Gibson v The State of Western Australia

[2017] WASCA 141

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   GIBSON -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 141

CORAM:   BUSS P

MAZZA JA
BEECH JA

HEARD:   3-6 APRIL 2017

DELIVERED          :   12 APRIL 2017

PUBLISHED           :  28 JULY 2017

FILE NO/S:   CACR 101 of 2016

BETWEEN:   GENE GIBSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :HALL J

File No  :INS 161 of 2013

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of manslaughter - Plea of guilty - Integrity of the plea - Appellant suffered from cognitive impairments - Appellant had English language disabilities - Miscarriage of justice - Judgment of acquittal or trial

Legislation:

Criminal Appeals Act 2004 (WA), s 30, s 39, s 40
Criminal Code (WA), s 279, s 280

Result:

Leave to adduce additional evidence granted
Extension of time to appeal granted
Appeal allowed
Judgment of conviction for manslaughter set aside
Judgment of acquittal entered

Category:    A

Representation:

Counsel:

Appellant:     Mr S Vandongen SC & Mr A J C Mossop

Respondent:     Ms A L Forrester SC & Mr L M Fox

Solicitors:

Appellant:     King & Wood Mallesons

Respondent:     Director of Public Prosecutions (WA)

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

Anderson v The Queen (1991) 53 A Crim R 421

ARK v The State of Western Australia [2014] WASCA 45

Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172

Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358

Chowdhury v Kenny [No 2] [2012] WASCA 35

Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170

Director of Public Prosecutions for Nauru v Fowler [1984] HCA 48; (1984) 154 CLR 627

DPJB v The State of Western Australia [2010] WASCA 12

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125

McHenry v The State of Western Australia [No 2] [2010] WASCA 71

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Mikulic v The State of Western Australia [2011] WASCA 14

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

Rattan v The Queen [1974] HCA 35; (1974) 131 CLR 510

Rinaldi v The State of Western Australia [2007] WASCA 53

Rodi v The State of Western Australia [2017] WASCA 81

The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68

The State of Western Australia v Gibson [2014] WASCSR 203

Vella v The State of Western Australia [2006] WASCA 129

Table of Contents

REASONS OF THE COURT................................................................................................. 5
Overview of the facts and circumstances culminating in the appellant's conviction
The ground of appeal
The appellant's applications for leave to adduce additional evidence in the appeal
The State's applications for leave to adduce additional evidence in the appeal
The oral evidence given at the hearing of the appeal
The principles applicable to the applications for leave to adduce additional evidence in the appeal
The proposed additional evidence of Tina Marley
The proposed additional evidence of Elizabeth Vuletich
Particulars (a) and (d) of the ground of appeal:  a chronology of events after the appellant was charged with murder:  the appellant's case in opening
Particulars (a) and (d) of the ground of appeal:  the witness statements of Mr Nagomarra, Mr Mandijarra, Ms Nungoray, Ms Nowee and Ms Richards which formed part of the State's brief of evidence for the trial and their subsequent statements in the Aviemore Review
Particulars (a) and (d) of the ground of appeal:  the appellant's evidence at the hearing of the appeal
Particulars (a) and (d) of the ground of appeal:  Mr Nanala's evidence at the hearing of the appeal
Particulars (a) and (d) of the ground of appeal:  Mr Eberhardt's evidence at the hearing of the appeal
Particulars (a) and (d) of the ground of appeal:  Mr Brunello's evidence at the hearing of the appeal
Particulars (a) and (d) of the ground of appeal:  should the additional evidence be admitted in the appeal?
Particulars (a) and (d) of the ground of appeal:  should an extension of time to commence the appeal be granted?
Particulars (a) and (d) of the ground of appeal:  the State's submissions
Particulars (a) and (d) of the ground of appeal:  their merits
Particulars (a) and (d) of the ground of appeal:  should this court enter a judgment of acquittal or order a trial?
Particulars (b) and (c) of the ground of appeal

Conclusion

1. REASONS OF THE COURT:    On 4 July 2014, the appellant was convicted, on his plea of guilty before Hall J, of one count in indictment 161 of 2013 dated 30 June 2014. 

2. The count alleged that on 26 February 2010, at Broome, the appellant unlawfully killed Joshua Warneke, contrary to s 280 of the Criminal Code (WA) (the Code).

3. On 22 October 2014, Jenkins J sentenced the appellant to 7 years 6 months' imprisonment.  The sentence was backdated to 16 August 2012, being the date on which the appellant was taken into custody in connection with the offending.  A parole eligibility order was made.

4. The last date for appealing against conviction was 12 November 2014. 

5. On 20 June 2016, the appellant filed an appeal notice and an application for an extension of time within which to appeal.

6. On 8 November 2016, Mazza JA granted leave to appeal and referred the application for an extension of time to the hearing of the appeal.

7. On 3, 4, 5 and 6 April 2017, this court heard the application for an extension of time and the appeal. 

8. On 12 April 2017, the court unanimously made orders as follows:

   (1)The appellant's applications dated 28 October 2016, 22 December 2016 and 23 February 2017 for leave to adduce additional evidence in the appeal granted.

   (2)The State's applications dated 25 January 2017 and 27 January 2017 for leave to adduce additional evidence in the appeal granted. 

   (3)The appellant's application for an extension of time to commence the appeal granted.

   (4)Appeal allowed.

   (5)Judgment of conviction on the count of unlawful killing in indictment 161 of 2013 set aside.

   (6)Judgment of acquittal entered.

9. We said the court's reasons for making those orders would be published later.  These are our reasons.

Overview of the facts and circumstances culminating in the appellant's conviction

1. The Kiwirrkurra community is located near Balgo in northern Western Australia.  It is an isolated Aboriginal community in the Gibson Desert, about 1,200 km east of Port Hedland and 850 km west of Alice Springs. 

2. The appellant was born on 1 May 1991.  He has lived most of his life at Kiwirrkurra.  He is a member of the Pintupi people.  Pintupi was his first language.  Kukutja was his second language.

3. The appellant has had a disadvantaged life.  His father died when he (the appellant) was very young.  Later, he was abandoned by his mother.  The appellant has had limited education and a history of drug and alcohol abuse. 

4. The appellant's version of events concerning the offence of which he was convicted, and on which he relied for the purposes of the appeal, is as follows:

   (1)On the night of 25 February 2010, the appellant was driving a stolen red motor vehicle in Broome.  Two members of his family were passengers.  One was Tristan Nagomarra, who is the appellant's uncle.  The other was Edwin Mandijarra, who is the appellant's cousin (in an Aboriginal kinship sense).  The appellant referred to them as 'Xavier' and 'Essay', respectively.  At the time the appellant was aged 18 and the others were about 19.  For a short period on the night in question, a young Aboriginal woman, Talisha Richards (to whom the appellant referred as the 'Broome girl') was also a passenger.  All occupants of the vehicle were, to varying degrees, intoxicated.

   (2)During part of the evening, the appellant drove the red vehicle along Old Broome Road on a short journey from Broome to the One Mile camp.  Xavier and Essay were passengers.  During the journey, the appellant saw a young white male walking by the side of the road. 

   (3)On the return journey to Broome, after visiting the One Mile camp and collecting Ms Richards, the appellant saw the same white male he had seen previously.  The white male was lying by the side of the road.  The appellant did not stop. 

5. The young white male was Joshua Warneke, the victim allegedly killed by the appellant.  Mr Warneke was found deceased on the side of Old Broome Road shortly before 3.00 am on 26 February 2010.  The Major Crime Squad of the Western Australian police was responsible for investigating Mr Warneke's death.  The police investigation was known as 'Operation Aviemore'.

6. Officers of the Major Crime Squad arrested, and later released, several persons in connection with Mr Warneke's death.  The appellant was not identified by the police as a person of interest until mid‑2012.

7. On 16 August 2012, the police took the appellant into custody at Kiwirrkurra. On 16 and 17 August 2012, the appellant participated in electronically recorded interviews with police (the appellant's EROIs).  When the appellant was taken into custody he was aged 21.  On 17 August 2012, he was charged with Mr Warneke's murder. 

8. Dominic Brunello, a lawyer employed by the Aboriginal Legal Service (WA) Inc (ALSWA) began acting as the appellant's solicitor shortly after the appellant was charged with Mr Warneke's murder.  In mid‑June 2013, Mr Brunello retained Craig Eberhardt, a barrister, to act as the appellant's counsel. 

9. On 23 October 2013, the State filed an indictment in which it was alleged that on 26 February 2010, at Broome, the appellant murdered Mr Warneke, contrary to s 279 of the Code.

10. On 27 November 2013, Mr Brunello filed an application in the Supreme Court for a ruling that the appellant's EROIs were inadmissible.  The application was heard by Hall J between 3 and 11 April 2014.  On 12 June 2014, his Honour ruled, orally, that the appellant's EROIs were inadmissible.  On 4 July 2014, his Honour published written reasons for decision.  See The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68. The reasons for making the ruling were, in summary, as follows. First, his Honour was not satisfied to the requisite standard that the appellant's participation at any stage in the police interviews was voluntary [175]. Secondly, and in any event, there were breaches by the police of the Criminal Investigation Act 2006 (WA) which rendered the interviews inadmissible [176]. Thirdly, it would be unfair to the appellant to admit evidence of the interviews [180].

11. At the hearing before Hall J, Maria Doyle and David Ingram gave expert evidence as to the appellant's English comprehension and speaking ability.  His Honour made these findings in relation to an interview at Kiwirrkurra where the appellant was interviewed by police officers in the presence of Simon Butler, a senior member of the Kirwirrkurra community:

    It is plain that an interpreter was required.  I accept the evidence of Ms Doyle and Dr Ingram that [the appellant] had only a very basic level of English comprehension and speaking ability.  This is supported by my own observation of [the appellant] during the recorded police interview in Kiwirrkurra.  He frequently hesitates and turns to Mr Butler to provide an interpretation of what is put to him.  His language is disjointed and sometimes confusing.  Many of his responses are single words which do not necessarily indicate an understanding of the questions. 

    Because [the appellant] had only a very limited understanding of English the absence of an interpreter means that I cannot be confident that he understood what the police said to him about his rights.  Nor can I be confident that he sufficiently understood police questions or that his answers can be accepted at face value [83] ‑ [84].

12. Hall J gave, relevantly, these reasons for concluding that the appellant's participation in the interview at Kiwirrkurra and an interview at Broome was not voluntary:

    1.as a suspect [the appellant] should have been cautioned from the outset of the unrecorded interview.  He was not and did not appreciate his right not to speak to the police;

    2.[the appellant] did not understand the caution when it was later given and, in particular, did not understand his right to silence;

    3.[the appellant's] will was overborne because he was pressured by Mr Butler to answer the police questions. Bearing in mind the cultural context and the kinship relationship between [the appellant] and Mr Butler, the statements made by Mr Butler would have been understood by [the appellant] as a direction to answer the police questions. [The appellant] would be likely to have felt obliged to comply with such directions [175].

13. Hall J found, in the course of concluding that it would be unfair to the appellant to admit evidence of the interviews, that the appellant's ability 'to comprehend and communicate in English was severely limited' [180].

14. On 30 June 2014, the State filed indictment 161 of 2013 (in substitution for the earlier indictment) in which it was alleged that on 26 February 2010, at Broome, the appellant unlawfully killed Mr Warneke, contrary to s 280 of the Code.

15. On 4 July 2014, the appellant pleaded guilty to manslaughter, being the charge alleged in the new indictment.

16. As we have mentioned, on 22 October 2014, Jenkins J sentenced the appellant to 7 years 6 months' imprisonment, the sentence was backdated to 16 August 2012 and a parole eligibility order was made.

17. Jenkins J made the following findings of fact as to the circumstances of the offending:

    The facts have been agreed between you [that is, the appellant] and the prosecution.  They are that, about 2.45 am on the morning of 26 February 2010, Mr Warneke was walking alone to his home.  His home was in the Roebuck Estate.  He was walking along the road verge of Old Broome Road in Broome.  He had been at a local nightclub.  He was very drunk.  He was 21 years old.

    You were 18 years old.  You had been drinking grog and smoking ganja during the day.  You were also very drunk.  You usually lived at Kiwirrkurra.  This is a small, remote community near the West Australian border with the Northern Territory.  It is about 800 km west of Alice Springs.

    You were driving a stolen car along Old Broome Road.  There were three passengers in the car.  Two were your friends.  The other was an unknown woman.

    You saw Mr Warneke walking along the verge of Old Broome Road.  You stopped the car on the side of the road.  You picked up a metal pole which was in the car.  You got out and went up to Mr Warneke.  You approached him from behind.  You swung the pole and struck him once to the head.  The blow made Mr Warneke unconscious.  He fell to the ground and hit his face on the ground.

    The prosecution accepts that you did not intend to kill Mr Warneke.  It also accepts that you did not intend to cause him a serious life threatening injury.

    Your blow with the pole caused a deep cut to the scalp and it caused extensive fracturing of the skull.  This, in turn, caused bleeding, bruising and injury to the brain.  Mr Warneke died at the scene from the injuries you caused.  The cause of his death was the head injury in association with his drunkenness.

    Mr Warneke also had abrasions, bruising and cuts to his face.  These were caused when his face hit the ground.  It is obvious to me that your blow to the back of the head must have been very hard.

    Afterwards, you got back into the car.  You drove it to a place near to the house of one of your relatives in Broome.  You and your friends left the car there.  You each went your separate ways.  A few days later, you left Broome.  You went to Kiwirrkurra.  You did not tell the police what you had done.  It was not until 17 August 2012 that you were charged with murder.  You have been in prison since that time.

    You say that, as you drove past Mr Warneke, he yelled out a racist comment.  You say that, because you were drunk, that made you very angry and that you decided to assault him [3] ‑ [11].

18. When the appellant pleaded guilty to manslaughter, the State case relied, almost exclusively, on the following evidence:

    (1)The anticipated evidence of Mr Nagomarra, Mr Mandijarra, Madeline Nowee and Anne Nungoray.

    (2)The expert evidence of Dr Clive Cooke, a forensic pathologist, who carried out a post‑mortem examination of Mr Warneke's body.

19. Mr Nagomarra, Mr Mandijarra, Ms Nowee and Ms Nungoray had provided written statements to the police.  The final written statements of Mr Nagomarra and Mr Mandijarra were capable of establishing that the appellant had seriously assaulted Mr Warneke with a weapon on the side of Old Broome Road.  The final witness statements of Ms Nowee and Ms Nungoray alleged that the appellant had made admissions against interest which were capable of establishing that he had been involved in Mr Warneke's death.  However, their anticipated evidence (taken at its highest) was to the effect that the appellant had accidentally struck a Caucasian man while driving a stolen car.

20. After the appellant pleaded guilty and was sentenced, three official reviews examined the Major Crime Squad's investigation of Mr Warneke's death.  Those reviews considered, amongst other things, the manner in which the appellant, Mr Nagomarra, Mr Mandijarra, Ms Nowee and Ms Nungoray were interviewed during Operation Aviemore. 

21. The Corruption and Crime Commission undertook one of the reviews.  On 5 November 2015, the Corruption and Crime Commissioner delivered his report (the CCC Report) to the Parliament.

22. Another review was undertaken by the Internal Affairs Unit of the Western Australian police (IAU).  The focus of that review was the interviews of the appellant which the police conducted on 16 and 17 August 2012.  As a result of the IAU review, the Deputy Commissioner of the Western Australian police directed that a thorough 'desktop review' be carried out. 

23. The desktop review produced a report entitled 'Investigative Review into Aspects of Operation Aviemore' dated December 2015 (the Aviemore Review). 

24. The CCC Report and the Aviemore Review concluded that, having regard in particular to:

    (1)the circumstances in which the final witness statements of Mr Nagomarra, Mr Mandijarra, Ms Nowee and Ms Nungoray were obtained by the Major Crime Squad in Operation Aviemore; and

    (2)the interviews of the witnesses that were conducted in the course of the Aviemore Review,

    the final witness statements falsely implicated the appellant in the offence to which he pleaded guilty.

The ground of appeal

1. The appellant relies on one ground of appeal with several particulars.

2. The ground reads:

   A miscarriage of justice was occasioned because the appellant's plea was entered in circumstances in which the integrity of the plea of guilty was adversely affected by:

   (a)the appellant's actual understanding of (and capacity to understand):

   (i)the legal process;

   (ii)the case against him;

   (iii)the advice that was provided to him by his legal advisers about his plea; and

   (iv)the options that were available to him at the time he entered his plea other than a plea of guilty, as well as the consequences of a plea of not guilty;

   (b)the fact that the appellant's plea was induced by and/or was entered in circumstances in which:

   (i)witness statements were obtained by investigating police officers which inculpated the appellant in the offence to which he pleaded guilty;

   (ii)the circumstances in which those witness statements were obtained by police officers significantly affected the reliability of the inculpatory allegations that were made by the witnesses; and

   (iii)after the appellant pleaded guilty, and as a result of further investigations that were conducted by the Western Australian Police, it has become apparent that the inculpatory allegations that were made by the witnesses were materially false;

   (c)[abandoned]

   (d)the fact that the plea was not attributable to a genuine consciousness of guilt; and

   (e)the fact that there is an 'issuable question' about the appellant's guilt.

1. At the hearing of the appeal, counsel for the appellant abandoned particular (c) of the ground.  The abandoned particular (c) alleged, in essence, that when the appellant's plea was entered the State had failed to disclose material that 'raises significant doubts about the appellant's guilt'.

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

1. The appellant filed applications dated 31 October 2016, 22 December 2016 and 23 February 2017 for leave to adduce additional evidence in the appeal.

2. The application dated 31 October 2016 is supported by affidavits of Michael Lundberg (one of the appellant's solicitors) sworn 20 June 2016 and 28 October 2016. 

3. The application dated 22 December 2016 is supported by an affidavit of Tina Marley (a clinical psychologist) sworn 2 December 2016. 

4. The application dated 23 February 2017 is supported by an affidavit of Adam Rompotis (one of the appellant's solicitors) sworn 23 February 2017. 

5. The proposed additional evidence is annexed to the affidavits.

The State's applications for leave to adduce additional evidence in the appeal

1. The State filed two applications dated 25 January 2017 and 27 January 2017 respectively for leave to adduce additional evidence in the appeal.

2. The application dated 25 January 2017 is supported by the affidavit of Lindsay Fox (the State's junior counsel) affirmed 23 January 2017 and an affidavit of Graeme Johnston (a detective sergeant with the Western Australian police) sworn 30 January 2017.

3. The application dated 27 January 2017 is supported by Mr Fox's affidavit affirmed 27 January 2017.

4. The proposed additional evidence is annexed to Mr Fox's affidavits and contained in Detective Sergeant Johnston's affidavit.

The oral evidence given at the hearing of the appeal

1. At the hearing of the appeal, oral evidence was given by a number of witnesses.

2. Counsel for the appellant called:

   (1)the appellant;

   (2)Robert Nanala, an interpreter with Kimberley Interpreting Service, who on occasions acted as an interpreter for the appellant in meetings between the appellant and others up to and including the appellant's sentencing hearing; and

   (3)Mr Eberhardt, the barrister who acted as the appellant's counsel.

3. The State called Mr Brunello, the lawyer employed at the material time by the ALSWA who acted as the appellant's solicitor.

4. The appellant gave his evidence, as a special witness and through an accredited interpreter, Maggie Burns, by video‑link from a separate room within the precinct of the Supreme Court.  Mr Eberhardt gave his evidence by video‑link from Queensland.  Mr Nanala and Mr Brunello gave their evidence in person.

The principles applicable to the applications for leave to adduce additional evidence in the appeal

1. In Rodi v The State of Western Australia [2017] WASCA 81, Buss P summarised (Newnes JA agreeing) the principles applicable to applications for leave to adduce additional evidence in criminal appeals against conviction. It is convenient to reproduce that summary.

2. Part 3 of the Criminal Appeals Act 2004 (WA) is headed 'Appeals from superior courts' and comprises s 22 to s 35A.

3. Part 3 creates rights of appeal in relation to criminal proceedings heard and determined in the General Division of the Supreme Court or in the District Court. Rights of appeal against conviction, sentence and any order made as a result of a conviction are available to a person (the offender) who has been convicted of an offence. It is unnecessary to refer to other rights of appeal created by pt 3.

4. Part 4 of the Criminal Appeals Act is headed 'Provisions applicable to any appeal' and comprises s 36 to s 45.

5. Section 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.

6. Section 40(1) provides, relevantly:

   For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

   (a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

   (b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

   …

   (d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

   (e)admit any other evidence.

7. The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the appeal provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power.  See, generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [108] (McHugh, Gummow & Callinan JJ). The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).

8. Although it is highly unlikely that Parliament intended that s 40(1)(e) should be construed as obliterating the distinction developed in the common law courts between the admission of fresh evidence and the admission of new evidence on appeal, the power in s 40(1)(e) is broader than the principles applicable in common law proceedings. See, generally, CDJ [108], [111].

9. In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P (Wheeler & Pullin JJA agreeing) said, in relation to s 40(1)(a), (b), (d) and (e):

   While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction':  CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

10. At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.  See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).

11. At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused.  See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ).

12. In ARK v The State of Western Australia [2014] WASCA 45, Buss JA made the following observations (Mazza JA agreeing) in relation to this court's approach to and assessment of additional evidence admitted in an appeal:

    The appellate court must decide on the relevance of the additional evidence.  It must decide on the credibility of oral evidence and on the authenticity of documentary evidence.  In some situations, the appellate court must decide whether it believes the additional evidence.  In other situations, the appellate court will merely decide whether the evidence is capable of belief, and is likely to be believed, by reasonable people.  After deciding on the relevance and credibility or authenticity of the additional evidence, the appellate court will evaluate its cogency in the context of the evidence adduced at the trial.  The evidence which forms part of the trial record must be taken by the appellate court in the sense in which, having regard to the verdict, the jury must have accepted it.  See Rattan v The Queen [1974] HCA 35; (1974) 131 CLR 510, 518 (Barwick CJ, McTiernan, Stephen & Jacobs JJ agreeing). See also Lawless (665) (Barwick CJ) [139].

13. In Rattan v The Queen [1974] HCA 35; (1974) 131 CLR 510, Barwick CJ (McTiernan, Stephen & Jacobs JJ agreeing) explained the manner in which an appellate court must approach additional evidence where the court is considering whether a judgment of conviction should be set aside outright in that innocence is shown or the existence of an appropriate doubt is established:

    [T]he court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them.  Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial.  The verdict of guilty will be quashed and the appellant discharged.

    Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial.  Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence.  The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice.  Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish (518 ‑ 519).

14. However, if the appellate court itself is not satisfied of innocence and does not entertain a reasonable doubt as to guilt, or if the appellant's claim is confined to a new trial (and not an outright acquittal), the approach of the appellate court to additional evidence which is fresh, as distinct from new, will be different.  In those circumstances, the appellant's case will be that a miscarriage of justice occurred at the trial because the fresh evidence was not before the jury for consideration.  See Rattan, where Barwick CJ elaborated:

    In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense [most] favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned.  In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury.  The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take (519).

15. In Rattan, Barwick CJ summarised the position as follows:

    To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence (520).

The proposed additional evidence of Tina Marley

1. Tina Marley is a clinical psychologist. 

2. Ms Marley was instructed by the appellant's solicitors to express an opinion as to the appellant's cognitive functioning for the purpose of evaluating his specific strengths and weaknesses in relation to decision‑making ability and ascertaining the extent to which he was able to understand, respond to and participate in the legal proceedings culminating in his conviction.

3. On 9 November 2016, Ms Marley interviewed the appellant twice at the Roebourne Regional Prison.  She administered a number of psychological tests.  Ms Burns, a Pintupi interpreter from the Northern Territory Aboriginal Interpreter Service, was present during the interviews and the testing. 

4. After interviewing and testing the appellant, Ms Marley prepared a report dated 27 November 2016.  The appellant's solicitors gave a copy of the report to the State's solicitors.  Counsel for the appellant relied on Ms Marley's report at the hearing of the appeal.  This court received the report into evidence.  It was common cause that Ms Marley was qualified to express the opinions contained in the report.  Counsel for the State did not object to or dispute any of the contents of the report.  Ms Marley was not required for cross‑examination.

5. Ms Marley was of the opinion that the appellant demonstrated 'significant cognitive deficits' which were likely to impact on his ability 'across domains and tasks' [30]. He was weaker on tasks requiring him to process verbally derived information and stronger on tasks requiring him to process visually derived information, but he showed deficits across both domains [30]. The appellant's cognitive deficits are likely to impact on his decision‑making ability and the results of psychometric testing were consistent with a diagnosis, on cognitive functioning only, of 'Intellectual Disability' [30]. Ms Marley expressed the opinion that the appellant has a reserved nature and a tendency to provide limited responses to questions, even in Pintupi. Those characteristics were likely to have masked the extent of his intellectual deficits [31]. Ms Marley considered that it was 'reasonable to surmise that [the appellant] would not have fully understood the implications of many of his responses during the police [interviews] and the subsequent court proceedings' [34].

6. Ms Marley summarised her views in relation to the appellant's cognitive functioning as follows:

   [The appellant's] test results obtained during the current assessment, indicate pervasive and multi-dimensional deficits to his capacity to manage his world and take meaning from information presented to him.   He would be particularly vulnerable in novel situations and/or situations of perceived threat.  Problems associated with [the appellant's] executive functioning would result in challenges for him in processing complex information, problem solving, attention and cognitive flexibility.  

   [The appellant] is unlikely to be able to predict situations or outcomes.  He is assessed as likely to be vulnerable in new situations which require him to engage in more abstract and/or flexible thinking.  Testing indicates that he may persevere with a specific thinking strategy, despite evidence that he should consider another pathway.  This indicates he may be unable to reflect on his approach and formulate alternative strategies.  In real-life situations, this may result in him continuing with a behaviour or thought when there is evidence or external cues that he should seek or consider further strategies.  He is also likely to be vulnerable to suggestions by others because of this compromised capacity for abstract thinking and prediction.

   [The appellant] is likely to become overwhelmed by complex information in unfamiliar situations.  He may acquiesce or agree when questioned rather than seek clarification about concepts that he does not understand.  He impressed as unlikely to respond by challenging another person or asserting a contrary opinion because his personality is characterised by shyness and reserve.  His limited experience in the criminal justice system and assessed cognitive deficits are also considered relevant.  Taking into account the interview, testing results and historical information, it is my opinion that [the appellant's] participation in the police and court processes would have been significantly compromised by his intellectual capacity [35] ‑ [37].

The proposed additional evidence of Elizabeth Vuletich

1. Elizabeth Vuletich is a clinical neuropsychologist. 

2. Dr Vuletich was instructed by the State's solicitors to undertake a comprehensive neurological assessment of the appellant. 

3. On 3 March 2017, Dr Vuletich interviewed and assessed the appellant at the Roebourne Regional Prison.  Lance Macdonald, a Pintupi interpreter from the Northern Territory Aboriginal Interpreter Service, was present during the interview and assessment.

4. After interviewing and assessing the appellant, Dr Vuletich prepared a report dated 20 March 2017.  The State's solicitors gave a copy of the report to the appellant's solicitors.  Counsel for the appellant relied on Dr Vuletich's report at the hearing of the appeal.  This court received the report into evidence.  It was common cause that Dr Vuletich was qualified to express the opinions contained in the report.  Counsel for the State did not object to or dispute any of the contents of the report.  Dr Vuletich was not required for cross‑examination.

5. In her report, Dr Vuletich noted that the appellant was born in Alice Springs and raised predominantly in Kiwirrkurra. There is a history of early neglect and failure to thrive, as well as disrupted education, illiteracy and, throughout adolescence, heavy alcohol and chronic cannabis use [63].

6. Dr Vuletich assessed the appellant's intellectual functioning by using the 10 core subtests in the Wechsler Adult Intelligence Scale, 4^th ed (WAIS-IV).  She explained WAIS-IV and the appellant's subtest scores as follows:

39.  The WAIS-IV provides four index scores (see Table 1. below) that all contribute to the Full Scale Intelligence Quotient (FSIQ).  Within the WAIS-IV [the appellant's] subtest scores ranged from extremely low to the cusp of borderline and low average levels.  The scores of the subtests within each of the Indices were relatively homogenous and [the appellant's] IQ and Index scores are interpretable.  Table 1. Presents these data.

Table 1. [the appellant's] WAIS-IV IQ and Index Scores.

Index/IQ measure	95% Confidence Interval	Percentile	Descriptor
Verbal Comprehension Index (VCI)	57-68	0.5	Extremely Low
Perceptual Reasoning Index (PRI)	66-79	3	Extremely Low to Borderline
Working Memory Index (WMI)	56-69	0.4	Extremely Low
Processing Speed Index (PSI)	68-85	4	Extremely Low to Low Average
Full Scale IQ	58-66	0.5	Extremely Low

The PSI is calculated using Cancellation as a substitute for the Coding subtest.

40.  Whilst there were statistically significant differences between several of the Index scores, none of these would be considered [clinically] meaningful given their relatively high base-rates (Base rates are a measure of prior probability.  In this instance, they refer to the percentage of the normative sample that obtained a discrepancy between the Indices of the same magnitude.  That is, they provide a statistical measure of how typical, or atypical, the discrepancy is.).  Specifically, the VCI was statistically significantly lower than both the PRI (base rate = 22.6%), and the PSI (base rate 20.6%).  The WMI was significantly lower than both the PRI (base rate = 20.8%), and the PSI (base rate 17.7%).  There were no other statistically significant differences. 

41.  These findings indicate that [the appellant's] general verbal abilities and his auditory attention and working memory, are lower than his non‑verbal intellectual abilities and his speed of information processing abilities.  However, the results also show that [the appellant] has notable difficulties with non‑verbal intellectual abilities and he does not process information quickly, with results at or below to the lowest 5^th%ile

42.  Overall, [the appellant's] WAIS-IV FSIQ falls within the range of (mild) Intellectual Impairment.

Given the absence of a reliable informant, and in the context of [the appellant's] current custodial sentence, it was not possible to obtain a valid measure of his Adaptive functioning.

Table 2. Diagnostic Summary for Intellectual Disability

Description	Criteria met or not met
A)	Deficit in intellectual functions confirmed by clinical assessment and individualised standardised intelligence testing	Criteria met
B)	Deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility.  In one or more activities of daily life (Communication, Social Participation, Independent Living) across multiple environments (home, school, work, and community)	Unable to formally address these criteria given the current context.
C)	Onset of intellectual and adaptive deficits during the developmental period	Unable to address this [criterion] given lack of reliable informant and history of significant disruptions to schooling.

43.  The obtained PRI, VCI, and FSIQ results are in keeping with the parallel scores obtained by Ms Marley in 2016 (see page 4 of her report).

1. Dr Vuletich was of the opinion that the appellant has 'fairly significant and widespread cognitive impairments with performances typically falling at, or below borderline levels of functioning on most tasks administered' [64]. The appellant clearly demonstrated 'significant cognitive impairments which are likely to impact his functioning in day‑to‑day life' [68]. Those deficits 'may make it difficult for [the appellant] to initiate an effective plan for approaching novel situations or complex activities; to understand complex verbal instructions that involve several steps; juggle information in mind; retain more than small amounts of information reliably; follow through and complete tasks that are complex and challenging; as well as know how to ask questions to clarify his understanding, or seek support' [69]. Moreover, the appellant is 'clearly compliant and agreeable, and at risk of responding to simply please or behave in accordance with what he thinks might be expected' [69]. Dr Vuletich was of the opinion that the appellant's cognitive deficits raised 'concerns about his capacity to understand concepts, and provide instructions, in relation to legal proceedings' [70]. She concluded:

   Specifically, [the appellant] would appear to be at risk of impaired recall of detailed information relevant to his situation and to legal proceedings.  Moreover, he demonstrated reduced reasoning, and impaired planning and as such would … likely struggle to identify or self-generate alternative options when instructing a lawyer, and he would have limited capacity to weigh up alternatives.  The available history, and his current behaviour on testing, would also suggest that he may be vulnerable to acquiescence, and may not necessarily reliably express a clear and consistent choice with respect to instructions.  Moreover, whilst he did not present as overly impulsive, he has certainly shown some inflexibility in his thinking and a tendency to revert to over-learned, automatic responses.  In light of reported history (and aspects of his test results) I would also have some concerns that he may have reduced ability to fully appreciate potential future consequences of complex decisions and the effect of his instruction, around legal matters [71]. (original emphasis)

Particulars (a) and (d) of the ground of appeal:  a chronology of events after the appellant was charged with murder:  the appellant's case in opening

1. We will recount a chronology of events after the appellant was charged with murder and those parts of the appellant's case in opening that are relevant to particulars (a) and (d) of the ground of appeal. 

2. On 18 August 2012, the appellant made his first court appearance in Broome.  Shortly afterwards, Mr Brunello became responsible for the appellant's case.  At about that time, the appellant's matter was transferred to Perth and he was moved to Casuarina prison.

3. The appellant's case in opening was that:

   (1)In early September 2012, the first substantial meeting between the appellant and Mr Brunello took place.  No interpreter was present.  It was the first occasion on which the appellant and Mr Brunello had met in person.  The appellant could not properly understand Mr Brunello because Mr Brunello spoke in English [54], [65].

   (2)The appellant's recollected understanding of the meeting with Mr Brunello in early September 2012 was as follows:

   (a)Mr Brunello told the appellant that he had been charged with murder.

   (b)Mr Brunello said the police claimed the appellant was guilty.

   (c)Mr Brunello said 'a lot of people know you did it'.

   (d)Mr Brunello said he would get 'big time' gaol.  He would go to prison for a 'long time, probably life'.

   (e)Mr Brunello asked the appellant if he had hit 'the boy'.  The appellant responded that he had hit 'the boy', but at a subsequent meeting he endeavoured to tell Mr Brunello that this was not true.

   (f)The appellant initially told Mr Brunello that he had hit 'the boy' because other people were telling lies.  He felt that no‑one (including the police) was listening to him or believing his story.

   (g)The appellant asked Mr Brunello to help him.  Mr Brunello said he would [52] ‑ [64].

   (3)On 25 October 2012, there was another meeting between the appellant and Mr Brunello at Casuarina prison.  At the meeting Mr Nanala was present by video‑link from Halls Creek. 

   (4)The appellant's recollected understanding of the meeting with Mr Brunello on 25 October 2012 was as follows:

   (a)There was a discussion as to what happened to 'the white boy' in Broome.

   (b)The appellant endeavoured to tell Mr Brunello that he did not hit 'the white boy'.  Mr Brunello responded 'don't get excited'.

   (c)The appellant was shown a document (apparently in Mr Brunello's handwriting, headed 'Instructions of Gene Gibson' and dated 25 October 2012).

   (d)Mr Brunello told him that he had been charged with murder.

   (e)Mr Brunello told him that he had watched the appellant's interviews with the police and that the interviews would be used in court.

   (f)Mr Brunello spoke about the witnesses against him.  Mr Brunello said 'look at all these witnesses'.

   (g)The witnesses were Mr Nagomarra, Mr Mandijarra, Ms Nowee, Ms Nungoray, Russell Baadjo and Rex Cotchilli.

   (h)The witness statements were not read to him (although it appears that parts of the statements must have been mentioned to him as he has some recollection of what the witness statements contained).

   (i)The appellant's understanding was that both Mr Nagomarra and Mr Mandijarra were saying 'the same thing'.

   (j)Mr Brunello told him that the court 'could drop his charges down' because a lot of people were mixing up their stories.

   (k)Mr Brunello said he was going to 'put in some paperwork for the witnesses'.

   (l)Mr Brunello told him to 'sign the document' that was headed 'Instructions of Gene Gibson'.

   (m)The appellant signed the document because Mr Brunello told him to sign it.  The appellant thought the document was to be given to the judge.

   (n)The appellant was unaware that Mr Brunello intended to speak to the prosecution about the charge [68] ‑ [95].

4. On 5 November 2012, Mr Brunello wrote to Amanda Burrows, a senior State prosecutor, and made an offer that the appellant would plead guilty to manslaughter.  The appellant's case in opening was that he was unaware that the offer was to be made.

5. By letter dated 23 January 2013, Ms Burrows informed Mr Brunello that the offer to plead guilty to manslaughter was rejected.

6. On 27 November 2013, Mr Brunello filed an application in the Supreme Court for an order that the appellant's EROIs be excluded from the evidence proposed to be adduced by the State at the trial.

7. On 6 February 2014, Mr Brunello sent an email to Ms Burrows requesting a reconsideration of the State's decision to reject the appellant's offer to plead guilty to manslaughter.  The appellant does not appear to have been involved in the making of the request.

8. By letter dated 17 February 2014, Ms Burrows informed Mr Brunello that the State had reconsidered its decision but remained of the view that accepting a plea of guilty to manslaughter would be inappropriate.

9. Between 3 April 2014 and 11 April 2014, the hearing of the pre‑trial application in relation to the appellant's EROIs took place before Hall J.  The appellant's case in opening in relation to the hearing of the pre‑trial application was as follows:

   (1)The appellant 'watched the court'.  The 'judge was a man'.

   (2)There was an interpreter present but it was not Mr Nanala.

   (3)Mr Brunello and another lawyer, 'Craig', were in the court.

   (4)Mr Brunello and Mr Eberhardt were attempting to help the appellant.

   (5)The appellant would see Mr Brunello and Mr Eberhardt during 'breaks' at court, mostly at lunch time.

   (6)The interpreter spoke to the appellant in court.

   (7)The interpreter told the appellant that the police had made a lot of mistakes.

   (8)A white lady from South Australia had made some mistakes and was 'told off' by the judge.

   (9)The police were questioned by the judge about Ms Nowee's and Ms Nungoray's statements and other matters.

   (10)During the court hearing the appellant was thinking about whether he would be released or 'get time'.

   (11)At the end of the hearing, Mr Brunello told the appellant 'you're not guilty so plead not guilty'.

   (12)Mr Brunello told the appellant that the hearing went 'all good' and that the appellant would be having 'another court' which would be his 'last court'.

   (13)The appellant thought, after the hearing was completed, that he would probably 'go home'.

10. As we have mentioned, on 12 June 2014 Hall J ruled, orally, that the appellant's EROIs were inadmissible.

11. On 19 June 2014, Mr Brunello sent an email to Ms Burrows proposing that the State discontinue the prosecution of the appellant.

12. On 20 June 2014, Ms Burrows replied to Mr Brunello's email.  She indicated that she would be seeking further information.

13. On 22 June 2014, Mr Brunello visited the appellant again at Casuarina prison.  An interpreter was not present.  The appellant's case in opening in relation to this meeting with Mr Brunello was as follows:

    (1)The appellant could not properly understand Mr Brunello during the meeting.

    (2)Mr Brunello told him that the police had obtained new statements from Xavier (that is, Mr Nagomarra), Essay (that is, Mr Mandijarra) and Mr Cotchilli.  This was not in fact correct because no new statements had been obtained from those witnesses or from any other relevant witness.

    (3)Mr Brunello told the appellant that these three new statements said that the appellant 'did it'.

    (4)Mr Brunello told the appellant that he was guilty of killing Mr Warneke.

    (5)Mr Brunello said 'you're guilty, I have all these witness statements from police'.

    (6)Mr Brunello said there was going to be 'another court' but 'the charge went down to manslaughter'.

    (7)Mr Brunello showed the appellant a document.  Mr Brunello went through the document.  The document was pre‑prepared and typewritten.  (This appears to be the document headed 'Instructions of Gene Gibson' dated 22 June 2014.)

    (8)The appellant signed the document because Mr Brunello told him to do so.  The appellant did not want to sign the document but thought he had to sign it because of the 'witness stories and statements'.

    (9)Mr Brunello said 'if you say not guilty, everything will be worse'.  Mr Brunello added that the appellant could get 'life in gaol'.

    (10)After the appellant signed the document, Mr Brunello told him that he would have to 'wait for court'.  Mr Brunello said 'you just have to say guilty'.

14. By letter dated 23 June 2014, Mr Brunello proposed to Ms Burrows that the appellant plead guilty to manslaughter on a factual basis contained in an enclosed document headed 'Proposed statement of agreed facts'.

15. On 24 June 2014, Mr Brunello filed an application in the Supreme Court for an order that the evidence of Mr Nagomarra and Mr Mandijarra be excluded from the evidence proposed to be adduced by the State at the trial.  The application was to be heard on 26 June 2014. 

16. On 25 June 2014, Mr Brunello and Ms Burrows exchanged emails in relation to the plea proposal previously made by Mr Brunello on the appellant's behalf.

17. On 26 June 2014, at the hearing before Hall J, the application to exclude the evidence of Mr Nagomarra and Mr Mandijarra was adjourned to the trial.  The trial had been listed to commence on 18 August 2014 in Broome. 

18. By letter dated 30 June 2014, Ms Burrows wrote to Mr Brunello and accepted the offer to plead guilty to manslaughter.  She enclosed with the letter a new indictment (indictment 161 of 2013) and an amended statement of agreed facts.

19. On 4 July 2014, the matter was listed for arraignment before Hall J.  On that date Mr Brunello spoke to the appellant, at the Supreme Court, shortly before the arraignment hearing.  Mr Nanala was present.  The appellant's case in opening in relation to this conversation with Mr Brunello was as follows:

    (1)The conversation took place in a visiting room at the court 'before seeing the judge'.

    (2)Mr Brunello said the police have Xavier's (that is, Mr Nagomarra's) and Essay's (that is, Mr Mandijarra's) statements.

    (3)Mr Brunello said 'you must plead guilty because of the evidence and police'.

    (4)Mr Brunello said to say 'guilty'.

    (5)Mr Brunello said 'if you say not guilty, you will get big sentence, long sentence.  Big time gaol.  20 years'.

    (6)Mr Brunello said 'if you say guilty, you'll get small time.  Not guilty, more time'.

    (7)Mr Brunello said the court had 'dropped the charge down' to manslaughter.

    (8)The appellant did not understand the difference between murder and manslaughter.

    (9)Mr Brunello showed the appellant a pre‑prepared typewritten document.  (This appears to be the document headed 'Instructions of Gene Gibson' dated 4 July 2014.  The document is in similar terms to the document headed 'Instructions of Gene Gibson' dated 22 June 2014.)

    (10)Even with the assistance of Mr Nanala as an interpreter, the appellant did not understand the contents of the document.

    (11)Mr Brunello told the appellant to sign the document and said that he was going to show it to the judge.

    (12)Mr Brunello told the appellant that if he said 'guilty' he would get 'shorter time'.

    (13)Mr Brunello did not tell the appellant that he could say 'not guilty' and then go to trial or be 'let go'.

    (14)All the appellant knew was that if he said 'guilty, short time'.  If he said 'not guilty, long time'.

20. On 4 July 2014, when the appellant was arraigned before Hall J, he entered a plea of guilty to manslaughter.

21. The appellant's case in opening was that he entered the plea because:

    (1)'everything was happening at the same time';

    (2)he would get a 'small sentence, small time'; and

    (3)Xavier, Essay and other people 'have got evidence towards me'.

22. On 4 July 2014, after the plea was entered and a judgment of conviction was recorded, the appellant's sentencing hearing was adjourned to 21 August 2014.

23. On 19 August 2014, the State filed, amongst other things, a statement of agreed facts which reflected the statement of agreed facts attached to the State's letter dated 30 June 2014.

24. On 21 August 2014, the sentencing hearing was adjourned to 22 October 2014 because an interpreter was not available.

25. As we have mentioned, on 22 October 2014 the appellant was sentenced by Jenkins J.  Mr Nanala was present and interpreted.  The appellant's case in opening in relation to the sentencing hearing was as follows:

    (1)Before the sentencing hearing began, Mr Brunello told the appellant 'the same thing' being 'guilty, small sentence, small time'.

    (2)The appellant was thinking about whether he would get a 'big sentence or small sentence'.

    (3)The appellant thought he was being sentenced because of the statements of Xavier, Essay and Mr Cotchilli.

    (4)Mr Brunello told the judge that the appellant had hit Mr Warneke with a pole.

    (5)The 'other lady in court' said that he had killed Mr Warneke.

    (6)The appellant was frightened.

    (7)The appellant did not speak to Mr Brunello after the hearing.

Particulars (a) and (d) of the ground of appeal:  the witness statements of Mr Nagomarra, Mr Mandijarra, Ms Nungoray, Ms Nowee and Ms Richards which formed part of the State's brief of evidence for the trial and their subsequent statements in the Aviemore Review

1. Mr Nagomarra (who, as we have mentioned, is the appellant's uncle) was first interviewed by police on 18 February 2012.  A witness statement was obtained from him.  In this first witness statement dated 18 February 2012 Mr Nagomarra asserted:

   (1)On the night of 25 February 2010, Mr Nagomarra was with the appellant and Mr Mandijarra in a stolen red car.

   (2)After driving around Broome for a couple of hours they decided to go to the One Mile camp.

   (3)The appellant mentioned, while he was driving, that someone was sleeping on the side of the road.

   (4)On the return journey from the One Mile camp to Broome, Mr Nagomarra saw a body lying on the road.

   (5)The car did not stop.  They did not assault or have any contact with the person lying on the road.

   (6)Later, Mr Nagomarra asked the appellant whether he had hit the person with the car.  The appellant replied that he had not hit him.

   (7)The next day Mr Nagomarra checked the car for damage.  He did not find any damage.

   (8)Later, they were accused by some girls from Balgo of 'bumping the boy'.

   (9)They were not in the car with Mr Cotchilli, nor did they see him that night.

1. On 20 August 2012, about two and a half years after Mr Warneke was killed, police arrested Mr Nagomarra on suspicion of murder.  An electronically recorded interview was conducted.  Later that day, Mr Nagomarra ceased to be under arrest.  He then provided a second witness statement which reflected the answers he had given in the electronically recorded interview.

2. Mr Nagomarra's second witness statement was dated 20 August 2012 and asserted:

   (1)Mr Nagomarra had additional information to give.

   (2)He had not given the additional information on the first occasion because he was 'scared'.  He had not done anything wrong but the situation was 'complicated'.

   (3)Mr Nagomarra described a burglary he had carried out earlier in the evening of 25 February 2010 in company with the appellant and Mr Baadjo.

   (4)Mr Baadjo ceased to accompany the appellant and Mr Nagomarra.  Later, Mr Mandijarra joined the appellant and Mr Nagomarra in the stolen red car.

   (5)They drove to the One Mile camp but did not see anyone along the road.

   (6)On the return journey to Broome, the appellant stopped the car and said he was going to the toilet.

   (7)The appellant ran across the road and hit a young white person in the back of the head.  The appellant used his left arm but Mr Nagomarra was uncertain whether the appellant was holding anything.

   (8)When the appellant hit the boy, Mr Nagomarra looked away.  He then looked back and saw the young white person lying on the road.

   (9)Some of his body was off the road.  He was lying face down in the direction of the One Mile camp.

   (10)(By contrast with par (7)) the first time Mr Nagomarra saw the boy was when the appellant hit him with a pole.

   (11)The appellant returned to the car and drove away. 

   (12)The police told Mr Nagomarra that the appellant had accused him (Mr Nagomarra) of encouraging violence.  Mr Nagomarra denied that he had done so.

   (13)The next day some other people asked Mr Nagomarra whether they had 'bumped' the white boy with the car.  Mr Nagomarra said they had not.

   (14)Some ladies from Balgo had claimed that the white boy had been 'bumped'.  That was not true.

3. During the Aviemore Review, Kris Giesen, a clinical psychologist and behavioural analyst with the Western Australian police, analysed the electronically recorded interview with Mr Nagomarra.  Dr Giesen said in a report dated 15 October 2015 that many of the critical details in the interview were introduced by the interviewers.  They were not disclosed spontaneously by Mr Nagomarra.  Dr Giesen was of the view that Mr Nagomarra conformed to the interviewers' suggestions.  She questioned 'the veracity of Nagomarra's disclosures, in particular that disclosed in his second statement which is extracted from the [electronically recorded interview] where he began to alter his initial version of events'.

4. On 10 November 2015, in the course of the Aviemore Review, police re‑interviewed Mr Nagomarra.  An interpreter was present and the interview was electronically recorded.  In this interview Mr Nagomarra gave an account which was largely consistent with his first witness statement; that is, he saw the white boy but the car did not stop.  Mr Nagomarra also explained that he gave the account he did in the electronically recorded interview on 20 August 2012 and in his second witness statement dated 20 August 2012 because the police attempted to make him change his account, the questioning was persistent, he was young and afraid and he thought the appellant had blamed him for Mr Warneke's death.

5. Mr Mandijarra (who, as we have mentioned, is the appellant's cousin in an Aboriginal kinship sense) was first interviewed by police on 17 February 2012.  A witness statement was obtained from him.  In this first witness statement dated 17 February 2012, Mr Mandijarra asserted:

   (1)On the night of 25 February 2010, the appellant and Mr Nagomarra picked him up in a little red car with flower stickers on the back.  The car was stolen.

   (2)They decided to go to the One Mile camp.  On the way, he did not recall seeing anyone on the road.

   (3)On the return journey, Mr Mandijarra saw a young blond person lying face down on the opposite side of the road.

   (4)The next morning, Mr Mandijarra heard that the young person had been 'bumped' by a car.  He checked the little red car for damage but there was none.

6. On 26 February 2012, Mr Mandijarra was re‑interviewed by police after they had interviewed Mr Nagomarra and Mr Cotchilli.  Mr Mandijarra gave the police a second witness statement.  This statement was dated 26 February 2012 and asserted:

   (1)Mr Mandijarra was able to remember further information.

   (2)On the journey to the One Mile camp, he saw a white person wearing a black T-shirt walking near a roundabout, by a small streetlight, on the left hand side of the road.  The person was walking to the end of the footpath.

   (3)On the return journey from the One Mile camp, he saw a man lying on the side of the road.

7. After police interviewed the appellant, they interviewed Mr Mandijarra again.  However, unlike Mr Nagomarra, Mr Mandijarra did not participate in an electronically recorded interview.

8. On 20 August 2012, Mr Mandijarra provided a third witness statement.  This statement was dated 20 August 2012 and asserted:

   (1)Mr Mandijarra was able to give the police further information because the appellant had been charged.

   (2)While driving around Broome on the night in question, the appellant told Mr Mandijarra that he had a steel bar in the car.  The appellant was angry at a boy from the Bidyadanga community.

   (3)On the journey to the One Mile camp, and after driving through the roundabout, Mr Mandijarra saw a boy, who had long blond hair and was wearing a black T-shirt, walking on the footpath.  They drove past the boy.

   (4)A little further up the road, the appellant stopped the car on the same side of the road as the airport.

   (5)The appellant was angry and upset.

   (6)The appellant grabbed the steel bar from the driver's side footwell, got out of the car, shut the driver's door and walked behind the car.

   (7)The appellant was out of the car for a little while and Mr Mandijarra did not see what he was doing.

   (8)The appellant returned to the car, opened the driver's door and put the bar near his feet.  The appellant said words to the effect 'I just hit that boy back there'.

   (9)The appellant then drove to the One Mile camp and they collected Ms Richards.

   (10)On the return journey, the appellant said, 'look at the white boy there sleeping on the road'.  Mr Mandijarra recognised the white boy as the person he had seen by the roundabout.  He thought, from the way the boy was lying, that he was dead.

   (11)The next day people were asking whether they had 'bumped' the white boy with their car.

   (12)Mr Mandijarra spoke to the appellant a few days later and told the appellant he knew they had not 'bumped' the boy.  The appellant told Mr Mandijarra that he (the appellant) had hit the boy across the head with the bar.

   (13)Mr Mandijarra did not think that the appellant had told anyone else about hitting the boy with the bar.  He merely told other people that he had 'bumped' the boy with the car.

9. On 11 November 2015, in the course of the Aviemore Review, police re‑interviewed Mr Mandijarra.  An interpreter was present and the interview was electronically recorded.  In this interview Mr Mandijarra gave the following account:

   (1)On the night of 25 February 2010, the appellant and Mr Nagomarra picked him up in a small red four‑door car with flowers on the back.  The car was stolen.

   (2)On the way to the One Mile camp, Mr Mandijarra saw a young man walking alone on the footpath near the roundabout.  He described the man as a white boy with blond hair.  He could not describe the clothing the man was wearing.

   (3)They collected Ms Richards at the One Mile camp.

   (4)On the return journey, Mr Mandijarra saw the young man lying on the side of the road.  He was closer to the bridge than he had been previously.

   (5)The car did not stop.  No‑one got out of the car.  No‑one assaulted or attacked the young man.

10. On 30 June 2010, Ms Nungoray provided a witness statement to the police.  In this witness statement she said:

    (1)One night she was arguing with the appellant and Mr Baadjo.

    (2)They told her that they had stolen a black Hilux vehicle and had 'bumped' a white man near the roundabout.

11. Ms Nungoray's witness statement was inconsistent with the State's case that the appellant had struck Mr Warneke with a pole.  Also, Ms Nungoray asserted that the appellant had told her he was driving a black car whereas the appellant, Mr Nagomarra and Mr Mandijarra have always said that they were in a red car.

12. On 12 November 2015, in the course of the Aviemore Review, police re‑interviewed Ms Nungoray.  The interview was electronically recorded.  In this interview Ms Nungoray told the police:

    (1)One night, at 6 Norman Street, Broome, the appellant and Mr Baadjo told her they had killed a young person the previous night.

    (2)They told her that there was another male person with them (from Kintore) and two girls, namely Annette Yagan and Adeline Gibson.

    (3)They told her they had stolen a black car and 'bumped' the white person while he was drunk.  They had thought he was a kangaroo.

    (4)Ms Nowee had forced her to make a statement to the police because the appellant and Mr Baadjo had refused to give alcohol to Ms Nowee.

13. On 19 February 2012, Ms Nowee provided a witness statement to the police.  In the statement she said:

    (1)About two years previously she had used her mobile telephone to call her sister Geraldine Nowee.

    (2)In the course of the conversation the appellant spoke to her on the telephone.

    (3)The appellant said that about three years previously he was driving a stolen car around Broome.  The appellant said he was with one of the 'Lillias boys'.

    (4)The appellant said they had 'bumped' a white person on the way to the One Mile camp.  He said that he saw the white person suddenly and was unable to miss him.  He bumped him with the car.

    (5)The appellant said they had all got out of the car and dragged the person from the road.  They then got back into the car and drove to the One Mile camp.

14. Ms Nowee's witness statement was inconsistent with the State's case that the appellant had struck Mr Warneke with a pole.

15. On 11 November 2015, in the course of the Aviemore Review, police re‑interviewed Ms Nowee.  The interview was electronically recorded.  In this interview Ms Nowee told the police:

    (1)She recalled having spoken to her sister Genevieve Nowee.

    (2)When she was talking to Genevieve Nowee, there were drunk people in the background.  The drunk people were talking about the appellant.  They talked about the appellant having seen a white boy on the road and having hit him on the head before pulling him onto the side of the road.

    (3)The drunk people mixed up the story.

    (4)She did not speak directly to the appellant.

16. On 20 August 2012, Ms Richards provided a witness statement to the police.  In the statement Ms Richards said she recalled getting a lift one evening in a white car.  Otherwise, she had little recollection of what occurred that evening.  On 7 August 2013, she confirmed the state of her recollection during a field interview with the police.

17. On 18 November 2015, in the course of the Aviemore Review, police re‑interviewed Ms Richards.  The interview was electronically recorded.  In this interview, Ms Richards described a journey in a white car. She could not remember anything that happened during the journey.  She did not see anyone on the road or recall hearing anyone say anything.

Particulars (a) and (d) of the ground of appeal:  the appellant's evidence at the hearing of the appeal

1. The appellant gave sworn evidence, through an interpreter, Ms Burns, at the hearing of the appeal.

2. The appellant's evidence‑in‑chief was, relevantly and in essence, as follows:

   (1)When the appellant was interviewed by the police he could understand 'only a little bit' of what the police were telling him.  As a result, he was 'getting frightened' and 'getting scared' (appeal ts 101).

   (2)The appellant told the police that he had 'killed that white boy', but the statement was not true.  He told the police that he had 'killed that white boy' because the police showed him statements by Ms Nungoray and Ms Nowee to the effect that he had 'murdered that white fella' and the police '[kept] asking [him] over and over, repeatedly if [he had] killed that white boy' (appeal ts 102).

   (3)When the appellant was in Broome prison, after he had been charged with Mr Warneke's murder, Mr Brunello spoke to him by video‑link from Perth.  It was arranged that Mr Brunello would visit him at Casuarina prison.  The appellant was transferred to Casuarina prison after two weeks in Broome prison (appeal ts 104 ‑ 105).

   (4)Mr Brunello visited the appellant in Casuarina prison.  The appellant asked Mr Brunello to act as his lawyer.  Mr Brunello asked the appellant whether he had 'hit that white boy'.  The appellant told Mr Brunello that he had hit 'that white boy' with an iron bar.  However, that was not true.  The appellant did not hit him.  The appellant told Mr Brunello that he had 'hit the white boy with an iron bar' because 'the police [were not] listening to [him] and nobody else was listening to [him]'.  The police were 'listening to [Ms Nungoray's] and [Ms Nowee's] stor[ies]'.  The police told the appellant that Ms Nungoray and Ms Nowee were saying that the appellant had telephoned them and admitted that he had 'killed that white boy'.  That was not true.  The appellant did not telephone Ms Nungoray or Ms Nowee and say that he had killed Mr Warneke (appeal ts 106 ‑ 108).

   (5)Later, there was another meeting between the appellant and Mr Brunello at Casuarina prison.  Mr Nanala, the interpreter, attended the meeting by video‑link.  At the meeting, the appellant 'was trying to tell [Mr Brunello] that [he] didn't kill that white fellow'.  Mr Brunello showed the appellant a handwritten document comprising three pages and headed 'Instructions of Gene Gibson' (yellow AB 1515 ‑ 1517).  Mr Brunello wrote the document and then read the document aloud in English.  Mr Nanala read the document aloud in Pintupi.  The appellant did not 'really understand' the contents of the document.  He thought the document was to be given to the court.  The appellant signed the document because Mr Brunello told him that he had to sign it.  The document is dated 25 October 2012.  At the meeting Mr Brunello said Mr Baadjo claimed that the appellant had told him that he had 'run the white fellow over'.  Mr Baadjo's claim was not true.  The appellant did not 'run [Mr Warneke] over'.  Mr Brunello also said Mr Nagomarra and Mr Mandijarra claimed that the appellant had 'killed that white fellow'.  Their claim was not true.  Mr Brunello said the appellant had been charged with murder and that he was 'looking at big time' and 'might get life' (appeal ts 108 ‑ 114).

   (6)At the Supreme Court, after the seven day hearing before Hall J in relation to the appellant's EROIs, the appellant had another meeting with Mr Brunello and another lawyer (apparently Mr Eberhardt) whose name the appellant could not recall.  An interpreter was present at the meeting.  Mr Brunello told the appellant that the court had '[thrown] the video out'.  The appellant thought that, as a result, he 'was probably going to go back home' (appeal ts 114 ‑ 117).

   (7)About two weeks after the seven day hearing in the Supreme Court, Mr Brunello visited the appellant again at Casuarina prison.  No interpreter was present.  Mr Brunello told the appellant that he had received new evidence, namely new statements given by Mr Nagomarra and Mr Mandijarra to the police.  Mr Brunello also told the appellant that he had received a statement given by Mr Cotchilli to the police.  Mr Brunello said the three witnesses claimed ('know') that the appellant was guilty.  Mr Brunello told the appellant that he was guilty.  During the meeting Mr Brunello showed the appellant a two‑page typewritten document headed 'Instructions of Gene Gibson' (yellow AB 1518 ‑ 1519).  The appellant could not 'really understand' the document.  He thought the document was 'for court'.  The appellant signed the document because Mr Brunello told him to sign it.  The document is dated 22 June 2014.   At the meeting Mr Brunello told the appellant 'you have to say guilty … If you say not guilty, you will get big time'.  Mr Brunello said 'Guilty:  you will get small time'.  If the appellant pleaded 'not guilty' he would 'Get big sentence to life'.  After the meeting the appellant did not have another meeting with Mr Brunello at Casuarina prison (appeal ts 118 ‑ 123).

   (8)The next time the appellant met with Mr Brunello was at the Supreme Court.  Mr Nanala, the interpreter, was present at the meeting.  Mr Brunello told the appellant he had 'to say guilty today'.  Mr Brunello said the appellant had to plead guilty 'because [the appellant had killed] that white fellow'.  Mr Brunello also said that 'if you say not guilty, you will get big time.  If you say guilty, you will get little time'.  Mr Brunello told the appellant that he was going to 'have a little meeting' with the judge.  Mr Brunello showed the appellant a three‑page typewritten document headed 'Instructions of Gene Gibson' (yellow AB 1520 ‑ 1522).  The appellant could not 'really understand' the document, so he 'just signed it'.  The document is dated 4 July 2014.  The appellant thought Mr Brunello was going to give the document to the judge.  When the appellant appeared in court that day before 'a woman judge' he said he was 'guilty' because he could not 'really understand what was going on'.  He was sentenced by 'the lady judge' (appeal ts 123 ‑ 128).

3. The appellant's evidence in cross‑examination was, relevantly and in essence, as follows:

   (1)When the appellant spoke to Mr Brunello by video‑link, while the appellant was in Broome prison, the appellant told Mr Brunello that he wanted to plead 'not guilty'.  That meant innocent  (appeal ts 135 ‑ 136).

   (2)On the first occasion the appellant met with Mr Brunello, at Casuarina prison, no interpreter was present.  Mr Brunello told him 'lots of … things'.  The appellant could understand 'a little bit'.  Mr Brunello did not tell the appellant that he could plead 'not guilty'.  Mr Brunello asked the appellant whether he had hit 'the white boy'.  The appellant told him he had hit 'the white boy' with 'an iron', but that was not true.  The appellant made the untrue statement because 'the police [were not] listening to what [he] was saying'.  Mr Brunello was not the police but the appellant was not 'really understanding'.  The appellant told Mr Brunello that he had hit 'the white boy' because 'the white boy' had called him 'a black cunt'.  That was not true.  Mr Warneke had not called the appellant 'a black cunt'.  The appellant made the untrue statement because he was not 'understanding properly' (appeal ts 136 ‑ 139).

   (3)On the next occasion the appellant met with Mr Brunello, at Casuarina prison, Mr Nanala, the interpreter, was present by video‑link.  The appellant trusted Mr Brunello and Mr Nanala.  He believed they would 'help [him] against the police'.  Mr Brunello wrote on pieces of paper (being the handwritten document comprising three pages and headed 'Instructions of Gene Gibson':  yellow AB 1515 ‑ 1517) and Mr Nanala then said things to the appellant.  The appellant told Mr Brunello that he had hit 'the white boy'.  Mr Brunello asked the appellant if he had 'meant to kill or seriously harm the white boy'.  The appellant does not remember what he said in response.  Mr Brunello told the appellant to plead guilty to manslaughter.  The appellant replied 'yes'.  Mr Brunello probably explained to the appellant what manslaughter was but he could not remember (appeal ts 139 ‑ 145).  During his evidence the appellant agreed with counsel for the State's suggestion that he saw Mr Nanala holding the handwritten document and reading it to him (appeal ts 142).  In fact, Mr Nanala was not present in person with Mr Brunello and the appellant at the prison, but was present by video‑link (appeal ts 109, 139 ‑ 140).

   (4)The appellant understood that the purpose of the seven day hearing before Hall J was 'to try to get the police interviews thrown out of court'.  His lawyers were Mr Brunello and 'a man called Craig'.  The appellant had an interpreter.  The appellant understood the interpreter.  The interpreter's name was Steven James.  On the last day of the seven day hearing Mr Brunello and Craig spoke with the appellant in the presence of the interpreter.  The lawyers told the appellant that even if the videos were thrown out the prosecution still had the evidence of Mr Nagomarra and Mr Mandijarra.  The appellant could understand some of the things said by the lawyers and translated to him, but he could not understand other things.  If he did not understand, the appellant 'would ask someone to help [him]' and 'people then [helped him] understand'.  After the seven day hearing the appellant returned to Casuarina prison (appeal ts 145 ‑ 152).

   (5)The appellant recalled Mr Brunello coming to see him at Casuarina prison after the seven day hearing.  No interpreter was present.  The appellant thought Mr Brunello had new statements from Mr Nagomarra and Mr Mandijarra.  Mr Brunello told the appellant that in his new statement Mr Mandijarra said the appellant had killed 'that white boy'.  Mr Brunello told the appellant that Mr Mandijarra's new statement alleged the appellant had 'got out of the car and hit [the white boy]'.  Mr Brunello told the appellant that Mr Nagomarra's new statement was 'like' Mr Mandijarra's new statement.  The appellant understood the new statements to be saying the same thing as the old statements.  Mr Brunello did not tell the appellant that 'he was going to ask the court to throw out those statements'.  The appellant could not 'really … understand' what Mr Brunello was saying.  The appellant thought there was another statement from Mr Cotchilli.  Mr Brunello told the appellant that Mr Cotchilli said he (Mr Cotchilli) was in the car and the appellant had '[run the white boy] over with the car'.  Mr Brunello told the appellant 'to say guilty'.  The appellant wanted to plead guilty because 'new evidence came out against [him]'.  The appellant could not 'really remember' whether he told Mr Brunello that he did not hit 'the white boy' (appeal ts 156 ‑ 159).

   (6)After that visit by Mr Brunello, the appellant went to the court.  The appellant said the word 'guilty' to the 'man judge'.  Before the appellant appeared in court, Mr Brunello spoke to him in the cells at the courthouse.  An interpreter was present.  The appellant thinks it was Mr Nanala.  The appellant thought he was going to court that day for sentence.  Mr Brunello told Mr Nanala to tell the appellant to say 'guilty'.  The appellant did not want to plead guilty that day.  He wanted to say 'not guilty', but Mr Brunello said 'if you say not guilty, you will get a lot of time.  Big time.  And if you say guilty, you will get a smaller time'.  Mr Brunello told him a small time would be about 9 years and a long time would be about 20 years.  When the appellant was visited in the cells by Mr Brunello and Mr Nanala, the appellant signed 'another piece of paper' (being the typewritten document comprising three pages and headed 'Instructions of Gene Gibson':  yellow AB 1520 ‑ 1522).  The appellant cannot 'really remember' whether Mr Brunello or Mr Nanala read the document to him.  The appellant did not tell Mr Brunello that he did not want to say 'guilty'.  He did not tell him because Mr Brunello had said 'if you say not guilty you'll get big time, and if you say guilty you'll get small time' (appeal ts 159 ‑ 163).

   (7)Later, the appellant went to court and was sentenced by a 'woman judge' (appeal ts 163).

1. Seventhly, Hall J made the following findings in relation to the appellant's appearance and his interaction with the police officers during the appellant's EROIs:

   It is plain that an interpreter was required.  I accept the evidence of Ms Doyle and Dr Ingram that [the appellant] had only a very basic level of English comprehension and speaking ability.  This is supported by my own observation of [the appellant] during the recorded police interview in Kiwirrkurra.  He frequently hesitates and turns to Mr Butler to provide an interpretation of what is put to him.  His language is disjointed and sometimes confusing.  Many of his responses are single words which do not necessarily indicate an understanding of the questions. 

   Because [the appellant] had only a very limited understanding of English the absence of an interpreter means that I cannot be confident that he understood what the police said to him about his rights.  Nor can I be confident that he sufficiently understood police questions or that his answers can be accepted at face value [83] ‑ [84].

   We have viewed the appellant's EROIs.  We endorse Hall J's findings.

2. We accept the following evidence of Mr Eberhardt as set out in his witness statement dated 19 October 2016:

   I was very concerned about whether [the appellant] would be able to give evidence in his defence, either at the pre‑trial application or at his trial.  Mr Brunello advised me in strong terms that he did not believe that [the appellant] would be able to give evidence and deal with cross examination effectively.  After seeing [the appellant's] performance in the video recorded interviews, reading his school and health records and ultimately meeting him during the application, I agreed with Mr Brunello's assessment.  I formed the strong view that there was a real likelihood that [the appellant] would not give a good account of himself and might even agree to suggestions put to him in cross examination due to gratuitous concurrence or simply due to the stress of the situation.

   …  

   The issues being canvassed in the [pre‑trial] application were factually and legally very complex and difficult to explain.  I was not sure that [the appellant] really understood what was going on or why we were even in Court.

   For the most part, [the appellant's] communications with me and Mr Brunello during these meetings amounted to little more than an occasional 'yes' or 'no' or a simple nod of the head.  I can only recall him asking one question of me; on the last day of the pre‑trial hearing (which was a Friday) he asked me 'Do I have to come back (to court) tomorrow?'.

   I was never really sure if [the appellant] understood what I was saying, and on the rare occasions he spoke, I was never really sure if he was just telling me what he thought I wanted to hear [24], [56] ‑ [58]. 

   Those views in relation to the appellant accord with our own views.

3. We also accept the following evidence of Mr Brunello as set out in his witness statement dated 22 December 2016:

   (a)In early September 2012, when Mr Brunello conferred with the appellant, without an interpreter, at Casuarina prison, the appellant was unable to explain to Mr Brunello in English any of his advice and, at the conclusion of the conference, Mr Brunello was not satisfied that the appellant had understood him [25], [27].

   (b)As to Mr Brunello's conference with the appellant, in the presence of Mr Nanala, on 25 October 2012 at Casuarina prison, Mr Brunello had no memory of the appellant responding other than with 'a yes or no, a nod of the head' and sometimes a 'hmm'.  The appellant did not ask questions.  Mr Brunello could not recall the appellant volunteering any comment.  At times the appellant made eye contact; at other times he did not.  At times the appellant sat still, at other times he scratched himself or chewed his lip.  Mr Brunello did not know the extent to which the appellant had understood his advice or the written instructions that the appellant had signed [42], [50].

   (c)As to Mr Eberhardt's and Mr Brunello's conference with the appellant, in the presence of Mr James, on 11 April 2014, the appellant's responses were limited; never more than a nod or shake of the head; he asked no questions and he made no comments [100].

4. Mr Brunello said in cross‑examination that the appellant 'rarely expressed, in his own words, an understanding of the things [Mr Brunello] was saying', even when Mr Brunello spoke to him through an interpreter (appeal ts 200). Mr Brunello described the appellant as 'inscrutable'.  He did not express by words or otherwise anything to make Mr Brunello confident that the appellant understood what had been said (appeal ts 208 ‑ 209, 217).

5. The findings of Hall J and the evidence of Mr Eberhardt and Mr Brunello, to which we have referred, are practical illustrations of the appellant's cognitive impairments and their consequences and, also, of his English language disabilities.

6. Eighthly, the meeting on 22 June 2014 was of critical importance.  The circumstances of the meeting, the manner in which Mr Brunello gave advice to the appellant and the manner in which instructions were apparently obtained by Mr Brunello from the appellant on that occasion were unsatisfactory. 

7. The meeting was conducted without an interpreter.  Given the appellant's English language disabilities, that in itself undermines substantially the extent to which what Mr Brunello said in English at the meeting can support the integrity of the plea of guilty.  Mr Brunello and the appellant met in a 'non‑contact area'.  There was a piece of plexiglass, with a security grille underneath it, between them.  These features were a less than ideal setting for communicating with the appellant.

8. At the time, Mr Brunello knew of the appellant's English language disabilities, but was unaware of his cognitive impairments and their consequences.  Mr Brunello attempted unsuccessfully to obtain an interpreter.  The resources available to the ALSWA were insufficient to retain medical and psychological experts to assess and report on the appellant's neuropsychological condition.

9. The issues of fact and law which Mr Brunello attempted to explain, the oral advice which Mr Brunello attempted to give and the oral instructions which Mr Brunello attempted to obtain at the meeting were very detailed, complex and difficult, even for a non‑lawyer proficient in the English language and without any cognitive impairments.  Similarly, the pre‑prepared written instructions which Mr Brunello presented to the appellant for signature at the meeting were very detailed, complex and difficult, even for a non‑lawyer who did not suffer from the appellant's intellectual disabilities and limited English proficiency.  The document was, in many respects, expressed in legal language that was by no means simple.  The pre‑prepared written instructions were, in form and substance, templates.  Their evident purpose was to create a written record, signed by Mr Brunello's client, in case a dispute should arise subsequently as to whether Mr Brunello had given appropriate advice to and obtained appropriate instructions from the client.  Otherwise, there was no utility in Mr Brunello asking the appellant to sign the pre‑prepared written instructions.  In any event, for the purposes of this appeal, the fact that the appellant did sign them, when he cannot and could not read written English and an interpreter was not present, means nothing.

10. We have no doubt that, as at 22 June 2014, the appellant would have had no material recollection of the specific matters raised by Mr Brunello at the conferences on 30 August 2012, in early September 2012 and on 25 October 2012 or of the specific advice given by Mr Brunello or the specific instructions apparently obtained from the appellant at those conferences. Also, we have no doubt that, as at 22 June 2014, the appellant would have had no material recollection of the specific matters raised by Mr Brunello at any other conferences or in any telephone conversations in 2012 or 2013 or of the specific advice given by Mr Brunello or the specific instructions apparently obtained from the appellant at those conferences or during those telephone conversations.  Further, we have no doubt that, as at 22 June 2014, any recollection that the appellant may have had of any specific matters raised by Mr Eberhardt or Mr Brunello between 1 January 2014 and 11 April 2014 (when the hearing of the pre‑trial application concluded) and any specific advice given by either or both of them and any specific instructions apparently obtained from him during that period would have been materially deficient and imperfect. 

11. Mr Brunello perceived, as at 22 June 2014, that he was under pressure to explain matters to the appellant, to advise him, to obtain his oral instructions and to procure his signature to the pre‑prepared written instructions.  The perceived pressure arose from Mr Brunello's belief, based on his conversations with Ms Burrows, that unless the appellant made an offer to plead guilty to manslaughter 'within a relatively short period of time he wouldn't get another chance' (appeal ts 229).

12. Ninthly, the meeting on 4 July 2014 was also of critical importance.  The circumstances of the meeting, the manner in which Mr Brunello gave advice to the appellant and the manner in which instructions were apparently obtained by Mr Brunello from the appellant on that occasion were also unsatisfactory.

13. Our comments as to the detail, complexity and difficulty of the matters which Mr Brunello sought to deal with at the meeting on 22 June 2014 apply to the matters which he sought to deal with at the meeting on 4 July 2014.

14. Similarly, our comments as to the state of the appellant's recollection as at 22 June 2014 of previous matters raised by Mr Brunello, previous advice given by Mr Brunello and previous instructions apparently obtained from the appellant apply to the state of the appellant's recollection as at 4 July 2014.

15. It is true that at the meeting on 4 July 2014 Mr Brunello spoke to the appellant through Mr Nanala.  However, as we have mentioned, we have doubts as to the adequacy of the interpreting services provided by Mr Nanala.  Also, as Mr Brunello acknowledged, at the meeting on 4 July 2014 the appellant was under 'a lot of pressure'; Mr Brunello was giving the appellant 'complicated advice'; that advice was being given 'over a short timeframe'; and each piece of advice was given only once (appeal ts 236 ‑ 238).  Mr Brunello rightly accepted that the appellant was being 'barraged with complicated issues' (appeal ts 239 ‑ 240).

16. As we have mentioned, although we prefer Mr Brunello's evidence to Mr Nanala's evidence as to what Mr Brunello said or did not say to Mr Nanala in English, we think it is likely that Mr Nanala did say to the appellant, in Pintupi and in effect, at the meeting on 4 July 2014, that if the appellant pleaded guilty to manslaughter he would be in prison for 5 years or 7 years but if he pleaded not guilty he would be in prison for a long time.

17. Tenthly, it is likely that during and at the end of the meeting on 22 June 2014 and, also, the meeting on 4 July 2014 the appellant did not actually understand, relevantly, material aspects of the pending criminal proceedings, the State's case against him, the advice Mr Brunello gave about his plea, the options available to him in relation to his plea or the consequences of a plea of not guilty.  The most significant matter was the absence of an actual understanding by the appellant of the choice he had between pleading guilty to manslaughter, on the one hand, and pleading not guilty to murder or manslaughter, on the other, and the consequences of each choice.  It is likely that during and at the end of the meeting on 22 June 2014 and, also, the meeting on 4 July 2014 the appellant did not actually have the requisite understanding in relation to those matters.

18. The appellant's likely understanding at the end of each of the meetings on 22 June 2014 and 4 July 2014 was that he had in effect two choices, namely he could plead guilty and receive a shorter sentence or he could plead not guilty and receive a longer sentence.  The appellant's decision to plead guilty, on the basis of that flawed understanding, was natural and predictable.  The appellant's understanding was flawed because his knowledge of the alternatives available to him was incomplete in a crucially important respect.  The other alternative available to him, of which he was not cognisant, was to plead not guilty, have a trial and, if found not guilty by a jury, be released from custody immediately.

19. There was, at the least, a real (as distinct from fanciful) risk as at 4 July 2014 that the appellant approached the meeting and assessed the information given to him by Mr Nanala in the context of a deficient and inaccurate understanding of the matters raised with him in the absence of an interpreter at the meeting on 22 June 2014.

20. Eleventhly, Mr Brunello said in cross‑examination that the appellant's instructions, over the period Mr Brunello dealt with him, 'vacillated wildly'.  For example, the appellant's instructions about whether he hit Mr Warneke on the head changed markedly, more than once, even with an interpreter.  Mr Brunello could not tell whether the appellant understood what he was saying to him (appeal ts 208).

21. We are satisfied that the appellant's 'wildly vacillating' instructions to Mr Brunello were attributable, at least in part, to the appellant's cognitive impairments and their consequences.

22. It is not possible to assess the extent to which the appellant's 'wildly vacillating' instructions, and his recollection of events as at 4 July 2014, were influenced or damaged by the inappropriate investigative techniques and questions of the police during the appellant's EROIs.

23. In any event, the fact that the appellant's instructions to Mr Brunello, over the period Mr Brunello dealt with him, 'vacillated wildly' underscored the necessity for instructions to be taken from the appellant afresh, in the presence of an interpreter who was accredited to interpret between English and Pintupi, in an appropriate setting and without pressure.  That was not done.  It is obvious, at least with the benefit of hindsight, that an adjournment of the hearing listed before Hall J at 1.00 pm on 4 July 2014 should have been sought.

24. Twelfthly, we accept that Mr Brunello endeavoured in good faith to ensure that the appellant understood all of the matters he explained and all of the advice he gave.  We also accept that Mr Brunello endeavoured in good faith to obtain the appellant's fully informed instructions (in particular, instructions to offer to plead guilty to manslaughter on a specific factual basis).  Unfortunately, his endeavours were inadequate.

25. It must acknowledged, however, that Mr Brunello found himself in a difficult position in late June and early July 2014.  It is clear that Mr Brunello worked hard and for long hours in his efforts to advance the appellant's interests.  On the facts and in the circumstances known to him at that time, Mr Brunello was of the view that it was in the appellant's interests to plead guilty to manslaughter on the basis ultimately agreed with the State's solicitors.  At the time it was reasonable for Mr Brunello to hold that view.

26. Thirteenthly, for the reasons we have already given in considering whether a miscarriage of justice has occurred, there is, at the least, a real (as distinct from fanciful) risk that the appellant's plea of guilty to manslaughter was not attributable to a genuine consciousness of guilt.

27. In all the circumstances, including the appellant's cognitive impairments and their consequences, his English language disabilities, his tendency to gratuitous concurrence and the circumstances in which the meetings on 22 June 2014 and 4 July 2014 occurred, the integrity of the appellant's plea has been impugned.

28. Fourteenthly, as Steytler P (Wheeler & Buss JJA agreeing) observed in Vella, although it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty, and, in such a case, the appellant must establish that there has been a miscarriage of justice, the circumstances which will constitute a miscarriage of justice are not closed and cannot be exhaustively listed [26].  See also the passage from the reasons of Brennan, Toohey and McHugh JJ in Meissner (141) which we have reproduced at [156] above.

29. It is unnecessary, in the present case, to decide whether the case is within any of the three well recognised circumstances in which courts are prepared to set aside pleas of guilty.  We have no doubt that, for the reasons we have given, a miscarriage of justice has occurred and the appellant's appeal should be allowed and the judgment of conviction set aside notwithstanding his plea of guilty.  We merely add that, for the reasons we have given, the appellant was not, when he entered the plea, 'of sound … understanding' within the passage in Meissner (141).

30. Finally, in this context, counsel for the State did not suggest, and it could not reasonably have been suggested, that there is any scope for the application of 'the proviso' in s 30(4) of the Criminal Appeals Act.  We do not consider that no substantial miscarriage of justice has occurred.

Particulars (a) and (d) of the ground of appeal:  should this court enter a judgment of acquittal or order a trial?

1. Section 30(5) of the Criminal Appeals Act applies in the case of an appeal against a conviction by an offender.  It reads, relevantly:

   If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must ‑ 

   (a)order a trial or a new trial; or

   (b)enter a judgment of acquittal of offence A; …

2. So, by s 30(5), if this court allows the appellant's appeal and sets aside the judgment of conviction, the court must, also, either order a trial (s 30(5)(a)) or enter a judgment of acquittal (s 30(5)(b)).

3. In Director of Public Prosecutions for Nauru v Fowler [1984] HCA 48; (1984) 154 CLR 627, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character (630). Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case (630). Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused' (630).

4. In R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51], Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ (Finlay J & Slattery AJ agreeing) in Anderson v The Queen (1991) 53 A Crim R 421, 453 that:

   (a)there is a public interest in the due prosecution and conviction of offenders; and

   (b)it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.

5. The power of this court under s 30(5)(b) of the Criminal Appeals Act to enter a judgment of acquittal without a retrial is regarded as an exceptional course and one to be used sparingly.  See Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [43] (Gummow, Hayne, Callinan & Heydon JJ), [91] (Kirby J).

6. As Owen JA (Jenkins J agreeing) observed in McHenry v The State of Western Australia [No 2] [2010] WASCA 71 [41]:

   Given the wide range of circumstances that can arise it is undesirable, and probably impossible, to lay down fixed rules governing the exercise of the power to order, or refrain from ordering, a new trial: Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [91] (and see also [23]). The power to enter a judgment of acquittal can be exercised for a number of reasons. They include:

   (a)where it is apparent (as a matter of law) that the prosecution must inevitably fail and it would therefore be futile to order a new trial: Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, 188; and

   (b)where the prosecution indicates that it does not seek an order for a retrial: Griffiths v The Queen [1994] HCA 55; (1994) 69 ALJR 77, 82.

1. In our opinion, it is in the interests of justice (including the public interest and the interests of the appellant) that this court enter a judgment of acquittal rather than order a trial.  First, it is apparent, on the evidence before this court, that both Mr Nagomarra and Mr Mandijarra are unreliable witnesses.  Counsel for the State acknowledged that, based on what is now known, they could not properly have been called by the State at a trial.  The admissible evidence against the appellant is not sufficiently cogent to support a conviction of murder or manslaughter.  Indeed, the admissible evidence does not establish a case for the appellant to answer.  Secondly, the appellant has served a substantial proportion (about 4 years 8 months) of the sentence imposed by Jenkins J (7 years 6 months with eligibility for parole).  Thirdly, counsel for the State's concession that, in 'the very unusual circumstances of this case', it would be appropriate for this court to enter a judgment of acquittal and not to order a trial, together with counsel for the State's acceptance that Mr Nagomarra and Mr Mandijarra are unreliable witnesses, indicates that even if this court were to remit the matter to the Supreme Court for trial, it is likely that the State would discontinue the prosecution.

Particulars (b) and (c) of the ground of appeal

1. It is unnecessary to consider particulars (b) and (c) of the ground of appeal.

Conclusion

1. For these reasons, we made the orders set out at [8] above.