Fernandez v The State of Western Australia
[2017] WASCA 223
•5 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FERNANDEZ -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 223
CORAM: BUSS P
BEECH JA
CHANEY J
HEARD: 1 NOVEMBER 2017
DELIVERED : 5 DECEMBER 2017
FILE NO/S: CACR 82 of 2017
CACR 83 of 2017
BETWEEN: MICHELLE ALLISON FERNANDEZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BOWDEN DCJ
File No :IND 912 of 2016
Catchwords:
Criminal law - Charge of doing grievous bodily harm with intent - Complainant suffered severe injuries caused by knife - Whether judge erred in failing to direct jury in relation to whether the State had proven a willed act by the appellant - Whether verdict unreasonable and not supported by the evidence - Turns on own facts
Criminal law and sentencing - Offence of doing grievous bodily harm with intent - Offender stabbed victim twice with knife causing serious life-threatening injuries - Whether term of 5 years 6 months' imprisonment manifestly excessive
Legislation:
Criminal Code (WA), s 23A, s 294
Result:
Leave to appeal refused on all grounds
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr L M Fox
Solicitors:
Appellant: Mark Andrews Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abfahr v The State of Western Australia [2013] WASCA 87
Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Collard v The State of Western Australia [2016] WASCA 135
Gandy v The State of Western Australia [2017] WASCA 93
Hawke v The State of Western Australia [2017] WASCA 40
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Marchesano v The State of Western Australia [2017] WASCA 177
McCormack v The Queen [2000] WASCA 139
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Oxenham v The State of Western Australia [2015] WASCA 30
Pickering v The Queen [2017] HCA 17; (2017) 91 ALJR 590
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205
Smith v The Queen [2003] WASCA 57; (2003) 138 A Crim R 403
The State of Western Australia v Naumoski [2013] WASCA 215; (2013) 234 A Crim R 566
Trompler v The State of Western Australia [2008] WASCA 265
Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56
Wainwright v The State of Western Australia [2005] WASCA 250
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted, following trial by jury, of unlawfully doing grievous bodily harm to her estranged husband with intent. She was sentenced to a term of 5 years 6 months' imprisonment. She appeals against both her conviction and sentence. In both appeals, the application for leave to appeal was referred to the hearing of the appeal.[1] For the reasons that follow, both appeals are without merit, and leave to appeal should be refused.
[1] Order of Mazza JA, 2 June 2017.
The parties' cases at trial
The State's case
The State's case, as outlined in opening at the trial, may be summarised in broad terms as follows:
(1)The appellant was married to the complainant, Mr Mark Fernandez. There were disputes between the parties as to custody of their children.
(2)On 1 October 2015, the appellant and the complainant arranged to meet at a park to handover their young child, A, who was then 6 years old.
(3)Mr Fernandez was asked to spend some time with A while the appellant, her brother and a psychologist had some discussions. Mr Fernandez proceeded to play with A in the play area of the park.
(4)After discussion, it was agreed that Mr Fernandez would leave with A, and collect their other child, B at a later time.
(5)While walking to his car, Mr Fernandez noticed someone behind him. He turned and saw the appellant produce a knife. He was then stabbed in the stomach, and called out 'she's stabbing me'. He was then stabbed again in the chest. He fell to the ground and was on all fours. The appellant was on top of him. He then held the knife tightly, causing a severe injury to his left palm.
(6)The commotion attracted the attention of people in the park, a number of whom would be called as witnesses.[2]
The defence case
[2] ts 28 - 30.
Senior counsel for the appellant's opening included the following:
(1)At the end of the day the critical question will be who brought the knife to the park.
(2)The appellant would give evidence and would say that she did not bring the knife, but that Mr Fernandez produced it.
(3)In the scuffle that followed after he produced the knife, the injury suffered by the complainant Mr Fernandez were as a result of the appellant's acts in self‑defence and were unintended, unforeseen and unforeseeable.
(4)None of the witnesses at the park, except for A, can say who produced the knife.
(5)When, somewhat belatedly, police interviewed A, she told them that at the park 'out of nowhere a knife came from dad's pocket … they were injured from the knife'.
(6)The appellant's DNA was not on the knife, as might have been expected on the State's case. By contrast, Mr Fernandez's DNA was on the knife.[3]
[3] ts 37 - 38.
Outline of the evidence: the State's case
Because one of the grounds of appeal is that the evidence at trial was insufficient to sustain a verdict of guilty, we provide a detailed outline of the evidence, as follows.
Sean Baguley
Mr Baguley was in the Shelley Foreshore park when he heard a 'violent scream' which he said came from 'a man screaming at the top of his lungs'.[4] It was 'an ear piercing scream'.[5] He could not see anything of the incident from where he sat with his children, which was about 100 m from the incident. When he heard the scream he stood up and walked at a reasonable pace towards the sound.[6] As he approached he heard a man screaming 'she's stabbing me. She's stabbing me. She's got a knife'.[7] He then ran the rest of the way to where the incident was taking place.[8]
[4] ts 43.
[5] ts 44
[6] ts 44.
[7] ts 44, 45.
[8] ts 44 - 45.
When Mr Baguley arrived at the incident he saw the man on all fours and a woman draped on his back. The woman was holding onto the man's right arm with her right arm. The knife was in the man's right hand.[9] He also saw a larger man who was standing and holding the hand of a young girl. He stated that he man looked 'fairly relaxed'.[10] He recalled that the young girl was hysterically screaming out, three or four times, 'I don't want mummy to go to gaol'.[11]
[9] ts 45, 52.
[10] ts 46, 58.
[11] ts 46, 55.
Mr Baguley bent down and moved to take control of the knife.[12] He said that the man was holding the knife 'like steel', and it took some effort to get the knife out of his hand as he had to bend the man's fingers back one by one.[13] He said that the man asked who Mr Baguley was and whether Mr Baguley could help him.[14] When he got the knife he threw it away and yelled out 'someone get control of that knife'. The woman then hopped off the man's back and the man fell to the floor.[15]
[12] ts 45 - 46.
[13] ts 46.
[14] ts 46.
[15] ts 47.
Mr Baguley rolled the man over and saw the man bleeding profusely. When Mr Baguley lifted up a part of the man's shirt, the man's 'guts' fell out 'like a bag of sausages' and Mr Baguley screamed out to the group of ladies who were close by for help.[16] He pushed the man's intestines back inside his body and held them in place.[17] He noticed that there were 'massive deep' gashes on the man's hands and a 'huge' gash on his chest.[18]
Mark Fernandez
[16] ts 47.
[17] ts 47.
[18] ts 47.
Mr Fernandez is the former husband of Ms Fernandez. They were married in April 2006.
There were problems in the relationship and they first obtained marriage counselling in December 2005. There was no physical abuse in the relationship.[19] Their first child was born in November 2006, and their second child was born in February 2009.
[19] ts 63, 90.
Ms Fernandez moved out on 2 June 2012, taking the children with her. At first the separation was amicable, but that changed in November 2012.[20] Family Court proceedings began on 20 January 2013 because Ms Fernandez had cut off all contact with Mr Fernandez and Mr Fernandez did not know where the children were. After the court hearing he was given access to children, as set out in the court agreement.[21] Mr and Ms Fernandez had stopped speaking in mid‑2013.[22]
[20] ts 63.
[21] ts 64.
[22] ts 436.
A therapist from Melbourne, Dr Neoh, was appointed by the Family Court. A court order was then made for shared responsibility of parenting.[23] Handover of the children was initially at the school, but the location then changed to Shelley Foreshore.[24]
[23] ts 65.
[24] ts 66.
On the day of the incident, 1 October 2015, Mr Fernandez was asked by Dr Neoh to attend the park at Shelley Foreshore. When he arrived, he met Dr Neoh. He also saw the appellant with her brother Yan. A was present, but B was not.[25] He was not carrying anything when he was in the park. He was wearing denim pants and a shirt.[26] The pockets in the pants were side pockets, like the type found on formal pants, and not like the type commonly found on jeans. He had a bunch of keys, his phone and his wallet in his pants pockets.[27] He did not take the knife to the park and did not have the knife on him that day.[28] He denied ever owning a Scanpan knife.[29]
[25] ts 68 - 69.
[26] ts 69.
[27] ts 70.
[28] ts 84.
[29] ts 91.
Mr Fernandez played with A for about 30 minutes in the park.[30] He said that whilst he was playing the court appointed psychologist, Dr Neoh, was talking to Ms Fernandez as to why the older child, B, was not at the handover. It was arranged that Ms Fernandez would bring B to Mr Fernandez later that afternoon.[31] Dr Neoh then left and Mr Fernandez carried A to his car. He reached into his pocket for his car keys, and took the car keys out to unlock the car remotely.[32] He either put A directly into her car seat capsule, or put her down so she could step up into it.[33]
[30] ts 73.
[31] ts 77.
[32] ts 78.
[33] ts 79.
He then saw Ms Fernandez right next to him, and he had not expected her to be there.[34] He turned towards Ms Fernandez and he could see that her hands were covered and that her hands appeared to be 'sort of almost crossed over, underneath something'.[35] She then moved her hands and he saw a blade. She then lunged and stabbed him in the abdomen. He screamed out saying 'Stop. Stop. Why are you doing this? Stop.' He felt pain when the blade was pulled out. She then lunged again and stabbed him in the chest. He then tried to grab the knife. She tried to stab him again but he deflected the knife, the knife only cutting his bicep, and he then held the blade and screamed at her to stop.[36]
[34] ts 79.
[35] ts 80.
[36] ts 80.
Mr Fernandez thinks that he grabbed the blade after the second stab. They fell to the ground and Ms Fernandez was on Mr Fernandez's back. He saw Yan, Ms Fernandez's brother, nearby but Yan simply stood there and did nothing.[37] Someone told him to let go of the knife but he did not want to let go of the knife because he was scared that he was going to get killed with the knife, or that his daughter would be injured.[38]
[37] ts 81.
[38] ts 81, 82, 102.
In cross-examination, Mr Fernandez was pressed about his relationship with Ms Fernandez and his feelings towards her and the child sharing arrangements. Mr Fernandez stated that he was disappointed that he could not get the time that was allocated to him for seeing his children.[39] He had spent over half a million dollars fighting the Family Court litigation.[40] He did not think Ms Fernandez was fully committed to making the court orders work and was obstructive.[41] He denied that he wanted to prevent her from having contact with the children for the rest of the children's lives, but did want to stop her seeing them in the foreseeable future.[42] He denied hating her.[43] Part of the Family Court proceedings related to Ms Fernandez taking the rent from a Port Hedland property but not paying the mortgage. In those proceedings, Mr Fernandez swore an affidavit to the effect that he may face bankruptcy if he could not pay the mortgage on the Port Hedland property.[44]
[39] ts 84.
[40] ts 85.
[41] ts 86, 88.
[42] ts 87.
[43] ts 88.
[44] ts 89.
Mr Fernandez denied that on 1 October 2015 he decided to take matters into his own hands, and denied that he took a knife to the park.[45]
[45] ts 86, 91.
Mr Fernandez had scissors in his glovebox and a hoe rake in his car boot. He denied that these were weapons that he had brought with him intentionally that day.[46]
[46] ts 91 - 93.
Mr Fernandez denied counsel's suggestion that he had come at the appellant with a knife, following which there was a scuffle.[47] He denied that Ms Fernandez had been on top of him to try and disarm him.[48]
[47] ts 99.
[48] ts 99, 101 - 102.
At the time of the incident, he was not aware of any other serious person in Ms Fernandez' life.[49] He did not know of someone called Stephen Love. The fact that Ms Fernandez may have had another lover did not have any bearing on his attitude towards Ms Fernandez on the day of the incident. He was not interested in ascertaining whether Ms Fernandez was in a relationship.[50]
Julie Clements
[49] ts 435.
[50] ts 436.
Ms Clements is a registered nurse and midwife.[51]
[51] ts 108.
On the day of the incident she had met her friends Claire Watkinson, Anna Lawrence and Kirsty Lakstins-Adams. They were going for a walk with their children. They walked to the Shelley Foreshore Park and their children went to play on the play equipment.[52] When the incident occurred her main priority was making sure the 10 children were safe.[53]
[52] ts 109 ‑ 110.
[53] ts 110.
She heard a man screaming very loudly 'She's stabbing me. She's stabbing me'.[54] She could see people on top of each other fighting. Then a third man came and was trying to break up the fight and he was yelling 'drop the knife'. She did not see the knife in anyone in particular's hand.[55] The third man managed to get the knife and he threw the knife towards the park. She did not actually see that it was a knife, but saw something fly through the air.[56] Her friend, Claire Watkinson, picked up the knife, probably using a bag. She also saw a bystander with a child in his arms. The bystander never intervened. She tried to take a video but only managed to take a photo because she was using a new phone.[57]
[54] ts 110.
[55] ts 111, 114.
[56] ts 112, 114.
[57] ts 111 - 112.
After the knife was thrown, someone yelled that they needed a nurse. She responded. She saw that Mr Fernandez's bowel had spilled out and that he had stab wounds and that his hands were 'chopped up'. There was lots of flesh missing and he was bleeding profusely. She attended to Mr Fernandez and stayed with him.[58]
[58] ts 112 - 113.
She thought that Ms Fernandez was in shock after the incident. Ms Clements did not take notice of any injuries on Ms Fernandez.[59]
Claire Watkinson
[59] ts 115.
On the day of the incident, Ms Watkinson met with Ms Clements, Ms Lawrence and Ms Lakstins‑Adams and their children. They went to Shelley Foreshore Park.
She heard a huge scream first, followed by more screaming. The first scream she heard was a guttural woman's scream.[60] She looked for her children first and told them to come to her.[61] When she glanced over at the incident she saw two men, a woman and a child near the back of a car.[62] When she looked back a bit later she saw a man and a woman wrestling, and another man with a little girl to his side nearby. The man in the altercation was wearing jeans.[63] The man was yelling 'help, help' and 'she's stabbing me' and he swore a few times.[64]
[60] ts 122, 131.
[61] ts 122 - 123.
[62] ts 123.
[63] ts 124.
[64] ts 125.
She saw a man intervene at one stage. She did not see where he came from. He was yelling 'I'm helping. I'm trying to help you'. He was whacking Mr Fernandez's hand and saying 'Let it go. I'm here to help you'.[65] Mr Fernandez was holding the knife, but she could not tell whether he was holding the handle or the blade.[66] She never saw the woman with the knife.[67] The intervening man got the knife and threw it towards the playground.[68] She picked up the knife using a plastic bag, so as not to touch it. She then put it down, inside the bag, near a limestone ledge.[69]
[65] ts 126.
[66] ts 131.
[67] ts 133.
[68] ts 126 - 127.
[69] ts 127.
Later when she went over to the incident, she heard the little girl crying and saying 'I don't want my mummy to go to gaol' and Ms Fernandez was very upset too so she tried to calm them both.[70] Ms Fernandez was very distressed and hyperventilating. She appeared to be in shock.[71] When she was walking with Ms Fernandez she asked what had happened. Ms Fernandez said words to the effect of 'I don't know. You don't/wouldn't understand, he's been following me'.[72] Ms Fernandez had cuts to her ankles and to the top of her feet, a gash to her leg and bruising.[73] Ms Fernandez initially had blood on her hands but her brother came and helped her wash them.[74]
Kirsty Lakstins-Adams
[70] ts 125.
[71] ts 132.
[72] ts 130 - 132.
[73] ts 132.
[74] ts 133.
Ms Lakstins-Adams was with Ms Watkinson, Ms Lawrence, Ms Clements and their children in Shelley Park at the time of the incident.[75] She was facing away from the incident, looking towards the river.[76] She heard screaming from the roadside. It was alarming.[77] She could not tell if it was a male or female screaming.[78] She was most concerned about her children when the screaming started. When she looked over at the incident she could see two people on the ground and someone standing with their back to her.[79] She then moved and saw there was a little girl near the incident, with a man. The man just watched and did not do anything. The girl stood there watching too.[80]
[75] ts 135.
[76] ts 141.
[77] ts 141.
[78] ts 136, 141.
[79] ts 136.
[80] ts 137 - 138.
She could not see much of the incident from where she was. Someone called out for someone to call an ambulance and the police. As she got closer, she could hear the little girl yelling 'I don't want my mummy to go to gaol'. Someone else was calling out 'knife'.[81]
[81] ts 137.
Someone came to break up the fight. He yelled out for someone to call the police. He got the knife and threw it away. She then stood next to the knife to prevent children picking it up. It was a Scanpan knife.[82]
[82] ts 137 - 138.
She did not see a female's handbag in the vicinity.[83] After the incident she found keys on the ground and put them on the boot of one of the cars, and let the police know about the keys.[84]
Kylie Stone
[83] ts 144.
[84] ts 140.
Ms Stone was in the park at the time of the incident, with a friend and their children. She recalled seeing a group of people enter the park, including Mr Fernandez, and seeing Mr Fernandez playing energetically with a girl in the park. He was wearing tight jeans and a shirt.[85] His playing with the girl was a bit 'over the top' and 'over‑enthusiastic'.[86] She then saw Mr Fernandez go back to the group of people he had arrived with. The group then went to leave the park.[87] She was about 40 m from the cars.[88]
[85] ts 146 - 147.
[86] ts 148.
[87] ts 149.
[88] ts 157.
She heard yelling when Mr Fernandez was between the cars in the car park. He was yelling 'help me. Help me'. She could see a woman standing in front of him. He was standing at that time.[89] The man was moving back and the woman was moving forward into him.[90] She saw a man with his arm around a child, and the man and the child stepped back a few steps.[91]
[89] ts 150.
[90] ts 151.
[91] ts 152.
She turned her attention to her own children. When she looked again the man and the woman were on the ground. The man was on his back and the woman was straddling him. The man was loudly and frantically calling for help.[92] She called 000 and informed the police. Whilst she was on the phone to the police she saw a knife being thrown back towards the park. Someone was intervening in the incident when she was on the phone.[93]
[92] ts 151 - 152.
[93] ts 152.
When she spoke to the police after calling 000, she said at first that there was 'a man who's stabbing'. She then said 'a lady that's stabbing another man and there's blood everywhere'. Later she said that 'we're not sure who stabbed who but there's a lot of blood'.[94] She made this final observation based on what she had heard other people say.[95] She did not actually see anyone stabbing anyone else, see anyone in possession of a knife, or see a knife until one was hurled out of the fight.[96]
Ashley Reeve
[94] ts 159.
[95] ts 173 ‑ 174.
[96] ts 160, 167.
Ms Reeve had gone to the park and had arranged to meet Ms Stone there. She had her children with her. She saw Mr Fernandez arrive in a group of four adults and a child.[97] Mr Fernandez was wearing a short sleeve shirt and pants. He was playing with the girl he had with him, Ms Stone's children and Ms Reeve's children.[98]
[97] ts 178 - 179.
[98] ts 179 - 180.
After Mr Fernandez left the play area, she heard a male voice loudly screaming 'Help, me', repeatedly. She looked up and saw a scuffle between a man and a woman. The man was taller. She also saw another man that was part of the same party as Mr Fernandez who was standing with the child not more than a metre away from the incident.[99] At one point the woman had hold of the man's arm in the scuffle.[100] During the scuffle, she saw the woman leaning over the top of the man, as if she was trying to get something off him or do something to him.[101]
[99] ts 180 - 181.
[100] ts 190.
[101] ts 192.
When the scuffle was happening she saw Mr Fernandez's hand outstretched and he was holding what she thought was a bulky set of keys.[102] It definitely did not look like a knife.[103] About 2 cm of key was showing from his hand.[104]
[102] ts 182.
[103] ts 184, 190.
[104] ts 182 - 183.
Ms Reeve looked for her children, and when she looked back the scuffle had gone from them standing to being on the ground, with the woman on top. She heard someone scream 'there's a knife'.[105]
[105] ts 183.
She never saw the woman with a knife in her hand.[106]
Dr Sana Nasim
[106] ts 192.
Dr Nasim was a trauma fellow at Royal Perth Hospital. He was on duty on 1 October 2015 and attended to Mr Fernandez, along with a consultant, when Mr Fernandez was brought to the emergency department.
Mr Fernandez had two lacerations in his body. One was near his left chest and another was in the abdomen where his small bowel was hanging out.[107] The abdominal laceration was at least 4 ‑ 5 cm deep and almost 15 cm long.[108] This first laceration, where the bowel was hanging out, was a deep injury that cut through all the layers of the skin. A significant amount of force would have needed to have been applied.[109]
[107] ts 235.
[108] ts 236, 238.
[109] ts 236.
When Mr Fernandez was operated on, a further laceration was found with about 10 to 12 perforations of the small bowel.[110] Dr Nasim expressed the view that 10 perforations was likely to have been caused by more than one stabbing, but said that 'I'm probably not the right person to comment on it'.[111]
[110] ts 237.
[111] ts 237.
Mr Fernandez also had lacerations to his hands, knee and elbow.[112]
[112] ts 236, 239.
Dr Nasim accepted that the fact there were 10 ‑ 12 small bowel lacerations did not necessarily mean that there had been two stab wounds.[113]
[113] ts 242.
The lacerations to the hands were most likely defensive wounds.[114]
Annette Broom
[114] ts 245 ‑ 246, 248.
Ms Broom is a forensic scientist at the Forensic Biology Lab at PathWest. At the time of the trial, Ms Broom had been a forensic scientist for over 11 years. Ms Broom explained that DNA is unique to each individual, unless they have an identical twin, and can be extracted from any part of the body.[115] Blood is a particularly good source of DNA.[116] Ms Broom had been provided with reference samples of DNA from Sean Baguley, Claire Watkinson, Michelle Fernandez and Mark Fernandez.[117]
[115] ts 197.
[116] ts 197, 201.
[117] ts 199.
The knife was received into the lab, but Ms Broom was not present when swabs were taken from the knife, and only tested the swabs provided to her for DNA testing.[118] Swabs were taken of both the handle and the blade of the knife; one swab being taken of the handle and two from the blade.[119] The swab from the handle came from a visibly unstained part of the handle. All three swabs tested positive to the presence of blood. The DNA profile sourced from the blood on each swab matched only that of Mr Fernandez.[120] No DNA from the appellant was detected on the knife.[121]
[118] ts 199.
[119] ts 200, 202.
[120] ts 201 - 202, 204 - 206.
[121] ts 211.
Five swabs taken from Ms Fernandez's body were examined. One of the swabs resulted in a mixed DNA profile. Three matched the DNA of Ms Fernandez. One swab, taken from the base of Ms Fernandez's nail, tested positive for blood and the DNA extracted from that blood matched that of Mr Fernandez.[122]
[122] ts 207 - 208.
Ms Broom explained that there were various reasons why a person who has touched an item may not have left any DNA on that item, as follows.[123]
But there are a number of reasons why DNA may not be found on a particular item. So firstly, if the item wasn't touched, you wouldn't find the DNA … It can depend upon the surface of the item. So smooth, shiny, non-adhesive surfaces, you might not leave your DNA. It might not adhere and stay on the item. It can depend upon the individual who touches the item and what they had - what activities they'd carried out prior to touching the item. So some individuals tend to shed skin cells more readily than others. And also, if you wash your hands prior to touching an item, there may not be any skin cells available to be left on the item. Also depend upon the length and strength of the contact. So if you just touch like that, it might not leave any DNA. If you actually apply friction, you might be more likely to leave DNA on a particular item.
[123] ts 205.
A person who touches an item does not always leave DNA on it.[124] It was possible that even though Ms Fernandez had handled the knife, she may not have left any DNA on the knife.[125] Ms Broom did not agree with senior counsel's suggestion that this was unlikely, and declined to make a prediction as to the likelihood of Ms Fernandez not leaving any DNA on the knife.[126]
Dr Jennifer Neoh
[124] ts 206.
[125] ts 211.
[126] ts 211.
Dr Neoh is a clinical psychologist who works under court orders via the Family Court. She was appointed to deal with the Fernandez family by the Family Court of Western Australia.[127] She first spoke with the family in 2013.[128]
[127] ts 258.
[128] ts 269.
She first met the family on 28 January 2015, when she spent four days with the family. At that time Mr Fernandez was not having access to the children.[129] After her visit, she determined that Mr Fernandez did not pose a sexual risk to the children, or only posed a very low risk.[130]
[129] ts 259.
[130] ts 260 - 261.
The handover on 1 October 2015 was the third handover to take place since the appointment of Dr Neoh.[131] Dr Neoh had asked Mr Fernandez to play with A while she talked to Ms Fernandez and Yan about her options with how to deal with B and what to do that day.[132] No decision was made.[133] Ms Fernandez was being reasonable and the parties were being friendly to each other.[134] Neither party seemed upset.[135] There was nothing to suggest that either party had a weapon on them.[136]
[131] ts 264.
[132] ts 265 - 267.
[133] ts 267.
[134] ts 276.
[135] ts 277.
[136] ts 279.
Mr Fernandez had expressed a general preference to take A with him that day and collect B later that day, but he was waiting on Ms Fernandez to decide.[137] Dr Neoh left early at about 10.20 am because she had an appointment in the city and she wanted to give Ms Fernandez space to make a decision as to what was happening.[138]
Detective Leigh McKnight
[137] ts 268.
[138] ts 275, 277.
Detective McKnight is a detective attached to the Western Australian Police Service. On 1 October 2015, he was working with the Kensington Detectives Office. He got the call about an incident on Shelley Foreshore and he attended as quickly as he could with Detective Sergeant Lewis.[139] More than one person had called 000.[140]
[139] ts 282.
[140] ts 290.
There were already three police vehicles there when he arrived. He saw Mr Fernandez lying on his back. There were three or four women around him and two or three police officers who appeared to be applying pressure to his wounds. He did not see the wounds but saw blood.[141]
[141] ts 282 - 283.
Ms Fernandez presented with a very small minor cut to her left little finger and two small abrasions on her feet.[142] She was taken to Fiona Stanley for medical treatment, where she received a few stiches. Swabs were taken from various parts of her body and clothing for analysis.[143] Swabs were also taken from the knife and the swabs and the knife were sent to PathWest.[144]
[142] ts 288.
[143] ts 289.
[144] ts 296.
Ms Fernandez's house was searched.[145] No Scanpan knife set was located. Mr Fernandez's residence was not searched. This was so even though A said at one point that the knife had come from her father, because A's evidence was 'very confused' and the evidence was pointing towards Ms Fernandez. The DNA evidence also did not sway Detective McKnight to search Mr Fernandez's house.[146] Scanpan knives can be purchased individually.[147]
[145] ts 301.
[146] ts 302 - 303.
[147] ts 308.
Evidence called by the defence
The appellant gave evidence at her trial, and called a number of witnesses.
The appellant's evidence
Ms Fernandez married Mr Fernandez in April 2006.
She stated that Mr Fernandez had been violent towards her in the past. He had pushed her against walls and had got into her face and neck.[148]
[148] ts 312.
Before the incident in question she had rekindled a relationship with Mr Stephen Love, and Mr Fernandez had found out about this relationship only a short time before the incident.[149]
[149] ts 315.
She said that B, the older child, was resistant about going to see her father, but that A was 'okay most of the time'.[150] She said that she was doing everything in her power to get the girls to go spend time with their dad.[151]
[150] ts 314.
[151] ts 315.
On the morning of the incident, Ms Fernandez had been trying to get B to go to the park, but B had been flatly refusing.[152] She thought she would be late if she kept trying to get B to come to the park, so she just took A. Her brother Yan came too.[153]
[152] ts 316.
[153] ts 317.
She said that having Dr Neoh present at the park that day was Mr Fernandez's idea.[154] At the park she talked to Dr Neoh about her problems with getting B to come.[155] It was decided that Mr Fernandez would take A straight away, but no decision was made as to what was to happen with B. When that decision was made, Dr Neoh had already left the park.[156] When Mr Fernandez started taking A, A began crying. Ms Fernandez gave A a hug to console her. Mr Fernandez then picked A up and kept going towards the car. Ms Fernandez followed them to the car because A was upset and so she wanted to give A another hug goodbye and console her.[157]
[154] ts 316.
[155] ts 318.
[156] ts 318 - 320.
[157] ts 320 - 321.
When Mr Fernandez put A in her booster car seat A was still crying. Ms Fernandez moved in to give A a goodbye hug. Ms Fernandez then heard A scream. Mr Fernandez turned and she saw something shiny. She then realised Mr Fernandez had a knife. She then pushed him as hard as she could against the car, using her left shoulder and right arm.[158] She was scared for herself and for A.[159] She pushed him again, and he lost balance.[160] He then pulled her down and he fell on top of her. She did not know where the knife was at this stage, and she did not know how or when he or she sustained injuries.[161] They were then grappling and he rammed her head into the boot. She says that she does not remember much of the incident after her head was rammed into the boot.[162] She thought Mr Fernandez's stab wounds may have occurred when they were rolling.[163]
[158] ts 324.
[159] ts 325.
[160] ts 325.
[161] ts 326, 329, 348.
[162] ts 325 - 328, 349 - 350.
[163] ts 325 - 326.
She did not have a weapon concealed on her body that day.[164] That would have been impossible.[165] She did not bring the knife with her.[166] She denied that she intended to maim or do grievous bodily harm to Mr Fernandez.[167]
[164] ts 322.
[165] ts 322 - 323.
[166] ts 324.
[167] ts 329.
At the beginning of the incident she saw her brother Yan racing to get A.[168] She was found barefoot after the incident. She cannot remember when or how she lost her shoes. She did not remember A or Mr Fernandez saying anything.[169] She remembered very little of what happened after the incident, and could not remember saying to Clair Watkinson that Mr Fernandez had been following them around, and she could not remember being taken by the police.[170]
[168] ts 326.
[169] ts 327.
[170] ts 328, 349.
She had four stitches put in her finger at Fiona Stanley Hospital. She had bruising on her back and right knee, and may have had a bump on her head.[171]
[171] ts 328 - 329.
Ms Fernandez was not wearing a scarf that day.[172] She stated she had a carry bag.[173] She denied she had the knife in it.[174] She denied that she pulled out the knife and stabbed him.[175]
[172] ts 321.
[173] ts 323, 342.
[174] ts 342 - 343.
[175] ts 345, 350.
Ms Fernandez admitted that she knew that a stab to the abdominal area and to the chest could be fatal.[176]
The evidence of A
[176] ts 347.
A was 6 years old at the time of the incident and 7 years old at the time of trial.
The trial judge asked A a series of questions before concluding that he would ask the associate to administer the oath.[177]
[177] ts 360 ‑ 363.
The police conducted a recorded interview with A on 16 November 2015. The recorded interview was played to the jury. As A's evidence is a central plank in ground 2 of the appeal, we will quote in full many parts of the interview. It included the following:
P 5: At the park I was going to go for a visit with dad, but then - - then, um, mummy - - mum came after, and then out of nowhere - - and then out of nowhere a knife came from dad's pocket, and then under - - and then they ‑ ‑ they were injured from the knife.
…
P 6:
A: Um, then [after Dr Neoh left] out of nowhere a - - dad had a knife in his pocket.
Q. Oh, okay. So when you say 'out of nowhere' what do you mean?
A. I mean, like, we don't know where it came from. We think it's from his pocket.
Q. oh, you think it's from his pocket. And what happened with the knife?
A. Um - - um, mum and dad got hurt.
…
P 8 - 9:
Q. And tell me, what happened when you first saw the knife?
A. Um, the first thing when I saw the knife was, like, when, um dad was using it.
Q. and what do you mean when you say dad was using it?
A. Like, he was, like, doing it to mum first, but then mum was doing it back.
Q. So what did you see?
A. I saw the knife thing, and then I saw the playground thing, but then I didn't see anything.
Q. Okay. So when you said dad was using the knife(?) first, what was ‑ ‑ what was dad doing?
A. Dad was hurting mum.
…
Q. …[W]hat did you see that dad was doing?
A. I saw, um - - I didn't see much what dad was doing - -
Q. Okay.
A. - - or I didn't see them hurting each other. I only saw the knife.
Q. Okay. All right. So, um, what - - tell me - - tell me more about the knife then.
A. the knife was, um - - I don't know - - no one knowed where the knife come from, but it was - - dad had it, so we don't know - - we think dad had it, because no one else - - because when the thing happened dad swiped a, um, knife.
…
P 10 ‑ 11:
Q. So, um, tell me what - - what you were doing before you closed your eyes then.
A. Before I closed my eyes I was in dad's arms.
Q. In dad's arms. And what was happening then?
A Um, dad was saying, 'Stop, stop' and then - - and then - - then mum was, like, chasing dad, and then - - then I closed my eyes.
Q. Oh, okay. So what did you see when dad was saying, 'Stop, stop'?
A. Um, I - - I was getting carried. Um, dad was saying, 'Stop, stop' and I didn't see much things when that was happening.
Q. Well, tell me more - - tell me more about the part that you did see when that was happening.
A. Um, when I did see when that was happening was when the, um - - when the - - the problem was happening. That's what, um, I saw, and then I just, like, saw the, um, problem, and then I didn't see much else.
Q. Well, tell me more about the problem.
A. The problem was, like, um - - it was not really - - I didn't really see much things of the problem. I only saw the knife. I didn't actually see the, um - them hurting each other.
Q. Okay. Well, tell me about what was happening when you first saw the knife.
A. Um, when I first saw the knife it was lying on the ground.
Q. Okay.
A. And then with, like, all blood all over it.
Q. Mm hm.
A. And then, um, I saw, um, dad taking the knife again, and then mum took the knife, and then they were both hurting each other.
Q. Okay. So when you said dad took the knife what - - what happened? Tell me more about that part.
A. Um, that - - like, it was like, when dad took the knife it was, like - - doing, like, the, um - - dad was tooking the knife and then - - then, um, he took the knife, and he was hurting mum.
Q. Okay. Well, tell me what - - well describe what was happening when you said dad was hurting mum.
A. Um, then mum took the knife of - - off dad, and then the police came and sorted out them.
Q. So tell me all about what you saw when mum took the knife.
A Um, I didn't see anything when mum took the knife, because then the police came.
…
P 14 ‑ 15:
Q. … [w]hen you were standing next to Uncle Yarn, tell me, what did you see?
A. I just saw mum and dad hurting them - - each other.
Q. So when they were hurting each other tell me what you could see.
A. I could see, um, ma - - um, dad, mum - - mum getting hurt from dad hurting her with the knife.
Q. So when you said you - - you saw mum getting hurt, describe what you saw.
A. Um, I saw - - I saw mum getting hurt, and then, um, I - - then I got put in - - in a - - in a cop's car, and I didn't see anything else.
Q. Okay. So when mum got hurt what - - tell me more of that part when ‑ ‑ when mum got hurt.
A. I didn't see anything else.
Q. Oh, okay. All right. You said to me before that there was blood on the knife.
A. Mm.
Q. You saw blood on the knife.
A. Mm hm.
Q. Did you see what happened to get the blood on the knife?
A. No.
Q. No. Okay. And you said that you were in dad's arms and dad said, 'Stop, stop'.
A. Um, to mum, because mum was chasing him.
…
A. And mum was chasing me because - - chasing dad because, um, mum wanted to spend the time - - spend - - take me home.
…
P 17:
A. And I - - when I, um, first saw the knife it was - - mm, it was - - when I ‑ ‑ I - - no one - - or not me - - knowed where the knife came from.
A said that what she had said during the interview was the truth.[178]
[178] ts 369.
In the course of cross‑examination, she appeared to understand the difference between 'I' and 'we'.[179]
[179] See, for example, ts 372.
In cross‑examination, A said that B and her 'nana' thought dad had the knife, and that was why A told the interviewer 'we think it came from dad's pocket'.[180]
[180] ts 374.
A said during cross‑examination that she knew that gaol was a place where bad people went and that she did not want her mother to go to gaol.[181] When she was asked if she said 'I don't want mummy to go to gaol', during the incident, she replied that she had not and that she had only said 'Stop'. When it was put to her that three witnesses had stated that she said something like, 'I don't want mummy to go to gaol', A said 'No, I didn't say anything like that'.[182]
Yan Rodne
[181] ts 374.
[182] ts 376.
Mr Rodne is the brother of Ms Fernandez.[183]
[183] ts 382.
Mr Rodne had attended some of the handovers as support for Ms Fernandez.[184] On the day of the incident, he arrived at Shelley Foreshore in the car with Ms Fernandez and A.[185] Dr Neoh arrived at Shelley Foreshore at the same time.[186] Dr Neoh left the park a few minutes before they all started leaving.[187]
[184] ts 384.
[185] ts 385.
[186] ts 386.
[187] ts 387.
When they all started leaving, Mr Fernandez had A. A was resisting. Mr Fernandez 'was sort of manhandling her to the car because she was resisting, she didn't want to go'. He started veering off towards Ms Fernandez's car and Ms Fernandez was trying to console A.[188]
[188] ts 387.
He then heard A scream, and then Ms Fernandez screamed.[189] He turned and saw an altercation involving all three of them. He pulled A away. He was in shock, and he just stood there for 'about a second or so and then another guy came'. He did not see a knife until it was wrestled out of Mr Fernandez's hand.[190] He had never seen the knife before.[191] He saw that Mr Fernandez and Ms Fernandez were standing when the altercation started, but then they both fell at the same time and Ms Fernandez straddled Mr Fernandez.[192] When Ms Fernandez was on top of Mr Fernandez, Ms Fernandez was in a controlling situation.[193] He did not see much, or any, blood until the end of the altercation.[194]
[189] ts 387 - 389.
[190] ts 387, 394.
[191] ts 387, 397.
[192] ts 394.
[193] ts 410.
[194] ts 394 - 396.
He did not see Mr Fernandez holding keys.[195] Mr Fernandez was yelling out 'help' towards the end of the altercation.[196] Ms Fernandez did not cry for help.[197] He did not hear Mr Fernandez saying 'stop, stop' or 'she's stabbing me'.[198] Mr Rodne's main concern was for A, which is why he did not intervene.[199] He heard A say once 'I don't want my mummy to go to gaol'.[200]
[195] ts 393.
[196] ts 389, 393.
[197] ts 395.
[198] ts 392.
[199] ts 389, 395.
[200] ts 393.
Ms Fernandez had a black handbag that day.[201] The bag was located about six metres from the car after the incident. Mr Rodne had his phone in Ms Fernandez's bag. He did not see how or when his sister became detached from her bag.[202] The bag was taken by police but released some weeks later.[203]
Cheryl Rodne
[201] ts 387.
[202] ts 388.
[203] ts 402.
Ms Rodne is the appellant's mother. She had never seen the knife used in the incident before.[204]
Character evidence
[204] ts 416.
The appellant adduced character evidence from four witnesses. It is not necessary to outline that evidence.
Appeal against conviction: grounds of appeal
There are two grounds of appeal in the appeal against conviction, as follows:
1.There was an error and/or a miscarriage of justice occurred when the learned trial judge determined, over objection, not to leave to the jury the defence of unwilled act pursuant to section 23A of the Criminal Code.
Particulars:
1.1The defence of unwilled act was open to the jury based upon the evidence;
1.2The learned trial Judge was obliged to leave the defence of unwilled act to the jury;
1.3The issue of unwilled act went to the 'fault' element in s 294 of the Criminal Code;
1.4Despite His Honour's directions otherwise referring to an unwilled act in relation to the defence of self-defence, there was a requirement for His Honour to leave to the jury s 23A of the Criminal Code and specifically direct them in relation to that defence.
2.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, pursuant to s 30(3)(a) of the Criminal Appeals Act 2004.
Ground 1 asserts that the trial judge determined, over objection, not to leave to the jury the defence of unwilled act. That invites attention to the exchanges between counsel and the court, prior to the judge's summing up, into what his Honour said in summing up. As will be seen, the assertions made in ground 1 are not borne out by consideration of what occurred at the trial.
Ground 1: the court's exchanges with counsel prior to the summing up
After the evidence had finished, there was a general discussion between the trial judge and counsel as to the directions that should be given. In the course of that discussion, the trial judge said as follows:
It also appear[s] to me that the question of an unwilled act needs to be addressed and I propose to address that really on the issue of causation.
Ms Fernandez's evidence was following the brandishing of the knife she pushed. Before they convict, they'd have to be satisfied beyond reasonable doubt, as is the State's case, that she deliberately stabbed and if the injury could have reasonably been occasioned by any other mechanism, then the appropriate verdict is that of not guilty.[205]
[205] ts 440.
Senior counsel for the appellant did not raise any objection to what his Honour foreshadowed. Nor, as we will explain in determining ground 1, was there any basis to make an objection.
In further discussion with counsel, the trial judge reiterated that, if the jury were not satisfied beyond reasonable doubt that it was a conscious and deliberate act of stabbing, the appellant must be acquitted. Counsel for the State agreed with that.[206]
[206] ts 443. See also 452 ‑ 453.
At no point did senior counsel for the appellant raise any objection to what the judge foreshadowed.
Contrary to the position advanced at trial by the State, the judge ruled that, on the evidence, self‑defence was to be put to the jury.
Ground 1: the judge's summing up
Given the grounds of appeal, it is necessary to refer only to some aspects of the judge's summing up.
The judge stated that there were four elements of the offence. The first element was that the complainant suffered grievous bodily harm.[207]
[207] ts 476 ‑ 477.
The judge outlined the second element in the following way:[208]
The next element that the prosecution must prove beyond reasonable doubt is that Ms Fernandez caused Mr Fernandez to suffer the grievous bodily harm. We know that the grievous bodily harm is the injuries to the upper chest. The State say the question of causation is simple. They say that Ms Fernandez deliberately stabbed him to the upper chest and therefore caused those injuries.
You have to be satisfied, beyond reasonable doubt, that Ms Fernandez caused; that is that she deliberately stabbed Mr Fernandez in the upper body area. You've heard one part of the evidence I think there was a suggestion from Ms Fernandez that the injuries may have been caused when he was rolling around and the suggestion might be that he impaled himself on the knife.
That's not the State's case. The State's case is that she deliberately stabbed him with the knife to the upper chest. The prosecution must prove, beyond reasonable doubt, that she deliberately stabbed him to the upper chest. Now, it seems to me that that of course is a live issue for you to determine based on the facts you've heard.
[208] ts 477.
The third element was that of intent. His Honour explained that that was a matter of inference.[209]
[209] ts 477 - 478.
The fourth element was unlawfulness. The only issues as to unlawfulness were those relating to self‑defence.[210]
[210] ts 478 - 479.
On a number of occasions during the judge's outline of the question of self‑defence his Honour stated that it was only if the jury were satisfied beyond reasonable doubt that the appellant deliberately stabbed the complainant that any question of self‑defence would arise.[211]
[211] ts 478 - 481.
In short, the judge made it unmistakeably clear to the jury that it was a necessary step before they could convict that they were satisfied beyond reasonable doubt that the appellant deliberately stabbed the complainant.
Ground 1: appellant's submissions
The appellant submits that the judge 'interwove' his directions regarding whether the stabbing occurred by way of an unwilled act with the issue of causation, referring to ts 477, complaining that the judge did not 'specifically direct the jury on the defence available to [the appellant] under s 23A'.[212]
[212] Appellant's submissions pars 63, 64.
In effect, the appellant submits that the trial judge was obliged to direct the jury as follows:
(1)a person is not criminally responsible for an act which occurs independently of the exercise of their will;
(2)the relevant act in this case was the act of stabbing the knife into the complainant;
(3)if in the course of a struggle the complainant had impaled himself on the knife (twice) then there would have been no willed act of stabbing by the appellant;
(4)it was necessary for the State to satisfy the jury beyond reasonable doubt that the act of stabbing did not occur independently of the exercise of the appellant's will.[213]
[213] Appeal ts 3, 8 - 9, 10.
The appellant further submits that the judge's direction should have been expressed in terms of whether the act was willed, not whether it was deliberate. The appellant submits that in its context expressing the issue as whether the act was done deliberately focused on the appellant's intention, not whether her acts were conscious or willed.[214] Counsel emphasises that the judge never used the words 'willed' or 'unwilled'.[215]
[214] Appeal ts 4 - 5, 9.
[215] Appeal ts 7,8.
The disposition of ground 1
For the reasons that follow, ground 1 is entirely without merit and should not have been argued.
In s 23A, the 'act' referred to is some physical action or movement, apart from its consequences.[216] The act is the 'bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or accompanying state of mind, entails criminal responsibility'.[217] In some cases, for example those involving the discharge of a firearm,[218] there may be room for competing views as to the precise identity of the relevant 'act'. However, in this case there was no such doubt: the relevant act was the stabbing of the knife (twice) into the complainant. Counsel for the appellant did not suggest otherwise.[219]
[216] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 231; Pickering v The Queen [2017] HCA 17; (2017) 91 ALJR 590 [22], [39]; Collard v The State of Western Australia [2016] WASCA 135 [115] ‑ [116]; Marchesano v The State ofWestern Australia [2017] WASCA 177 [120]; Hawke v The State of Western Australia [2017] WASCA 40 [119], [136].
[217] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 38; Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56, 64;
[218] As to which see, for example, Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 and Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [9] - [12], [41], [48] - [53].
[219] Appeal ts 3, 8.
The trial judge's direction correctly contrasted deliberate stabbing by the appellant, on the one hand, with the complainant impaling himself on the knife, reflecting the defence case, on the other.[220] Further, his Honour made clear that it was only if the jury were satisfied beyond reasonable doubt that the appellant had deliberately stabbed the complainant that they could convict.[221] Moreover, the judge told the jury that this was a 'live issue' for the jury to determine.[222]
[220] ts 477.
[221] ts 477.
[222] ts 477.
There was no obligation on the trial judge to commence analysis by using the language of the Code, and then to proceed to identify that the relevant act was the stabbing. The task of a trial judge is to decide what the real issues are in the particular case, tell the jury what those issues are and instruct the jury on so much of the law as they need to know to decide those issues.[223] The judge's direction succinctly synthesised the question that arose under s 23A for decision by the jury in this case. Far from revealing error, that approach is conducive to clarity and assists the proper discharge by a jury of its function.
[223] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41]; Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49]; Marchesano v The State of Western Australia [179].
Insofar as the appellant complains of his Honour's use of the word 'deliberate' there is no substance in the complaint. To say that an act is done deliberately means the act was done consciously: it was accompanied by the actor's will. Thus to say that an act is done deliberately is necessarily to exclude a conclusion that the act occurred independently of the exercise of the will of the actor. That is illustrated by the way that McTiernan ACJ and Menzies J expressed their conclusion in Kaporonovski v The Queen:[224]
That act did not occur independently of the exercise of the will of the applicant. What he did was done deliberately.
[224] Kaporonovski v The Queen (215).
Further, there is no merit in the appellant's contention that the use of 'deliberate' rather than 'willed' was apt to cause some confusion with the concept of intention. There was no risk of any such confusion. The judge identified and addressed causation and intention as distinct and separate elements.[225]
[225] ts 477 - 478.
Moreover, the appellant's assertion that the judge's error occurred over objection at trial is without foundation. The judge foreshadowed the direction he proposed to give and senior counsel for the appellant did not object to it.[226] Further, after the summing up was concluded, senior counsel for the appellant did not request his Honour to give a redirection or additional direction.[227]
[226] ts 440.
[227] ts 500.
For these reasons, we would refuse leave to appeal on ground 1.
Ground 2: appellant's submissions
The appellant submits that the jury must have had a reasonable doubt as to the appellant's guilt, and that the conviction cannot be supported or is unreasonable having regard to the evidence as a whole.[228]
[228] Appellant's submissions [69], [77], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Gandy v The State of Western Australia [2017] WASCA 93 [497].
The appellant relies heavily upon the evidence of her daughter, A. It is submitted that the daughter's evidence 'was unequivocally to the effect that her father first produced the weapon in question', even though there were 'some ambiguities and inconsistencies in her evidence'.[229]
[229] Appellant’s submissions [76(a)].
Further, the appellant submits that the 'DNA evidence was unequivocally in support of the appellant's position' because only Mr Fernandez's DNA was found on the handle of the knife, and the tested portion of the handle was unstained by blood. This DNA evidence is said to be inconsistent with the finding that the appellant packed the knife in her handbag, took it to the scene and used it to wound Mr Fernandez.[230]
[230] Appellant’s submissions [76(b)].
It is further submitted that no witness could say that they saw the appellant in possession of the knife; that the medical evidence given by Dr Sana Nasim could be consistent with Mr Fernandez's wounds being inflicted unwillingly; that the appellant's superficial lacerations and other injuries could have been inflicted by tumbling 'on the ground over a sharp object'; that the evidence of witnesses who heard Mr Fernandez yell 'she's stabbing me' cannot 'elevate the State's case to the required standard of proven beyond reasonable doubt'; and that the evidence as a whole could not satisfy a jury beyond reasonable doubt that the appellant brought the knife to the park and intentionally stabbed Mr Fernandez.[231]
[231] Appellant's submissions [76(c)] - [76(h)].
Ground 2: legal principles
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. We adopt the following summary from Wells v The State of Western Australia:[232]
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. (footnote omitted)
[232] Wells v The State of Western Australia [2017] WASCA 27 [13]. (citations omitted)
Ground 2: disposition
At trial and on appeal it was not in doubt that if the jury were satisfied beyond reasonable doubt of the truth and reliability of the evidence of the complainant, their verdict must be one of guilty.[233] In order to succeed on her appeal, the appellant must demonstrate that it was not open to the jury, which had the advantage of seeing and hearing the witnesses at trial, to be so satisfied. For the reasons that follow, in our opinion the appellant has fallen well short of demonstrating this. In short, the appellant's submissions do no more than identify that there was some evidence that was either contrary to the State case or that was consistent with the appellant's evidence. That is not enough to sustain a ground of appeal of this kind. The test is whether the jury must, as distinct from might, have had a reasonable doubt (see [120(3)] above).
[233] Appeal ts 15.
The appellant relies heavily on the evidence of A, asserting that it was 'unequivocally to the effect that her father first produced a weapon'.[234] On no view could A's evidence be said to be unequivocally to that effect. The parts of the interview in which A stated that her father had the knife or that the knife came from her father's pocket were generally expressed in terms of 'we'. For example:
(1)A said that 'we don't know where it came from. We think it's from his pocket'.[235]
(2)A little later, A said 'no one knowed where the knife come from, but it was - - dad had it, so we don't know - - we think dad had it'.[236]
(3)Later, again in the interview, A said, 'I didn't really see much things of the problem. I only saw the knife. I didn't actually see the, um - - them hurting each other'.[237]
(4)A little later in her interview, A said, 'no one - - or not me - - knowed where the knife came from'.[238]
[234] Appellant's submissions [76(a)].
[235] VROI, page 6.
[236] VROI, page 9.
[237] VROI, page 10.
[238] VROI, page 17.
While, in the course of her video interview, A generally used 'I' rather than 'we', much of her discussion about the origin of the knife was expressed as 'we'. In the course of her cross‑examination she appeared to understand the difference between 'I' and 'we'.[239] Although she gave evidence that in her interview she meant 'I' instead of 'we' when talking about the origin of the knife,[240] a finding that in her interview she had used 'we' correctly, reflecting reconstruction after discussion with others, was open to the jury. In her evidence before the jury she said that the reason she told the interviewer 'we think it came from dad's pocket' was that B and 'nana' thought that dad had the knife'.[241]
[239] See, for example, ts 372.
[240] ts 373.
[241] ts 374.
Further, when she was asked what was happening when she first saw the knife she replied, 'When I first saw the knife it was lying on the ground … with … blood all over it'.[242]
[242] VROI, page 10.
The jury was also entitled to have regard to the fact that three independent witnesses heard A say words to the effect that she did not want mummy to go to gaol.
For these reasons it was well open to the jury to find that A's evidence did not assist its evaluation of the question of who produced the knife.
Further, if and insofar as the jury considered that A's evidence was, in this respect, contrary to the complainant's evidence, it was open to the jury to reject A's evidence and to be satisfied beyond reasonable doubt as to the truth and reliability of the complainant's evidence. The jury was not obliged to accept A's evidence in preference to the complainant's evidence. Nor was the jury obliged to conclude that A's evidence gave rise to a reasonable doubt.
The other major plank of the appellant's argument is the DNA evidence. The appellant emphasises that the appellant's DNA was not found on the knife. The significance of that absence of evidence is greatly diminished by the evidence of Ms Broom explaining that someone might come into contact with an item and not leave behind any detectable trace of DNA.[243] There is no foundation in the evidence for an assertion that the absence of the appellant's DNA on the knife made it unlikely that she had brought the knife to the park. As we have noted, Ms Broom did not adopt counsel's suggestion to that effect.
[243] ts 205 - 206.
The appellant also points to the medical evidence, suggesting that it was consistent with the appellant's version of events. The medical evidence was by no means neutral. The undisputed evidence was that the complainant suffered two major penetrating wounds and some other minor lacerations. That was consistent with, and supported, the complainant's version of events. By contrast, it was open to the jury to reject the contention that in the course of a struggle between the complainant and the appellant, the complainant twice impaled himself on the knife.
The jury was entitled to take the view that there was no reasonable possibility that the complainant could have concealed the knife, which was 288 mm long with a blade of 160 mm,[244] in a pocket of his pants. Further, the jury was also entitled to take into account the evidence of three of the independent witnesses at the park that they heard the complainant scream, 'She's stabbing me', as evidence of the truth of what was being said. The judge gave a direction to that effect,[245] of which no complaint is or could be made.
[244] ts 201 - 202.
[245] ts 484.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. The verdict of guilty is not unreasonable. It was amply supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or as to the correctness of her conviction. We would refuse leave to appeal on ground 2.
For these reasons the appeal against conviction must be dismissed.
That brings us to the appeal against sentence.
Appeal against sentence: sentencing remarks
The sentencing judge's sentencing remarks included the following.
Facts and circumstances of the offence
There were difficulties between the appellant and the complainant following their separation. Both parties spent a considerable amount of money trying to resolve issues in the Family Court. After a period during which the complainant was denied access to the children, consent orders were signed in the Family Court permitting Mr Fernandez to have access to the children.[246]
[246] ts 527.
On 1 October 2015, the appellant took her younger child, A, to Shelley Park foreshore. She delivered A to the complainant. He took A to his car and put her either in the child seat in the backseat of the car or on the kerb next to the car.[247] The complainant turned around, and when he turned around the appellant stabbed him twice in the upper body.[248]
[247] ts 527 - 528.
[248] ts 528.
That caused two major penetration wounds, one to the complainant's left flank and one to the chest. The wound to the left flank was 15 cm in length. It lacerated the small bowel causing 10 to 20 perforations. The wound to the chest was a 'full thickness' wound of about 10 cm in length.[249]
[249] ts 528.
Without medical intervention it is very likely that the complainant would have died.[250]
[250] ts 528.
The judge was satisfied beyond reasonable doubt that the appellant brought the knife the park.[251] The judge was not satisfied beyond reasonable doubt that the appellant formed the intention to use the knife until shortly before the stabbing occurred.[252]
Personal circumstances
[251] ts 528, 532.
[252] ts 528.
The appellant was 43 years old at the time of sentencing with no prior convictions. She has an excellent work record. She is very highly thought of by work colleagues and friends. She comes from a loving and supportive family. The judge was provided with 63 character references. The judge accepted that the appellant was a person of prior good character.[253]
[253] ts 530 - 531.
The judge described the appellant as an intelligent, well educated, hard working woman.[254]
Serious features of the appellant's offending
[254] ts 532.
There was a degree of premeditation, in carrying the knife and forming the intent. At least two blows were struck in what the judge described as a brutal attack.[255]
[255] ts 530.
The judge referred to the considerable harm suffered by the complainant as a result. He spent 28 days in hospital. He required surgery and significant stitching to both his chest and abdomen. The victim impact statement showed the dramatic effect that the offence had had on the complainant.[256]
The disposition of the matter
[256] ts 530 - 531.
The judge concluded that the offence was so serious that a period of immediate imprisonment was the only appropriate disposition.[257] There is no challenge (and nor could there be) to that conclusion.[258]
[257] ts 531.
[258] Appeal ts 21.
While the judge accepted that the appellant had very favourable personal antecedents and had a low risk of reoffending, the need to deter and punish offending of this kind required a sentence of intermediate imprisonment.[259]
[259] ts 531 - 532.
The judge observed that:[260]
One does have to take into account that your ex-husband is entitled to have access to his children in accordance with consent orders that were made. He's entitled to pick up the child without the fear that his life is going to be threatened or he's going to be stabbed. It's traumatised the victim. The community expects the courts to protect those citizens from this sort of violence.
[260] ts 532.
That observation is the subject of ground 2 of the appeal against sentence.
The judge observed that the appellant's offence involved the use of a weapon and was a brutal attack in a public park in the middle of the day with other people present, including children.[261] The judge concluded that the appropriate term was one of 5 ½ years' immediate imprisonment. He ordered eligibility for parole and backdated the sentence to commence on 20 January 2017 to take account of time already spent by the appellant in custody.[262]
[261] ts 532.
[262] ts 533.
Appeal against sentence: grounds of appeal
The appellant advances three grounds of appeal against the sentence imposed on her:
1.The sentence imposed was, in all the circumstances, manifestly excessive.
2.The sentencing judge erred when he took into account as an aggravating factor an irrelevant consideration, namely that the complainant was collecting his children pursuant to a consent order.
3.The sentencing judge erred when he found that the appellant brought the knife to the park when it was not open to his Honour to make this finding of fact beyond reasonable doubt.
As ground 1 asserts an implied error, while grounds 2 and 3 assert express errors, it is convenient to commence with ground 2.
Ground 2
The appellant submits that in having regard to the fact that the complainant was attacked while picking up his child in accordance with the court order, the sentencing judge took into account an irrelevant matter and viewed that matter as an aggravating factor.[263] The appellant submits that the existence of a consent order was irrelevant to the appellant's culpability.[264]
[263] Appellant's submissions, par 97; appeal ts 18.
[264] Appellant's submissions, pars 98 - 100.
For convenience, we repeat the impugned part of the judge's sentencing remarks:[265]
One does have to take into account that your ex-husband is entitled to have access to his children in accordance with consent orders that were made. He's entitled to pick up the child without the fear that his life is going to be threatened or he's going to be stabbed. It's traumatised the victim. The community expects the courts to protect those citizens from this sort of violence. (emphasis added)
[265] ts 532.
The appellant's submissions fix on the italicised words. The appellant accepts that if those words were removed, there could be no complaint.[266] That underlines the tenuous character of the appellant's submission; the inclusion or removal of those words would not alter the substance of what the judge said.
[266] Appeal ts 23.
The appellant's contention that the judge treated the fact that the complainant was picking up his child in accordance with a court order as an aggravating factor is mere assertion. There is nothing in the sentencing judge's remarks that provides any foundation for the assertion. The judge was entitled to put the appellant's offence in its context, and that is what the judge's observation was directed to. The judge was making the uncontroversial point that the complainant was entitled to go about his ordinary daily business without fear of being attacked.
There is no substance to ground 2.
Ground 3
Ground 3 asserts that it was not open to the judge to be satisfied beyond reasonable doubt that the appellant brought the knife to the park.
In support of that contention, the appellant points to a number of matters, including the following:
1.the other people at the park did not see who produced the knife;
2.the appellant's DNA was not found on the handle or blade of the knife;
3.a search of the appellant's residence did not reveal any other Scanpan knives;
4.in her interview, A said she thought her father produced the knife.
In substance, this ground is a rehash of ground 2 of the appellant's appeal against conviction. For the reasons already given, there is no merit in the ground. The complainant's evidence was that the appellant produced the knife. It was well open to the jury, and to the sentencing judge, to be satisfied beyond reasonable doubt of the truth and reliability of the complainant's evidence that he did not bring the knife to the park, and that the appellant produced the knife. The only reasonable inference from those findings was that the appellant brought the knife to the park.
Ground 1: manifest excess
The appellant submits that the sentence imposed upon her is so high as to reveal an error in the exercise of sentencing discretion. She submits that the sentences imposed in broadly comparable cases support that conclusion. She relies on The State of Western Australia v Naumoski;[267] Wainwright v The State of Western Australia;[268] McCormack v The Queen;[269] Smith v The Queen;[270] Oxenham v The State of Western Australia[271] and Abfahr v The State of Western Australia.[272]
[267] The State of Western Australia v Naumoski [2013] WASCA 215; (2013) 234 A Crim R 566.
[268] Wainwright v The State of Western Australia [2005] WASCA 250.
[269] McCormack v The Queen [2000] WASCA 139.
[270] Smith v The Queen [2003] WASCA 57; (2003) 138 A Crim R 403.
[271] Oxenham v The State of Western Australia [2015] WASCA 30.
[272] Abfahr v The State of Western Australia [2013] WASCA 87.
The principles relevant to an appeal against sentence on the ground of manifest excess are well established and may be summarised as follows:
1.Sentencing is a discretionary exercise. Unless a material express error is shown, an appellate court can interfere with a sentence only if implied error is demonstrated. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus an appellate court cannot substitute its own opinion for that of a sentencing court merely because the appellate court would have exercise the sentencing discretion differently.
2.In order to determine whether a sentence for an individual offence is manifestly excessive, the sentence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
3.The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
4.When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
Among the matters relevant to an assessment of the criminality of an offence of doing grievous bodily harm with intent are:
(1)the nature of the harm caused;
(2)the nature of the act causing the injury;
(3)the background to and circumstances of the offence.[273]
[273] Oxenham v The State of Western Australia [2015] WASCA 30 [30] referring by analogy to Trompler v The State of Western Australia [2008] WASCA 265 [9] ‑ [11].
Cases not falling within the worst category commonly lead to sentences within the range of 4½ to 8 years' imprisonment.[274]
[274] Oxenham v The State of Western Australia [37].
The cases relied on by the appellant do not support a conclusion that her sentence was manifestly excessive, nor does consideration of a wider range of reasonably comparable cases. In our opinion, the sentence of 5 years 6 months imposed upon the appellant in this case is broadly consistent with all reasonably comparable cases. It is not necessary to outline the facts and circumstances and sentencing outcomes of the cases, each of which has some common features, but also some significantly distinguishing features from the present case. In considering whether the appellant's sentence is broadly consistent with reasonably comparable cases, it is important to keep in mind that the appellant did not have the mitigatory benefit of a plea of guilty.
We adopt without repeating the survey of cases by McLure P in Naumoski[275] and by Martin CJ in Oxenham.[276] Many of the cases relied on by the appellant were outlined by McLure P in Naumoski. Naumoski itself provides no support for the appellant's claim of manifest excess. While the criminality of the offender in that case was undoubtedly significantly more serious than the appellant's, the offender in Naumoski was sentenced to a term of 7 years after a discount of 25% for his plea of guilty. That indicates a sentence after trial of something in excess of 9 years.
[275] The State of Western Australia v Naumoski [24] ‑ [40].
[276] Oxenham v The State of Western Australia [40] - [48].
The maximum sentence for the appellant's offence was 20 years' imprisonment.
The appellant's offence was unquestionably serious. She deliberately used a dangerous weapon. She inflicted two major wounds. The attack was unprovoked. Her attack on the complainant caused serious life‑threatening injuries and has had far‑reaching and enduring consequences for him.
In our view, the sentence is well within the range of a proper exercise of the sentencing discretion. We would refuse leave to appeal on ground 1.
Application for bail pending decision
At the conclusion of the hearing of the appeals, counsel for the appellant made an oral application for bail pending the court's decision on the appeal. To the extent a basis for the application was articulated it was said to be the prospects of success of the appeal against conviction.[277] In circumstances where the court had not called upon the respondent in either appeal it was both surprising and inappropriate for such an application to be made. The application was dismissed with reasons to be published later.
[277] Appeal ts 27.
We dismissed the application because, at the conclusion of the hearing, the prospects of success of the appeal against conviction fell a very long way short of justifying a grant of bail.
Conclusion
For the reasons given, we would make orders in both appeals refusing leave to appeal on all grounds and dismissing the appeal.
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