KNIGHT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 39

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 39
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:165/2014	Heard:	14 OCTOBER 2015
Coram:	BUSS JA MAZZA JA HALL J	Delivered:	4/03/16
No of pages:	37	Judgment Part:	1 of 1
Result:	Application for extension of time refused Appeal dismissed
Category:	B
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Parties:	EDWARD WILLIAM KNIGHT THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Aggravated burglary Grievous bodily harm Assault occasioning bodily harm Application for leave to appeal against conviction Whether verdicts of guilty unsafe and unsatisfactory Application for an extension of time within which to appeal
Legislation:	Criminal Appeals Act 2004 (WA), s 40(1)(e) Criminal Code (WA), s 7, s 8, s 23B, s 297(1), s 317(1), s 401(1) Criminal Procedure Act 2004 (WA), s 133, Sch 1 div 2 cl 7(3)(b)
Case References:	Brown v The Queen (Unreported, WASC, Library No 6028 of 1985, 3 October 1985) Durani v The State of Western Australia [2012] WASCA 172 JAW v The State of Western Australia [2013] WASCA 261 Knight v The State of Western Australia [2014] WASCA 217 Mack v The State of Western Australia [2014] WASCA 207 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Vella v The State of Western Australia [2006] WASCA 177; (2007) 33 WAR 411 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 Wimbridge v The State of Western Australia [2009] WASCA 196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KNIGHT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 39 CORAM : BUSS JA

MAZZA JA

HALL J

HEARD : 14 OCTOBER 2015 DELIVERED : 4 MARCH 2016 FILE NO/S : CACR 165 of 2014 BETWEEN : EDWARD WILLIAM KNIGHT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DAVIS DCJ

File No : IND ALB 82 of 2012

Catchwords:

Criminal law - Aggravated burglary - Grievous bodily harm - Assault occasioning bodily harm - Application for leave to appeal against conviction - Whether verdicts of guilty unsafe and unsatisfactory - Application for an extension of time within which to appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)

Criminal Code (WA), s 7, s 8, s 23B, s 297(1), s 317(1), s 401(1)
Criminal Procedure Act 2004 (WA), s 133, Sch 1 div 2 cl 7(3)(b)

Result:

Application for extension of time refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr J A Scholz

Solicitors:

Appellant : In person

Respondent : Director of Public Prosecutions (WA)

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

Brown v The Queen (Unreported, WASC, Library No 6028 of 1985, 3 October 1985)
Durani v The State of Western Australia [2012] WASCA 172
JAW v The State of Western Australia [2013] WASCA 261
Knight v The State of Western Australia [2014] WASCA 217
Mack v The State of Western Australia [2014] WASCA 207
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Vella v The State of Western Australia [2006] WASCA 177; (2007) 33 WAR 411
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Wimbridge v The State of Western Australia [2009] WASCA 196

1 BUSS JA: I agree with Mazza JA.

2 I merely note that, on the basis of my examination of the trial record and my weighing of the evidence, it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on counts 1, 2 and 3. A jury, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant. The jury had the very significant advantage of seeing and hearing the witnesses give their evidence. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on counts 1, 2 and 3. The verdicts of guilty are not unreasonable. They were supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on counts 1, 2 and 3 or as to the correctness of his conviction on those counts.

3 MAZZA JA: Before the court are the appellant's applications for an extension of time to appeal and, if an extension is granted, for leave to appeal against conviction.

Application for an extension of time within which to appeal

4 On 19 September 2014, the appellant filed a notice of appeal against conviction, together with a brief affidavit, sworn by him on 11 September 2014, in which he requests an extension of time within which to appeal. These documents were filed some 9 1/2 months out of time. Having regard to the length of the delay and the inadequate explanation for the delay, whether an extension of time is granted will depend upon the merits of the appeal: Wimbridge v The State of Western Australia [2009] WASCA 196.

Procedural history

Proceedings before the District Court

5 The appellant and one of his sons, Nicholas William Knight (Nicholas), were jointly tried by a District Court jury before Davis DCJ on an indictment alleging four offences as follows:

(1) On 17 June 2012 at Centennial Park [the appellant] and [Nicholas] entered the place of Ashley Peter Herbert without his consent, with intent to commit an offence therein

And that [the appellant] and [Nicholas] were armed with an offensive instrument

And that [the appellant] and [Nicholas] were in company with others

And that [the appellant] and [Nicholas] immediately before the commission of the offence knew or ought to have known that there was another person in the place

And that the place was ordinarily used for human habitation [contrary to s 401(1) of the Criminal Code (WA)].

(2) On the same date and at the same place [the appellant] and [Nicholas] unlawfully did grievous bodily harm to Ashley Peter Herbert [contrary to s 297(1) of the

Criminal Code

(3) On the same date and at the same place [the appellant] and [Nicholas] unlawfully assaulted Ronald James Cockman and thereby did him bodily harm [contrary to s 317(1) of the Criminal Code].

(4) On the same date and at the same place [the appellant] and [Nicholas] and [sic] unlawfully assaulted Fraser David Heatherington and thereby did him bodily harm [contrary to s 317(1) of the Criminal Code].

6 On 23 October 2013, the appellant was found guilty of counts 1, 2 and 3. He was acquitted of count 4. Nicholas was convicted of counts 1 and 2, but acquitted of counts 3 and 4 (ts 354 - 358).

7 On 15 November 2013, the learned trial judge imposed upon the appellant a total effective sentence of 5 years' imprisonment, with parole eligibility, backdated to commence on 23 October 2013 (sentencing remarks ts 13). Leave to appeal against this sentence has been refused: Knight v The State of Western Australia [2014] WASCA 217.

Proceedings before this court

8 The appellant relies upon 14 proposed grounds of appeal. They are, to an extent, repetitive. The primary (but not the only) complaint is that the verdicts of guilty against him were, as the appellant puts it, 'unsafe and unsatisfactory'.

9 For the reasons which follow, none of the proposed grounds has merit. I would refuse the application to extend time and dismiss the appeal.

The cases at trial

The State's case

10 The appellant has another son, Vincent Knight (Vincent). In the months leading up to the alleged offences, Vincent was occupying a room at the complainant's, Mr Ashley Herbert's, house in the Albany suburb of Centennial Park.

11 On the afternoon of 17 June 2012, Mr Ronald Cockman, Mr Fraser Heatherington and Mr Matthew Bayliss went to Mr Herbert's house. Mr Herbert was not at home. They chose to wait for him. When Mr Herbert arrived between 3.00 pm and 4.00 pm, he noticed that the lock on the front door was broken. Vincent told him that the lock had been broken in a fight he engaged in earlier that day.1 Mr Herbert testified that because of that and some 'dramas' the weekend before, he told Vincent that he did not want him in the house any more and that he had a week to leave (ts 103 - 104).

12 According to Mr Herbert, Vincent went to his room (ts 104). Meanwhile, Mr Herbert, Mr Cockman, Mr Heatherington and Mr Bayliss watched television and drank beer in the lounge room (ts 106).

13 Mr Herbert said that Vincent was 'being noisy, being an idiot' (ts 106). As a result, he went to Vincent's bedroom 'to tell him to be quiet' (ts 106). Mr Herbert testified that Vincent came towards him as if to punch him. A wrestle ensued which culminated in Mr Herbert pinning Vincent down on the bed (ts 120 - 121). Mr Heatherington and Mr Cockman saw Mr Herbert holding on to Vincent by the throat on the bed and, at the same time, telling him to calm down (ts 45, 54 - 55, 70, 82). Eventually, Vincent was let go. Vincent fled the bedroom through a window. Mr Herbert and his friends went back to the lounge room where they resumed watching television and drinking beer (ts 45, 106).

14 Shortly after Vincent had fled the house, two women arrived, asking to get some of 'his [Vincent's] stuff' (ts 45). Mr Herbert allowed them to do so. As the women left, one of them said 'that [Vincent's] dad would be over to get the rest of his stuff' (ts 45). Mr Herbert said he 'was happy with that' (ts 123).

15 Meanwhile, Vincent had met the appellant at a nearby Gull service station (ts 164). According to the State, once the appellant had seen Vincent and heard his account of events, he became angry and decided to retaliate. The appellant dropped Vincent at the Albany Regional Hospital and picked up Nicholas and two friends, René Godomski and Martin Adams (ts 112, 171). Together, the State alleged, they went to Mr Herbert's house with the intention of assaulting Mr Herbert and others.

16 Each of Mr Herbert, Mr Cockman and Mr Heatherington testified to the effect that, whilst they were in the lounge room they heard, but did not see, the front door being 'kicked', 'smashed' or 'booted' in (ts 45, 71, 107), after which the appellant, Nicholas, Mr Godomski and Mr Adams entered the house.

17 Each of Mr Herbert, Mr Cockman and Mr Heatherington testified as to what occurred next. Mr Bayliss did not give evidence.

Evidence of Ashley Herbert

18 Mr Herbert said that he recognised the appellant, Nicholas and Mr Godomski as three of the four people who entered his house (ts 107 - 108, 112). He testified that he was sitting on a couch at the time they entered. He said that the appellant was 'going off his head' and swinging 'a baseball bat or an iron bar' (ts 108). Mr Herbert said that the appellant struck him on his legs and 'on my lower body, pretty much' (ts 108). He said that, in order to get away, he jumped out the window. He thought he landed on his feet (ts 127). When he got outside, Nicholas and Mr Godomski were out the front of the house (ts 108). He then 'jumped back' into the house through the window (ts 108). He was asked whether the appellant hit him again in the house. He replied, 'probably did, yes' (ts 109). He then jumped out the window once again (ts 109).

19 Mr Herbert said that, when he got outside, Nicholas said something like 'You put my brother in hospital' (ts 109). Nicholas then grabbed him and wrestled him to the ground. While on the ground Mr Herbert heard the appellant say 'Where's Ashley?' (ts 109) He described Nicholas being on top of him and, while in this position, punching him [Mr Herbert] in the ribs 'a couple of times' (ts 110). Mr Herbert said that the appellant came outside to the front of the house and, while Nicholas was punching him, the appellant struck him 'a few times' on the legs with the baseball bat (ts 109 - 110).

20 Eventually, Mr Herbert ran into the backyard. At this point, he said that he was in shock, 'couldn't really breathe that well' and was 'definitely limping' (ts 111). A short time later, he jumped over the fence near Banksia Gardens (a motel) and sought help (ts 111).

21 Mr Herbert was later taken to the Albany Regional Hospital. He said that he suffered a sprained ankle, a 'split' (by which he meant cut) kneecap, a punctured lung and bruised ribs. He said that during the entire incident, he was hit on the knee, legs, ankle, feet and ribs (ts 112).

22 In cross-examination by the appellant's counsel, Mr Herbert denied that, when the appellant entered the lounge room, he grabbed 'something' and attacked the appellant (ts 128).

Evidence of Ronald Cockman

23 Mr Cockman testified that he was sitting on the lounge when 'three to four blokes' entered the room (ts 71). He said one of them came towards him, armed with a metal bar (ts 71). That person (whom he later identified during a digiboard procedure as the appellant) struck him in the ankle with the metal bar (ts 72). Mr Cockman said that the incident happened 'pretty quick', and that the intruders were in the house for 'maybe a minute' (ts 73). So far as Mr Herbert's whereabouts were concerned, Mr Cockman testified to the effect that Mr Herbert left the room through the open window (ts 73). He said that 'the guys left the house to go and get him [Mr Herbert]' (ts 73). Mr Cockman suffered a broken ankle as a result of being struck with the metal bar (ts 74).

Evidence of Fraser Heatherington

24 Mr Heatherington described how four men 'barged into the lounge' (ts 46). He said that they 'picked one person each [in the room] and just started hitting [them] with their weapons' (ts 46). He described that he was struck on the arm as he tried to protect his head from being hit (ts 46). He said that he was unable to say who hit him, but recalled being struck 'probably half a dozen' times (ts 47).

25 Mr Heatherington said that Mr Herbert disappeared from sight, but, beyond that, he was unable to say what had happened to him (ts 47, 58 - 59, 65). He said that, as a result of being struck, he suffered a broken left arm and bruised right arm (ts 48, 58). Mr Heatherington agreed that he did not see anything of what happened outside the house (ts 66).

Evidence of Dr Hugh van der Post

26 Mr Herbert was admitted to Albany Regional Hospital at approximately 7.20 pm on 17 June 2012 where he was treated by an emergency doctor, Dr van der Post. Dr van der Post said that the most significant injury suffered by Mr Herbert was a left-sided tension pneumothorax (ts 138). Dr van der Post said that a tension pneumothorax is a life-threatening injury because, unless treated, the build-up of air pressure within the chest can compress the heart to the point where it cannot function sufficiently to sustain life (ts 138).

27 As to how Mr Herbert's tension pneumothorax may have been caused, Dr van der Post said:

(a) There are two broad categories of tension pneumothorax. The first category is a penetrating injury. The second category is blunt trauma which fractures a rib, that, in turn, tears the lung and causes the tension pneumothorax (ts 139).

(b) There was no evidence of a penetrating injury to Mr Herbert's lung and he ruled that out as a possible cause (ts 139). However, his injury could have been caused by blunt trauma which may have fractured Mr Herbert's rib and then penetrated his lung (ts 139 - 140).

(c) A rib fracture does not always show up on an x-ray (ts 142). In the present case, he was unable to say whether or not Mr Herbert's rib had been fractured (ts 140).

(d) A further possible cause of Mr Herbert's tension pneumothorax involved sudden blunt pressure to the lung which causes a sudden split of the lung. This can give rise to a tension pneumothorax without a rib fracture (ts 139).

28 Dr van der Post testified that the injuries suffered by Mr Herbert were consistent with the history that Mr Herbert had given of the assault (ts 140).

29 In cross-examination, Dr van der Post accepted that it was 'technically … possible' that the tension pneumothorax could have been caused by a fall from a window, or by a person falling on another person (ts 144). He also said that, when he examined Mr Herbert, he did not note any bruising or marks consistent with having been hit by a baseball bat in the area of the pneumothorax (ts 145). Dr van der Post went on to say that he would not necessarily have expected to see any bruises or marks from such an assault (ts 146). He elaborated that, while such marks might be expected:

My own experience is that it's extremely variable, and I've certainly been surprised in the past to have seen very little external evidence of what clearly involved significant trauma (ts 146).

30 Dr van der Post said that it was possible that a person with a tension pneumothorax might not be immediately aware of the injury (ts 146).

Evidence of Detective First Class Constable Jonathan McMillan

31 Detective First Class Constable McMillan was the principal investigating officer with respect to the alleged offences (ts 150). It is unnecessary to refer to his evidence in any detail, save to say that he conducted a digiboard identification procedure with Mr Cockman during which Mr Cockman identified the appellant as his assailant (ts 151 - 152). Detective McMillan took photographs at Mr Herbert's house on 28 June 2012 (ts 151), some of which were tendered in evidence.

Evidence of Dr Rebecca Pogson and Graham Somerville

32 By consent, medical evidence of an emergency doctor, Dr Pogson, and a nurse, Mr Somerville, both of whom were working in the emergency department of Albany Regional Hospital at the material time, was read to the jury as part of the State's case setting out the injuries sustained by Mr Heatherington (ts 148 - 149).

The defence cases

Evidence of the appellant

33 The appellant said that prior to 17 June 2012, he had been to Mr Herbert's house to visit his son 'on many occasions' (ts 161 - 162). He said that, at about 11.30 am on 17 June 2012, a friend of Vincent's, Ms Joanna Pouwelsen, called the appellant to advise that there had been an altercation at Mr Herbert's house between 'Vincent and three other guys'. The appellant testified that Ms Pouwelsen 'told [him] to come there' (ts 162).

34 The appellant drove to Mr Herbert's house. His youngest daughter was in the car at the time (ts 163). When they arrived, the door was open. He testified that he 'called out' (ts 163). He said that he saw Vincent, Ms Pouwelsen and another female friend of Vincent’s, Ms Claire Plug, in the doorway. The appellant went inside the house and asked what had been going on. He testified that Vincent said there 'had been drama. These guys had come in' (ts 163). The appellant said that Vincent 'wasn't too happy with him being there' (ts 163). He explained that Vincent was angry about Ms Plug having 'copped a punch in the head' by one of the men (ts 163). He said that he asked whether the men were still around. Vincent said 'no' (ts 163). The appellant then left Mr Herbert's house, got back into his car and went for 'a drive' with his daughter (ts 163). He said he parked outside a shop located two houses up from Mr Herbert’s house, where he stayed for 'about an hour' (ts 163). The appellant testified that, during this time, the police 'drove past five times, pulled up three times out the front of [Mr Herbert's] house, [and] did not exit their vehicle…' (ts 163).

35 The appellant testified that, at about 6.15 pm on 17 June 2012, he drove past the Gull service station on Albany Highway. He said that he noticed Ms Plug's red ute parked out the front of the service station, so he pulled in. There, he met up with Ms Pouwelsen and Ms Plug, who told him what had occurred at Mr Herbert's house (ts 164). The appellant testified that he heard 'some muffled sound coming from the footpath' (ts 164). He said that he turned around and saw Vincent 'stumbling up the footpath' (ts 164). Vincent was struggling to breathe and walk (ts 165). Vincent told the appellant that he had 'just been tried to be strangled [sic]' (ts 165). The appellant said that he took his son to hospital. While doing so, Vincent told him that he had left money and valuables at Mr Herbert's house. As a result, the appellant rang Ms Pouwelsen and Ms Plug and asked them to go to the house 'and keep an eye on [Vincent's] stuff' (ts 165).

36 The appellant said that he then picked up his son Nicholas, Mr Godomski and Mr Adams with the intention of going to Mr Herbert's house to 'secure Vince's stuff and get his valuables' (ts 165).

37 As to what happened next, the appellant testified as follows:

(a) He parked his vehicle close to Mr Herbert's house. The men then proceeded to the front door (ts 166).

(b) Mr Godomski had a cricket bat (ts 166, 174).

(d) Nicholas 'smashed on' the front door, which opened up 'a bit' and was then pushed open (ts 167).

(e) The appellant went immediately into the lounge room and said to Mr Herbert 'What the fuck's going on?' (ts 167) Mr Herbert then jumped out of his chair and grabbed a weapon the appellant described as a waddy. The appellant swung the bar he was carrying but denied striking Mr Herbert. At this point he observed Mr Herbert jump out of the window 'like a shot' (ts 168).

(f) Nicholas and Mr Godomski 'disappeared outside' after Mr Herbert had jumped out of the window (ts 167). Eventually, Mr Godomski came back inside, at which point the appellant went outside. There he saw Mr Herbert and Nicholas 'scuffling' (ts 167). He continued:

They were, you know, like, … rolling over and he was like that so I just grabbed him by the hair and ripped him off and just said righto (ts 168).

(g) Mr Herbert then 'disappeared like a rabbit' (ts 168), and the appellant went back into the house and said 'Guys, let's go' (ts 169).

38 The appellant denied striking Mr Herbert and Mr Heatherington (ts 170). He said he did not know whether or not he struck Mr Cockman; but if he had, he did not do so intentionally (ts 170). He denied going to the house 'to cause drama' (ts 170).

39 In cross-examination, the appellant said:

(a) He armed himself with the steel bar before entering the house 'for [his] defence' (ts 176).

(b) When he went into the lounge room, he expected the occupants to be armed (ts 177).

40 The appellant denied, in cross-examination, that:

(a) when he went to Mr Herbert's house he was really angry because of what had occurred earlier to Vincent (ts 185);

(b) after he had dropped Vincent at the hospital, he collected some of his mates with the intention to taking revenge against Mr Herbert for what had occurred to Vincent (ts 185 - 186);

(d) he attacked Mr Herbert outside the house (ts 186).

Evidence of Joanna Pouwelsen

41 Ms Pouwelsen testified that on the morning of 17 June 2012, she was at Mr Herbert's house (ts 188). She said she had gone there to help Vincent and Ms Plug resolve some personal issues they had (ts 189). While she was in Vincent's bedroom, she said she heard 'much yelling' and some 'banging noises'. She did not see the people responsible for the yelling and banging. She was informed that Ms Plug had somehow been injured. Ms Pouwelsen said that she telephoned triple zero (ts 189 - 190). Later that day, she and Ms Plug went to the Gull service station. While there, Vincent staggered up to the car she was in (ts 191). Ms Pouwelsen said that the appellant, who was also at the service station, took Vincent to hospital. According to Ms Pouwelsen, she and Ms Plug went back to Mr Herbert's 'to pack up [Vincent's] gear' (ts 192). She said that, while she and Ms Plug were there, they had 'a couple of people standing there asking - or watching' them pack Vincent's gear (ts 193). She testified that this made her feel uncomfortable, causing her to ring the appellant to ask him to 'come and grab Vincent's things' (ts 193). The next thing she recalled was knocking or banging noises coming from the front door (ts 194). A short time later, a middle-aged man asked her if she was 'okay' (ts 194). According to Ms Pouwelsen, she and Ms Plug then left Mr Herbert's house via the back door (ts 196).

Evidence of Martin Adams

42 Mr Adams testified on behalf of the appellant. In examination-in-chief, he testified as follows:

(a) Late in the afternoon of 17 June 2012, the appellant came to his place and told him that he (the appellant) had to retrieve Vincent's gear (ts 197 - 198).

(b) Mr Adams agreed to help. He armed himself with a four foot long rose picket (ts 198).

(d) He was the last person to enter Mr Herbert's house. Mr Adams was unable to say how the front door had been opened. There was 'a big commotion' with 'people everywhere' and 'lots of noise' in the house (ts 199).

(e) He went into the backyard, then he returned to the house, where he walked back down the hallway. The appellant, Nicholas and Mr Godomski followed him out the door and back into the car in which they had been driven to the house by the appellant (ts 199 - 200).

(f) He did not see anything outside the front of the house (ts 200).

(g) When asked to explain why he went with the appellant, he said:

To get [Vincent's] belongings out of the room because he'd been assaulted and I just thought it was the right thing to do (ts 201).

43 In cross-examination by Nicholas' counsel, Mr Adams conceded that it was possible that Nicholas was outside when he left the house (ts 202). Under cross-examination by the prosecutor, Mr Adams confirmed that, as far as he was concerned, the purpose of the trip was to 'retrieve [Vincent's] gear' (ts 203).

Evidence of Nicholas Knight

44 Nicholas testified in his defence. He said that he weighed 111 kg at trial, and he weighed more on the date of the alleged offences (ts 216). Nicholas testified that prior to 17 June 2012, he had visited Vincent at Mr Herbert's house up to '20 times' (ts 206). He said that on 17 June 2012, he received a telephone call from the appellant in which he said 'Vince is up at the hospital. We need to go collect his belongings' (ts 207). Nicholas testified that the appellant drove to his house and picked him up. He said that Mr Godomski and Mr Adams were also in the car. Nicholas said that he was unarmed and unaware of anyone in the car having any weapons (ts 208).

45 Nicholas said that, at about 5.20 pm to 5.30 pm, he knocked on the front door of Mr Herbert's house twice and that it swung open (ts 209). He said that the occupants of the house 'all sprung up' (ts 211). Nicholas said that Mr Herbert grabbed what he thought was a dark-coloured pole, and then he saw 'something swing past' him (ts 212). He then saw Mr Herbert dive, arms first, out of the window (ts 213). At this point, Nicholas said that he left the lounge room and went outside to see where Mr Herbert had gone. There, the two men confronted each other with Mr Herbert first taking a boxing stance and then attempting to punch Nicholas (ts 213 - 215).

46 Nicholas said that the blow glanced off him and that the two men went to the ground. Nicholas was on top of Mr Herbert when they hit the ground. They rolled around on the ground, 'scuffling' with each other (ts 215 - 216). Nicholas said that the scuffle came to an end when he was on top of Mr Herbert. He said that he told Mr Herbert 'No, this is enough. It's done' (ts 216).

47 Nicholas said that the reason he went to Mr Herbert's house was to retrieve Vincent's belongings (ts 217).

48 In cross-examination by the prosecutor, Nicholas denied that:

(a) he smashed the door open (ts 218);

(b) either Mr Adams or Mr Godomski were armed (ts 219); or

49 Nicholas said that, apart from the weapon that Mr Herbert had, and the weapons that were displayed on the walls of the house, he was unaware of any weapons being carried at the time of the offences (ts 227 - 228).

The closing addresses

The State's closing address

50 In closing, the State's case against the appellant was this. The appellant, Nicholas, Mr Godomski and Mr Adams went to Mr Herbert's house with the intention of assaulting the occupants in retaliation for the choking attack on Vincent. For this purpose, they armed themselves with weapons; barged into the house without consent; and immediately attacked Mr Herbert, Mr Cockman and Mr Heatherington. The State alleged that the appellant struck Mr Herbert with an iron bar in the lounge room. If, as the appellant said in his evidence, Mr Herbert grabbed a weapon, the State said he did so only to defend himself from being attacked by the appellant and the others.

Count 1

51 The State submitted that the appellant was a principal offender.2

Count 2

52 The State alleged that Mr Herbert's tension pneumothorax was caused by the appellant striking Mr Herbert with the iron bar either inside the house, or during the altercation between Nicholas and the appellant outside the house. The State alleged that:

(a) the appellant was either a principal offender; or

(b) the appellant aided Nicholas to commit the offence;3 or

(c) the offence was a probable consequence of a common intention formed by the appellant and the others to unlawfully assault the occupants of Mr Herbert's house.4

53 The State submitted that the other possible causes of the tension pneumothorax suggested by the defence (to which I will refer shortly) were improbable. The State submitted that, as the appellant was the aggressor, there was no question of self-defence. Finally, the tension pneumothorax was not an event which occurred by accident.5

Count 3

54 The State's case was that:

(a) the appellant deliberately struck Mr Cockman with the iron bar and thereby broke his ankle; or

(b) alternatively, the offence was a probable consequence of the common intention formed by the appellant and the others to unlawfully assault the occupants of Mr Herbert's house.

55 The State alleged that, as the appellant deliberately struck Mr Cockman to the ankle, there could be no issue of accident.

The appellant's closing address

Count 1

56 The appellant's case was that he had consent to enter Mr Herbert's house in order to retrieve Vincent's belongings; and by reason of his previous visits to the premises. He denied that he had an intention to unlawfully assault its occupants. While it was accepted that he armed himself with an iron bar prior to entering the house, he did so only in case he was attacked.

Count 2

57 The appellant's counsel, in substance, adopted the submission put by Nicholas' counsel that the tension pneumothorax suffered by Mr Herbert could have been caused in any one of four ways which would not attract criminal responsibility, namely:

(a) in the course of the earlier, aggressive, physical confrontation between Mr Herbert and Vincent during which Vincent was choked;

(b) on either of the occasions when Mr Herbert jumped or dived out of the lounge room window;

(c) at the front of the house when Mr Herbert tried to hit Nicholas, after which the two men fell to the ground and 'scuffled'; or

(d) when Mr Herbert climbed over the fence and escaped into Banksia Gardens.

58 If the tension pneumothorax was caused by Mr Herbert being struck by the appellant with the iron bar in the lounge room, the appellant was acting in self-defence. Finally, it was submitted that the tension pneumothorax occurred by accident.

Count 3

59 The appellant's primary argument was that he did not strike Mr Cockman, but if he did, he did so accidentally when he was defending himself against attack by Mr Herbert.

Count 4

60 Given the appellant's acquittal on count 4, it is unnecessary to outline his case on this count.

The trial judge's summing up

61 With respect to the appellant, the learned trial judge identified the issues with respect to each charge as follows.

Count 1

62 Had the State proved beyond reasonable doubt that the appellant:

(a) entered the house without consent; and

(b) had an intention to assault the occupants?

Count 2

63 The learned trial judge told the jury that the most important issue regarding this count was 'what caused the pneumothorax injury?' (ts 339). Her Honour directed the jury that, if it was not satisfied beyond reasonable doubt that Mr Herbert suffered his tension pneumothorax as a result of the actions of the appellant or Nicholas, then neither the appellant nor Nicholas could be found guilty. Her Honour explained that the issue of self-defence would only arise if the tension pneumothorax was caused either by:

(a) the appellant striking Mr Herbert in the lounge room; or

(b) anything which happened during the physical confrontation which happened outside involving Nicholas and Mr Herbert,

and, in each instance, Mr Herbert was the aggressor. Her Honour directed the jury that, if Mr Herbert was the aggressor, then the State was required to prove beyond reasonable doubt that the appellant did not act in self-defence. Finally, the learned trial judge directed the jury that, in order for the appellant to be found guilty, the State needed to prove beyond reasonable doubt that the tension pneumothorax did not occur by accident.

Count 3

64 The learned trial judge instructed the jury that, in order to convict the appellant, the State needed to prove beyond reasonable doubt that:

(a) the appellant himself struck Mr Cockman with the iron bar, thereby breaking his ankle; or

(b) alternatively, that the offence occurred as a probable consequence of a common intention to unlawfully assault the occupants of Mr Herbert's house.

Her Honour also directed the jury that, in order to convict the appellant of count 3, the State was required to prove beyond reasonable doubt that Mr Cockman's broken ankle did not occur by accident.

65 Her Honour provided the jury with a number of written handouts as jury aids.

Proposed grounds of appeal

66 I now return to the proposed grounds of appeal. It is convenient to deal with them in the order that appears below.

Proposed ground 9 - overloaded indictment

67 The jury was required to consider a total of eight counts in the indictment (that is, four counts in respect of each accused) and deliver separate verdicts on each count. Her Honour directed the jury to this effect. By ground 9 the appellant complains, in effect, that, by reason of the alleged complexity of the evidence and her Honour's directions of law, no reasonable jury could have properly undertaken the intellectual task of individually considering the charges. In substance, he alleges that, by reason of the number of charges the jury had to consider and their complexity, he has suffered a miscarriage of justice. These submissions have no merit.

68 An indictment may charge one or more persons with two or more offences if, relevantly to this case, they are alleged to arise substantially out of the same or closely-related acts or omissions: cl 7(3)(b) of Sch 1 div 2 to the Criminal Procedure Act 2004 (WA) (CPA). The charges are clearly of this type. No application was made on behalf of the appellant for separate trials: see s 133 CPA. As the respondent pointed out in its written submissions (white AB 68):

(a) Neither the facts nor the legal issues were particularly complex.

(b) The prosecution case was short - the State closed its case by late morning on the second day of the trial.

69 It cannot reasonably be submitted that, by reason of the length or complexity of the trial, there was a real danger that the jury failed to give proper consideration to the separate counts on the indictment. The number of counts and the volume of evidence that the jury had to consider was, compared to other cases routinely dealt with in the criminal courts of this State, modest. Proposed ground 9 has no merit.

Proposed ground 4 - alleged juror bias

70 By ground 4 the appellant alleges, in effect, that a miscarriage of justice occurred because three jurors knew the defence witness Mr Adams.

71 Before the jury was empanelled, the learned trial judge told the panel, amongst other things, that:

… if you know any of the witnesses whose names you will soon hear called, you need to bring that to my attention when your number is called. I will ask you to listen very carefully now to the names of the witnesses that counsel is going to read out to you (ts 16).

72 After the prosecutor advised the jury of the witnesses the State intended to call, defence counsel were invited to do the same. Counsel for the appellant told the jury that three witnesses would be called, including Mr Adams. None of the jury panel who were chosen to serve on the jury disclosed any knowledge of him at the time they were empanelled (ts 16 - 18). However, shortly after the empanelment, a member of the jury disclosed potential knowledge of Mr Adams.6 That juror was excused (ts 30).

73 In support of this ground of appeal, the appellant has filed four statutory declarations sworn by Mr Adams (white AB 25 - 29). Although the statutory declarations were not accompanied by an application to adduce additional evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), it is evident that the statutory declarations have been submitted to the court as additional evidence, and I will consider them in that light.

74 Mr Adams' statutory declarations are very brief. He names three people who he claims he recognised as jurors and who knew him. It is inappropriate to name them, and I will refer to them as juror 1, juror 2 and juror 3. Mr Adams does not explain why he made no mention of this at the time he gave evidence. No evidence has been adduced to this court to verify that those persons were in fact jurors in the trial.

75 Mr Adams' only alleged connection to juror 1 is that he has known her partner for 25 years, and that the juror's partner was 'an ex-employer' of his (white AB 27).

76 As to juror 2, Mr Adams states that he and the juror have been 'neighbours … for ten or so years' and, according to Mr Adams, they 'have general knowledge of one and other [sic]' (white AB 28).

77 As to juror 3, Mr Adams states that they have 'known each other for 20 years' (white AB 29). Mr Adams said that juror 3 currently works at a bottle shop, and that they had known each other previously 'through other business associations' (white AB 29).

78 It may be accepted that a reasonable apprehension of a lack of impartiality on the part of a juror may arise by reason of an association between that juror and a witness in the case. The general test is whether the association would, despite any warning which the trial judge may give to the jury, give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of a juror: Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 53 (Mason CJ & McHugh J), 57 (Brennan J), 71 (Deane J), 88 (Toohey J).

79 As Wheeler JA explained in Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411 [66], it is important to know the nature and extent of any association between a juror and a contentious witness. Further, it is not just any connection with a contentious witness that might give rise to a reasonable apprehension of lack of impartiality; but rather, the connection must be one of significance.

80 Having regard to the evidence in the statutory declarations, none of Mr Adams' alleged associations with jurors 1, 2 and 3 - assuming that those jurors were in fact jurors in the appellant's trial - could, in my opinion, give rise to a reasonable apprehension of a lack of impartiality on the part of a juror by a fair-minded and informed observer. The statutory declarations are couched in the most general of terms and are insufficient to justify a conclusion that any connection between Mr Adams and one (or more) of those jurors gives rise to a reasonable apprehension of lack of impartiality.

81 As to juror 1, Mr Adams has no personal connection with her at all. As to juror 2, it is not clear that Mr Adams has any personal knowledge of him. As to juror 3, the fact that Mr Adams has known that juror because he works at a bottle shop, and that they had known each other through some vague, unspecified 'business association', is insignificant (white AB 29).

82 Proposed ground 4 has no merit.

Proposed ground 2 - missing portion of trial transcript

83 Proposed ground 2 reads:

A miscarriage of justice has occurred due to the 'missing trial transcript' [sic] (white AB 11).

84 The 'missing trial transcript' referred to in this proposed ground is the transcript of Nicholas' counsel's (Mr Illari's) cross-examination of Mr Herbert.

85 According to the times recorded on the transcript, Mr Herbert's examination-in-chief commenced at approximately 3.31 pm on 21 October 2013 (ts 102) and was completed at approximately 3.53 pm on that day (ts 112). The appellant's counsel then cross-examined Mr Herbert. The transcript records that the cross-examination concluded at 4.19 pm (ts 131 - 133).7 Mr Illari indicated that his remaining cross-examination of Mr Herbert would take 'at least half an hour, possibly longer' (ts 131). After consulting the jury, her Honour decided not to begin the cross-examination and the proceedings would be adjourned until 9.30 am the following day. Mr Herbert was excused until then (ts 132 - 133). A short time later, her Honour adjourned proceedings 'until 9.30 [am] tomorrow' (ts 134).

86 The trial transcript resumes at 10.29 am on 22 October 2013 (ts 137) and records the prosecutor calling Dr van der Post. It is common ground in this appeal that, prior to Dr van der Post's testimony, Mr Herbert was cross-examined by Mr Illari. However, for what appears to be (and what the appellant accepts as being for) technical reasons, the cross-examination was not recorded and accordingly, was not transcribed. Nor, for that matter, is there any record of any re-examination of Mr Herbert. This court has not been provided with any notes of the cross-examination taken by her Honour or by trial counsel.

87 This is not to say that there is no reference in the trial record to Mr Illari's cross-examination of Mr Herbert. In his closing address to the jury with respect to count 2, Mr Illari referred to two parts of his cross-examination of Mr Herbert. These concerned, first, the possibility that Vincent fell on Mr Herbert during their earlier confrontation; and second, how Mr Herbert got through the window in the lounge room. With respect to these matters, defence counsel said:

That - in

cross-examination

he accepted that Vincent, who was also a big boy - big like his brothers, like his father - might have been on top of him, might have fallen on him in the course of rolling around.

Possibility 1

: he got the injury when he was fighting with Vincent, because that was, if you remember the evidence, within an hour or about an hour before people arrived in the car: the two Knights and the other two people.

It's quite possible that it caused the injury then and that [Mr Herbert] wasn't aware of it until much later. The second possibility is that he got the injury coming out of that window. Now, he said he went out of the window twice. Went - jumped out the first time, so there was [sic] two people there, [Mr Godomski] and [Nicholas], so he jumped back in the window again and then jumped back out again when he said he was attacked by [the appellant].

The description of how he went out: I asked him, 'How did you go out the window? And it took him a while to try and answer. At first he said, 'Well, I just jumped out.' 'How? How did you jump? 'Well, you know. I - yes. I jumped out.' 'Well, did you dive out?' 'No, no, no. No.' 'How did you' - 'I just jumped out.' Eventually he came - yes. I had to put to him, 'Are you saying you jumped out feet first?' 'Yeah, you know, feet first. That's the way I did, yep'. 'Did you fall on anything?' 'No, no, I didn't'. [Nicholas] has given evidence that in the course of this incident he saw [Mr Herbert] throw himself out of the window and dive out head first (ts 276). (emphasis added)

88 Later in the summing up, the learned trial judge referred to this cross-examination. In summarising the defence case on count 2 as it related to the issue of causation, her Honour said:

The first way that the defence says that the pneumothorax injury could have been suffered is in the earlier altercation you heard about between [Mr Herbert] and [Vincent] in the bedroom where [Vincent] and [Mr Herbert] were on the floor and then [Vincent] landed on top of him.

In his cross-examination, [Mr Herbert] agreed that [Vincent] had fallen on him. That [Vincent] was a big man. That he hurt [Mr Herbert] when he fell on him and then he was asked, 'Did he wind you? [Mr Herbert] replied, 'Maybe a little bit. Yes' (ts 328). (emphasis added)

89 Later, her Honour said this:

There is evidence that Nicholas fell on top of him. Now, [Mr Herbert] gave evidence that, outside the window, Nicholas grabbed him. He was asked about what happened after this.

It was put that they both felt

[sic]

to the ground. [Mr Herbert] said, 'Yes, but not straight away. I tried to break free and then he grabbed me and fell on - I fell on the ground, he fell on top of me'. Ashley was asked, 'Did that wind you?', and he answered, 'Yes, probably'.

You heard evidence that Nicholas was both tall and heavy.

He gave evidence he weighs 111 kilograms now and he weighed more in June last year (ts 329). (emphasis added)

90 Her Honour also referred to Mr Illari's cross-examination of Mr Herbert in respect of an allegedly prior inconsistent statement by him (ts 300 - 301).

91 None of the matters that I have mentioned were raised in the appellant's counsel's cross-examination of Mr Herbert, nor in the prosecutor's examination-in-chief. Accordingly, it would appear that her Honour was referring to questions posed and answers given in Nicholas' counsel's cross-examination of Mr Herbert.

92 In his submissions in support of proposed ground 2, the appellant says that, by reason of the missing trial transcript, he has suffered a miscarriage of justice for two reasons. First, he says that it was not possible to reconstruct Mr Illari's cross-examination of Mr Herbert with any degree of accuracy. Second, he alleges that, because the transcript (as it exists) has '[yielded] many grounds of appeal', 'nobody can say with any surety [sic] that if the missing trial transcript had actually been transcribed [he] would not have or would not have found one or more grounds of appeal' (white AB 19 - 20). The appellant speculates that 'no body can say with any surety [sic] that' the learned trial judge did not wrongly:

(a) 'admit evidence';

(b) 'fail to exclude evidence obtained unfairly';

(d) 'make a decision about a relevant procedural matter'; or

(e) 'fail to properly direct the jury on some aspect of the law' arising from the evidence (white AB 20).

93 The appellant further submits that the missing trial transcript 'diminishes' his statutory right to appeal (white AB 20) and curtails, in effect, the proper exercise of this court's appellate jurisdiction.

94 It is accepted that Nicholas' trial testimony was admissible in the case of the appellant.

95 There have been cases where, as a result of the absence of trial transcript, an appeal has been allowed. In Brown v The Queen (Unreported, WASC, Library No 6028 of 1985, 3 October 1985), the recording equipment at trial failed and the proceedings were not transcribed. The trial judge had not taken detailed notes of the evidence. Thus, there was no first-hand record of the proceedings in the trial court. The appellant raised grounds of appeal alleging errors in the trial judge's summing up to the jury. The conviction was quashed and a retrial was ordered. The leading judgment in the case was delivered by Burt CJ, who said:

…to exercise appellate jurisdiction one needs a record of the evidence and, more importantly, a record of the trial judge's direction to the jury. Without that documentation, appellate jurisdiction in indictable crime cannot be exercised satisfactorily, and indeed it is questionable whether it can really be exercised at all.

96 His Honour rejected the respondent's submissions that the possibility of the guilty verdict being quashed was remote. His Honour concluded that at the end of the day that may well be the case, but nonetheless there ought to be a retrial so that:

… the appellate court can see exactly what has happened and so that justice can be done on a certain factual basis, not on a basis which may or may not, in the end, turn out to be correct.

97 The circumstances of the present case are distinguishable from the circumstances of Brown. In Brown there was no record at all of what had occurred at trial; however in the present case, this court has available to it the appellant's counsel's cross-examination of Mr Herbert, trial counsel's closing addresses, her Honour's summing up and a transcript of the balance of the trial record, except Mr Illari's cross-examination of Mr Herbert. In Mr Illari's closing address, there are clear references to his cross-examination of Mr Herbert which are, in substance, repeated in her Honour's summing up. One may infer that those portions were the most significant in the context of the evidence as a whole and, in particular, to the question of causation as it arose in the context of count 2.

98 Contrary to the appellant's submission, it is possible to reconstruct, to a significant degree, Mr Illari's cross-examination of Mr Herbert.

99 In my opinion, this court's appellate jurisdiction can be satisfactorily exercised on the basis of the record it has before it. The appellant's submissions that her Honour possibly fell into error are speculative and based upon the (erroneous) proposition that he has already demonstrated other errors on the part of the learned trial judge. That proposition, even if it were true, is not a logical basis for allowing this proposed ground of appeal. The appellant's experienced and competent trial counsel did not, in his closing address, refer to Mr Illari's cross-examination of Mr Herbert. The appellant has not been deprived of his opportunity to appeal. No miscarriage of justice has arguably occurred.

100 Proposed ground 2 has no merit.

Proposed grounds 3 and 7 - should her Honour have left to the jury an alternative verdict on count 2?

101 In essence, proposed grounds 3 and 7 should be understood as alleging that her Honour erred in not leaving to the jury an offence of assault occasioning bodily harm as an alternative verdict to count 2.

102 The injury said to constitute grievous bodily harm in count 2 was the tension pneumothorax suffered by Mr Herbert. It was not alleged that any other injury sustained by Mr Herbert was capable of constituting grievous bodily harm. The State did not allege in the indictment or at any point in the trial an alternative verdict of assault occasioning bodily harm. In other words, the case was fought on an 'all or nothing basis'.

103 At the conclusion of the evidence, but before counsel's closing addresses, her Honour raised several legal issues with counsel (ts 229 - 262). At one point, her Honour raised the possibility of assault occasioning bodily harm being open as an alternative verdict to count 2 on the basis that neither of the accused caused the grievous bodily harm suffered by Mr Herbert; although there were other injuries sustained by Mr Herbert to his knee and ankle which constituted bodily harm (ts 237, 253 - 254). The prosecutor accepted that the State's case on count 2 concerned only the tension pneumothorax and no other injury. Both defence counsel agreed (ts 254), and neither of them submitted that her Honour should leave, as an alternative verdict to count 2, an offence of assault occasioning bodily harm. No counsel in their closing addresses asserted that assault occasioning bodily harm was an alternative verdict on count 2. No direction to that effect was given by the learned trial judge in her summing up.

104 However, during its deliberations, the jury asked the following question:

On charge number 2, is [sic] [the appellant and Nicholas] guilty or not guilty our only option or can we find one both [sic] guilty of a lesser charge (ts 348)?

105 In the absence of the jury, all counsel submitted that there was no lesser or alternative charge to count 2 and her Honour directed the jury accordingly (ts 348 - 349).

106 In cases which do not involve homicide, there is no general rule that a trial judge is obliged to leave an alternative verdict to a jury. Whether a judge does so is a matter for the discretion of the trial judge depending on the particular circumstances of the case: see JAW v The State of Western Australia [2013] WASCA 261 [35] (Newnes JA) and the cases cited therein.

107 The whole focus of count 2 was on the tension pneumothorax and not on the other injuries alleged suffered by Mr Herbert to his ankle and knee. There was no issue at trial that the tension pneumothorax constituted grievous bodily harm. The principal questions with respect to count 2 were: how was the tension pneumothorax caused; and, if it was caused during the alleged attack by the appellant, Nicholas, and others, was the appellant criminally responsible for the injury? As I have said, the State did not allege an alternative offence and the appellant's counsel, in essence, eschewed such a course.

108 In all of the circumstances, the learned trial judge did not err in the exercise of her Honour's discretion to not leave an alternative verdict to the jury on count 2. No miscarriage of justice has arisen because the alternative verdict was not left to the jury.

109 Before leaving these proposed grounds of appeal, I note the following:

(a) In his written submissions in support of ground 3, the appellant alleges that her Honour agreed with the appellant's trial counsel that there was no evidence that the appellant had committed grievous bodily harm upon Mr Herbert (white AB 24). Her Honour made no such statement (see ts 236 - 237).

(b) In support of proposed ground 7, the appellant submits that, by reason of the jury's question concerning an 'alternative charge', the jury must have had a reasonable doubt as to the appellant's guilt on count 2 (white AB 36). This submission must be rejected. There is nothing in the question asked by the jury which logically gives rise to that conclusion.

110 Proposed grounds 3 and 7 have no merit.

Proposed ground 14 - the inference direction

111 Proposed ground 14 complains about her Honour's direction to the jury regarding the drawing of inferences.

112 In the context of directing the jury on the elements of count 1 and how the State may prove that each accused intended to commit an offence in Mr Herbert's house, her Honour provided the jury with a detailed direction of law about inferences. The direction was in these terms:

And I'm going to give you now a direction of law about inferences. That's because in this case you will have to determine each accused's state of mind, and the State says you can draw an inference that each accused entered this house with the intention to commit the offence of assault. Also, when you're looking at 'mistake', you have to consider the honesty of Nicholas' belief, and that requires an examination of his state of mind at the time.

In this case, each of [the appellant] and Nicholas has, of course, given evidence about what his state of mind was. You can either accept or reject what each of them says in that regard when you are considering the state of mind of each of them. That's a matter for you. If you rely on facts other than the evidence which an accused, either [the appellant] or Nicholas, has given about his state of mind, you are drawing an inference from circumstantial evidence.

The State cannot call a witness to say what an accused intended or what he believed. A person's state of mind cannot be proved in the same way that a document or a photograph can be proved. A person's state of mind can only be inferred from other facts which are proved. I did tell you earlier that when you consider the evidence, you should not guess or speculate about matters or look for theories which are not supported by the evidence. You are, however, allowed to draw inferences from facts.

An inference is a logical deduction or conclusion from facts. An inference in a criminal case is sometimes said to be based on what we call circumstantial evidence. A person's state of mind may be inferred from all of the surrounding circumstances, from the person's conduct and from what the person has said to others. The words and actions by a person may often be the best guide to what his intentions or state of mind were (ts 309).

113 The learned trial judge proceeded to give the jury an example about the drawing of inferences in the context of a criminal case which need not be repeated here (ts 309 - 311). Her Honour then said:

As this is a criminal trial, as I've told you the accused is presumed to be innocent and the state bears the onus of proving each charge beyond reasonable doubt. Because of this, when the state suggests that you can drawn [sic] an inference on any issue in this trial which deals with the accused [sic] state of mind, the inference which the state is asking you to draw must be the only inference that is reasonably open from the facts as you find them on the whole of the evidence.

If more than one inference is reasonably open then the state can't say to you, for example, we have proved that this accused entered the house with the intention to commit an assault or we've proved beyond reasonable doubt that Nicholas did not believe he had permission to enter the house. You must not draw an inference that the state has asked you to draw from circumstantial evidence in this case unless you are satisfied beyond reasonable doubt that this inference is the only inference open to be drawn by you on all of the facts, whatever you find them to be on the whole of the evidence.

If there's some other reasonable inference open on the facts as you find established which is not consistent with the inference that the state wants you to draw, you could not draw that inference against the accused (ts 311).

114 Later in the summing up, in the context of her Honour's direction on common intention, the jury were directed that the existence of any common intention was a matter of inference. Her Honour reminded the jury of the direction she had earlier given about the drawing of inferences in the case (ts 323).

115 The appellant's written submissions in respect of proposed ground 14 are confusing (white AB 53 - 55). The major complaint appears to be that her Honour should have explained to the jury the difference between 'evidence' and 'facts'.

116 Her Honour's inference direction was orthodox and correct. There was nothing confusing about it. No counsel sought an additional direction or a re-direction. A trial judge is not obliged to give a specific direction concerning the difference between 'evidence' and 'facts'. In the present case, her Honour gave clear directions to the jury that it was the jury's sole function to decide the facts and that it did so based upon the evidence.

117 Proposed ground 14 has no merit.

Proposed ground 5 - intention and inferences regarding count 2

118 Proposed ground 5 is expressed in this way:

The learned trial judge made an error in the direction of inference concerning the charge of grievous bodily harm as the learned trial judge explained inference as being a state of mind and drawn from the facts only (white AB 13).

119 This proposed ground of appeal is difficult to understand. The written8 submissions raise two points. First, with respect to count 2, although the appellant accepted that an inference could be drawn from the evidence that he intended to assault someone, no inference could be drawn that he intended to cause grievous bodily harm; thus, he could not have been convicted of this offence. Second, in the absence of a written handout setting out her Honour's inference direction, any such direction was beyond the comprehension of a reasonable jury (white AB 30 - 31).

120 Both of these submissions must be rejected. As to the first submission, the appellant was charged by count 2 with an offence pursuant to s 297(1) of the Criminal Code. An intent to cause grievous bodily harm is not an element of this offence. With respect to the second submission, her Honour's direction with respect to inferences was, as I have said, orthodox, correct and not beyond the comprehension of a jury. There was no requirement for the direction to be reduced to writing. No trial counsel sought a written direction.

121 Proposed ground 5 has no merit.

Proposed ground 10 - alleged hearsay evidence

122 The appellant submits that he has suffered a miscarriage of justice because of the admission of hearsay evidence at his trial (white AB 15). The alleged hearsay evidence is the testimony of Mr Herbert, Mr Cockman and Mr Heatherington to the effect that the front door of Mr Herbert's house was 'booted' or 'smashed' in when they did not actually see this (white AB 40).

123 This proposed ground of appeal is misconceived. The evidence of the three witnesses is not hearsay. To the contrary, it is direct evidence of what they heard when the appellant and the others entered Mr Herbert's house. In any event, the appellant himself testified, when asked in examination-in-chief about how the front door opened, that the door '… was just sort of smashed on a couple of times …' (ts 167). It is difficult to see how, even if the evidence was hearsay, it has given rise to any miscarriage of justice.

124 Finally, it is relevant that the appellant's experienced and competent trial counsel did not object to the evidence impugned by this proposed ground of appeal. In such circumstances, it is difficult for an appellant to establish a miscarriage of justice because, generally, an appellant is bound by the way defence counsel conducted his or her trial: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J) and Durani v The State of Western Australia [2012] WASCA 172 [111] - [112] (Mazza JA).

125 Proposed ground 10 has no merit.

Proposed ground 13 - alleged failure by the trial judge to redirect the jury on s 7 and s 8 of the Criminal Code

126 In her summing up, the learned trial judge gave detailed directions to the jury with respect to s 7 and s 8 of the Criminal Code. These directions are not challenged and it is unnecessary to repeat them.

127 In the course of its deliberations, the jury sent a note to her Honour in these terms:

Can we please have clarification on the common intent/association definition (ts 349)?

128 As part of her Honour's response to this question, the learned trial judge prepared a written jury handout which was given to trial counsel for their consideration (ts 349). After counsel had considered the handout, the learned trial judge asked whether, in the light of the contents of the handout, it was necessary for her Honour to 'go through in detail the directions I gave earlier' (ts 350). Each trial counsel expressed the view that it was unnecessary for her Honour to repeat in full the directions she had given earlier (ts 350 - 351). Her Honour then invited the jury to return to the courtroom and provided it with the handout (ts 351; MFI 5).

129 The appellant takes no issue with the correctness of the handout. As with the earlier oral directions, it is unnecessary to set them out here. Each handout was headed 'Use this document as an aid, but you must not use it as a substitute for the directions given nor must it replace those directions' (combined blue and green AB 5).

130 After providing the handout to the jury, her Honour said:

There's just a couple of things I need to say to you.

You may not recall all of the directions I gave you earlier, but I think it's important I stress a couple of things

(ts 351). (emphasis added).

131 The learned trial judge then gave further oral directions in which her Honour, again:

(a) set out the essence of the State and defence cases with respect to common intention;

(b) reminded the jury that the existence of a common intention was a matter of inference; and

(c) repeated that the case for each accused was that there was no intention to commit a crime and that the appellant and Nicholas went to the house to collect Vincent's belongings (ts 352).

132 No exception was taken to any of these directions by trial counsel.

133 Proposed ground 13 focuses on the italicised portion of the direction to which I have just referred. The appellant submitted that, if the learned trial judge thought that the jury may not have recalled her Honour's earlier directions with respect to s 7 and s 8 of the Criminal Code, then it was incumbent upon her Honour to repeat those directions in full. Further, the failure to repeat the earlier directions in full may have '… made the jury think that the earlier directions were not as important as the couple her Honour stressed where [sic] important' (white AB 52).

134 Her Honour's decision not to repeat all of her earlier oral directions regarding counts 7 and 8 of the Criminal Code did not give rise to a miscarriage of justice. The jury handout accurately reflected her Honour's earlier oral directions and was legally correct. In light of this, as all trial counsel agreed, it was unnecessary for the learned trial judge to repeat all that her Honour had said earlier. The learned trial judge's use of the expression 'you may not recall all of the directions I gave you earlier …' was no more than an introduction given before her Honour specifically reminded the jury of the matters which followed. They did not indicate, as the appellant alleged in his oral submissions, that the learned trial judge thought that the jury had forgotten all of her Honour's earlier directions (appeal ts 19).

135 Proposed ground 13 has no merit.

Proposed grounds 1, 6, 8, 11 and 12 - were the verdicts unreasonable?

136 Proposed grounds 1, 6, 8, 11 and 12 collectively allege the same thing, namely, that the guilty verdicts were unreasonable or cannot be supported on the evidence.

137 Proposed grounds 1 and 8 are primarily directed to the appellant's conviction on count 2. Specifically, the appellant alleges that:

(a) the jury's guilty verdict on count 2 is unreasonable because there was no bruising or other injury sustained by Mr Herbert consistent with his evidence that he was struck by a bat or an iron bar to the chest (proposed ground 1; white AB 17); and

(b) the evidence of Dr van der Post was to that effect (proposed ground 8; white AB 37 - 38).

138 Proposed grounds 6, 11 and 12 may be understood as challenging all of the convictions against the appellant. Specifically, the appellant alleges that:

(a) the evidence of Mr Cockman, Mr Heatherington and Mr Herbert was inconsistent on a number of matters, and that the investigation undertaken by the police was inadequate (proposed grounds 6 and 11; white AB 31 - 36, 41 - 46); and

(b) the evidence of Mr Cockman, Mr Heatherington and Mr Herbert was concocted and designed to protect them from being charged with offences against Vincent (proposed ground 12; white AB 47 - 48).

Relevant legal principles

139 The relevant legal principles were explained by Buss JA in Mack v The State of Western Australia [2014] WASCA 207 [141] - [147] as follows:

By s 30(3)(a) of the

Criminal Appeals Act 2004

(WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, 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.

In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).