Gandy v The State of Western Australia
[2017] WASCA 93
•11 MAY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GANDY -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 93
CORAM: MARTIN CJ
MAZZA JA
MITCHELL JA
HEARD: 14 JUNE 2016 AND FURTHER WRITTEN SUBMISSIONS
DELIVERED : 11 MAY 2017
FILE NO/S: CACR 190 of 2015
BETWEEN: STEPHEN GREGORY GANDY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :CORBOY J
File No :INS 334 of 2014
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of murder with three co-accused - Possible pathways to guilt included s 7(a), s 7(c) or s 8 of the Criminal Code - Appellant's counsel abandoned appeal ground alleging error by trial judge to admit admissions alleged to have been made by appellant in the absence of a video recording - Whether appeal ground could be reinstated after decision reserved following hearing by Court of Appeal - Whether there was a miscarriage of justice by reason of the trial judge's failure to direct the jury that unanimity was required as to pathway upon which they reached a guilty verdict - Whether guilty verdict was unreasonable or not supported by the evidence - Whether there was a miscarriage of justice where appellant alleges the trial judge made errors at law including not severing the indictments
Legislation:
Criminal Code (WA), s 7(a), s 7(c), s 8, s 279
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Procedure Act 2004 (WA), s 133, sch 1
Result:
Leave to appeal on proposed grounds 3 and 4 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters appeared on 14 June 2016 and the appellant appeared in person from 8 September 2016
Respondent: Mr J C Whalley
Solicitors:
Appellant: Morris Law Pty Ltd until 8 September 2016
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ardrey v The State of Western Australia [2016] WASCA 154
Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Mansell v The State of Western Australia [No 6] [2013] WASCA 120
Michaels v The State of Western Australia [2009] WASCA 174
Mouritz v The State of Western Australia [2006] WASCA 165
R v Clarke and Johnstone [1986] VR 643
R v Leivers and Ballinger [1998] 1 Qd R 649
R v Thatcher (1987) 39 DLR (4th) 275
R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Gandy [2015] WASC 382
The State of Western Australia v Gandy [2015] WASCSR 211
Wells v The State of Western Australia [2017] WASCA 27
TABLE OF CONTENTS
Overview of the State's case
The defence case
Ground 1
Ground 2 - unanimity of verdicts
The alleged separate pathways to guilt
The appellant's submissions
Ground 2 - disposition
Proposed ground 3
Michele Grace Robinson
Mark Francis Jones
Josephine Sarah Knott
Antonio Luke Trunfio
Rory Martin Radei
Jules Ann Whiteway
Andrew Steven Hewitt
Todd Warren Denehy
Warwick James Lane
Simone Joy Kearsley
Gavin James Coughlan
Daniel Edward Moir
Justin Ashley Harrison
Peter David Reynolds
James Naylor
Dr Amy Victoria Spark
Scott Elliott Egan
Suzanne Hewitt
David Glenn Spivey
Julian Neville Tricker
Michael James Lee
Rory Anton
The appellant
Steven Roberts
The appellant's submissions
Submission 1 - motive
Submission 2 - incapacity caused by the appellant's injured right hand
Submission 3 - the forensic evidence
Submission 4 - cause of death
Submission 5 - the appellant's post‑offence conduct
Submission 6 - evidence of Ms Kearsley and Mr Moir
Submission 7 - the rejection of the appellant's version of events
Proposed ground 3 - conclusion
Proposed ground 4
The appellant's application filed 12 October 2016
Conclusion
REASONS OF THE COURT: This is an appeal against conviction. The appellant and Christian John Gomis, Jayden Albert Kett and Steven Roberts were jointly charged on indictment in the Supreme Court that on 15 February 2014 they murdered Beau John Davies, contrary to s 279 of the Criminal Code (WA) (the Code).[1]
[1] BAB 1.
On 10 July 2015, after a trial before Corboy J and a jury lasting approximately seven weeks, the appellant and Mr Roberts were found guilty as charged. Mr Gomis and Mr Kett were acquitted of murder, but found guilty of unlawfully killing Mr Davies.[2]
[2] ts 3791 - 3793.
Later, on 2 October 2015, the appellant was sentenced to life imprisonment with a non‑parole period of 23 years, backdated to commence on 16 February 2014.[3]
[3] ts 3874, The State of Western Australia v Gandy [2015] WASCSR 211.
Originally, the appellant relied upon two grounds of appeal. Ground 1, in substance, alleged that the trial judge erred in admitting into evidence, over objection, admissions allegedly made by the appellant to a police officer in the absence of an audio‑visual recording. Ground 2 alleged a miscarriage of justice by reason of the trial judge's failure to direct the jury that unanimity was required as to the pathway upon which they reached their guilty verdict[4] and, by reason of the trial judge's elision of the different pathways.
[4] WAB 50, 51.
Leave to appeal was granted on ground 2. The question of leave on ground 1 was referred to the hearing of the appeal. At the hearing, the appellant's counsel abandoned ground 1.[5] After judgment was reserved, the appellant applied to reinstate this ground.
[5] Appeal ts 17.
In support of ground 2, the appellant applied to adduce additional evidence in the appeal. The proposed additional evidence comprised, in substance, a copy of the jury aids that were provided by the trial judge during his summing up.[6] The jury aids are part of the materials that were before the lower court. Consequently, leave to adduce this material is not required.[7]
[6] WAB 8 - 48.
[7] See s 39(1) Criminal Appeals Act 2004 (WA).
On 10 June 2016, the court received a letter from the appellant's counsel dated 9 June 2016, advising that the appellant himself wished to argue two further grounds of appeal. The papers prepared by the appellant, that accompanied counsel's letter, comprised a document filed 10 June 2016 entitled 'Appellant's Submissions' and a schedule which purported to comply with Practice Direction 7.4. Proposed ground 3 alleged that the verdict of guilty was unreasonable or could not be supported on the evidence: s 30(3)(a) Criminal Appeals Act 2004 (WA). Proposed ground 4 alleged that:
His Honour made several errors at law in his discretion on the way in which the trial was conducted and on the evidence.
At the hearing of the appeal, the appellant's counsel declined to make any oral submissions in support of proposed grounds 3 and 4.[8] After taking instructions from the appellant, counsel advised the court that the appellant did not himself wish to make oral submissions in support of these proposed grounds.[9]
[8] Appeal ts 17.
[9] Appeal ts 18.
The court then made orders granting the appellant's application to add the additional grounds of appeal, together with the additional submissions in support of those grounds. This was conditional upon the appellant filing a schedule that complied with Practice Direction 7.4. The appellant was given leave to file and serve the compliant schedule within 21 days, and the State was given 21 days thereafter to respond.[10]
[10] Appeal ts 20.
On 1 July 2016, the appellant filed a schedule which complied with the practice direction, along with further written submissions in relation to proposed ground 4. Later, the respondent notified the court that it did not wish to respond to the schedule filed by the appellant on 1 July 2016.
On 8 September 2016, the appellant filed a notice of self‑representation.
On 12 October 2016, the appellant filed an application in an appeal, accompanied by an affidavit sworn by him on 11 October 2016, seeking the following orders:
1.The Court of Appeal remove Legal Aid (WA) and Mr Watters from the record as acting on my behalf and accept filing of my notice to represent myself in this matter.
2.Grant leave for an extension of time to file further submissions in relation to grounds 3 and 4 of the appeal.
3.Grant leave to reinstate ground 1 of the appeal which was withdrawn by Mr Watters contrary to my instructions.
4.Grant leave for an extension of time to file further submissions in relation to ground 1 of the appeal referred to above.
On 17 October 2016, the court unanimously made the following orders in respect of the appellant's application dated 12 October 2016:
1.The application with respect to proposed orders 1, 3 and 4 is dismissed.
2.The appellant is granted leave to file and serve further written submissions in relation to proposed grounds 3 and 4 of the appeal within 21 days of the date of this order.
3.The respondent has leave to file and serve written submissions in response no later than 14 days after service of the appellant's further submissions.
4.The appellant shall file and serve written submissions in reply no later than 7 days after service of the respondent's submissions.
The reasons for making order 1 will be explained later. Orders 2, 3 and 4 were made to give the appellant the opportunity to make further submissions in respect of proposed grounds 3 and 4 and for the respondent to deal with those submissions.
The appellant then sought the advice of senior counsel with respect to proposed grounds 3 and 4. On 2 November 2016, with the consent of the respondent, the appellant was granted an extension of time to comply with orders 2 and 3.
On 22 November 2016, the court was advised that no further written submissions would be made in respect of proposed grounds 3 and 4.
Overview of the State's case
The State's case, as it was opened to the jury, was as follows.
Mr Davies was a user and dealer of methylamphetamine.[11] He owed money and perhaps drugs to, amongst others, Mr Roberts, Mr Gomis and Mr Kett. Mr Roberts and the appellant were friends. Both were users and/or dealers of methylamphetamine.[12] The appellant took an interest in the fact that Mr Davies owed Mr Roberts money. It is possible that Mr Davies also owed money to the appellant.[13]
[11] ts 328.
[12] ts 328.
[13] ts 329.
Mr Davies was killed on 15 February 2014 at his house at 45 Ware Street, Kalgoorlie (45 Ware Street). In the days leading up to his death, Mr Roberts and the appellant spoke to a number of people about the fact that Mr Davies owed them money, or at least owed Mr Roberts money. Among the persons Mr Roberts and the appellant spoke to were Gavin Coughlan, Daniel Moir and Simone Kearsley.[14] At this time, Ms Kearsley was living at Mr Roberts' house, situated at 9 Hamilton Street, Boulder (9 Hamilton Street). She was staying at the house rent‑free. In return, she cleaned and shopped for Mr Roberts and, on occasions, sold drugs for him.[15]
[14] ts 329.
[15] ts 329.
Approximately one week before Mr Davies' death, Mr Roberts, in the presence of the appellant, told Ms Kearsley that Mr Davies owed him money, and 'they [Mr Roberts and the appellant] were going to do a collect'.[16]
[16] ts 329.
On 13 February 2014, Mr Roberts and Ms Kearsley drove from Kalgoorlie to Perth to buy a quantity of methylamphetamine.[17] The State's case was that Ms Kearsley made the purchase on Mr Roberts' behalf. On 14 February 2015, they returned to Kalgoorlie and Ms Kearsley began to sell some of the drugs on behalf of Mr Roberts.
[17] ts 329 - 330.
On the evening of 14 February 2014, Mr Davies went to a bar. In the early hours of 15 February 2014, he returned home with a group of people, including Todd Denehy. Mr Davies showed Mr Denehy a new closed‑circuit television system that he had installed.[18] Mr Denehy also saw that Mr Davies had put up a display board on a wall in the lounge room with a large number of knives attached to it.[19]
[18] ts 331.
[19] ts 331.
The State alleged that telephone records showed that, in the early hours of 15 February 2014, there was telephone contact in the form of calls and text messages between some of the accused and Mr Davies.[20]
[20] ts 334 - 335.
Later, on the morning of 15 February 2014, all four accused were seen at Mr Roberts' house by Ms Kearsley, who heard them discussing going to Mr Davies house to collect the debts he owed.[21]
[21] ts 330.
According to Ms Kearsley, on either 14 or 15 February 2014, she saw, near the bathroom at Mr Roberts' house, a large blue canvas bag about 1 ‑ 2 m long, that was usually kept in a storeroom. The State's case was that this bag was brought to Mr Davies' house by one or more of the accused and, after he was killed, his body was placed in it.
The State's case was that somewhere between 3.26 pm and 4.00 pm on 15 February 2014, Mr Davies was attacked, tortured and killed at his house by the four accused men.[22] A post‑mortem examination of Mr Davies' body conducted by Dr Amy Spark revealed that he suffered severe head injuries, including severe lacerations to his scalp from which he probably bled profusely. Mr Davies also suffered stab wounds to his neck which cut his jugular vein and subclavian veins, as a result of which a great deal of bleeding would have been expected.[23] A subsequent forensic examination of Mr Davies' house showed large areas of blood staining in the kitchen, lounge room (including the walls) and a room near a patio.[24]
[22] ts 336.
[23] ts 340.
[24] ts 338 - 339.
According to the State's case, an examination of the crime scene revealed that Mr Davies was dragged from the lounge/kitchen area into what was described as the family room.[25] From the family room, he was likely placed into the blue canvas bag and then into a car which had been parked at the rear of Mr Davies' house, near a laneway.[26] At some point, Mr Davies was tied up with cable ties and his right ring finger was severed. A fire was lit at Mr Davies' house, into which CCTV cameras and other items were placed. Smoke from a fire was seen by Mr Davies' neighbours shortly after 4.00 pm.[27]
[25] ts 340 - 341.
[26] ts 341.
[27] ts 331.
According to the State, Mr Davies' body was then taken to Mr Roberts' house where it was dismembered in the bathroom by at least Mr Roberts and the appellant.[28] Mr Davies' body parts were then put into a wheelie bin at the house.
[28] ts 344, 347.
The State alleged that the bag and other items connected with the killing were burned in a fire which was set in the backyard of Mr Roberts' house. Two witnesses, Tony Trunfio and Rory Radei, who were neighbours of Mr Roberts, smelled smoke coming from his house on the evening of 15 February 2014. When they looked, each saw flames in the backyard.[29] When the remains of the fire were later examined by police, they discovered a safe which had been removed from Mr Davies' house and other items including clothing and shoes.[30] The State's case was that Mr Roberts and the appellant burnt their clothes, shoes and other items which connected them to what occurred at 45 Ware Street.[31]
[29] ts 343.
[30] ts 343.
[31] ts 343.
The State alleged that Mr Gomis and Mr Kett purchased a quantity of bleach from a supermarket.[32] According to Ms Kearsley, when she arrived home she saw only Mr Roberts and the appellant and they were cleaning the bathroom with bleach. She observed both men had blood on their bodies.[33] Ms Kearsley had also noticed the fire burning at the back of the house. Ms Kearsley was asked, and helped, to clean the bathroom.[34] When cleaning the bath, Ms Kearsley said she found small pieces of what appeared to be flesh which she threw into the toilet.[35]
[32] ts 344.
[33] ts 345.
[34] ts 345.
[35] ts 346.
Ms Kearsley observed that the wheelie bin was wheeled into the rear room at Mr Roberts' house.[36] At one stage, she observed both the appellant and Mr Kett go into the room after the wheelie bin had been moved there and heard one of the men screaming.[37]
[36] ts 346.
[37] ts 346.
On the evening of 15 February 2014, Mr Moir visited Mr Roberts' house. He noticed blood on the appellant.[38]
[38] ts 342.
At about 1.00 pm on 16 February 2014, as a result of information given to them by Ms Kearsley, the police became aware that something had happened at 9 Hamilton Street. At about 2.00 pm that day, police officers were despatched to Mr Davies' house where they found large amounts of blood.[39] At about 3.00 pm, attending police officers went to Mr Roberts' house. Mr Roberts and the appellant were arrested. The wheelie bin was found. When it was opened, in addition to Mr Davies' dismembered body, the police discovered a machete and a knife which, the State contended, had been used to dismember the body.[40] Police noticed that the appellant's right hand was injured and he was taken to Kalgoorlie Regional Hospital where he was treated and given painkillers.[41] In addition to the injuries already noted, forensic pathologist, Dr Amy Spark, found a number of significant blunt‑trauma type injuries to the top and back of Mr Davies' head which were consistent with the use of a weapon rather than fists.[42] She also found a number of stab wounds, not just to Mr Davies' neck, but also to his right hand, right calf and multiple stab wounds to his torso. Dr Spark observed evidence of the compression of the top of Mr Davies' spine.[43]
[39] ts 350.
[40] ts 351.
[41] ts 351.
[42] ts 351.
[43] ts 352.
Dr Spark concluded that Mr Davies' death was caused by blunt‑force injuries to the head, or a penetrating injury to the neck that cut the veins in that area, or blunt force or compression to the neck that somehow pushed Mr Davies' neck down or a combination of these things.[44]
[44] ts 354 - 355.
The premises at 45 Ware Street were forensically examined. A fingerprint left in some blood on a tap in the kitchen sink was matched to the appellant. A DNA profile extracted from the blood matched Mr Davies' DNA profile.
A DNA profile matching that of the appellant was also found in bloodstains at Mr Davies' house, including a mixed DNA profile matching the profiles of the appellant and Mr Davies on the door of a bar fridge.[45]
[45] ts 356.
The appellant's DNA was also matched with DNA found on an axe handle located in Mr Davies' kitchen and a samurai sword located on Mr Davies' kitchen bench next to the sink.[46] A fingerprint lifted from the samurai sword also matched the appellant's fingerprint.[47]
[46] ts 358.
[47] ts 361.
The appellant's and Mr Roberts' DNA was matched with DNA found on a cardboard roll near a toolbox at 45 Ware Street and on one of two cable ties that were joined.[48] A swab taken from the doorframe which led into the bathroom of Mr Davies' house, which was later found to be blood, was found to have DNA profiles matching those of both the appellant and Mr Davies.[49]
[48] ts 359.
[49] ts 359.
At 45 Ware Street, a broken piece of furniture was found to have the appellant's fingerprint on it.[50] DNA profiles also found at 45 Ware Street matched those of Mr Roberts, Mr Gomis and Mr Kett.
[50] ts 361.
A knife was discovered at 45 Ware Street on the kitchen floor which had gaffer tape tightly wrapped around it. Significantly, a gardening saw and another knife which were similarly wrapped were found by police at 9 Hamilton Street. Mr Davies' DNA matched DNA found on the tip of the knife located at 9 Hamilton Street.[51] It was alleged that the knife found at Mr Davies' house had been brought there from Mr Roberts' house.
[51] ts 360.
Police discovered an empty bleach bottle at 9 Hamilton Street, which was later found to have on it a fingerprint that matched the appellant's fingerprint.[52] The State contended that this showed that the appellant was involved in the clean‑up.
[52] ts 362.
The State prosecutor described the essence of the case against the appellant in this way:
But essentially, the State's case against [the appellant] is this: that he was either owed money by Davies or at least considered that he had an interest in the fact that money was owed to Mr Roberts because of the fact that he was dealing in drugs with Mr Roberts.
The forensic evidence I have already referred to places [the appellant] inside Mr Davies' home and in particular, of significance, is the fingerprint that had Mr Davies' blood. So he's come into contact with Mr Davies' blood and the State's case is that it could not have been an innocent connection.
There is DNA matching [the appellant], as I said to you earlier, in the lounge area and in the kitchen area, but importantly, also on the axe handle. Now, I spoke to you earlier about the nature of the injuries that were found by Dr Spark and the significant lacerations to the head being consistent with significant blunt force injury and more likely with a weapon, a hard object, than with a fist or being simply hands. So [the appellant's] DNA on the axe handle is significant in the case against him.
And then significantly also, given that there were injuries to Mr Davies of stabbing, of many cuts to his body but specifically of the stabbing to his neck, is the fact that [the appellant's] DNA or DNA matching his DNA was found on the small sword on the kitchen bench. And you'll have an opportunity to see that in the course of the trial. We haven't got them here now, but you will see these items later in the course of the trial.
I should have actually mentioned, I think I overlooked this, that there was in fact DNA from Mr Davies on the tip of that.
Finally, in relation to [the appellant], both [Ms Kearsley] and [Mr Moir] saw him behaving in a rather manic way after the event but particularly, they saw that he had - well, certainly Ms Kearsley saw that he had blood on his arms; Mr Moir saw that he had blood on his face or his neck.
So the State's case, ladies and gentlemen, is that when you put all of those pieces of evidence together, motive, together with his connection to 45 Ware Street and the DNA connection to items that have Mr Davies' DNA, you can be satisfied that he was involved in the murder of Mr Davies.[53]
[53] ts 363 - 364.
The State alleged that the four accused went to 45 Ware Street with an unlawful purpose in mind. They did not go there to negotiate the repayment of debts.[54] The State's case was that, at the very least, all of the accused went to Mr Davies' house to rob him and that they intended to use a significant degree of violence because that is what, in fact, happened.[55]
[54] ts 386.
[55] ts 389.
The State's case in relation to each accused was that, if he was not a principal offender pursuant to s 7(a) of the Code, he was an aider, pursuant to s 7(c) of the Code. Alternatively, he was guilty by virtue of s 8 of the Code.[56]
[56] ts 390 - 392.
Specifically with respect to the appellant, the State's case was that he was at least one, if not the only, person who inflicted violence upon Mr Davies.[57]
[57] ts 393.
In this regard, the prosecutor identified five items which the State argued were potentially weapons, having regard to the discovery of Mr Davies' blood on each. Those items were the axe handle, the samurai sword, a metal bar which was found on the floor near the kitchen, the piece of wood and the knife with the gaffer tape tightly wrapped around the handle.[58] DNA consistent with the appellant's DNA profile was found on the axe handle and the samurai sword. The State also noted that the blade of the knife found at 9 Hamilton Street not only had stains on it which matched Mr Davies' DNA profile, but also had the appellant's fingerprint on it.[59]
[58] ts 393.
[59] ts 394.
The prosecutor also relied upon the DNA evidence and fingerprint evidence that were found on various items discovered by the police at Mr Davies' house and fingerprint evidence found on the bleach bottle at 9 Hamilton Street. The State also relied upon the DNA evidence being found on the cable tie found in the lounge area of Mr Davies' house. The State's case was that the cable tie matched the cable ties that they allege were used to restrain Mr Davies.[60]
[60] ts 395 - 396.
The defence case
The appellant elected to give evidence. The evidence he ultimately gave was broadly consistent with the way his counsel opened his case which was as follows.
Defence counsel told the jury in her opening address that the appellant took no issue with the contention that Mr Davies was unlawfully killed at 45 Ware Street. She explained to the jury that the appellant, Mr Roberts, Mr Kett and Mr Gomis together went to Mr Davies' house on 15 February 2014. The appellant was aware that Mr Davies owed Mr Roberts, Mr Kett and Mr Gomis money, but he denied that Mr Davies was indebted to him.[61] According to the appellant, he went along with his co‑accused, but with no purpose in mind.[62]
[61] ts 408, 410.
[62] ts 410.
Although he was present when Mr Davies met his death, the appellant denied that he was in any way criminally responsible.[63] However, the appellant concealed Mr Davies' death and admitted that he committed the offence of being an accessory after the fact of murder.[64]
[63] ts 408.
[64] ts 409.
According to the appellant, when he entered Mr Davies' house, Mr Davies motioned as if to pick up a weapon.[65] Seeing this, the appellant said that he punched Mr Davies in self‑defence. A fist fight broke out between them, during which the appellant said he broke his hand.[66]
[65] ts 410.
[66] ts 411.
The appellant said that Mr Kett unexpectedly clubbed Mr Davies with a metal bar. The appellant claimed that he tried to stop Mr Kett.
At one point in the struggle, Mr Davies rugby tackled the appellant to the floor and the television tipped onto the appellant, dazing him.[67] Mr Roberts, Mr Gomis and Mr Kett then assaulted Mr Davies. According to the appellant, Mr Kett intermittently kicked and struck Mr Davies.[68] The appellant said that Mr Kett and Mr Roberts cable‑tied Mr Davies.[69]
[67] ts 411.
[68] ts 411.
[69] ts 411.
The appellant claimed that he tried to help Mr Davies by putting a pillow under his head. By then Mr Davies was bleeding which accounted for the appellant's bloody fingerprint on the kitchen tap.[70] It was the appellant's case that Mr Kett stabbed Mr Davies in the lower right leg (not the neck). The appellant said that he did not plan nor expect any assault upon Mr Davies and that he did nothing to encourage the others to do so.[71] In fact, the appellant did his best to help Mr Davies. The appellant's case was that Mr Davies' body was taken back to Mr Roberts' house in a bag which, up to the point at which Mr Davies was placed in it, he had not seen.[72] The appellant's case was that Mr Roberts dismembered Mr Davies' body, but he assisted Mr Roberts in cleaning up the bathroom afterwards.
[70] ts 412.
[71] ts 412.
[72] ts 412.
It is unnecessary to say much at this stage about the cases presented by Mr Roberts, Mr Kett and Mr Gomis. Of them, only Mr Roberts testified. He denied any involvement in Mr Davies' death or in the dismembering of his body. Mr Roberts denied going to Mr Davies' house on 15 February 2014. He said he was asleep at the time of the killing.
Mr Kett and Mr Gomis were interviewed by the police. Their interviews were admitted into evidence and played to the jury. In essence, they denied killing Mr Davies. Mr Kett denied inflicting any injury on Mr Davies. He did cable‑tie Mr Davies and move his body. He also went through Mr Davies' house looking for things to steal. Later, he bought the bleach. He did these things under duress from the appellant and Mr Roberts. Mr Gomis admitted being at 45 Ware Street, but did not inflict any injury on Mr Davies, nor did anything intending to aid the others. He admitted removing and burning the CCTV equipment at Mr Davies' house, but only to protect himself.
The appellant and the co‑accused denied any common intention to rob Mr Davies.
Ground 1
As we have mentioned, ground 1 was abandoned by the appellant's counsel at the hearing of the appeal. Now that the appellant is self‑represented, he wishes to reinstate ground 1.
We accept that this court has, prior to judgment, the power to reinstate a ground of appeal that has been abandoned. However, an abandoned ground of appeal should be reinstated only where it is demonstrated that it is in the interests of justice to do so. In our view, that requires an appellant to demonstrate that the ground of appeal, had it been argued, would have been upheld. It is insufficient for an appellant to seek the reinstatement of an abandoned ground of appeal merely because, as the appellant contends, his counsel did not have instructions to abandon the ground.
The background to ground 1 is as follows. Section 118 and s 155 of the Criminal Investigation Act2006 (WA) (CIA) relevantly read as follows:
118. Admission in serious case inadmissible unless recorded
(1)In this section -
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
adult means a person who has reached 18 years of age;
child means a person who is under 18 years of age;
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audiovisual recording being made of the admission;
(d)the equipment used to make an audiovisual recording of the admission malfunctioned.
(2)This section applies in respect of a suspect who is -
(a)a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or
(b)an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission -
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.
(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
…
155. Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
As we have said, the appellant was arrested on 16 February 2014. Later that afternoon, he was questioned under caution by two detectives. The interview contained admissions, but the State elected not to present evidence of it as it was accepted that the appellant was affected by methylamphetamine and alcohol at the time the interview was conducted.
On 17 February 2014, Constable Anton was assigned to guard the appellant, who was being held at the Kalgoorlie police station as an arrested suspect. At about 11.30 am, the appellant was awoken so that he could be taken to hospital for treatment to his injured hand. Constable Anton accompanied the detective and the appellant to hospital. They returned to the Kalgoorlie police station at about 1.30 pm. Constable Anton resumed his guard duty.
In a statement dated 22 February 2014, Constable Anton stated, among other things:
61.During my time with [the appellant] at the hospital and in the room, he made several comments without being questioned.
62.I recall [the appellant] saying: 'I bashed that cunt pretty bad.' 'I did the crime so I should do the time'. 'What happened was tragic but he had it coming to him. He ripped a lot of people off and a lot of people were looking for him'.
63.[The appellant] also said that 'Jayden' was more involved than people think and that he 'organised the whole thing'.
The State alleged that the statements made to Constable Anton by the appellant constituted admissions by the appellant of his complicity in the alleged offence. The State sought to adduce evidence of these admissions, even though no audio‑visual recording of them was made, on the basis that there was a reasonable excuse for the absence of an audio‑visual recording pursuant to s 118(3)(b)(i) CIA. Alternatively, the State submitted that if there was no reasonable excuse for the absence of an audio‑visual recording, the court should nevertheless admit the evidence pursuant to s 155 CIA. The appellant objected to the proposed evidence of Constable Anton and a voir dire was conducted by the trial judge during the trial in which only Constable Anton testified.[73]
[73] ts 1282 - 1298.
After this testimony, defence counsel conceded that, in the circumstances, it was not practicable for recordings to have been made of the admissions.[74] Defence counsel accepted, in effect, that his Honour was not required to exercise the discretion conferred by s 155 CIA.
[74] ts 1303.
His Honour granted the State's application and allowed Constable Anton to give evidence of the admissions made by the appellant.
His Honour later gave comprehensive written reasons for his decision.[75] His Honour found that the admissions were made by the appellant spontaneously,[76] in circumstances where there was no reason for the police to have anticipated that the appellant might make admissions.[77] His Honour found that, on the balance of probabilities, there was a reasonable excuse for the absence of an audio‑visual recording of the admissions.[78] He went on to find that, had it been necessary, he would have allowed the State to adduce the evidence pursuant to the discretion conferred by s 155 CIA.[79]
[75] The State of Western Australia v Gandy [2015] WASC 382.
[76] Ibid [28].
[77] Ibid [29].
[78] Ibid [29].
[79] Ibid [30].
Proposed ground 1 sought to impugn his Honour's decision to admit the admissions made by the appellant to Constable Anton, but in a way which was misconceived and doomed to fail. The proposed ground and the submissions in support of it focused entirely on that part of his Honour's decision relating to the exercise of the discretion under s 155 CIA. The submissions overlooked the fact that the trial judge had found that there was a reasonable excuse for the absence of an audio‑visual recording of the admissions and that they were admissible pursuant to s 118(3) CIA, a finding which the appellant's trial counsel had all but conceded and which the appellant (unsurprisingly) did not challenge in this appeal.
When this difficulty was drawn to the appellant's counsel's attention at the hearing of this appeal, he quite properly conceded the ground was unarguable and abandoned it.
Proposed ground 1 should not be reinstated because it has no merit. His Honour's ruling to allow the State to adduce the admissions pursuant to s 118(3) CIA was correct. Once that finding was made, s 155 CIA had no application. As the ground of appeal has no merit, it is not in the interests of justice to reinstate it. The appellant's application to reinstate the ground must be refused.
Ground 2 - unanimity of verdicts
The State's case against the appellant (and his co‑accused) on the charge of murder was put to the jury on alternative legal formulations of liability.
It was held in Mouritz v The State of Western Australia[80] and later in Michaels v The State of Western Australia,[81] that where the alternative legal formulations of liability rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict: it is not necessary that all members of the jury arrive at the same verdict by the same pathway.[82]
[80] Mouritz v The State of Western Australia [2006] WASCA 165.
[81] Michaels v The State of Western Australia [2009] WASCA 174.
[82] Mouritz [28] (Roberts‑Smith JA) and Michaels [10] (McLure JA); see also L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [54].
However, where the alternative legal formulations of liability rest on materially different factual foundations or involve materially different issues or consequences, a trial judge is required to direct the jury that, in order to convict the accused of the offence charged, the jury must be unanimous as to the pathway to guilt. In these reasons, we will refer to this direction as a 'separate pathways direction'.[83]
[83] Examples of where a direction of this kind was required include Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 and, more recently, Ardrey v The State of Western Australia [2016] WASCA 154.
In the present case, the trial judge raised with counsel whether he should give a separate pathways direction.[84] The prosecutor submitted that such a direction was not required. The appellant's counsel did not seek a direction. In the end, his Honour gave no such direction, ruling that it was inappropriate on the facts of this case.[85] Trial counsel for Mr Gomis took exception to his Honour's failure to give a separate pathways direction.[86] The appellant's trial counsel made no such submission.
[84] ts 3652 - 3653.
[85] ts 3727.
[86] ts 3729.
In essence, ground 2 alleges that his Honour was, in the circumstances of the case, obliged to give a separate pathways direction and that his failure to do so was an error of law or has occasioned a miscarriage of justice.
The alleged separate pathways to guilt
The State's separate pathways to guilt relied upon the operation of s 7(a) and s 7(c) of the Criminal Code or, alternatively, s 8. Those sections are, relevantly, in these terms:
7. Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a)Every person who actually does the act or makes the omission which constitutes the offence;
…
(c)Every person who aids another person in committing the offence;
…
8. Offence committed in prosecution of common purpose
(1)When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
It is common ground in this appeal that the prosecution case was put to the jury on three pathways. His Honour described these pathways as follows:
•Pathway 1: that each of the accused was guilty of the offence of murder because each of them was a party to an understanding or arrangement amounting to an agreement to kill Mr Davies (this was referred to at trial as a 'joint criminal enterprise').
•Pathway 2: that one or more of the appellant, Mr Roberts or Mr Kett[87] did an act or acts that caused Mr Davies' death with an intention to cause his death or an intention to cause Mr Davies a bodily injury of such a nature as to endanger or be likely to endanger his life. Any such offender was a principal offender, pursuant to s 7(a) of the Criminal Code.[88] Alternatively, if an accused was not a principal offender, each was nevertheless guilty because he aided the principal offender to murder Mr Davies, pursuant to s 7(c) of the Criminal Code.[89]
•Pathway 3: that each of the accused is guilty of murder because they formed a common purpose between them to rob Mr Davies with violence or threats of violence and with weapons. It was alleged that the offence of murder was committed in the course of carrying out that common intention and that the commission of the offence of murder was a probable consequence of the common purpose of robbing Mr Davies with violence and threats of violence and with weapons.[90] This pathway relied on s 8 of the Criminal Code.
[87] ts 3633.
[88] It was not alleged, nor was there any evidence, that Mr Gomis had done any act or acts that caused Mr Davies' death: ts 3633, 3715.
[89] ts 3633 - 3634.
[90] ts 3634.
His Honour gave the jury detailed directions on each pathway and provided the jury with written jury aids that reflects his oral instructions. No complaint was made at trial about these directions.
Before proceeding further, it is necessary to say something about pathway 1. Although pathway 1 was referred to in the trial as a 'joint criminal enterprise', in this appeal counsel for the appellant expressly conceded that the trial judge did not erroneously direct the jury to the effect that the common law doctrine of joint criminal enterprise could ground criminal liability independently from s 7 and s 8 of the Code.[91] Counsel for the appellant accepted that pathway 1 was tied by his Honour to s 7(a) of the Code.[92]
[91] Appeal ts 3, see L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 (Martin CJ, Mazza JA & Mitchell J) and Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331 (Buss JA), but cf (McLure P).
[92] Appeal ts 4.
For the purposes of ground 2, counsel for the appellant acknowledged that there was no material difference between pathways 1 and 2, and that a separate pathways direction was not required in respect of them. The appellant's contention is that pathway 3 required a separate pathways direction.[93]
[93] Appeal ts 5.
The appellant's submissions
In support of ground 2, counsel for the appellant submitted that pathway 3 was 'an entirely different pathway to criminal liability' when compared to the other pathways.[94] With respect to pathway 3, counsel for the appellant focused on, as he put it, 'the different intent, an intent formed at a different time' and that the weapons that were used to attack Mr Davies may have already been at 45 Ware Street and may not have been brought from 9 Hamilton Street.[95]
[94] Appeal ts 5.
[95] Appeal ts 6.
Counsel for the appellant elaborated on these submissions. He said that the 'different intent formed at a different time' in respect of pathway 3 was the intent to rob Mr Davies which, on the State's case, was formed at 9 Hamilton Street. The appellant's counsel submitted that the robbery that was contemplated at that address may not have involved actual violence or the bringing of weapons to Mr Davies' house. Counsel asserted that this was 'different to heading off from Hamilton Street [having agreed] let's go and kill this guy'.[96]
[96] Appeal ts 7.
The appellant's counsel claimed that without a separate pathways direction:
[Y]ou may end up with [the appellant] being convicted because six jurors think he set off from Hamilton Street to go and kill Mr Davies or be part of the group who was going to kill Mr Davies and six think that he went there intending to rob and that it was a probable consequence that death would follow or death would occur, so they're quite different pathways.[97]
Ground 2 - disposition
[97] Appeal ts 8.
It has never been the law that individual jurors must agree on every matter before reaching a verdict. Nor has it been held that the concept of a unanimous verdict requires each juror to be satisfied that the prosecution has established its case in one particular way.[98] It is trite to observe that criminal liability under s 8 of the Code is different to liability under s 7 and, in particular, s 7(a) and s 7(c). However, this difference alone does not, as the appellant's counsel acknowledged in oral argument,[99] necessitate a separate pathways direction. This is exemplified by the Queensland Court of Appeal's decision in R v Leivers and Ballinger.[100] In that case, the appellant (and others) were charged with murder. The case against each accused was not that each was a principal offender, but rather that each was an offender pursuant to s 7(1)(c) or s 8 of the Criminal Code (Qld) (the equivalents of s 7(c) and s 8 of the Western Australian Criminal Code). On the facts, it was held that the alternate bases for liability did not involve materially different issues or consequences. Thus, a direction to the effect that the jury could reach a guilty verdict if some of the jurors were satisfied of the appellant's guilt by reason of s 7(1)(c) and some by s 8, was held not to be erroneous.
[98] R v Clarke and Johnstone [1986] VR 643, 661.
[99] Appeal ts 11.
[100] R v Leivers and Ballinger [1998] 1 Qd R 649.
In the present case, all three pathways to guilt postulated by the State arose from the same series of events which commenced on the afternoon of 15 February 2014 at 9 Hamilton Street and which proceeded to Mr Davies' house at 45 Ware Street, ending up back at 9 Hamilton Street.
It was common ground that the appellant, Mr Roberts, Mr Gomis and Mr Kett were together at 9 Hamilton Street. They then travelled together to 45 Ware Street. There, Mr Davies was unlawfully killed. The appellant admitted punching Mr Davies (albeit in self‑defence and in a way which did not cause or contribute to his death). He participated in the removal of Mr Davies' body and its transportation from 45 Ware Street to 9 Hamilton Street, where it was dismembered. The appellant then, at the very least, cleaned the bathroom.
The facts relied upon by the State to prove pathways 1 and 2 were substantially the same facts required to prove pathway 3. Of course, proof of pathways 1 and 2 subsumed proof of pathway 3.
We do not see the factual differences which were identified by counsel for the appellant as amounting to differences of such a magnitude as to require a separate pathways direction. Different intentions amounting to the same offence do not give rise to the necessity for a separate pathways direction. Take, for example, the offence of murder, where the offence can be made out by either of the intentions specified in s 279(3) of the Code. Whether weapons were brought to 45 Ware Street from 9 Hamilton Street or not is a factual difference, but not one of substance. As counsel for the appellant accepted, the appellant and his co‑accused went to 45 Ware Street anticipating the possibility of violence, and Mr Davies was unlawfully killed by violent acts, including by weapons. Whether the weapons that were used were brought to 45 Ware Street from 9 Hamilton Street, or already existed at 45 Ware Street is not qualitatively of such a difference as to require a separate pathways direction.
The present case is different from those cases where it has been held that jurors must agree among themselves as to the route by which a verdict of guilty is reached. Such cases concern an offence such as fraud where the prosecution alleges a number of discrete acts as proof of an essential element of the offence charged and any one of those acts would entitle the jury to convict. In this type of case, the jury cannot convict unless they are in agreement about the particular act that was performed: see R v Walsh[101] and the cases cited therein, and Ardrey v The State of Western Australia.[102] However, in the context of murder and manslaughter cases, if alternative pathways to guilt are proposed by the prosecution but depend substantially upon the same facts, there is no need for a direction on unanimity about one or other of those pathways if they do not ‘involve materially different issues or consequences’. This is a case in which the latter applies.
[101] R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 (Phillips & Buchanan JJA, with whom Ormiston JA agreed) [57].
[102] Ardrey v The State of Western Australia [2016] WASCA 154.
The argument put by the appellant in this case, if accepted, would lead to undue complication in criminal cases, and injustice. In the Canadian case of R v Thatcher,[103] Dickson CJC cited with approval Professor Peter Mackinnon in his article 'Jury unanimity: A Reply to Gelowitz and Stuart' 51 CR (3d) 134 at 135, who wrote:[104]
If an accused is to be acquitted in situations where every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of two ways 'it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'.
[103] R v Thatcher (1987) 39 DLR (4th) 275.
[104] R v Thatcher (310).
Although not decisive, it is of some relevance that the appellant's experienced trial counsel took no issue with his Honour's decision not to give a separate pathways direction.
Ground 2 has not been made out.
Proposed ground 3
Proposed ground 3 alleges that the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.[105]
[105] Section 30(3)(a) Criminal Appeals Act 2004 (WA).
The legal principles applicable to this ground were recently summarised in Wells v The State of Western Australia as follows:[106]
[106] Wells v The State of Western Australia [2017] WASCA 27 [13].
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.
(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.
The case against the appellant was circumstantial. Where the prosecution's case relies upon circumstantial evidence, guilt must be the only reasonable and rational inference that could be drawn from the circumstances. Circumstantial evidence must be evaluated in its entirety and not considered on a piecemeal basis in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[107]
[107] Mansell v The State of Western Australia [No 6] [2013] WASCA 120 [20] - [22].
Under this ground of appeal, it is necessary to outline the salient evidence which was admissible against the appellant.
Michele Grace Robinson
On 15 February 2014, Ms Robinson was living at 47 Ware Street, Kalgoorlie, next door to Mr Davies. When she arrived home at about 4.00 or 4.30 pm, she could smell something 'like burning plastic and chemicals' coming from 45 Ware Street.[108]
Mark Francis Jones
[108] ts 455 - 456.
On 15 February 2014, Mr Jones lived at 43 Ware Street, Kalgoorlie. At about 4.03 pm he returned to his house to find smoke coming from the backyard of 45 Ware Street.[109]
Josephine Sarah Knott
[109] ts 481.
In 2014, Ms Knott was the manager of the Gold Bar in Kalgoorlie. She was a very close friend of Mr Davies.[110] On the night of 14 February 2014, she saw Mr Davies at the Gold Bar in the company of two other men.[111] She saw Mr Davies leave the premises at about 3.10 am on 15 February 2014. Later that day, she attempted to contact him by text without success.[112]
Antonio Luke Trunfio
[110] ts 485.
[111] ts 486.
[112] ts 488.
Mr Trunfio lived at 5 Hamilton Street, Boulder. On the evening of 15 February 2014, he was at home with his housemates, Rory Radei and Brock Dalton‑Jones.[113] At some point that evening, he noticed a distinctive smell like something was burning. He noticed that there was a fire in the backyard of 9 Hamilton Street. He estimated that the flames from the fire were roughly 2 m high. Whatever was burning did not smell like wood.[114]
Rory Martin Radei
[113] ts 777.
[114] ts 778.
Mr Radei testified that he noticed the distinctive smell of something burning sometime after 10.00 pm.[115] He saw a 'bonfire' at 9 Hamilton Street. He said that the flames were going over the fence and were 'up to about the gutter'.[116]
Jules Ann Whiteway
[115] ts 780.
[116] ts 780.
In February 2014, Ms Whiteway lived at 11 Hamilton Street, Boulder, next door to Mr Roberts.[117] On around a dozen or so occasions prior to February 2014, she and her husband socialised with Mr Roberts. On seven or eight of those occasions, she saw the appellant there.[118] She described the appellant as 'friendly' and 'full‑on'. She described some of the features of the backyard of the premises.[119]
[117] ts 782.
[118] ts 783.
[119] ts 783 - 784.
At about 6.30 pm on 15 February 2014, she saw a group of four or five people in Mr Roberts' backyard.[120]
[120] ts 784, 786.
At about 9.30 am on 16 February 2014, she went around to Mr Roberts' house. There, she saw the appellant. She noticed nothing unusual about his demeanour.[121]
Andrew Steven Hewitt
[121] ts 788.
Mr Hewitt was a friend of Mr Davies, but Mr Davies was also his drug dealer from whom he obtained methylamphetamine.[122] On the evening of 14 February 2014, Mr Hewitt arranged to buy about $300 worth of methylamphetamine from Mr Davies. It was agreed that Mr Davies would supply the drug to Mr Hewitt the following day.[123]
[122] ts 2204.
[123] ts 2204 - 2205.
At some point in time on the afternoon of 15 February 2014, Mr Hewitt drove to Mr Davies' house. He noticed that the back gate was open which, he said, was 'very rare'.[124] When he got to the back door of the house, he noticed that a tap had been left running and that water had 'flooded out the back area'.[125] Mr Hewitt then looked inside the house and saw that it had 'been turned upside down'.[126] Mr Hewitt said that he walked inside the house and saw that the place 'was completely turned up'.[127] He saw what looked like a big pool of blood in the lounge room.[128] A short time later, he and his friend, Dennis, left.[129]
Todd Warren Denehy
[124] ts 2206.
[125] ts 2206.
[126] ts 2207.
[127] ts 2207.
[128] ts 2207.
[129] ts 2209.
Mr Denehy was a friend of Mr Davies. He had seen Mr Davies smoking methylamphetamine,[130] and he had 'a very good inkling' that Mr Davies was perhaps making money from selling the drug.[131]
[130] ts 844.
[131] ts 844.
Prior to Mr Davies' death, Mr Davies showed Mr Denehy a home surveillance system that he had just purchased.[132] One of the cameras faced towards the laneway to his gate, from where it was possible to enter the premises. Another camera was below a back sliding door.[133]
[132] ts 846.
[133] ts 846 - 847.
On the Friday before Mr Davies' death, Mr Denehy noticed that Mr Davies had put up a board behind a 'boarded‑up door' on which was displayed an array of knives and machetes.[134] Mr Denehy told Mr Davies to take the display down, which he did.[135] Later that evening and into the early hours of 15 February 2014, Mr Denehy saw Mr Davies at the Gold Bar.[136] Later still, Mr Denehy went to Mr Davies' house with 'a couple he knew'.[137] Mr Davies and the couple smoked some 'meth'.[138]
[134] ts 847.
[135] ts 848.
[136] ts 849.
[137] ts 850.
[138] ts 850.
At about 5.00 am Mr Denehy and Mr Davies left the house in a taxi. Mr Davies was dropped off at the Hannan's View Hotel.[139]
[139] ts 850.
In cross‑examination by the appellant's counsel, Mr Denehy said that there were 10 or 15 knives and machetes on the board in Mr Davies' house.[140] He agreed with the suggestion that it was common to see knives and other weapons at Mr Davies' house.[141]
Warwick James Lane
[140] ts 854.
[141] ts 855.
Mr Lane was a friend of Mr Roberts, with whom he had a very close relationship,[142] and at times acted as Mr Roberts' 'carer' when he had lapses in his mental health. Mr Lane frequently saw the appellant at Mr Roberts' house and was aware that Simone Kearsley was living there. At around lunchtime on 16 February 2014, Mr Lane and his wife visited Mr Roberts at his house.[143] There Mr Lane saw the appellant in the backyard.[144] He said the appellant 'was just the way I'd always seen him', that is, as though he was 'under the influence of something'.[145] Mr Lane noticed what looked like soot or grease around the appellant's chin area.[146]
[142] ts 919.
[143] ts 920.
[144] ts 923.
[145] ts 924.
[146] ts 924.
Eventually, Mr Roberts came out of the house as if he had just woken up. Mr Lane, his wife, Mr Roberts and the appellant socialised for a while until two police officers arrived and asked if there had been a disturbance at the house.[147] Mr Roberts told the police that there had been no disturbance.[148] Shortly after that, Mr Lane and his wife left the premises.
Simone Joy Kearsley
[147] ts 925, 926.
[148] ts 926.
Ms Kearsley is a sex worker.[149] At the time of Mr Davies' death, she was living at 9 Hamilton Street, Boulder, with Mr Roberts. Mr Roberts had been a client of hers.[150] He provided her with accommodation. At this point, he was not interested in sex with her. Rather, he wanted her to use drugs with him.[151] At all material times, Ms Kearsley was a regular user of methylamphetamine. While living with Mr Roberts, she said that she used the drug 'more than once a day'.[152] Methylamphetamine made her 'very scattered'.[153] Mr Roberts was also a user of methylamphetamine.
[149] ts 490.
[150] ts 491.
[151] ts 491 - 492.
[152] ts 492.
[153] ts 492.
According to Ms Kearsley, Mr Roberts was a drug dealer and, at his request, she would sell drugs for him.[154] She said that she sold drugs for Mr Roberts on a daily basis.[155] Ms Kearsley said that she returned the cash she was given for the drugs to Mr Roberts. On one occasion, a few days before the alleged offence, she saw $20,000 in cash at the house.[156] In return for dealing in drugs for Mr Roberts, she received methylamphetamine and did not have to pay for food or rent.[157] From time to time she did shopping for Mr Roberts.[158]
[154] ts 493 - 494.
[155] ts 494.
[156] ts 495.
[157] ts 495.
[158] ts 496.
Ms Kearsley said that she met the appellant through Mr Roberts at about the time she first moved into the premises at 9 Hamilton Street.[159] She said the appellant was always at the house.[160] She described the appellant as a 'standover guy or the guy that Roberts felt safe with'. She described the appellant as 'a mean bugger [who] didn't really like me very much'.[161]
[159] ts 496.
[160] ts 496.
[161] ts 496.
Ms Kearsley said that she saw the appellant use amphetamines at 9 Hamilton Street. She became aware that he was using 'a lot of drugs'.[162] She said the appellant drank beer when he used amphetamines.[163]
[162] ts 496.
[163] ts 497.
Ms Kearsley recalled an occasion, perhaps a couple of nights before the alleged offence, on which she heard the appellant and Mr Roberts refer to Mr Davies and talk 'about some money to be collected'.[164] Mr Roberts said that 'there was money that they needed to get' from Mr Davies.[165] The appellant did not respond to this statement.[166] Ms Kearsley then entered the conversation, saying that, based on information she had received, 'there was no point in going [to Mr Davies's house] to collect money because the money had been taken … the night previous [sic]'.[167] Neither the appellant nor Mr Roberts responded to this information.
[164] ts 497.
[165] ts 499.
[166] ts 499.
[167] ts 499.
Ms Kearsley said that she offered to drive the appellant and Mr Roberts to Mr Davies' house, but she received no answer to this offer.[168]
[168] ts 499.
On 13 February 2014, Ms Kearsley took Mr Roberts to Perth. At that point, Mr Roberts had run out of drugs other than ecstasy.[169] Ms Kearsley said that she purchased 2 oz of methylamphetamine from somewhere in Rockingham for $20,000 in cash.[170] Mr Roberts provided the money. Once the purchase had been completed, she and Mr Roberts drove straight back to Kalgoorlie.[171]
[169] ts 500.
[170] ts 501.
[171] ts 501.
Ms Kearsley said that when they returned to Kalgoorlie, the appellant and Mr Roberts judged the product to be 'good quality amphetamines'.[172] Mr Roberts then told Ms Kearsley to sell some to a man known as 'Jimmy'.[173] Not only did she sell some of the amphetamines to Jimmy, but she also sold 'bits and pieces around the place'.[174] She testified that she gave the proceeds of sale to Mr Roberts.[175]
[172] ts 502.
[173] ts 502.
[174] ts 502.
[175] ts 503.
Ms Kearsley testified that on 14 February 2014 the appellant and Mr Roberts left the house at 9 Hamilton Street together in Mr Roberts' car. They did not say to Ms Kearsley where they were going. Ms Kearsley was shown a text message with the date and time and she confirmed that the day she had been describing was actually 15 February 2014.[176]
[176] ts 503 - 507.
On the morning of 15 February 2014 Ms Kearsley was at Mr Roberts' house. The appellant and his co‑accused were present.[177] All of them (including Ms Kearsley) used amphetamine while they were there.[178]
[177] ts 509 - 511.
[178] ts 511.
According to Ms Kearsley, all four men spoke about collecting money from Mr Davies. Ms Kearsley volunteered that they should not bother going.[179] Ms Kearsley said that she would drive them, but Mr Roberts told her 'to go to bed and go to sleep'.[180]
[179] ts 512.
[180] ts 512.
After she went to her bedroom, she saw the appellant and Mr Roberts leaving the house in a car. She said that the other two men (Kett and Gomis) had also left the house.[181] Her recollection was that Mr Roberts and the appellant left at 'about 2, 3 o'clock, maybe'.[182]
[181] ts 514 - 516.
[182] ts 516.
Before Ms Kearsley heard the vehicle in which the appellant and Mr Roberts left, she noticed a 'big blue bag' in the hallway near a doorway at the rear of the house which eventually leads to the patio.[183] Ms Kearsley estimated the length of the bag to be a metre and a half, with a height of about a metre.[184] Mr Roberts had previously described it as 'a bicycle bag'.[185]
[183] ts 518, 521 - 522.
[184] ts 522.
[185] ts 522.
After the appellant, Mr Roberts and the others left the house, Ms Kearsley visited a friend who was in hospital.[186]
[186] ts 523.
That night, Ms Kearsley returned to 9 Hamilton Street by taxi. She walked to the back of the house and saw what she described as a 'huge fire' burning in an area marked on the plans of the house as a fire pit.[187] She then went inside and saw the appellant standing in the dining area, covered in blood with an angle grinder in his hands.[188] At some stage, perhaps at about the time she saw the appellant, Ms Kearsley saw Mr Roberts. He too was covered in blood. She noticed blood on Mr Roberts' red shirt and on his neck.[189] Ms Kearsley was told to go to her room, which she did.[190] Ms Kearsley said that she became scared and left her room. She then put on gloves and started cleaning the bathroom after she was told to help. She described the bathroom as being 'covered in blood'. She said that she found flesh and some hair on a piece of scalp there.[191] She described the blood as being on the walls and 'all over the bath'.[192] After cleaning the bathroom, she helped clean up Mr Roberts.[193] Ms Kearsley described the appellant as 'pacing around' the house.[194] After a while, Mr Gomis and Mr Kett arrived.[195]
[187] ts 524 - 535.
[188] ts 528.
[189] ts 529.
[190] ts 530.
[191] ts 531.
[192] ts 532.
[193] ts 532 - 533.
[194] ts 533.
[195] ts 534.
Ms Kearsley testified that the clothes Mr Roberts had been wearing 'went straight to the fire' at his request.[196] She said that she threw the pieces of flesh that she had retrieved from the bathroom into the toilet.[197]
[196] ts 535.
[197] ts 535.
Ms Kearsley said that the appellant had a shower, after which she thought he put his clothing into the fire.[198] Ms Kearsley could not recall whether anything else of substance was put into the fire.[199]
[198] ts 536.
[199] ts 536.
With respect to the wheelie bin, Ms Kearsley said that, upon her return to the house, she first saw it in the dining room.[200] Then she saw it outside on the patio area. After that, she saw it in the rear room of the house, with the appellant and Mr Kett.[201] She said she became aware of the two men being in the rear room when she heard Mr Kett scream.[202] She said that the wheelie bin ended up just outside the back door. She said that she saw Mr Kett tape up the wheelie bin. She was not sure who asked him to do this. She thought it was the appellant because Mr Roberts was asleep.[203] Mr Kett did not tape up the wheelie bin properly. As a result, the appellant asked Ms Kearsley to do it.[204] Ms Kearsley was unsure whether she helped Mr Kett tape up the wheelie bin.[205]
[200] ts 538.
[201] ts 538.
[202] ts 538.
[203] ts 539.
[204] ts 539.
[205] ts 540.
According to Ms Kearsley, the appellant was taking 'great pleasure' in instilling fear into Mr Kett.[206]
[206] ts 541.
Ms Kearsley said that she then went to McDonald's. When she went to the car she noticed that there was a small safe on the back seat.[207] She said that someone collected it from the car and by the time she returned from McDonald's it had been thrown onto the fire.[208]
[207] ts 544 - 545.
[208] ts 545.
In addition to clothing and a safe being placed on the fire, Ms Kearsley said that she could smell plastic burning.[209]
[209] ts 549.
Ms Kearsley thought that the bathroom mats that had been on the floor were placed on the fire after the appellant and Mr Roberts had their showers. Ms Kearsley thought that she placed those items on the fire.[210]
[210] ts 549 - 550.
At just before daybreak the following day, Ms Kearsley left 9 Hamilton Street with Mr Kett.[211] Up until that time, she described the appellant's demeanour as being 'like a - a rabid animal, panting and pacing around and enjoying scaring this other boy [Kett]'.[212] Ms Kearsley then dropped Mr Kett home.[213] After eating breakfast at a café, Ms Kearsley went back to 9 Hamilton Street.[214] By this time, Mr Gomis had woken up.[215] Ms Kearsley saw the appellant in the dining room. She described him as being 'all hyped up'.[216]
[211] ts 551 - 552.
[212] ts 552.
[213] ts 553.
[214] ts 553.
[215] ts 554.
[216] ts 555.
Once again, Ms Kearsley left the house and went to McDonald's.[217] Her car broke down and she caught a taxi from McDonald's to the police station.[218]
[217] ts 556.
[218] ts 557.
We have not summarised all of the evidence which Ms Kearsley gave. Some of it was admissible only against the appellant's co‑accused. At the conclusion of her examination‑in‑chief, the learned trial judge directed the jury to this effect. Specifically, he cautioned the jury that certain things that Mr Kett had said to Ms Kearsley as she drove him home could be used as evidence only against Mr Kett.[219]
[219] ts 564.
His Honour also instructed the jury that they were to disregard anything Ms Kearsley said about the thoughts of the appellant or Mr Roberts or Mr Kett.[220]
[220] ts 564.
Counsel for the appellant and his co‑accused cross‑examined Ms Kearsley at length. It is unnecessary to summarise all of the cross‑examination. We will focus on the cross‑examination by Ms Lonsdale, trial counsel for the appellant.
Ms Kearsley agreed with defence counsel that she had not said, in any of the four statements she had made to the police, that the appellant was Mr Roberts' 'heavy' or his 'standover man'.[221] Nevertheless, Ms Kearsley said in her evidence that she knew the appellant to be Mr Roberts' 'heavy' or his 'standover man'.[222] She denied that she had dreamed up that characterisation of the appellant.[223]
[221] ts 571.
[222] ts 571.
[223] ts 573.
Ms Kearsley did not deny the proposition put to her by defence counsel that nowhere in her police statements did she say anything about the appellant having an angle grinder in his hands.[224] Ms Kearsley said that she must have 'missed' telling the police that, but she denied that she had made up her evidence on this point.[225]
[224] ts 578.
[225] ts 578.
Defence counsel returned to the issue of her illicit drug use. Ms Kearsley accepted the suggestion that she had been using methylamphetamine on and off for 20 years.[226] She denied suffering from any psychotic mental illness.[227] Ms Kearsley accepted that at the time of the alleged offence her drug use was 'full on'.[228] She denied an inability to recall the events in question.[229]
[226] ts 579.
[227] ts 579.
[228] ts 580.
[229] ts 580.
Ms Kearsley described the appellant as 'a bully' and 'a nasty, horrid man'.[230]
[230] ts 580.
Ms Kearsley agreed with the proposition that Mr Roberts had a lot of tools and knives at his house.[231] She agreed that there were tools in the back of Mr Roberts' station wagon.[232]
[231] ts 582.
[232] ts 582.
Ms Kearsley accepted that she did not pay too much attention to the conversation between the appellant and Mr Roberts concerning Mr Roberts being owed money by Mr Davies.[233]
[233] ts 584.
Ms Kearsley said she did not know to whom Mr Davies was indebted.[234] Ms Kearsley accepted that it was possible that she made no mention of the 'bike bag' to the police in her first two statements.[235]
[234] ts 589.
[235] ts 592.
Ms Kearsley denied the proposition that she went to the police so that there would be no suggestion that she was involved in Mr Davies' death.[236]
[236] ts 593.
Ms Kearsley agreed that she did not go to the police straight away. She said that she needed time to think about what had happened. She admitted that she thought of running away and she also believed that some of the police officers in Kalgoorlie were corrupt.[237]
[237] ts 593.
Ms Kearsley agreed that she had not been charged with any offence in relation to the events of 15 and 16 February 2014. In particular, she agreed she had not been charged with any offence relating to the clean‑up of Mr Roberts' house.[238] Ms Kearsley said that she expected to be charged with drug offences, but she had not. She denied that the police told her that if she cooperated she would not be charged with anything.[239]
[238] ts 593 - 594.
[239] ts 594.
Ms Kearsley said that she assisted in the clean‑up of Mr Roberts' house because she was 'scared'.[240]
[240] ts 596.
Ms Kearsley confirmed that, after she returned to Mr Roberts' house on the evening of 15 February 2014, she saw the appellant 'panting around' like he was 'ready for more'.[241] Defence counsel asked Ms Kearsley what she meant by 'ready for more', to which she replied:
Well, he'd said it was meant for me and I should have been there.[242]
[241] ts 600.
[242] ts 600.
Ms Kearsley agreed that she wanted the jury to form as negative an impression of the appellant as possible.[243]
[243] ts 600.
Ms Kearsley agreed with defence counsel's suggestion that the appellant was angry with Mr Kett.[244]
[244] ts 602.
Ms Kearsley said that she did not like the appellant and had never liked him.[245]
[245] ts 604.
Ms Kearsley accepted she had formed the impression that the appellant and Mr Roberts were responsible for Mr Davies' death.[246]
[246] ts 605.
Ms Kearsley concluded that Mr Kett was 'messed up' because of what he had seen happen to Mr Davies.[247]
[247] ts 605 - 606.
Ms Kearsley testified that the appellant had said, with respect to Mr Kett, 'He has to go', which she interpreted as meaning that the appellant was going to kill Mr Kett.[248]
[248] ts 608.
With respect to the safe, Ms Kearsley agreed that, in the statement she gave to police on 17 February 2015, she said that Mr Roberts had wrapped the safe in a towel and taken it to the shed. She agreed that this account was different to her evidence.[249]
[249] ts 614.
Ms Kearsley agreed with the proposition that the appellant and Mr Roberts were really good mates in those days.[250]
[250] ts 615.
Ms Kearsley agreed that in her evidence‑in‑chief she said that she went to the police on 16 February 2014 after telephoning her friend 'Mick'.[251] In her statement she made to the police on 16 February 2014, she said that she visited Mick in hospital and made no reference to telephoning him. Ms Kearsley explained that what she had said in the statement was wrong.[252] Ms Kearsley agreed that she was confused as to the sequence of events over the days in question and further agreed that she was 'off [her] face'.[253]
[251] ts 616.
[252] ts 620.
[253] ts 620.
Ms Kearsley agreed that she had formed the view that the appellant and Mr Roberts had killed Mr Davies, although she was not an eyewitness to what had occurred. She agreed that she was 'bending over backwards' to assist the police.[254]
[254] ts 621.
Ms Kearsley agreed with propositions put to her by defence counsel for Mr Gomis that she went to the police because she:
(a)thought that what had happened to Mr Davies was wrong;[255] and
(b)felt that she was in danger and that Mr Gomis and Mr Kett were also in danger from the appellant and Mr Roberts.[256]
[255] ts 622.
[256] ts 622.
Ms Kearsley agreed that the climate at 9 Hamilton Street on the night of 15 February 2014 was one of fear which was created by what she saw the appellant and Mr Roberts do and say.[257]
[257] ts 629.
Ms Kearsley agreed with the suggestion put to her by Mr Kett's counsel that 'a very close camaraderie' existed between the appellant and Mr Roberts.[258]
[258] ts 637.
Ms Kearsley also agreed that, leading up to Mr Davies' death, Mr Roberts was getting quite agitated about the debt owed to him by Mr Davies.[259] She agreed that Mr Roberts mentioned to her that he was going to seek out Mr Davies to collect on a debt.[260] She further agreed that during one of these conversations between her and Mr Roberts about Mr Davies' debt and what she had described as a 'flogging', the appellant was present.[261]
[259] ts 639.
[260] ts 639.
[261] ts 639.
Ms Kearsley said that she did not hear any conversation between the appellant and Mr Roberts about how they were going to collect the debt owed by Mr Davies.[262]
[262] ts 640.
Ms Kearsley agreed that, when she and Mr Roberts returned to Kalgoorlie from Perth, having purchased 2 oz of methylamphetamine, Mr Roberts told her that the appellant was his 'protector'.[263]
[263] ts 640.
Mr Roberts told her on another occasion that 'the bikies feared [the appellant]'.[264]
[264] ts 640.
Ms Kearsley stated that when she returned to 9 Hamilton Street on the evening of 15 February 2014, it was Mr Roberts who held the angle grinder.[265] She admitted she erred when she told the appellant's counsel that it was the appellant who held the angle grinder.[266]
[265] ts 643.
[266] ts 686. See also ts 576.
Ms Kearsley said that the appellant was antagonising Mr Kett on the night of 15 February 2014 and that Mr Kett appeared fearful.[267]
[267] ts 652.
Ms Kearsley agreed with counsel for Mr Roberts that in and around February of 2014, she had 'a real problem with methylamphetamine'[268] and that she had hardly slept, if at all, between Thursday, 13 February 2014, and Sunday, 16 February 2014, because she had been using methylamphetamine.[269]
[268] ts 660.
[269] ts 661.
Ms Kearsley agreed that she would have had some methylamphetamine on the night of 15 February 2014.[270]
[270] ts 661.
Ms Kearsley accepted that she was under the influence of methylamphetamine throughout the period leading up to and after the alleged offence.[271] She confirmed that on the evening of 15 February 2014, she was driven to 9 Hamilton Street by her friend Jimmy.[272]
[271] ts 662.
[272] ts 664.
Ms Kearsley denied the proposition that she was the drug dealer and that Mr Roberts occasionally helped her.[273] Ms Kearsley agreed that she did not know what had gone on at 45 Ware Street, but she said that when she arrived at 9 Hamilton Street after visiting her friend, there was 'plenty going on at the house'.[274]
[273] ts 668.
[274] ts 683.
Although she made no mention of it in her police statement, Ms Kearsley confirmed that she heard a conversation between the appellant and Mr Roberts about 'flogging' Mr Kett.[275]
[275] ts 685.
Ms Kearsley once again confirmed that the person holding the angle grinder was Mr Roberts and not the appellant.[276]
[276] ts 686 - 688.
Ms Kearsley also confirmed that it was the appellant who was 'terrorising' Mr Kett and it was the appellant who caused her to be fearful.[277]
[277] ts 688, 689.
Ms Kearsley said that the appellant did nothing physically to stop her taking Mr Kett from the house to his home.[278]
[278] ts 693.
Towards the end of her cross‑examination, Ms Kearsley explained her state on 15 and 16 February 2014 in these terms:
[I]t's not every day you stumble on a murder. No, I was confused. I was on drugs. Yeah, I was confused. I was upset. … I didn't know which way to turn.[279]
[279] ts 695 - 696.
In re‑examination, Ms Kearsley acknowledged that in one of the statements she made to police she stated that she had not slept for several days, she had taken drugs and was stressed. She also said that she wished to review the statement after she slept in case she got the order of events mixed up and she remembered more.[280]
Gavin James Coughlan
[280] ts 701 - 702.
Mr Coughlan first met the appellant in about 2008 while they were working together at the Kalgoorlie nickel smelter.[281] Mr Coughlan did not see the appellant for a few years, but then ran into him again in 2011 or 2012. At that time, Mr Coughlan had a room to rent. The appellant moved in with Mr Coughlan at 30 Moran Street, Boulder, and paid him $100 a week in rent, plus expenses.[282] While the appellant lived at 30 Moran Street, Mr Coughlan observed that he drank alcohol 'most days',[283] but he did not recall the appellant using drugs.
[281] ts 459.
[282] ts 459 - 460.
[283] ts 460.
Closer to the time of the alleged offence, Mr Coughlan noticed some changes in the appellant's behaviour. According to Mr Coughlan, the appellant spent more time away from his house and he was 'possibly' drinking more and was agitated.[284] The appellant got behind in his rent.[285]
[284] ts 462 - 463.
[285] ts 463.
Mr Coughlan met Mr Roberts through the appellant. On occasions, he went to Mr Roberts' house at 9 Hamilton Street. Mr Coughlan recalled a conversation at 9 Hamilton Street a few weeks prior to 14 February 2014 which involved the appellant and Mr Roberts. He recalled an 'offhand comment' being made about how 'a guy called Beau' owed them money.[286]
[286] ts 466.
In cross‑examination by the appellant's counsel, Mr Coughlan accepted that, not long before the appellant was arrested, he (the appellant) was emotionally upset by the death of his brother.[287]
[287] ts 468.
With respect to the conversation he heard between the appellant and Mr Roberts concerning a debt, it was possible that it was Mr Roberts who said he was owed money.[288]
[288] ts 469.
In cross‑examination by defence counsel for Mr Roberts, Mr Coughlan said that he remembered the conversation between the appellant and Mr Roberts because 'the name of the guy [Beau] … was an odd name'.[289] He denied that he made up the conversation.[290] Mr Coughlan agreed that it could have been the appellant who said that he was owed money rather than Mr Roberts.[291]
Daniel Edward Moir
[289] ts 479.
[290] ts 479.
[291] ts 479.
In late 2013, early 2014, Mr Moir was living and working in the Kalgoorlie-Boulder area. He was a user of methylamphetamine. He used the drug mostly on his days off work.[292]
[292] ts 712.
In about mid‑2013 he met Mr Davies at the Gold Bar and they became friends. Mr Davies also supplied Mr Moir with methylamphetamine.[293] Mr Moir estimated that he saw Mr Davies about six times in the six‑month period prior to his death.[294]
[293] ts 713.
[294] ts 716.
Mr Moir said that he first met the appellant at the Broken Hill Hotel about 2 1/2 months before 'all this happened'.[295] According to Mr Moir, the appellant told him that he could get him some 'gear' (drugs).[296] Mr Moir went to 9 Hamilton Street where he 'scored' drugs and left.[297] He returned to 9 Hamilton Street frequently after that. He said that, on all but one of those occasions, Mr Roberts supplied him with small amounts of drugs.[298]
[295] ts 718.
[296] ts 719.
[297] ts 719.
[298] ts 720.
Mr Moir testified that on one of his visits to 9 Hamilton Street sometime after 27 January 2014, he had a conversation with the appellant and Mr Roberts in which Mr Davies' name came up. Mr Roberts asked Mr Moir if he had seen Mr Davies. Mr Moir replied in the negative. Mr Moir showed Mr Roberts a text message he had received from Mr Davies. Mr Moir gave them Mr Davies' telephone number, which Mr Roberts cross‑referenced against the number he had for Mr Davies written on a whiteboard. Mr Roberts then said that it was the same number, suggesting that Mr Davies had been ignoring his calls.[299]
[299] ts 720 - 721.
In light of the change of position in cross‑examination, Ms Kearsley's evidence that she saw the appellant with blood all over him and carrying an angle grinder cannot be accepted and could not reasonably be relied upon to establish that the appellant dismembered Mr Davies' body. Nevertheless, based on his own evidence, the appellant knew that Mr Roberts had dismembered Mr Davies' body and he stated that he assisted that process by bringing the wheelie bin to the bathroom and later placing paper and wood in it.
As to the presence of the blue bag in the hallway at 9 Hamilton Street, we are uncertain about Ms Kearsley's testimony in this regard and put it to one side.
With respect to Mr Moir, we treat his evidence with some caution because of his illicit drug use. However, the evidence he gave about the appellant and Mr Roberts being 'after' Mr Davies is, in essence, confirmed by the appellant himself. Mr Moir's evidence that the appellant was 'off his head' with amphetamine may well be accepted, given the appellant's behaviour on the weekend in question and his testimony about his drug consumption. As for Mr Moir's observations that he saw blood on the appellant's neck and clothes, as well as black soot on his face, they are consistent with the appellant's evidence that (a) he was in close contact with Mr Davies while at 45 Ware Street and while Mr Davies was bleeding, and (b) he disposed of his clothes in the fire at 9 Hamilton Street.
It may be accepted that, in some respects, Ms Kearsley and Mr Moir were unsatisfactory witnesses. That said, having regard to the evidence they gave and insofar as it was confirmed by the appellant's testimony, their evidence was not so unreliable as to render the guilty verdict unsatisfactory.
Submission 7 - the rejection of the appellant's version of events
In our opinion, the case against the appellant was very strong.
The appellant was a close friend of Mr Roberts. He was also addicted to methylamphetamine. Mr Roberts supplied him with that drug. He assisted Mr Roberts in his drug dealing enterprise by bringing him customers. It may readily be inferred, having regard to the nature of the appellant's relationship with Mr Roberts, that he felt a sense of loyalty or obligation to him.
Mr Davies was also a drug user and dealer. The evidence shows that he knew the appellant and his co‑accused and that he had incurred drug debts to Mr Roberts, Mr Kett and Mr Gomis. We do not regard the evidence as being sufficient to establish that Mr Davies owed money directly to the appellant. Nor does the evidence establish the magnitude of any debt owed by Mr Davies to each of the appellant's co‑accused. It may well be that the amounts that were owed were relatively modest.
The appellant and his co‑accused were steeped in the culture of Kalgoorlie's illicit drug trade. Based on the appellant's evidence, in his mind Mr Davies had 'ripped off' at least Mr Roberts and such behaviour was liable to be met with a response involving the use of violence. As the appellant put it under cross‑examination:
You rip drug dealers off in Kalgoorlie, like, Kalgoorlie's a pretty rough place. That's - it's - it's not going to end well.
Of course, to the rational mind, a modest debt such as may have been owed by Mr Davies to Mr Roberts or Mr Gomis or Mr Kett could not justify the use of any violence, let alone the extreme violence that was meted out to Mr Davies. But the appellant was not in a rational state of mind at the material time. He was a long‑term user of methylamphetamine. He was using the drug in the period leading up to the commission of the offence. He had not slept for days. He was observed to be 'off his head' at the relevant time. This state, along with his strong loyalty to Mr Roberts, and his belief that persons who rip off drug dealers need to be punished, explains why the appellant went with the others to Mr Davies' house.
It is well open to infer that the appellant and his co‑accused went to Mr Davies' house to confront him and recover the debts that he owed and, if necessary, to do so by threats or physical force. In other words, they went there at the very least to rob him.
It was also well open on the evidence to infer that the appellant and his co‑accused went to the house with at least one weapon taken from 9 Hamilton Street. The discovery of the samurai sword with gaffer tape wrapped around its handle at 45 Ware Street and the discovery of an otherwise innocuous garden saw at 9 Hamilton Street wrapped in the same way enables this conclusion to be drawn.
In any event, the bringing of a weapon or weapons would be behaviour in keeping with the appellant's belief that people who rip off drug dealers do not end up well.
As for the large bag in which Mr Davies' body was placed, we are unable to conclude that the appellant and his co‑accused brought it with them to 45 Ware Street.
According to the appellant, he 'just went' to Mr Davies' home with the co‑accused and had nothing to gain by being there and did not intend or contemplate any violence towards Mr Davies and did not think that the others were contemplating violence. The jury by its verdict rejected this evidence. In our opinion, it was well open for them to do so.
We will not repeat what we have already written about the appellant's motive. In addition, his behaviour in the house contradicts his evidence that he 'just went' to 45 Ware Street. Even his own evidence of his conduct within the house indicates that he was no mere spectator.
In his sworn testimony, the appellant said that he was the first to enter Mr Davies' house. On this account, shortly after, he was involved in a fight with Mr Davies in which he punched him hard to the head and sustained a broken right hand. The appellant said that he did this in self‑defence. Accepting this to be so, the appellant did not, as one might expect, then disengage himself from any further action. It is clear from his own evidence he remained inside the house and took an active role in the events as they unfolded.
It is beyond doubt that Mr Davies was savagely attacked over a sustained period in the lounge and kitchen area of his house. He sustained 37 sharp‑force injuries and 42 other injuries. The medical evidence shows that he was injured virtually from head to toe. The sharp‑force injuries could have been inflicted by implements found at both 45 Ware Street and 9 Hamilton Street. The other injuries, particularly the blunt force injuries to the head, were inflicted in all likelihood by other implements which were found at 45 Ware Street, including the axe handle and a steel rod. One only has to see and pick up the axe handle (which we have done) to understand the severity of the injuries it could cause.
The appellant's DNA and fingerprints are on a number of these implements. Forensic evidence linked him to the axe handle, the samurai sword, a knife and a broken piece of furniture. That evidence is consistent with his use of those items to inflict injury on Mr Davies.
In our opinion, it was well open to the jury to reject the appellant's evidence that it was Mr Kett who inflicted many of the injuries suffered by Mr Davies. There is no forensic evidence which links Mr Kett to any of the weapons found at either 45 Ware Street or 9 Hamilton Street. Mr Kett's DNA profile was matched to the DNA profile found on a cable tie and on a cigarette butt at the scene of 45 Ware Street. Those items show he was there, but they do not support the contention he used weapons on Mr Davies.
There are other reasons to reject the appellant's evidence. The appellant denied that Mr Davies was stabbed in the neck. According to the appellant, the only stab wound of significance was the wound to Mr Davies' right calf. The evidence of Dr Spark was that Mr Davies was stabbed in the neck and that those injuries severed Mr Davies' jugular and subclavian veins, causing massive blood loss. The evidence does not support the appellant's account of the only major stab wound being to Mr Davies' right calf. Dr Spark was unable to confirm that the posterior tibial artery was severed. The blood spatter expert, Sergeant Spivey, made no findings of blood spurt consistent with blood spurting two‑thirds of the way up the wall. The appellant's testimony that the only significant wound suffered by Mr Davies was the wound to the right calf may well have been seen by the jury as a convenient attempt by the appellant to support his argument that the injuries sustained by Mr Davies were not consistent with an intention to kill or inflict serious injury. Of course, such a contention would have been unsustainable had the appellant accepted that Mr Davies had been stabbed in the neck.
It was also open to the jury to regard the appellant's evidence that he was attempting to save Mr Davies from attack by Mr Kett as false. The notion that the appellant wanted to help Mr Davies is belied by his failure to call for medical assistance and by his subsequent actions in dragging Mr Davies to the door in which the appellant first entered and then helping to put him in an improvised body bag. These actions were antithetical to the claim that he wished to help Mr Davies.
Moreover, on the appellant's evidence, on the drive back to 9 Hamilton Street, believing that Mr Davies might still be alive, the appellant contemplated leaving him on the road.
This takes us to the appellant's post‑offence conduct at 9 Hamilton Street.
On his evidence, the appellant assisted Mr Roberts in putting Mr Davies' body in the bathtub. He then brought the wheelie bin to the bathroom. He was aware that Mr Roberts dismembered the body in the bathroom. The appellant admitted that he removed the toilet seat and that he helped to remove the bathroom door. He also testified that he placed wood and paper into the wheelie bin as fuel to burn Mr Davies' dismembered body. He disposed of most of his clothing in the fire that was set in the backyard at 9 Hamilton Street. The appellant asserts that all of this behaviour is capable of an innocent explanation, being panic. The appellant's post‑offence conduct cannot be isolated from what occurred earlier. In that regard, as we have already said, there is ample evidence that the appellant was a party to Mr Davies' death. It was well open to the jury to find that the appellant's post‑offence conduct was consistent with his guilt.
Finally, there are the admissions that the appellant made to Constable Anton on 17 February 2014. The effect of those admissions was that the appellant confessed:
(a)to bashing Mr Davies 'pretty bad';
(b)that what he did was a 'crime', that is, that he was criminally responsible for what he did; and
(c)that Mr Davies 'had it coming to him' because 'he ripped a lot of people off and owed a lot of people money'.
These admissions contradict the appellant's testimony to the effect that it was Mr Kett who did the acts which led to Mr Davies' death. They also undermine his claim that he merely punched Mr Davies in self‑defence and his case that he had no motive for going to Mr Davies' house and attacking him.
Proposed ground 3 - conclusion
Upon our review of the record, the evidence does not contain discrepancies and is not tainted or otherwise lacking in probative force such as to raise any reasonable doubt in our mind as to the guilt of the appellant. In arriving at this conclusion, we are mindful of the considerable advantage that the jury had of seeing and hearing witnesses such as Ms Kearsley, Mr Moir, Constable Anton, Mr Roberts and the appellant. The case against the appellant was circumstantial, but, having considered the evidence as a whole, we are satisfied that there is no inference reasonably open on the evidence consistent with innocence. We are satisfied beyond reasonable doubt of the guilt of the appellant either as a principal offender or as an aider, or, at the least, pursuant to s 8 of the Criminal Code. In our opinion, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the murder of Mr Davies. We are far from persuaded that the jury must have entertained a reasonable doubt.
Proposed ground 3 is without merit.
Proposed ground 4
Proposed ground 4 alleges various 'errors at law' committed by the trial judge. It is supported by eight particulars. The appellant has cited many cases in support of these particulars. It is unnecessary to refer to them because the passages cited are largely taken out of context, and/or are inapt.
Particulars 1, 3, 5 and 6 concern the evidence of Ms Kearsley and Mr Moir, which we have already summarised.
As best as can be understood, the appellant submits that their evidence was inadmissible or should have been excluded because:
1.it was irrelevant;
2.its probative value was outweighed by its prejudicial value;
3.it was fabricated, coached or concocted; and
4.each was a drug addict, and Ms Kearsley was a sex worker.
All these submissions may be dealt with briefly. They have no merit. Both Ms Kearsley and Mr Moir gave relevant testimony in connection with the events surrounding the alleged offence. For example, each testified that they heard conversations in which the appellant was present or involved concerning Mr Davies' indebtedness to Mr Roberts. Each gave evidence concerning the appellant's behaviour and appearance shortly after the commission of the alleged offence. It is significant that the appellant's very experienced trial counsel did not object to the evidence of Ms Kearsley or Mr Moir on the ground of relevance. Nor did defence counsel seek to invoke the trial judge's discretion to exclude relevant evidence because its probative value was outweighed by its prejudicial value. Had defence counsel made such an objection, it would have been doomed to fail because there is no rational basis upon which his Honour could have exercised his discretion to exclude their evidence. The testimony of Ms Kearsley and Mr Moir, if believed, was prejudicial to the appellant because of its probative force and not as a result of any unfairness to him by its admission.
The fact that Ms Kearsley and Mr Moir were drug addicts, and that Ms Kearsley was a sex worker, are not matters which would justify the exclusion of their evidence. No secret was made of the fact that both witnesses were users of methylamphetamine. The State led evidence to that effect, and defence counsel emphasised it when seeking to attack their credibility. Each witness was cross‑examined to the effect that their drug use affected their recollection of events. Ms Kearsley said it had affected her recollection, while Mr Moir said that it had not. Ultimately, it was a matter for the jury to decide how and to what extent their illicit drug use affected the credibility of their evidence.
Allegations made by the appellant of concoction, fabrication and coaching were also matters for the jury.
Particular 1 contains an allegation which may be understood to allege that the appellant suffered a miscarriage of justice as a result of off‑hand comments made by counsel for Mr Kett and Mr Roberts, during the course of his cross‑examination. The relevant transcript pages are ts 2352, 2365 and 2419.
We have read the transcript pages cited by the appellant. In each instance, defence counsel asked questions in which comments were made about the witness' answers. The comments that were made by counsel may be fairly characterised as innocuous. In each case, the appellant's counsel objected and the trial judge upheld the objection and made brief remedial comments. There is no realistic possibility that counsel's actions gave rise to a miscarriage of justice.
Particular 2 is difficult to understand. The appellant complains that the trial went for seven weeks, and that a large portion of the evidence that was adduced was irrelevant and highly prejudicial to him. We will treat this particular as alleging that the appellant has suffered a miscarriage of justice by reason of being tried jointly with Mr Roberts, Mr Kett and Mr Gomis.
Clause 7(4) of sch 1 of the Criminal Procedure Act 2004 (WA) (CPA) permits the charging on indictment of two or more persons with committing the one offence. Clause 9(2) of sch 1 of the CPA requires that:
If one charge charges 2 or more accused, they must be tried together unless a court orders otherwise under this Act.
Section 133 of the CPA relevantly provides:
(1)The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
…
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
The proper construction of subsections 133(4) and 133(5) of the CPA was examined by Buss JA in Russell v The State of Western Australia.[639] It is unnecessary to repeat what his Honour wrote on that occasion.
[639] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [335] - [349].
It may be that the appellant considers that he was prejudiced in his trial because evidence implicating him was adduced, despite that evidence being admissible only against his co‑accused but not against him. Of most significance were the out‑of‑court statements made by Mr Kett and Mr Gomis which directly implicated the appellant as a principal offender.
Such potential for prejudice is common in joint trials. It does not give rise to an automatic right to separate trials or to an inevitable finding that there has been a miscarriage of justice. In most cases, the likelihood of an accused being prejudiced by a joint trial can be guarded against by an appropriate direction to the jury. This is such a case.
In the present case, it is plain that his Honour was alive to the likelihood of prejudice to the appellant as a result of the out‑of‑court statements of Mr Kett and Mr Gomis. When the evidence of out‑of‑court statements was led, his Honour informed the jury in the trial that the evidence was only admissible against the accused who made the statement. His Honour directed the jury to this effect in his summing up.[640] Among the written jury aids his Honour provided was a document which set out clearly what evidence was admissible in respect of each accused. This document specified clearly that the interviews of Mr Kett and Mr Gomis were evidence for and against them, and that whatever each said must be disregarded when considering the State's case against the other accused.[641] These measures were sufficient in this case to overcome the prejudice caused by the joinder of the accused.
[640] ts 3586.
[641] WAB 41, 42.
In our opinion, the appellant suffered no miscarriage of justice as a result of the joint trial.
Particulars 7 and 8 make vague and completely unsubstantiated allegations of impropriety to the effect that prosecution witnesses said 'whatever was required of them by the State', and that 'the State's agents worked with these witnesses over time and the State's case in regard to these witnesses, was reworked many times to be more favourable against the appellant'. These particulars are wholly without merit.
Proposed ground 4 is without merit.
The appellant's application filed 12 October 2016
At [12] of these reasons we have set out the orders the appellant sought in his application in an appeal dated 12 October 2016. At [13] we have set out the orders that were made on 17 October 2016. Given what we have already written, it is only necessary for us to explain why the application in respect of proposed order 1 was dismissed. Once a party files a notice of self‑representation, an order removing the appellant's previous legal advisors is not required.
Conclusion
There is no merit in the appeal. It must be dismissed. We would make the following orders:
1.Leave to appeal on proposed grounds 3 and 4 is refused.
2.The appeal is dismissed.
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