Harvey v The State of Western Australia - [2015] WASCA 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HARVEY -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 250

CORAM: BUSS JA
MAZZA JA
HALL J

HEARD: 1 OCTOBER 2015

DELIVERED : 3 DECEMBER 2015

FILE NO/S: CACR 215 of 2014
CACR 216 of 2014

BETWEEN: BRADLEY WAYNE HARVEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :CORBOY J
File No  :INS 71 of 2013

Catchwords:

Criminal law - Application for leave to appeal against conviction and sentence - Manslaughter - Whether late disclosure caused miscarriage of justice - Whether expert evidence as to drug usage inadmissible - Whether directions to jury excluded the option of acquittal - Whether jury should have been directed to treat a witness as unreliable - Whether it was appropriate for prosecution witness to give evidence by video link - Whether sentence of 10 years' imprisonment was manifestly excessive

Legislation:

Nil

Result:

Applications for leave to appeal refused
Appeals against conviction and sentence dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

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

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

Anderson v The Queen (1992) 60 SASR 90; (1992) 64 A Crim R 312
Dodd v The State of Western Australia [2013] WASCA 80
Heaton v The State of Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409
Hishmeh v The State of Western Australia [2012] WASCA 183
Kalbasi v The State of Western Australia [2013] WASCA 241; (2013) A Crim R 541
Karamitsios v The Queen [2015] WASCA 214
LBC v The State of Western Australia [2011] WASCA 201
Marinovich v The Queen (1990) 46 A Crim R 282
McNamara v The State of Western Australia [2013] WASCA 63
Mills v Hendriksen [2008] WASC 79; (2008) 184 A Crim R 212
Oblak v The State of Western Australia [2007] WASCA 176
Stagno v The State of Western Australia [2015] WASCA 115
The State of Western Australia v Camus [2014] WASCA 74; (2014) 240 A Crim R 384
The State of Western Australia v Duff [2008] WASC 150
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Zeiler v The State of Western Australia [2010] WASCA 227

BUSS JA: I agree with Hall J.
MAZZA JA: I agree with Hall J.
HALL J: On 23 September 2014, following a trial by judge and jury, the appellant was acquitted of murder but convicted of the alternative offence of unlawfully killing Nicolle Patricia Bates. On 8 December 2014 he was sentenced to 10 years' imprisonment with eligibility for parole. He now seeks leave to appeal against both his conviction and sentence.
Leave to appeal is required for each ground of appeal: s 27(1) Criminal Appeals Act 2004 (WA). This court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding: s 27(2). Unless the court gives leave to appeal on at least one ground of appeal the appeal is taken to have been dismissed: s 27(3).
I am not satisfied that any of the grounds of appeal in either the conviction appeal or the sentence appeal has a reasonable prospect of succeeding. Accordingly, in my view, leave to appeal against both the conviction and the sentence should be refused.

The prosecution case

The appellant and the deceased were formerly in a de facto relationship. That relationship ended acrimoniously in late February 2012. The deceased owed the appellant a sum of money. This was something that the appellant had angrily confronted the deceased about on a number of occasions. There were also text messages from the appellant to the deceased of a threatening nature.
On 28 February 2012 the appellant arranged for a co‑offender, Michal Kurdziel, to lure the deceased to Kurdziel's unit in Westminster on the pretext of buying drugs from her. The appellant intended to assault the deceased and steal property which he anticipated that she would have in her possession.
At about 4.45 pm that day the deceased attended at the unit in Westminster. The appellant was hiding inside. When the deceased entered the unit the appellant assaulted her by punching her, stomping on her head and stabbing her. The appellant checked for a pulse and there were no signs of life. He then left the unit to pick up a motor vehicle. The deceased was left inside with Kurdziel.

A short time later the appellant returned to the unit with a car. The body of the deceased was wrapped in a tarpaulin and placed onto the rear passenger seat of the car. The appellant and Kurdziel then drove to the Gnangara pine plantation where the body of the deceased was buried in a shallow grave.
The appellant made admissions to a number of people regarding the death of the deceased. When asked by the deceased's boyfriend if he had seen her the appellant said words to the effect, 'Next time you see her she will be dead'. He told another acquaintance that he was going to give the deceased a 'hot shot'. He told another person that he would not be seeing the deceased anymore because she had been 'taken care of'. He also made admissions to his housemate, Melissa Dearle, the day following the death. He told Ms Dearle that he had 'done something really bad' and that he had 'just got rid of Nicolle'. The following day, whilst they shared drugs together, the appellant told Ms Dearle that he and his mate Mic had set up a deal with the deceased to bring drugs to Mic's unit. He said that he had been waiting there for her and had grabbed her and stabbed her with a kitchen knife. He also described how he had punched the deceased in the head and then jumped on her head a few times. He told Ms Dearle that he had moved the deceased's body using a car that he had borrowed and that he had buried her to a depth of about a metre. He said that the deceased had a weak pulse at the time she was buried.
The deceased's body was not discovered by police until 18 days after her death. The body was in an advanced state of decomposition. Because of this the pathologist was unable to ascertain the cause of death. However there was no evidence of natural disease. A possible defect in the t‑shirt of the deceased was consistent with a sharp force injury and there was a possible underlying wound in the skin but no definite deep wound track. Testing established the presence of methylamphetamine and amphetamine in the liver of the deceased at reasonably high concentrations.
When interviewed by police the appellant lied about when he had last seen the deceased. He also denied some of the details of previous communications with the deceased and others. He minimised his behaviour on the occasion of an earlier confrontation with the deceased.
The prosecution case was that the appellant had killed the deceased in one of two alternative ways. First, the State alleged that the appellant assaulted the deceased and that the assault caused her death. That assault was alleged to have consisted of punching, stomping on the deceased's head and stabbing her to the torso. The State contended that this assault substantially or significantly contributed to the deceased's death. Second, and in the alternative, the State alleged that the appellant killed the deceased by burying her alive. In this respect the State relied upon the admission made to Ms Dearle that the deceased had a pulse at the time she was buried. The State's alternative case was that the deceased was unconscious but alive when she was placed into the ground and that she died from asphyxia. The jury were directed that they had to be unanimous in regard to the way in which the death had been caused.

The defence case

The appellant gave evidence. He also made a number of admissions pursuant to s 32 of the Evidence Act 1906 (WA). Those admissions were that the deceased had died at the Westminster unit and that he and Kurdziel had disposed of the body by burying it at the Gnangara pine plantation.
The appellant agreed that there had been a physical confrontation between he and the deceased at the Westminster unit but he denied that it was of a force or severity sufficient to have caused her death. He said that the deceased lunged at him and that he pushed her arms down in response. This motion caused the deceased to fall to the floor. He also dislocated his shoulder. He said that the deceased remained on the floor and he believed she was faking an injury. He used his shoe to tap her twice on the cheek. He then checked for vital signs and saw that she was not breathing. In a panic he and Kurdziel decided to dispose of the deceased's body.
The appellant's case at trial was that there was an alternative reasonable inference for the deceased's death. It was suggested to the jury that they could not exclude the reasonable possibility that the deceased had died from an adverse reaction to methylamphetamine that she had used some time earlier. This possibility was said to be supported by toxicology results showing that the deceased had used a significant quantity of methylamphetamine prior to her death.

Grounds of appeal - conviction

The appellant was represented by experienced counsel at the trial. However, he represents himself on these appeals. Nonetheless both his grounds of appeal against conviction and his written submissions are succinct and clear.
The grounds of appeal against conviction are as follows:
1.Inadequate and late disclosure of the test results of a clip seal bag found on the deceased and the lack of testing of a brown stain on the external surface of the clip seal bag, resulted in a miscarriage of justice.
2.Opinion evidence from a detective relating to drug usage was wrongly admitted in that the expertise and qualifications of the witness were not adequately established, resulting in a miscarriage of justice.
3.The learned trial judge erred in law when directing the jury on a question concerning whether the jury needed to agree on the cause of death of the deceased by not including the option of an acquittal in the subsequent directions.
4.The learned trial judge should have cautioned the jury about the evidence of Melissa Dearle on the basis that she was an unreliable witness.
5.Melissa Dearle should not have been permitted to give her evidence by way of video link due to her being the key prosecution witness and the jury not being able to adequately assess her credibility by way of video link.

Ground 1 - the clip seal bag

When the deceased's body was examined in the mortuary a small clip seal bag was found in her right bra cup. The pathologist, Dr Daniel Moss, removed the bag and arranged for it to be sent to the ChemCentre (ts 1129).
A forensic scientist from the ChemCentre examined the bag on 25 May 2012. It was described as 'one clip seal plastic bag, bearing brown stains on the external surfaces'. The scientist who conducted the examination was Ms Lecinda Collins‑Brown. She undertook ultraviolet spectroscopy and gas chromatography on the bag and in a certificate of analysis (exhibit 20) dated 31 July 2012 reported that common illicit drugs were not identified on the inside surfaces of the plastic bag.
Ms Collins‑Brown was called as a witness at the trial and explained that the methodology used to examine the bag involved using 3 mls of deionized water to rinse out the inside surfaces. The water was then tested. The gas chromatography test showed that there was a trace of methylamphetamine detected. However that result was not supported by the ultraviolet spectroscopy test. Ms Collins‑Brown said that the trace result was below the reporting guidelines that would justify a positive report. The trace quantity detected by gas chromatography was so small that it was not possible to quantify (ts 1139 ‑ 1140). In cross‑examination Ms Collins‑Brown accepted that the existence of a trace of methylamphetamine in the clip seal bag could be consistent with there having been a larger quantity in that bag at some time.
The appellant contends that until shortly before the trial the available evidence was that there was no detectable drugs in the clip seal bag. He says that the late disclosure of the evidence of Ms Collins‑Brown and the lack of any testing on the brown stain on the external surface of the clip seal bag prejudiced his preparation for the trial and impacted upon the verdict of the jury. The implication is that given more time the appellant would have had an opportunity to ask for the brown stain to be analysed. The suggestion is that such testing could in some way have supported the defence hypothesis that the deceased died from a methylamphetamine overdose.
The State called Professor David Joyce to give expert evidence regarding the effects of methylamphetamines. Professor Joyce said that the concentrations of drugs found in the deceased's liver were 36 milligrams per kilogram of methylamphetamine and 7 milligrams per kilogram of amphetamine. The methylamphetamine was a high concentration which indicated that the deceased received quite a large dose of drugs at some stage. He said that methylamphetamine metabolises in the body to amphetamine and this was the likely explanation for the presence of the latter drug. People who use methylamphetamine can frequently tolerate much higher concentrations and can have very high concentrations in their blood and tissue but be under no threat to their lives (ts 1050 ‑ 1051).
Professor Joyce said that methylamphetamine use could not be excluded as a possible cause of death but such a cause was unlikely. The reasons for this are (1) that death from methylamphetamine poisoning is rare; (2) the cases reported in the literature have mostly required amounts of drugs which are greater than were detected in the deceased; (3) heavy users get up to these levels quite commonly shortly after a dose and uniformly survive; and (4) the quantity of amphetamine in the liver of the deceased indicates survival after use of the drug because it takes a long time for the body to convert methylamphetamine into that much amphetamine (ts 1052).
In the rare cases where death occurs Professor Joyce said that there are four possible pathways. The first is a sudden disturbance of heart rhythm which occurs shortly after a drug dose. The second is an increase in blood pressure such that a critical artery, such as an artery in the head, bursts and the person dies quickly from a stroke. The third and fourth pathways are continuing epileptic seizures or an increase in body temperature. Both of those things take a long time to develop and are preceded by an obvious phase of intoxication (ts 1053).
In cross‑examination Professor Joyce accepted that methylamphetamine could cause a person to be severely agitated or aggressive and that the person might continue to fight, even with injuries, until they die of an abnormal heart rhythm. However, he said that such an outcome was 'very, very rare' and that he had encountered such cases on only four occasions in 25 years (ts 1059). He said that the literature revealed that of those people known to have died from a methylamphetamine overdose all but one had liver concentrations higher than that of the deceased (ts 1062).
Professor Joyce said that the defence scenario of the deceased having used a high dose of methylamphetamine ten to twenty minutes before her death could have caused the methylamphetamine concentration but could not have caused the amphetamine concentration. He said that it would have taken a considerable length of time for that quantity of amphetamine to be made in the body. He accepted that the presence of the amphetamine was capable of being explained by the deceased taking a simultaneous dose of methylamphetamine and amphetamine, though he had not come across such a scenario in his experience (ts 1071).
Dr Moss, the pathologist who conducted the post‑mortem, said that the body was extensively decomposed with partial skeletonisation and extensive soft tissue loss. He said that he took a sample from the liver because 'the body processes most drugs in the liver so it's a very good sample for that'. However, he said that the liver, like the rest of the body, was in an advanced state of putrefaction (ts 1098 ‑ 1099). Dr Moss examined the deceased's heart and said that there was a lot of tissue loss but its overall appearance and structure did not suggest any specific disease process (ts 1104).
It is not clear when the defence were informed that one of the tests undertaken by Ms Collins‑Brown had indicated the presence of a trace of methylamphetamine in the clip seal bag. However it is important to note that this result was inconsistent with the other test and fell below the reporting guidelines which allowed for a positive conclusion about the presence of a drug. In any event the appellant was represented at trial by very experienced defence counsel who made no complaint regarding this evidence or its late disclosure. The evidence was not adverse to the appellant, indeed it was relied upon by defence counsel in his submissions to the jury.
The suggestion that the appellant lost an opportunity to have the brown stains on the outside of the clip seal bag tested assumes that there is some basis for thinking that such testing could have contributed any relevant information. There is nothing in the evidence at the trial that suggests that the brown stains had any significance. There is no reason to think that examination of the stain could in any way assist in determining the cause of death of the deceased and the appellant's submissions in this regard are merely speculative.
The appellant submits that had he been aware at an early stage that the clip seal bag had tested positive for traces of methylamphetamine he could have sought that the deceased's heart tissue be analysed. He said that this is relevant because intravenous methylamphetamine and amphetamine 'goes straight to the heart'. There is no evidence to support these contentions. To the contrary, Dr Moss said that samples of blood, urine and from the liver are taken for toxicology purposes, the liver being the organ in which drugs are metabolised in the body.
This ground of appeal has no prospect of success and leave in respect of it should be refused.

Ground 2 - opinion evidence

Detective Sergeant Paul Thornton was the officer in charge of the investigation into the death of the deceased. He had spent four years at the Organised Crime Squad between 2000 and 2004 and said that he had general experience in dealing with drug offenders. He gave evidence regarding the terms 'hot shot' and 'speed'. He was then asked about the availability of methylamphetamine and amphetamine on the streets. He said that methylamphetamine was readily available but amphetamine only very rarely. He had never previously come across amphetamines in his time as a police officer (ts 1209 ‑ 1210).
Detective Thornton was then asked whether to his knowledge users of methylamphetamine have ready access to amphetamines. Objection was taken on the basis that Detective Thornton's direct experience in relation to drugs had ended some eight years earlier. The trial judge ruled that he was not satisfied that Detective Thornton was qualified to answer that particular question, but said that the prosecutor could ask further questions to establish his expertise (ts 1210 ‑ 1211).
The prosecutor then asked Detective Thornton a series of questions regarding how police officers familiarise themselves with what takes place in the drug market. He referred to statistics kept by the ChemCentre and by the West Australian Police. He said that he had looked at the statistics for 2012 and also spoken to the ChemCentre. He was then asked what his search of the year 2012 showed in respect of the availability of amphetamines on the illicit drug market. He said that there had been 2,843 seizures of methylamphetamines in that year and 40 seizures of amphetamines. Of those 40 seizures six related to powder and 27 related to pharmaceutical products such as dexamphetamine. The total weight of amphetamines seized was 14 grams and the total weight of methylamphetamine seized was 29.7 kilograms (ts 1211).

The appellant contends that Detective Thornton expressed opinions outside the scope of his qualifications because his knowledge and training with the Drug Squad was outdated by eight years. He says that those opinions were inadmissible and should have been excluded.
Whilst defence counsel initially objected to Detective Thornton's evidence, that objection was not repeated after further evidence regarding the basis of the opinion was led. Accordingly, although the appellant suggests that the evidence should not have been admitted, the trial judge was not called upon to make any decision in that regard. The ground does not allege an error of law but a miscarriage of justice.
Where evidence is led without objection, it is difficult for the appellant to establish a miscarriage of justice. This is because, generally, an appellant is bound by the way defence counsel conducted the trial: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8], [24] ‑ [33], [43] and [102] ‑ [104].
Matters such as the characteristics, price, packaging, terminology and the availability of illicit drugs are matters of specialised knowledge about which opinion evidence from a suitably qualified expert witness may be admitted: Marinovich v The Queen (1990) 46 A Crim R 282, 201; Anderson v The Queen (1992) 60 SASR 90; (1992) 64 A Crim R 312, 103 ‑ 104, 108 and Kalbasi v The State of Western Australia [2013] WASCA 241; (2013) A Crim R 541 [89].
The relevance of the evidence was that it tended to support Professor Joyce's hypothesis that the amphetamines found in the deceased's liver sample were the result of her body metabolising methamphetamine rather than by the direct taking of amphetamines. The relative scarcity of amphetamines on the streets in 2012 made it unlikely that the deceased had directly taken that drug.
Detective Thornton's evidence as to the statistics involved no element of opinion, however he then went on to give evidence about drug hierarchies and how methamphetamine was generally sold on the streets. Despite what was said by defence counsel in his initial objection, it was not apparent that Detective Thornton's experience was confined to the four years that he spent in the Organised Crime Squad. He also referred to general experience of dealing with drug offenders over his 21 year career. It is conceivable that in these circumstances defence counsel had a rational forensic reason for not repeating his objection. He may well have thought that such an objection would not succeed. Furthermore defence counsel took the opportunity to cross‑examine Detective Thornton in regards to the statistics and their limitations.
In my view it is not apparent that Detective Thornton's evidence was inadmissible. The matters about which he gave evidence are matters which can properly be the subject of expert evidence. The challenge to his qualifications to give such evidence was not maintained and he was not cross‑examined in regards to his experience. The appellant was represented by experienced counsel and there are rational forensic reasons for counsel not objecting to the evidence. In these circumstances there can be no miscarriage of justice: Oblak v The State of Western Australia [2007] WASCA 176 [6], Zeiler v The State of Western Australia [2010] WASCA 227 [81]; LBC v The State of Western Australia [2011] WASCA 201 [11] and Kalbasi [82].
This ground of appeal has no prospect of succeeding and leave in respect of it should be refused.

Ground 3 - whether the trial judge excluded an unqualified acquittal

In both written and oral directions to the jury the trial judge directed that in the event that they were satisfied that the appellant caused the death of the deceased they must all agree on the way in which the State proved that he killed the deceased (ts 1597). This direction was given because the prosecution case involved two alternative ways in which death was caused.
After retiring the jury returned with a question in the following terms:
Could you please clarify/explain in simpler terms paragraph 25, regarding the elements of manslaughter. We are a little stumped on the line 'you must all agree on the way in which the State has proved that he killed Ms Bates'. Does this mean that we have to all agree on the way she was killed?
His Honour said that the short answer to this question was 'yes' (ts 1621). He then reminded the jury that the State had presented its case on two alternative bases. He said that they must all agree on the way in which the deceased was killed in order to find that the State had proven that the appellant caused the death of the deceased (ts 1622). This direction was favourable to the appellant. After the redirection had been given defence counsel said that he did not disagree with anything that the trial judge had said.
The appellant contends that the redirection overly favoured the prosecution because it did not reaffirm to the jury that they also needed to consider an unqualified acquittal. That is, that the jury may not be satisfied to the requisite standard that the appellant caused the death of the deceased by one of the two suggested means. It is said that the trial judge erred in law by not including the option of an acquittal in the redirection.
The redirection specifically answered the question asked by the jury. It was clear in its terms and could not have misled the jury into thinking that the option of an acquittal was excluded. The redirection must be read in the context of his Honour's directions as a whole: Karamitsios v The Queen [2015] WASCA 214 [96]. In those directions his Honour made very clear that if the jury were not satisfied beyond reasonable doubt that the appellant had caused the death of the deceased then he could not be found guilty of either murder or manslaughter (ts 1552, 1610).
This ground is without merit and leave in respect of it should be refused.

Ground 4 - the evidence of Melissa Dearle

Ms Dearle gave evidence that in February 2012 the appellant was renting a room in her house. She had known the appellant since the end of 2010. They both used methylamphetamines, sometimes together (ts 891).
On the morning of 29 February 2012 Ms Dearle returned home at approximately 8.30 am after working a night shift as a nurse. The appellant came out of his room and said 'I've done something really bad'. She asked him what that was and he said 'I've - I got rid of Nicolle'. She asked him if he was serious and he said that he was not joking. She said that she could not deal with it right now and went to her room (ts 893).
The next time Ms Dearle saw the appellant was the following day, 1 March 2012, in the mid‑afternoon. They had a conversation in the kitchen. She asked him what was going on with Nicolle. He said that he had got a friend by the name of Mic to telephone Nicolle and organise a drug deal at Mic's house. He said that he and Mic waited for Nicolle and when she arrived he grabbed her and stabbed her with a knife. He indicated with his hand to the left side of his body. He then asked Ms Dearle what organs were located in that part of the body and she told him that it was the kidneys. He said that he had then punched Nicolle in the head a few times and she fell to the floor and that he also stamped on her head. He said that he tried to rouse her, she was semi‑conscious and that he had then stamped on her head a few more times. He said that her pupils were pinpoint and that her eyes were starting to bulge from her head. He said that she had a weak pulse and that she even had a weak pulse when they buried her (ts 894).
Ms Dearle asked the appellant where he had buried the deceased. He laughed and jokingly said that he had buried her in the vacant lot next door. He then said that that was not true but that they did not drive far to bury her. Ms Dearle asked him again where the deceased was buried and the appellant walked away. She had no further conversations with him (ts 894 ‑ 895).
The appellant submits that there were a number of reasons to doubt the credibility of Ms Dearle. These included that she had made inconsistent statements regarding whether she had shared methylamphetamine with the appellant on 1 March 2012 and that she did not report the conversations to the police until they knocked on her door looking for the appellant. It is also suggested that what Ms Dearle said that the appellant told her regarding the depth to which he had buried the body and whether he had punched and stomped on her head was inconsistent with other objective evidence.
The appellant contends that in these circumstances it was necessary or appropriate for the trial judge to direct the jury that the evidence of Ms Dearle should have been treated as unreliable. No such direction was sought from the trial judge. Defence counsel raised the matters that have been referred to regarding Ms Dearle's credibility in his submissions to the jury (ts 1469 ‑ 1470).
The significance of Ms Dearle's evidence was clearly stated in the trial judge's directions. He directed the jury that they could not convict the appellant unless they were satisfied that the appellant had said the things alleged to Ms Dearle and that they were true (ts 1562). The importance of that evidence and the need to carefully consider it were readily apparent. This was not a case in which some issue regarding the credibility of the witness was one that the jury was unlikely to appreciate unless they received a special direction from the judge.
This ground of appeal is without merit and leave in respect of it should be refused.

Ground 5 - video link

At the time Ms Dearle gave her evidence she was in New Zealand. Her evidence was given by video link. The appellant contends that the trial judge should have refused an application for that evidence to be given by video link as it was not in the interests of justice to do so because she was a key prosecution witness and the jury would not have been able to adequately assess her credibility.
On the first day of the trial the need for Ms Dearle's evidence to be taken by video link was raised with the trial judge. The prosecutor advised that Ms Dearle was absent in New Zealand and not due to return until 19 September 2014. This was after the date on which it was anticipated that the prosecution evidence would be complete. In fact the prosecution case was closed on 17 September 2014.
Defence counsel was asked whether he had any view in regard to the application. He said that whilst it was his preference that Ms Dearle was present in person, it was a matter for the trial judge whether in the interests of justice her evidence could appropriately be taken by video link. The only issue raised was whether the link would be available for a sufficient length of time given the time difference (ts 634). On the following day a formal application was made. Defence counsel stated that the position of the defence was 'we don't consent to it, but we can't see any grounds for opposing it' (ts 643).
Video link evidence is common in criminal trials in this State. A court may order evidence to be given by video link if it is satisfied that such a link is available: s 121(2) Evidence Act. The court cannot direct that evidence be given by video link if satisfied that such a direction is not in the interests of justice: s 121(2a). The way in which this provision is framed is such that where the court is satisfied that it is not in the interests of justice to make a direction one cannot be made, otherwise the court has a discretion as to whether to make a direction. In some circumstances the nature of the prosecution case and the importance of assessing credibility may require that an application for evidence to be taken by video link be refused: Mills v Hendriksen [2008] WASC 79; (2008) 184 A Crim R 212 and The State of Western Australia v Duff [2008] WASC 150. These decisions, however, almost invariably turn on the particular circumstances of the case.
Whilst Ms Dearle's evidence was important the appellant does not provide any grounds for his assertion that the jury were unable to adequately assess her evidence. In any event the application was not ultimately opposed by defence counsel and it was not suggested to the trial judge that there were any grounds for refusing it. In these circumstances the appellant is bound by the conduct of defence counsel and cannot properly assert that there was an error of law or a miscarriage of justice: TKWJ v The Queen, 128.
This ground is without merit and leave in respect of it should be refused.

Appeal against sentence

The appellant's proposed grounds of appeal against sentence are that the trial judge made a number of errors of fact and that the sentence of 10 years was manifestly excessive. The errors of fact are said to be as to the place of death, as to the act that caused death and a suggestion that the judge heavily favoured the prosecution.
In sentencing the appellant the trial judge made findings of fact, as he was obliged to do. He concluded that the appellant had killed the deceased by assaulting her at the Westminster unit and that this was where she died. The place of death was, of course, consistent with the admission made by the appellant. He found that the assault consisted of the appellant punching the deceased, stomping on her head and stabbing her.
There is nothing whatsoever in the assertions of factual error. Nor is the suggestion of bias based on any factual foundation.
His Honour found that the offence was aggravated in the following respects. First, the deceased was vulnerable in that she attended the unit alone and did not know that the appellant would be present. Second, the appellant disposed of the body and sought to conceal the killing. Third, the appellant had lied to the police about his knowledge of the whereabouts of the deceased and his involvement in her disappearance at a time when she was still missing.
His Honour considered that the mitigating factors were that the appellant had no significant criminal record and had good prospects of rehabilitation. Some credit was also due for an earlier offer to plead guilty to manslaughter, though it was on a factual basis that differed from that proven at trial.
This was a serious case of manslaughter involving a planned physical attack upon an unsuspecting victim. The deceased was described in evidence as being slightly built. The attack upon her was sustained and vicious. It involved the use of hands, feet and a weapon. The motivation was anger regarding their failed relationship and an unpaid debt. The appellant recruited another person, Kurdziel, to assist him both in the arrangements to lure the deceased to the place where she was attacked and then to dispose of her body. That disposal was an attempt to conceal the fact that the appellant had killed the deceased. The deceased had young children and her death had a devastating effect on them and on her mother and sister.
There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts. In recent years sentences for manslaughter (when the maximum sentence was 20 years' imprisonment) have in general tended to increase. See The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137; Hishmeh v The State of Western Australia [2012] WASCA 183; McNamara v The State of Western Australia [2013] WASCA 63; Dodd v The State of Western Australia [2013] WASCA 80; Heaton v The State of Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409.
At the time that this offence was committed the maximum penalty was 20 years' imprisonment. That penalty was subsequently increased on 17 March 2012 to life imprisonment.
In Munda McLure P said that sentences for manslaughter at the time the maximum penalty was 20 years' imprisonment ranged between 2 years and 4 months' imprisonment to 12 years' imprisonment. These sentences do not set the boundaries of sentencing discretion.
In Dodd the offender was sentenced to 10 years' imprisonment after being found guilty following a trial. The offender in that case had formed a relationship with the victim after meeting her through a social networking site. The offender had taken the victim to bushland where he had assaulted her, including inflicting substantial blunt force injuries to her head. The victim's body was not discovered until days later. The trial judge found that the offender had attempted sexual intercourse with the victim, based on the state of her clothes. An appeal against the sentence was dismissed. The present case is comparable to that of Dodd in its level of seriousness.
I have also considered a number of other recent cases where the maximum penalty was 20 years' imprisonment: The State of Western Australia v Camus [2014] WASCA 74; (2014) 240 A Crim R 384 and Stagno v The State of Western Australia [2015] WASCA 115. It is unnecessary to detail the facts and sentences imposed in those cases. It is sufficient to say that they do not support a conclusion that the sentence imposed on the appellant was manifestly excessive.
When the sentence is viewed from the perspective of the maximum penalty (20 years' imprisonment) and after taking into account all relevant facts and circumstances, the general standards of sentencing applicable to the offence and all relevant sentencing factors it is apparent that the length of the sentence was not unreasonable or plainly unjust. A sentence of 10 years' imprisonment was commensurate with the seriousness of the offence and was within the range open to the sentencing judge in the proper exercise of his discretion.
There is no merit in the grounds of appeal against sentence and leave in respect of them should be refused.
In his written submissions regarding the sentence appeal the appellant asserted that the transcript of his trial was deficient in that it did not contain some things that he believed that it should. These claims lacked specificity and did not relate to any of the proposed grounds against sentence (or conviction).

Conclusion

None of the grounds of appeal against either conviction or sentence has a reasonable prospect of success. Leave in respect of those grounds should be refused. Accordingly the appeals must be dismissed.
I would make the following orders:
1.Leave to appeal against conviction refused.
2.Appeal against conviction dismissed.
3.Leave to appeal against sentence refused.
4.Appeal against sentence dismissed.