the deceased from assaulting and killing the appellant, it would have excluded excessive self‑defence under s 248(3), read with s 248(4)(a) and s 248(4)(c), of the Criminal Code. The evidence, counsel's submissions and the trial judge's directions did not suggest that the appellant held any relevant belief as to other circumstances.
In the context of this trial, the direction did not invite the jury to find that the State had disproven excessive self‑defence other than by reference to a belief which is properly characterised as being of a kind referred to in s 248(4)(a) of the Criminal Code. The direction did not suggest the State could disprove excessive self‑defence on the basis that there were no reasonable grounds for the appellant to have a belief about matters which would not in any event exclude excessive self‑defence under s 248(4)(a), read with s 248(4)(c), of the Criminal Code.
When the trial judge's direction is considered as a whole in light of the evidence led at trial, it actually identified only two ways in which the State could disprove excessive self‑defence. The first was by proving that the appellant did not believe that stabbing the deceased multiple times in the torso was necessary to defend himself against a lethal assault by the deceased. The second was by proving that there were no reasonable grounds for such a belief. The evidence and direction did not suggest that the appellant may have held a belief as to any other matter which could be relevant under s 248(4)(b) but not s 248(4)(a) of the Criminal Code.
The trial judge's direction explained excessive self‑defence by identifying the elements of the definition of self-defence and indicating that excessive self‑defence would arise when only the definitional element in s 248(4)(b) was missing. He explained that excessive self‑defence would arise when the appellant's act would be an act done in self‑defence but for the fact that it was not a reasonable response by the appellant in the circumstances as he believed them to be. Taken as a whole, the direction was sufficient to provide the jury with a proper understanding of the factual issues which they had to resolve in order to find the appellant guilty of murder, given the evidence led at trial.

Directions as to elements of self‑defence

The appellant also contends that the trial judge erred in directing the jury on the 'complete' defence of self‑defence, and in not confining his directions to excessive self‑defence, when the appellant had conceded that the 'complete defence' of self‑defence was not available. I do not accept that submission for two reasons.
First, although the availability of self‑defence was not controversial at trial, the issue remained one for the jury to consider. The jury could resolve the issue by accepting the appellant's admission that stabbing the deceased was not a reasonable response by the appellant in the circumstances as he believed them to be. It was ultimately for the jury to decide whether to act on that admission, to act on other evidence or to find that self‑defence had not been negated. The question of whether self‑defence had been negated remained one for the jury despite the appellant's formal admission of facts which were inconsistent with the appellant having acted in self‑defence. It remained appropriate for the jury to be given a direction about the elements of self‑defence which they would apply to that task.
Secondly, the definition of excessive self‑defence in s 248(3) operates by reference to the definition of self‑defence in s 248(4) of the Criminal Code. Excessive self‑defence is defined by reference to the reason why an accused was not acting in self‑defence. An understanding of the elements of self‑defence facilitates an understanding of the elements of excessive self‑defence. There was no error in the trial judge dealing with both concepts in his direction.

Characteristics of the appellant

The appellant also contends that the trial judge erred in failing to direct the jury that the reasonableness of his belief:
is to be assessed by the standard of a reasonable person of the same age, background and level of intellect of the accused and familiar with all the circumstances that were known to him at the relevant time.
The appellant cites Bolton v The State of Western Australia[59] and Smith v The State of Western Australia[60] as authority for this proposition. The passage of Bolton to which the appellant refers is a quotation by McLure P of a passage of the direction given by the trial judge in that case. The question of whether such a direction was required, or whether the existence of reasonable grounds is to be assessed in that manner, was not raised for decision in Bolton. The passage in Smith quotes from a passage of a trial judge's direction on the defence of emergency. Neither case is authority for the proposition which the appellant advances. Apart from citing these cases, the appellant does not advance any other reason for imposing a requirement to direct a jury in those terms.
[59] Bolton v The State of Western Australia [2012] WASCA 2 [18].
[60] Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 [150].
As this court noted in Quartermaine v The State of Western Australia,[61] where the reasonableness of an accused's belief or response arises, there is a question as to which, if any, of the accused's characteristics are to be brought to bear in assessing the reasonableness of his or her belief or response. That the answer to this question turns on a question of statutory construction is illustrated by comparing the decisions in R v Oblach[62] and Director of Public Prosecution (Vic) v Parker.[63] Both cases were concerned with statutory defences of duress, expressed by reference to what the accused 'reasonably believes'.[64] The courts in these cases came to different views, principally by reference to the statutory context in which the relevant provision appeared. In Parker the Victorian Court of Appeal held that the question was whether a reasonable person possessing any personal characteristics of the accused that might have affected the accused's appreciation of the circumstances might have held the relevant belief.[65] In Oblach, the New South Wales Court of Criminal Appeal adopted an objective test, considering whether the belief would have been held by any ordinary person in the position of the accused.[66]
[61] Quartermaine v The State of Western Australia [2008] WASCA 22; (2008) 36 WAR 384 [40].
[62] R v Oblach [2005] NSWCCA 440; (2005) 65 NSWLR 75.
[63] Director of Public Prosecutions (Vic) v Parker [2016] VSCA 101.
[64] Oblach was concerned with s 10.2 of the Criminal Code (Cth) and Parker with s 9GA(2) of the Crimes Act 1958 (Vic).
[65] Parker [58] ‑ [59].
[66] Oblach [55], [59], [74], [80], [91].
I note that, in Morris v The Queen,[67] this court did not determine whether Oblach was correctly decided. In that decision McLure JA observed that, leaving aside broader contextual considerations, the words 'reasonably believes' in s 10.2 of the Commonwealth Criminal Code prima facie connote 'what an accused himself might reasonably believe in all the circumstances in which he found himself, having regard to the personal characteristics of the particular accused'.[68] I also note that this court in Quartermaine held that the requirement of 'reasonable necessity', in the statutory duress defence in s 31(3) of the Criminal Code (as it then stood), was to be determined objectively and not by reference to a reasonable person with any particular characteristics.[69]
[67] Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325 [78] ‑ [86], [135] ‑ [140], [168] ‑ [169].
[68] Morris [139].
[69] Quartermaine [46] ‑ [47]. See also Smith [12] and, in relation to the defence in s 31(1)(d) of the Criminal Code (Qld), R v Smith [2005] QCA 1; [2005] 2 Qd R 69 [32] ‑ [34] and Taiapa [22].
While s 248 of the Criminal Code refers to reasonable grounds for a belief, rather than a reasonable belief, it has been held that to ask whether a person has a reasonable belief is not different in substance from asking whether a person has reasonable grounds for belief.[70]
[70] Taiapa [29].
Whatever may be the ordinary connotation of the phrase 'reasonably believes',[71] the reference to reasonable grounds for a belief is apt to identify grounds which would induce the relevant belief in a reasonable person in the position of the accused.[72] In assessing whether there were reasonable grounds for believing that a particular degree of force was necessary to defend against a harmful act, it is appropriate to take account of the physical characteristics of the accused and the information which he or she knows. The assessment of reasonable grounds for such a belief may be affected by the physical strength and stature of the accused as compared to the assailant. The circumstances in which there are reasonable grounds for believing that resort to a weapon is necessary for a 50 kg frail elderly person to defend against an assault may well be different from the circumstances which would apply to a 100 kg prize fighter. The assessment of whether there are reasonable grounds for a belief will take into account the information available to the person who holds the belief.
[71] Cf Parker [58]; Morris [139].
[72] George v Rockett (1990) 170 CLR 104, 112.
However, I can see no basis for concluding that the assessment of reasonable grounds for a belief takes into account personal characteristics of the accused such as immaturity, intoxication or mental infirmity. To consider personal characteristics of that kind would effectively remove any requirement of objectivity from that assessment.
There are significant limits to the extent to which regard may be had to personal attributes of this kind when considering, for the purposes of the definition of provocation, what may deprive an ordinary person of the power of self-control.[73] While the gravity of the conduct said to constitute provocation is assessed by reference to the characteristics of the accused, the power of self‑control attributed to the hypothetical ordinary person is, subject to a qualification in relation to age (in the sense of immaturity), unaffected by the personal characteristics and attributes of the particular accused.[74]
[73] Sections 245 and 246 of the Criminal Code.
[74] Stingel v The Queen (1990) 171 CLR 312, 324 ‑ 332; Masciantonio v The Queen (1995) 183 CLR 58, 66 ‑ 67; Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272 [25].
The reasons for allowing the personal characteristics of the accused to intrude into the objective component of the definition of provocation even to that limited extent do not apply to s 248 of the Criminal Code. Section 248 does not refer to the powers of self-control of an ordinary person, but to the existence of reasonable grounds for a belief. Nothing in the language or purpose of s 248 of the Code suggests that the existence of reasonable grounds for a belief turns on personal attributes which go to the mental capacity of the accused person.
Even if the decision in Conlon as to the significance of intoxication to self‑defence correctly stated the common law, Katarzynski and cases which follow it establish a contrary position under the objective element provided for by the Model Criminal Code provisions on which s 248 was in part based.
In any event, there was no evidence in the present case of any particular attribute of the appellant which was unusual or which would have impacted on the formation of any relevant belief. While it was necessary for the jury to take account of all the circumstances known to the appellant in considering whether there were reasonable grounds for his belief, the trial judge did not suggest otherwise.
The appellant has not established that the trial judge erred in failing to direct the jury that the reasonableness of his belief was to be assessed by the standard of a reasonable person of the same age, background and level of intellect of the appellant and familiar with all the circumstances that were known to him at the relevant time.

Disposition of ground 4

For the above reasons, ground 4 has not been made out. While I would grant leave to appeal in relation to this ground, the ground of appeal must be dismissed.

Ground 1: direction as to inconsistencies

Ground of appeal 1 alleges that the trial judge erred by not directing the jury that the evidence of Mr and Mrs Osman was unreliable due to inconsistencies. The appellant submits that this was an option recognised in Driscoll v The Queen.[75]
[75] Driscoll v The Queen (1977) 137 CLR 517, 536.
In Driscoll, Gibbs J held that it is not always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable. He accepted that in some cases it will be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of such a witness. However, he also postulated two kinds of case where such a direction would not be necessary. The first kind of case was where 'the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous'. The second kind of case was where the evidence of a witness might be regarded as reliable notwithstanding a prior inconsistent statement.

Inconsistencies in Mr Osman's evidence

The first alleged inconsistency to which the appellant points in relation to Mr Osman relates to evidence he gave as to what he heard after the deceased left the house, apparently to move his vehicle. In examination‑in‑chief, Mr Osman testified that, after the deceased left, he heard yelling and screaming. He then rushed to the front door. The prosecutor asked, 'Did you recognise who was yelling and screaming?' to which Mr Osman replied, 'When I was inside? No' (ts 113).
The appellant asserts that Mr Osman's answer to the prosecutor's question was inconsistent with an answer he later gave in the following exchange in cross‑examination:
While you were still inside, you couldn't tell who was yelling, could you?‑‑‑Both - both were (ts 185).
I do not regard this evidence as inconsistent. Mr Osman may well have understood the question 'Did you recognise who was yelling and screaming?' as an inquiry as to whether he recognised the individual voices, and responded that he did not. If there was an inconsistency, it did not undermine the substance of Mr Osman's evidence of the two men shouting at each other as he went outside.
The second alleged inconsistency concerns the evidence reproduced on a single page of transcript. The appellant contends that Mr Osman first indicated he saw the deceased drop to the floor before he knew what was going on. The appellant says that Mr Osman then indicated he touched the deceased, realised there was bleeding and then the deceased dropped to the floor.
I do not accept that Mr Osman's evidence was even arguably inconsistent in the manner contended for by the appellant. The transcript does record Mr Osman as saying:
He was (indistinct) drop on the floor when I - I went outside, but I didn't know what's going on yet (ts 113).
However, this statement was immediately preceded and followed by evidence that the appellant and deceased were standing face to face screaming and shouting at each other when Mr Osman came outside. Mr Osman then described finding blood and seeing the two men still fighting (ts 113 ‑ 114, 189 ‑ 190). When this passage of evidence is considered as a whole, its effect is clear.
The third alleged inconsistency concerns evidence given by Mr Osman at trial and statements made in his deposition. In examination‑in‑chief, he said that, in the process of attempting to separate the two men, he touched the deceased and saw blood on his hand (ts 113, 190). The appellant alleges that this testimony was inconsistent with Mr Osman's police statements, pointing to the following paragraphs in Mr Osman's deposition dated 20 August 2012:
70.I didn't see any blood or any injuries on either of them.
71.I tried to get in between the two of them but [the deceased] punched [the appellant].
…
74.[The appellant] lost his balance and fell against the lounge room window which is next to the front door.
75.[The appellant] went back to [the deceased] and punched him.
…
78.[The deceased] fell to the ground and couldn't get back up.
79.It was then that I noticed a few drops of blood on the floor about 2 or 3 feet from the front door.
This alleged inconsistency was never put to Mr Osman in cross‑examination. The trial judge could not have given a direction in relation to the alleged inconsistency given that it was not reflected in the evidence led at trial. In any event, in the absence of any contest that the deceased was stabbed and bleeding, the alleged inconsistency appears immaterial.
The fourth alleged inconsistency on which the appellant relies is an alleged inconsistency between Mr Osman's evidence that he could not recall the incident in 2011 when the deceased chased an imaginary person with a knife (ts 178 ‑ 179) and the police record of being called to such an incident at Mr Osman's complaint. Contrary to the appellant's submissions, an inability to recall an event is not necessarily inconsistent with the event having occurred.

None of the alleged inconsistencies place Mr Osman in a special category of witness.

Inconsistencies in Mrs Osman's evidence

Mrs Osman gave evidence in unusual circumstances. On 12 November 2013, she was called by the State to give evidence with the aid of an interpreter. Prior to being sworn, she said that she wanted to say something (ts 201). With the acquiescence of defence counsel, she was allowed to do so, before being sworn, in the absence of the jury. In effect, she said that her evidence would differ in some respects to what she had said in her statements to police and in proofing with the prosecutor prior to trial (ts 203). Consequently, Mrs Osman's testimony was delayed and a further statement was taken from her and provided to the defence.
On the afternoon of 13 November 2013, Mrs Osman was recalled. She testified that, although her husband had told her not to watch the incident that was unfolding between the appellant and the deceased, she had, in fact, 'secretly' observed and heard some of what occurred. She said that as the deceased lay dying, she heard the appellant say to him, 'I'm going to kill you'.
In cross‑examination, she accepted that she had lied to the police and to the prosecutor by not telling them what she had heard. She explained she had not told the police or the prosecutor what she had heard before the trial because her daughter, Mrs Egitmen, who had in the past cared for her, told her 'not to say everything'.
Mrs Osman was cross‑examined as to the inconsistencies between her statements and her testimony. Defence counsel put squarely to her that her evidence about hearing the appellant say, 'I'm going to kill you', was a lie. Mrs Osman denied lying before the jury and repeated that she had not said anything previously because of what her daughter had said to her.

The trial judge's direction

The trial judge directed the jury about the need to consider whether the evidence of a witness, or the statements of the appellant to police, were inconsistent with other evidence or statements of that witness or with other evidence. He told the jury that they should consider whether the inconsistencies were significant and what might explain any significant inconsistencies the jury found (ts 642).
The trial judge gave detailed directions with respect to Mrs Osman's evidence (ts 643 ‑ 644). In those directions, the trial judge pointed out to the jury that Mrs Osman's evidence was inconsistent with her police statements and what she had told the prosecutor prior to trial. He also pointed out that Mrs Osman accepted that she had told lies to the police and the prosecutor. His Honour directed the jury that these were matters relevant to the jury's assessment of her credibility. He said that it was for the jury to assess their significance, bearing in mind the explanations the witness gave for the inconsistencies and the telling of lies. The trial judge also directed the jury that they must not treat what a witness said in a prior statement as evidence of the truth of the contents of that statement, unless the witness adopts or affirms the facts asserted in that statement as true.

Adequacy of the direction as to inconsistencies

The trial judge did give the direction, adverted to in Driscoll, that a previous unsworn statement not adopted by a witness was not evidence on which the jury could act. He also gave appropriate directions as to the manner in which the jury should assess inconsistencies, both generally and particularly in relation to Mrs Osman. There were no significant issues potentially impacting on the reliability of either Mr or Mrs Osman's evidence that were not obvious to the jury. As was noted in Driscoll,[76] it is not always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable.
[76] Driscoll (536 ‑ 537).
In the present case, the trial judge's directions correctly recognised that it was for the jury as the finders of fact, and not the trial judge, to assess Mrs Osman's credibility and the reliability of her evidence. The jury would have been very well aware of the potential unreliability of Mrs Osman's evidence, having regard to her testimony. His Honour's direction highlighted those deficiencies and made it clear that they could adversely impact upon Mrs Osman's credibility and the reliability of her evidence.
For these reasons, ground 1 has no reasonable prospect of success, so that leave to appeal should be refused on this ground.

Ground 3: unreasonable verdict

Appellant's contentions

By ground 3, for which leave to appeal has already been granted, the appellant contends that the verdict of the jury was unreasonable and cannot be supported by the evidence. After summarising the evidence of Mr and Mrs Osman and Mr Ayling, the appellant's written submissions assert that it was not open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of murder, when excessive self‑defence is considered in the context of all of the evidence at trial.
In oral submissions, counsel for the appellant confirmed that this ground concerned whether the evidence could establish that the appellant was not acting in excessive self‑defence. The evidence that the appellant caused the death of the deceased by stabbing him multiple times in the torso was uncontentious. It was clearly open to the jury to infer an intention to kill, or to cause injuries which were objectively life‑endangering, from that conduct. The number of stab wounds and their location on the deceased's body speaks eloquently of the appellant's intention at the time they were inflicted. Such an inference as to intention could be supported by the evidence of Mr and Mrs Osman that the appellant expressly threatened to kill the deceased as the assault was underway.
The critical issue is then whether there was evidence capable of satisfying the jury, beyond reasonable doubt, that the appellant did not believe, on reasonable grounds, that stabbing the deceased multiple times in the torso was necessary in order to defend the appellant from the deceased's harmful act of assaulting and killing him.

General principles

Section 30(3)(a) of the Criminal Appeals Act provides that:
The Court of Appeal must allow the appeal if in its opinion:
(a)the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported[.]
The conclusion that a verdict is unreasonable, having regard to the evidence, is not materially different to the conclusion that the verdict is unsafe or unsatisfactory.
In considering this ground, it is necessary for this court to decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. The court must not disregard or discount the consideration that the jury had the benefit of having seen and heard the witnesses.[77] As the majority noted in M v The Queen:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal 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 court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 ‑ 495). (footnotes omitted)
[77] M v The Queen (1994) 181 CLR 487, 492 ‑ 493.
This court must make its own independent assessment of the sufficiency and quality of the evidence, and determine whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.[78]
[78] EAGD v The State of Western Australia [No 2] [2014] WASCA 68 [35], citing SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].
The question for this court is whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[79]

Disposition of ground 3

[79] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Bibovic v The State of Western Australia [2016] WASCA 22 [34]. See also Mansell v The State of Western Australia[No 6] [2013] WASCA 120 [16] ‑ [19].

In my view, the evidence was capable of satisfying the jury, and in my view did establish, that the appellant did not subjectively believe there was a real risk the deceased was actually going to kill him, and that, in any event, there were no reasonable grounds for so believing.
It was clearly open to the jury to reach those conclusions even if the evidence left open the possibility that the deceased, rather than the appellant, was the initial aggressor and said that he was going to kill the appellant. The evidence that the deceased had acted in a volatile and aggressive manner on previous occasions was not wholly in the appellant's favour. While the appellant was aware of and had experienced the volatility which was a manifestation of the deceased's psychiatric illness, he was also aware that none of those occasions involved the deceased actually inflicting serious injury to anyone.
The appellant was much younger on the last occasion when he suggested the deceased physically assaulted him, which was many years previously. At the time of the offence, the appellant was a mature man. The appellant was armed with a knife, while the deceased was unarmed and the evidence did not suggest the appellant thought otherwise. The jury could well have concluded that there were a number of other options available to the appellant - to retreat to his grandparents' house or his vehicle; to run away; to physically restrain the deceased without stabbing him in the torso.
In that context, the jury could be satisfied beyond reasonable doubt that the making of a threat did not provide reasonable grounds for believing there was a real risk the deceased would carry out the threat. Even if the evidence did not exclude the reasonable possibility that the deceased behaved in an aggressive manner and threatened to kill the appellant, the jury could still be satisfied beyond reasonable doubt that the appellant did not believe, on reasonable grounds, there was a real risk the deceased was actually going to kill him.
If that was the case, the jury would be satisfied beyond reasonable doubt that the appellant did not believe, on reasonable grounds, that stabbing the deceased multiple times in the torso was necessary to defend himself against such a harmful act.
Further, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was acting out of frustration after a long history of difficult behaviour by his mentally ill uncle, rather than because he believed that stabbing the deceased was necessary to defend himself against a harmful act. In the course of his recorded interview with police, the appellant volunteered that he said to the deceased after stabbing him:
I'm sick and tired of your abuse. You've abused me all my life. You've attempted to kill me.
The appellant then said to police:
And no‑one has ever done anything to stop him. I'm not going to put up with any more. I'm fed up (interview ts 11).
The general tenor of these statements to police is consistent with Mr Ayling's evidence that he heard someone shout 'enough's enough'. While Mr Ayling could not identify the appellant as the speaker, the combination of his evidence and the appellant's admissions to police were capable of establishing that the appellant said words to that effect.
If the jury were satisfied beyond reasonable doubt that the appellant used language which indicated he was acting out of frustration with a difficult person rather than in self‑defence, then they could reasonably have given little weight to other statements which the appellant made in the recorded interview with police to the effect that he feared for his life. The jury were certainly not bound to accept the whole account which the appellant gave of the incident to police in an attempt to justify what he had done. Having regard to the evidence that the past incidents of violence by the deceased towards the appellant happened many years before the incident on 19 August 2012, and the evidence of Dr Johri, it was open to the jury to find that the appellant overstated his fear of the deceased and that his claims that he acted out of fear for his life were exaggerated, untrue and should be rejected.
The appellant's recorded interview with police did not suggest that he believed that stabbing the deceased multiple times in the torso was necessary to defend himself against an assault which did not threaten his life, or that he might have reasonable grounds for such a belief.
The appellant's submissions on this ground focus on what is alleged to be the unreliability of Mr and Mrs Osman's evidence. However, their evidence has little significance to the issue of excessive self‑defence, as neither saw how the altercation between the appellant and deceased began.
Having regard to the above matters and all of the evidence led at trial, it was open to the jury to be satisfied beyond reasonable doubt that the appellant did not believe, on reasonable grounds, that stabbing the deceased multiple times in the torso was necessary to defend himself against a harmful act of the deceased. I am satisfied, beyond reasonable doubt, that the appellant did not hold any such belief on reasonable grounds.
It follows, given the evidence in this case, that it cannot be said that the jury must have had a reasonable doubt about the appellant's guilt of the offence of which he was convicted. The jury was entitled to find beyond reasonable doubt, on the whole of the evidence, that the appellant not only intended to kill the deceased but that the appellant did not do so in circumstances of excessive self‑defence. The totality of the evidence does not support a conclusion that it would be dangerous to permit the appellant's conviction to stand. I do not have a reasonable doubt as to the appellant's guilt of the offence of murder or as to the correctness of his conviction of that offence. The allegation that the verdict was unreasonable cannot be sustained.
For these reasons, ground 3 (on which leave to appeal has already been granted) must be dismissed.

Proviso

As none of the appellant's grounds of appeal have been made out, it is unnecessary to consider the parties' submissions as to the application of the 'proviso' in s 30(4) of the Criminal Appeals Act in the event that the trial judge's direction as to excessive self‑defence constituted a miscarriage of justice.
If it were necessary to consider the submissions I would have applied the proviso to dismiss the appeal even if (contrary to my view) the trial judge's direction constituted a miscarriage of justice.
Having examined the whole of the trial record and after weighing the evidence, I am persuaded that that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the offence of murder. That evidence established, beyond reasonable doubt, that the appellant did not believe, on reasonable grounds, that stabbing the deceased multiple times in the torso was necessary to defend himself against a harmful act of the deceased. This conclusion is based on the reasoning which I found it open to the jury to adopt in rejecting ground 3. After paying full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence and the jury's advantage in having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt of the offence of murder or as to the correctness of his conviction of that offence. The necessary, but not sufficient, condition for concluding that there has been no substantial miscarriage of justice identified in Weiss v The Queen is satisfied.[80]
[80] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44].
If, contrary to my view, the trial judge's references to reasonable grounds for the belief referred to in s 248(4)(b) constituted a miscarriage of justice, then the error did not deprive the appellant of a fair chance of acquittal in the circumstances of this case.[81] That is because, as I have explained at [315] ‑ [316], in the circumstances of the present case there was no evidence or allegation that the appellant held a subjective belief captured by s 248(4)(b) but not captured by s 248(4)(a) of the Criminal Code.
[81] As to which, see Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15].
The trial judge's direction did not otherwise deprive the appellant of a fair trial according to law in a manner which would preclude the application of the proviso.[82]
[82] Wilde v The Queen (1988) 164 CLR 365, 373; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [54] ‑ [56]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [124] ‑ [130]; Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 [47]; Filippou [15].
In these circumstances, if it had been necessary to do so I would have applied the proviso to dismiss the appeal even if (contrary to my view) the appellant had established ground of appeal 4.

Orders

For the above reasons, I would refuse leave to appeal on grounds 1, 2 and 5, grant leave to appeal on ground 4 and dismiss the appeal. I would also dismiss the application to adduce new evidence in the appeal.