Fernie v The State of Western Australia - [2022] WASCA 153

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FERNIE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 153
CORAM:   MAZZA JA
BEECH JA
HALL JA

HEARD:   2 NOVEMBER 2022
DELIVERED          :   18 NOVEMBER 2022
FILE NO/S:   CACR 184 of 2021
BETWEEN:   JACK PATRICK FERNIE
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEWART DCJ
File Number            :   IND 2253 of 2019

Catchwords:

Criminal law - Appeal against conviction for three violent offences committed during a home invasion - Where issue at trial was identity - Where no one saw what the attackers looked like and prosecution case relied on circumstantial evidence to prove identity - Where one of the attackers was stabbed, the appellant was found nearby with a stab wound, and the appellant's DNA was found in blood at the crime scene - Whether verdicts were unreasonable or could not be supported by the evidence

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Jago v The State of Western Australia [2022] WASCA 2
Le‑ta v The State of Western Australia [2020] WASCA 14
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308

JUDGMENT OF THE COURT:

Introduction

The appellant seeks leave to appeal against his conviction, following a trial by jury, of one count of aggravated home burglary, one count of unlawful wounding and one count of aggravated grievous bodily harm. The offences were alleged to have occurred in the course of a single incident, in the nature of a home invasion.
In substance, the only issue at trial was, and on appeal is, the question of identity. At the trial, the State relied on circumstantial evidence to establish that the appellant was one of a group of men who attacked the complainants, Craig and Cain Kirkpatrick, a father and son, in their home just after midnight on 27 February 2019. There was no real dispute that the attack described by the complainants occurred.
Significantly, Cain Kirkpatrick gave evidence that he stabbed one of the offenders with a knife. The appellant was found in the area near the Kirkpatricks' home on the night in question with a stab wound.
The appellant gave evidence at trial that he was not present at the crime and was stabbed that night in the course of an unrelated argument with a man who drove past him while he (the appellant) walked on the road.
The appellant now appeals against his conviction. His single ground of appeal contends that the verdicts were unreasonable and not supported by the evidence.
For the reasons that follow, there is no merit in the appeal. Leave to appeal should be refused and the appeal dismissed.

The State case at trial

The State case was that the appellant was one of a group of men who attacked Cain Kirkpatrick and his father, Craig Kirkpatrick, at their house at 8 Borden Street, Maddington, just after midnight on 27 February 2019.[1] (It will be convenient to refer to the Kirkpatricks by their first names.) The men travelled on trail bikes and wore helmets and masks. At least two of the men were armed with weapons.[2] Cain and Craig were both injured during the attack.[3]
[1] ts 32.
[2] ts 32.
[3] ts 33.
Cain and Craig used kitchen knives to defend themselves. Cain stabbed one of the attackers, who, on the State case, was the appellant.[4] Shortly after Cain stabbed the appellant, the attackers fled; two on trail bikes and one on foot.[5]
[4] ts 33.
[5] ts 33.
Andrew Dehnel, who lived at 6 Borden Street, saw one of the motorcyclists gesturing in a way that looked like he was injured. Mr Dehnel noticed a pool of blood at the end of his driveway near where he had seen that motorcyclist.[6]
[6] ts 34.
The DNA located in the pool of blood belonged to the appellant.[7] The appellant's DNA was also found on a knife which was found in Cain's bedroom and which, the State said, was used by Cain to stab the appellant.[8] Police found a blood trail going between 39 Kennett Street and 8 Borden Street.[9] Blood from various parts of that trail matched the DNA profile of the appellant.[10]
[7] ts 35.
[8] ts 46.
[9] ts 36.
[10] ts closing submissions 4.
The appellant ended up knocking on the door of a nearby address, 39 Kennett Street, where he sought treatment for a stab injury.[11]
[11] ts 35 - 36.
The State said that a key issue was whether the appellant's injuries were inflicted by Cain during the attack.[12] The State said that the central issue was likely to be identity.[13]
[12] ts 33.
[13] ts 41.
In closing submissions, the State said that the three key pieces of identity evidence were (1) the appellant's DNA on the blade of the knife, which had Cain's DNA on its handle and was found discarded in Cain's bedroom (known as knife MWE3);[14] (2) the appellant's DNA in the area of significant bloodstaining out the front of 6 Borden Street, Maddington;[15] and (3) the blood trail leading away from Borden Street, which, counsel submitted, appeared to have been left by someone bleeding while on a motorcycle, as opposed to while on foot.[16]
[14] ts closing submissions 6 - 8.
[15] ts closing submissions 8 - 11.
[16] ts closing submissions 13 - 14.

The appellant's case at trial

The appellant's case at trial was that he was not present at 8 Borden Street when the alleged offence occurred.[17]
[17] ts 47.
In closing, defence counsel said that there were two crucial aspects to the case: (1) the blood trail to 8 Borden Street and (2) the DNA analysis on the knife found in Cain's bedroom.[18]
[18] ts closing submissions 23.
Defence counsel drew attention to the fact that the blood trail extended down to Nardoo Way, as well as to Borden Street.[19] Defence counsel said that the blood trail was not inconsistent with someone walking, and, in fact, did not look like it came from someone on a motorbike.[20]
[19] ts closing submissions 26.
[20] ts closing submissions 46.
Defence counsel said that the jury would likely find that the offence had occurred.[21] Defence counsel said that the jury should be concerned with how it occurred, drawing attention to the differing accounts between Cain and Craig of the attack, including differing accounts as to where Cain passed Craig the knife, the nature of the brawl inside and outside the house, and the number of attackers.[22] Defence counsel pointed out that, in his previous statements, Cain had said that he stabbed at one of the offenders to defend himself (and not necessarily on the left-hand side), and then in court, after seeing the photograph of the injured appellant, said that he had stabbed the man on the left-hand side to defend his father.[23]
[21] ts closing submissions 27.
[22] ts closing submissions 28 - 33.
[23] ts closing submissions 35.
Defence counsel said that the State needed to prove that Cain stabbed the appellant and that he used the same knife that moved from the lawn, on Cain's account, to where it was found in his bedroom.
Defence counsel said that there were innocent explanations as to how the appellant's DNA came to be on the knife. Defence counsel noted that police walked through 8 Borden Street after having walked through the bloody area outside, and that the officers had just attended at the address where the injured appellant was located.[24] Defence counsel said that it was possible that one of the attackers dropped the knife and that that knife was the knife used by the motorcyclist to stab the appellant.[25] Defence counsel noted that the blood on the knife was primarily on the tip on one side, and not on the other side, suggesting that it was possible that the knife had been used to stab the appellant, wiped, and then tucked away.[26]
[24] ts closing submissions 38.
[25] ts closing submissions 38.
[26] ts closing submissions 38.
Defence counsel said that 'all the State can really rely upon is that single spot on [knife] MWE3'.[27] Defence counsel noted that Ms Julie Murakami, the forensic scientist, gave evidence about the possibility of indirect DNA transfer, which could provide an innocent explanation for the presence of the appellant's blood on knife MWE3.[28]
[27] ts closing submissions 47.
[28] ts closing submissions 39 - 40.

The evidence at trial

Evidence adduced by the prosecution

For present purposes, it is unnecessary to recount the evidence at trial in detail.
Cain gave evidence broadly consistent with the State case as opened. He said that, in the course of the melee, he ran up to one of the intruders who was brawling with his father and struck the intruder with the knife on the left side of the body.[29] After that, he dropped the knife on the front lawn.[30]
[29] ts 56 - 57.
[30] ts 60.
Cain accepted in cross‑examination that, in the statements he had signed earlier, he had not mentioned running across and stabbing the man on the left‑hand side.[31] He reiterated that he ran across and stabbed the intruder who was fighting with his father on the left side.[32]
[31] ts 81.
[32] ts 81 - 82.
Cain said firmly, in both cross‑examination and in re‑examination, that he could recall stabbing one of the intruders.[33]
[33] ts 83 - 84.
Mr Dehnel, who lives at 6 Borden Street, Maddington, gave evidence consistent with the State case as outlined in [9] above.
By consent, the prosecutor read into evidence the statement of Oscar Brown. The appellant knocked on the door at 39 Kennett Street, where Mr Brown, who was 17 years old, lived. The appellant told Mr Brown that he had been stabbed. Mr Brown called 000. The police came about 15 minutes later.[34]
[34] ts 152 - 153.
Constable Marcus Chin was asked to attend 39 Kennett Street in Maddington just after midnight on 27 February 2019. There he saw the appellant with a wound or gash to his left arm. Constable Chin noticed a pool of blood at the driveway entrance to 39 Kennett Street and splatters and pools of blood going from there to 6 and 8 Borden Street.[35]
[35] ts 167, 169, 171.
Detective Matthew Thompson prepared the map of the relevant area, which became exhibit 10.[36] At the intersection of Westfield Street and Revesby Street, Detective Thompson noticed a blood trail on the road on Westfield Street.[37] He gave evidence about following the blood trail along Westfield Street, past the Maddington Village shops, along various streets and then onto Nardoo Way.[38] He said that he drew a red line on exhibit 10 to indicate the blood trail that he followed.[39]
[36] ts 358.
[37] ts 358.
[38] ts 359 - 361.
[39] ts 359.
Ms Murakami is a qualified forensic scientist. She gave evidence that DNA matching the appellant was found on the knife that was found in Cain's bedroom, in the blood on the front driveway at 8 Borden Street, and on other bloodstains located at the intersection of Westfield Street and Revesby Street and at 15 Nardoo Way. She gave evidence that Cain's DNA was on the handle of the knife found in Cain's bedroom.
Ms Murakami's evidence to this effect was not challenged in cross‑examination. In effect, the appellant's trial counsel cross‑examined Ms Murakami as to the potential for indirect transfer to occur. The appellant's trial counsel put to Ms Murakami the possibility of a person stepping on a bloody surface and then transferring DNA from that surface onto another surface using their shoe. Ms Murakami confirmed that that was a possible scenario.[40] Ms Murakami also confirmed the possibility of a person transferring another person's blood on their clothing.[41]

The appellant's evidence

[40] ts 410.

[41] ts 413.

The appellant's evidence was, relevantly, to the following effect.
The appellant described being dropped off in the early hours of the evening on 26 February 2019 by a friend to see another friend named Shane Curtis. The appellant had been communicating with Mr Curtis using his mobile phone, but did not know his address. He said that he then became lost and wandered around Maddington for 'hours'. He said that, because of his fear of dogs, he walked on the road rather than on the footpath. While he was doing so, a motorcyclist narrowly missed him. He swore at the rider, who then returned to confront the appellant. The two fought and the rider then stabbed the appellant and rode away.
The appellant said that, once injured, he walked around looking for houses with lights on to get assistance. He walked past 39 Kennett Street, which he said had its lights on, and then went to 8 Borden Street, which also had its lights on. He said that he was drawn to 8 Borden Street because it 'looked like an indigenous person's house' and he has a lot of indigenous friends. He knocked on the window, but nobody answered.
The appellant said that he stayed outside 6 Borden Street for a while, at which point the blood from his wound 'soaked through' the fabric wrapped around it.[42] He said that he then went to 39 Kennett Street and sought assistance from the occupants inside.
[42] ts 430.

Ground of appeal

As already noted, the appellant's sole ground of appeal asserts that the verdicts of guilty were unreasonable and not supported by the evidence.

The appellant's submissions

The appellant submits that due to the matters raised by the defence at trial, including the inconsistencies in the evidence of Cain and Craig, the verdicts were unreasonable.[43] The appellant's practice direction 7.4 schedule points principally to the following matters as supporting the ground:
(a)Cain's difficulty identifying the knife that he used to stab the attacker;
(b)the witnesses' inability to see what any of the attackers looked like;
(c)the inability of DNA evidence to determine how DNA is transferred to an object; and
(d)the appellant's evidence that he was stabbed by a man on a motorbike in Maddington.
[43] Appellant's submissions [10].
The appellant's principal oral submissions in support of the ground were as follows:
(a)Cain's oral evidence‑in‑chief that he stabbed one of the intruders was the first time he had said this. He did not mention stabbing one of the intruders in either of his two statements to the police.[44]
(b)The shoeprints visible on exhibit 23, which is a bundle of two photographs of two different shoeprints on the front flyscreen door of 8 Borden Street, do not match the undersole of the appellant's shoe shown in exhibit 17, photo 9.[45]
(c)The CCTV footage taken outside 28 Kennett Street[46] and outside 141 Westfield Street[47] suggests that the appellant is innocent. The footage shows two motorcycles, with only one person on each motorcycle. This suggests that there were only two intruders, giving greater significance to the fact that neither of the two shoeprints on the flyscreen door matched the appellant's. None of the CCTV footage shows the motorcycles going towards Nardoo Way. On the prosecution case, the CCTV should capture the motorcycles going towards Nardoo Way and there should be two blood trails, one going towards Nardoo Way and one going towards Borden Street.[48]
(d)The effect of the DNA evidence was that 6.5 billion parts of the blood belonged to the appellant, while 100 billion parts belonged to Cain. There should have been much more of the appellant's blood on the knife, had he been stabbed with it.
(e)The proper inference is that the appellant's blood got on the knife by reason of indirect transfer.
[44] Appeal ts 3.
[45] Appeal ts 6 - 8.
[46] Exhibit 12.
[47] Exhibit 28.
[48] Appeal ts 9 - 11.

Legal principles

The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. The principles established by the leading High Court decisions have been outlined by this court many times. In Jago v The State of Western Australia,[49] this court summarised the principles as follows:
(a) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(b) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(c)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.
(e)The appeal court performs its function on the assumption, in a case such as the present case, that the evidence of the complainant was assessed by the jury to be credible and reliable. The question for the appeal court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(f)A doubt experienced by an appeal court would be a doubt 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.
(g) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(h)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court which has not seen or heard the witnesses called at trial.
[49] Jago v The State of Western Australia [2022] WASCA 2 [144].
As already noted, the prosecution case relied on an inference that the appellant was one of the intruders. The principles relating to criminal cases turning, as this case does, upon circumstantial evidence, were restated in R v Baden‑Clay[50] as follows:
(a)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(b)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(c)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(d)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[50] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47]; Le‑ta v The State of Western Australia [2020] WASCA 14 [66].

Thus, the appellant must demonstrate that the jury was bound to find that there was, on the evidence, an alternative reasonable inference consistent with innocence.[51]
[51] Le‑ta v The State of Western Australia [67].
For the reasons that follow, the appellant has fallen well short of meeting that high hurdle.

Disposition

The judge directed the jury that they must acquit if they believed the appellant's evidence or thought it might be true.[52] Thus, in convicting the appellant, the jury must have unequivocally rejected his evidence.
[52] ts 511.
It was well open to the jury to find that the appellant's evidence strained credulity to breaking point. That is our assessment, based on the record. In a great many respects, evaluated against ordinary human experience and common sense, the version of events advanced by the appellant at trial made no sense and involved extraordinary coincidences. Moreover, many elements of the appellant's account had the hallmarks of being a reconstruction designed to explain away the evidence on which the State relied. By way of example, on the appellant's version of events:
(a)The appellant spent hours wandering around Maddington looking for Mr Curtis' house by following directions given to him by Mr Curtis in text messages saying, 'go left, go right', and so on.[53] How Mr Curtis was in a position to give such directions, which by their nature required him to know the appellant's exact location, was not explained. Nor did the appellant explain, in his evidence, why he never thought to ask Mr Curtis what his address was.
(b)Many aspects of the appellant's evidence concerning his movements were vague in the extreme, but the appellant professed a clear recollection of stopping at the particular addresses where his blood was found.
(c)The appellant walked on the road - which was where his bloodstains were found - because, he said, of his fear of dogs.
(d)After the appellant was stabbed, he wandered around Maddington, including past 39 Kennett Street, which he said had its lights on. His account of wandering from house to house, onto Borden Street, and then back to 39 Kennett Street, where he then asked for assistance, had internal inconsistencies and did not make sense. It would readily, it might be thought inevitably, have been seen by the jury as an attempt to explain the blood trail and the pool of blood outside 6 Borden Street.
(e)Moreover, as the prosecutor submitted in her closing address to the jury, the CCTV footage taken at 141 Westfield Street[54] shows that, when he walked past those premises heading north towards Kennett and Borden Streets, the appellant had wrapped his black long‑sleeved shirt around his wound, evidently to stem the blood flow. The CCTV footage taken in Kennett Street and in Borden Street shows this continued to be so. That being so, the substantial bleeding on the driveway outside 6 Borden Street does not sit comfortably with the appellant's version of events.
(f)On the appellant's evidence, it was nothing more than coincidence that the appellant suffered a stab wound at around the time when, and in close proximity to where, according to Cain, Cain stabbed one of the offenders in the course of the offending.
(g)By another sheer coincidence, the place where the appellant happened to linger - outside 6 Borden Street - was just outside the location of the offending and was the same place that Mr Dehnel saw the motorcyclist at the base of his driveway and where a pool of blood was found.
(h)Nothing in the appellant's version of events rationally explained how his DNA might have got onto the knife found in Cain's bedroom. The fact that his DNA had somehow got onto the blade of the knife found in Cain's bedroom was a further mere coincidence.
[53] ts 421.
[54] Exhibit 28.
The jury, which had the advantage of seeing and hearing Cain give his evidence, was entitled to accept Cain's unequivocal evidence that he stabbed one of the offenders. There was no evidence that Cain did not stab one of the offenders. Given the terms of the judge's direction, the jury must have accepted - as honest, accurate and reliable beyond reasonable doubt - Cain's evidence that he stabbed one of the offenders.[55]
[55] ts 529.
Being so satisfied, the jury were entitled to find that the following facts - which were not in substantial dispute - compelled the inference, to the exclusion of all other inferences, that the appellant was the offender who was stabbed by Cain:
(a)The appellant's DNA and Cain's DNA were on the knife found in Cain's room soon after the incident;
(b)the appellant's DNA was found in a pool of blood outside 6 Borden Street, adjoining where the offending occurred; and
(c)about half an hour after the intruders fled from 8 Borden Street, the appellant was seen at 39 Kennett Street to have suffered a stab wound.
If, as they were entitled to do, and evidently must have done, the jury rejected the appellant's evidence, there was no basis in the remaining evidence for any inference consistent with the appellant's innocence. If the appellant's evidence was rejected, there was simply no evidence capable of explaining, and no evidence sustaining any inference that would explain, the presence of the appellant's blood in the pool of blood outside 6 Borden Street, nor on the knife found in Cain's bedroom. (Indeed, even on the appellant's evidence, there was no rational basis to explain the presence of the appellant's DNA on the blade of the knife.) Consequently, once the jury rejected the appellant's evidence, the inference that the appellant was one of the intruders and so was guilty of the offences was not only open; it was inevitable. No other inference was even remotely open on the evidence.
Nothing in the appellant's submissions supports his contention that the jury's verdicts of guilty were not open. The first three points summarised in [36] above are not, in any respect, inconsistent with the prosecution case. Nothing in those points undermines the force of the reasoning outlined in [45] above. As to the fourth point in [36], we have already explained why the jury was entitled to reject the appellant's evidence.
The appellant's first point in [37] above misunderstands the effect of the evidence. Contrary to the appellant's submission, Cain did mention stabbing one of the intruders in his earlier statements to the police. What he had not mentioned was that he had stabbed the intruder in the left side and had done so while the intruder was attacking Craig. The judge directed the jury as to how they were to evaluate the significance of this and any other inconsistencies they might find in Cain's evidence. None of those matters compelled the jury to have a reasonable doubt as to whether Cain stabbed one of the offenders or as to the appellant's guilt.
Whether the shoeprints that can be seen on exhibit 23 match the undersole of the appellant's shoe shown in exhibit 17, photo 9, was not the subject of evidence at the trial, although it was the subject of submissions by defence counsel in closing.[56] Even if they found that only two of the intruders were on motorbikes, the jury were entitled to accept the evidence given by both Cain and Craig that there were more than two intruders. Consequently, even an assumption, favourable to the appellant, that the shoeprints did not match, would not substantially assist the appellant. On the State case, the shoeprints might belong to one of the other offenders.
[56] ts closing submissions 42 - 43.
Contrary to the appellant's submission in [37(c)], on the prosecution case, there was no reason to expect that there would be two blood trails or that the CCTV should show the appellant returning. On the State case, the appellant committed the offence at 8 Borden Street, left some blood on the driveway of 6 Borden Street, fled, and then rode his motorbike to Nardoo Way, leaving a trail of blood as he did. There, having got away from the scene of the crime, he wrapped his shirt around the wound to stem the bleeding. He then went on foot to 39 Kennett Street, where he knocked on the door and sought help. The CCTV at 141 Westfield Street showed him walking past, heading towards Kennett Street. There is no reason to expect that his riding his motorbike would have been captured on the CCTV which showed him walking past. Nor is there reason to expect a second blood trail when the appellant had stemmed the bleeding with his shirt.
The appellant's submission summarised in [37(d)] misunderstands the effect of the DNA evidence. The numbers referred to in the evidence related to probability, not to how many parts of the blood were said to belong to a particular person. Ms Murakami's evidence was that the mixed DNA profile on the knife was consistent with coming from two individuals. One identified contributor was Cain, with a likelihood ratio that exceeded 100 billion. The appellant had a likelihood ratio of 6.5 billion as a contributor.[57]
[57] ts 389 - 390.
The appellant's submission at [37(e)] above repeats a submission made by his trial counsel to the jury. Both submissions rely essentially on the speculative possibility of indirect transfer. Cross‑examination was confined to the possibility, in the abstract, of transference. Our review of the record satisfies us, and the jury were entitled to consider, that that possibility was entirely excluded by the combined force of the matters referred to in [43] and [45] above.
Our assessment of the quality and sufficiency of the evidence at trial, based on the record, does not give us a reasonable doubt as to the appellant's guilt.
For these reasons, the appellant's sole ground of appeal is without merit.

Conclusion

For the above reasons, we would make the following orders:
1.Leave to appeal on the sole ground of appeal is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
18 NOVEMBER 2022