KUC v The State of Western Australia - [2021] WASCA 101

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KUC -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 101
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   12 FEBRUARY 2021 & 29 MARCH 2021
DELIVERED          :   8 JUNE 2021
FILE NO/S:   CACR 8 of 2020
BETWEEN:   SANEL KUC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAVRIANOU DCJ
File Number            :   IND 1425 of 2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of intentionally causing grievous bodily harm to the complainant - Whether guilty verdict unreasonable and unsupported by the evidence - Whether trial judge erred by failing to give a Liberato direction in relation to defence witnesses other than the accused - Whether a miscarriage of justice arose from prosecutor's closing submissions inviting the jury to find that two defence witnesses had lied to protect the accused - Whether a miscarriage of justice arose from an alleged failure by the prosecutor to comply with the rule in Browne v Dunn

Legislation:

Criminal Code (WA), s 294(1)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M J McCusker QC & D C McCallum
Respondent	:	L M Fox SC

Solicitors:

Appellant	:	Holborn Lenhoff Massey
Respondent	:	Director of Public Prosecutions (WA)

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

Browne v Dunn (1893) 6 R 67
Burke v Corruption and Crime Commission [2012] WASCA 49
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Dayananda v The State of Western Australia [2021] WASCA 11
De Pledge v The State of Western Australia [2021] WASCA 1
De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100
GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
Goedecke v The State of Western Australia [2013] WASCA 25
JJS v The State of Western Australia [2014] WASCA 136
Julien v The State of Western Australia [2021] WASCA 79
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MAM v The State of Western Australia [2018] WASCA 35
MEN v The State of Western Australia [2020] WASCA 118
Merrey v The State of Western Australia [2010] WASCA 62
NCH v The State of Western Australia [2013] WASCA 29
Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Ferguson [2009] VSCA 198; (2009) 24 VR 531
R v Foley [1998] QCA 225; [2000] 1 Qd R 290
R v Morrow [2009] VSCA 291; (2009) 26 VR 526
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Sheriff v The State of Western Australia [2017] WASCA 185
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Warren and Ireland v The Queen [1987] WAR 314
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Table of Contents

Buss P & Mazza JA

The State's case at trial

The appellant's case at trial

Ground 1 of the appeal

Ground 2 of the appeal

Ground 3 of the appeal: its terms

Ground 3 of the appeal: the cross‑examination of Mr Nenadic

Ground 3 of the appeal: the cross-examination of Mr Miller

Ground 3 of the appeal: the prosecutor's closing address

Ground 3 of the appeal: defence counsel's closing address

Ground 3 of the appeal: the trial judge's summing up

Ground 3 of the appeal: the appellant's submissions

Ground 3 of the appeal: the respondent's submissions

Ground 3 of the appeal: its merits

Conclusion

Mitchell JA

Summary

The prosecution case at trial

The defence case at trial

Prosecution evidence

Evidence of the complainant

Evidence of Mr Jeong

CCTV footage

Medical evidence as to the complainant's injuries

Forensic evidence

Police evidence

Defence evidence

Evidence of the appellant

Evidence of Mr Miller

Evidence of Mr Nenadic

Trial judge's directions

Liberato direction

Case left for the jury

Ground 1: unreasonable verdicts

General principles

Appellant's submissions

Disposition

Possible reasoning process

Objective evidence: the CCTV recording

Evidence supporting the attack scenario

Basis for concluding that the fight scenario was not reasonably possible

Other matters

Conclusion as to ground 1

Ground 2: Liberato direction

Appellant's submissions

Disposition

Ground 3: prosecutor's submissions

Prosecutor's submissions in relation to Mr Nenadic's evidence

Prosecutor's submissions in relation to Mr Miller's evidence

Orders

BUSS P & MAZZA JA:

This is an appeal against conviction.
The appellant was charged on indictment that on 23 February 2017, at West Perth, the appellant, with intent to maim, disfigure, disable or do some grievous bodily harm to Joshua Ravelich, unlawfully did grievous bodily harm to Mr Ravelich, contrary to s 294(1) of the Criminal Code (WA) (the Code).
The appellant pleaded not guilty.
On 3 July 2019, after a trial before Stavrianou DCJ and a jury, the appellant was convicted as charged.
Initially, the appellant appealed on two grounds. Ground 1 alleges, in essence, that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. Ground 2 alleges, in essence, that the trial judge misdirected the jury on the onus and standard of proof by failing to give the jury a Liberato direction in relation to the evidence of two defence witnesses, Mario Nenadic and Michael Miller. On 25 April 2020, Mazza JA referred the appellant's application for leave to appeal on those grounds to the hearing of the appeal.
On 12 February 2021, the court heard the appellant's appeal based on grounds 1 and 2.
By an application in an appeal dated 23 February 2021, the appellant sought leave to rely on an additional ground of appeal. The proposed new ground (ground 3) alleges, in essence, that the appellant's trial was rendered unfair, and he suffered a miscarriage of justice, in that the prosecutor invited the jury to conclude that two defence witnesses, namely Mr Nenadic and Mr Miller, deliberately and knowingly gave false evidence to protect the appellant, when the basis on which that invitation was put to the jury was:
(a)as regards Mr Nenadic, without any support in the evidence and contrary to his unchallenged evidence; and
(b)as regards Mr Miller, an invitation to speculate and was never put to Mr Miller in cross-examination.
The appellant and the State filed written submissions in relation to the merits of proposed ground 3. On 29 March 2021, the court heard oral submissions on the proposed new ground. In the circumstances, we would grant the appellant's application for leave to rely on the proposed new ground.
By an application in an appeal dated 12 January 2021, the appellant sought leave to adduce additional evidence in the appeal. The relevant evidence concerned the appellant's height. We would dismiss the application.
Leave to appeal should be granted on grounds 1, 2 and 3. However, none of the grounds of appeal has been made out. The appeal must be dismissed.

The State's case at trial

The State's case at trial was that the complainant, Mr Ravelich, knew the appellant's brother, Arafat Kuc. They had met at the same parties 'and things like that'. Mr Ravelich had seen the appellant at nightclubs on a few occasions and on social media. Mr Ravelich and the appellant 'knew of each other and they did not like each other' and 'a rift of sorts started due to some kind of disagreement between [Arafat Kuc] and [Mr Ravelich's] best friend' (ts 43).
At about 10.00 am on 23 February 2017, the appellant and Natasha Del Bianco (whom Mr Ravelich had dated briefly about three years previously) entered the Mount Street café in Mount Street, West Perth. The café is opposite 39 Mount Street, which was then a construction site where Mr Ravelich was working (ts 63).
Mr Ravelich saw the appellant and Ms Del Bianco enter the café. He decided to cross the road to the café and ascertain whether the appellant would talk to him 'about some of the issues between them'. Mr Ravelich stood outside the café, where he believed he would have been seen by the appellant and Ms Del Bianco (ts 44, 64).
Mr Ravelich remained outside the café for about five to ten minutes before crossing the road again and returning to the construction site, without having spoken to the appellant. Later, Mr Ravelich saw the appellant and Ms Del Bianco drive away (ts 44, 64 ‑ 65).
At about 2.30 pm on 23 February 2017, the appellant, Arafat Kuc and about four other men arrived at the construction site. One of the men (who had a short black beard) asked Kun Pill Jeong, a worker on the construction site, 'where's Josh'. Mr Ravelich heard his name and walked out of the basement area of the construction site. Mr Ravelich recognised the appellant and Arafat Kuc. He had seen the appellant a few times at a nightclub and on social media. He had previously met Arafat Kuc.
When Mr Ravelich emerged from the basement area, the appellant and Arafat Kuc set upon him with the assistance of a third man. Arafat Kuc held a large wooden handle. The appellant punched Mr Ravelich to the throat. Arafat Kuc struck Mr Ravelich on the right side of his face with the wooden handle. Mr Ravelich fell on his back in the basement area. Mr Ravelich was then punched, kicked and struck again with the wooden handle. Next, the appellant choked Mr Ravelich with the appellant's right hand. After breaking the appellant's grip, Mr Ravelich rolled onto his stomach. He was then struck a number of times to the face (ts 75 ‑ 77).
When the attack ceased, Mr Ravelich got to his feet. The appellant and Arafat Kuc approached him again. Arafat Kuc held the wooden handle to Mr Ravelich's face. The appellant said 'I know you've been talking shit. Drop the Fardi shit. It's over. If you go the police I'll put a bullet in you. I'll put a bullet in your brother' (ts 78).
The appellant and the other men who had accompanied him to the construction site then left the site (ts 78).
Apart from Mr Ravelich, Mr Jeong was the only other State witness who gave evidence of the events which had occurred at the construction site. Mr Jeong, who was aged 32, was working on the site as a tiler. He saw three men enter the site and then attack Mr Ravelich. Soon afterwards, Mr Jeong was grabbed from behind by a fourth man and put into a head lock. The fourth man told Mr Jeong to 'fuck off'. Mr Jeong then went to the second floor of the building on the site. Mr Jeong very briefly saw the men hitting Mr Ravelich before Mr Jeong went up to the second floor (ts 204 ‑ 205).
Mr Jeong did not see that any of the men were armed with any item (ts 204). As the men left the site, Mr Jeong saw one of the men fold the number plates on one of the cars in which they departed so as to conceal the car's registration number (ts 206).
The State did not adduce any forensic evidence which connected the appellant with the commission of the assault against Mr Ravelich.
Mr Ravelich's injuries included multiple fractures to his face which required surgery. Dr Edward Siddens gave evidence that the injuries were consistent with Mr Ravelich having been struck with a blunt object. A 'decent amount' of force would have been required to inflict the injuries. Dr Siddens agreed, in cross-examination, that it was possible for the injuries to have been caused by falling onto or running into a blunt object or by a single punch. However, if a single punch was responsible then it would have been a 'really big' punch (ts 173 ‑ 174).

The appellant's case at trial

The appellant gave evidence in his own defence at the trial.
The appellant denied knowing Mr Ravelich. He denied ever having met him. The appellant denied that there was any animosity between them (ts 265 ‑ 266).
The appellant said that on the morning of 23 February 2017 he had been at the Mount Street café with Ms Del Bianco. He denied having seen Mr Ravelich standing outside the café. He denied having seen him at any time that morning (ts 270 ‑ 271).
The appellant admitted that at about 2.30 pm on 23 February 2017 he had returned to the area and that he had been at the construction site when an incident occurred.
The appellant said that he returned to the area to attend a pre‑arranged meeting with his brother, Arafat Kuc, Neil Singh and Mr Nenadic, who was a builder. The meeting was to be held at the Mount Street café. The appellant and Arafat Kuc were involved in two property developments for which Mr Nenadic was the builder. The appellant had previously held business meetings at the Mount Street café, including meetings attended by Mr Nenadic (ts 269 ‑ 272, 351).
The appellant, Arafat Kuc and Mr Singh arrived at about 2.30 pm in the appellant's vehicle. Several other men, who were friends of Arafat Kuc, arrived separately in another vehicle. The appellant understood that his brother had invited the other men to join him for coffee at the conclusion of the pre-arranged meeting with Mr Singh and Mr Nenadic (ts 272 ‑ 273).
Upon arriving at the Mount Street café, the appellant alighted from his vehicle and went to remove various files and a laptop computer from the boot. He then heard shouting coming from the construction site across the road. The appellant did not know what the shouting was about, although he heard names including 'Sunny' and 'Ari' being shouted by someone. The appellant's brother is called 'Ari'. After the appellant heard the shouting his brother went towards the construction site. The appellant followed a few metres behind (ts 274, 276).
The appellant then saw Arafat Kuc and Mr Ravelich arguing. Next, he saw Mr Ravelich strike Arafat Kuc on the face. Mr Ravelich and Arafat Kuc began fighting near the entrance to the basement area (ts 277, 279).
The appellant saw an Asian man attempt to intervene in the fight between Mr Ravelich and Arafat Kuc by swinging a rubber mallet towards Arafat Kuc. The mallet almost struck Arafat Kuc on the head. The appellant put the Asian man in a head lock and disarmed him. The Asian man then fled (ts 277 ‑ 278).
Mr Ravelich and Arafat Kuc continued fighting. They moved out of the appellant's sight into the basement area (ts 278 ‑ 280).
Shortly afterwards, the fighting ceased and the appellant and Arafat Kuc left the construction site. The appellant folded the registration plates on his vehicle. He did so at the suggestion of Arafat Kuc and with the object of preventing Mr Ravelich and any of his associates ascertaining where his family lived (ts 281).
The appellant denied participating in any attack upon Mr Ravelich. He also denied that Arafat Kuc was armed or that anyone else joined in the fight between Mr Ravelich and Arafat Kuc (ts 277, 280, 303, 315 ‑ 319).
Defence counsel called Mr Nenadic and Mr Miller.
Mr Nenadic, a 35 year old builder, gave evidence that he had arranged to meet with the appellant and Arafat Kuc at the Mount Street café on the afternoon in question. Mr Nenadic said he arrived for the meeting about 10 minutes early. He remained in his vehicle to check emails while waiting for the appellant and Arafat Kuc to arrive. Mr Nenadic said he did not see them arrive, but heard yelling. Mr Nenadic, who was still seated in his vehicle, then saw the appellant and Arafat Kuc walk across the road to the construction site (ts 344 ‑ 346).
Mr Nenadic gave evidence that he saw Arafat Kuc (whom he knew) enter the construction site and argue with a taller man. Mr Nenadic said he saw the taller man punch Arafat Kuc and the two men then began fighting. He said the appellant did not participate in the fight (ts 347 ‑ 348).
Mr Nenadic said he saw an Asian man swing 'a tool of some sort' at Arafat Kuc's back. He then saw the appellant intervene by grabbing the Asian man around the neck. At that point, Mr Nenadic lost sight of Arafat Kuc and the taller man. They disappeared from his view into the basement area of the construction site (ts 348).
Mr Miller, a 38 year old hydraulic sales engineer, gave evidence that he saw part of the incident at the construction site as he jogged along Mount Street. Mr Miller said he did not know and had never met the appellant or Arafat Kuc (ts 340).
Mr Miller said he jogged regularly in the area. On an afternoon in February 2017, he was jogging along Mount Street when he saw a group of men on a construction site. Two of the men appeared to be confronting each other. He could not hear anything that was said between the men because he was wearing an ear piece that was turned on. Initially, the two men gestured towards each other with their hands. They then began fighting (ts 336 ‑ 337).
Mr Miller gave evidence that, after about 10 to 15 seconds, the two men who were fighting moved into a basement area. Mr Miller lost sight of them. Mr Miller did not see any other person join in the fight between the two men. He did not know either of the men (ts 337 ‑ 338).
Mr Miller described one of the two men as a 'notably big' man who was about two metres tall. He described that man as weighing about 100 kg (a description which fitted Mr Ravelich) and the other man as shorter and having a 'stocky' build (a description which fitted Arafat Kuc).

Ground 1 of the appeal

As we have mentioned, ground 1 alleges, in essence, that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
We agree with Mitchell JA that ground 1 has not been made out. Subject to what we have written at [45] ‑ [54] below, we agree generally with his Honour's reasons on ground 1.
In the present case, the State and the appellant advanced at the trial radically different versions of the events which had occurred at the construction site.
The State's version, based on the evidence of Mr Ravelich and Mr Jeong, was that the appellant, Arafat Kuc and their associates had come to the construction site looking for Mr Ravelich and that both the appellant and Arafat Kuc had attacked Mr Ravelich, without provocation, when he emerged from the basement area.
The appellant's version, based on the evidence of the appellant, Mr Nenadic and Mr Miller, was that:
(a)Arafat Kuc, followed by the appellant and their associates, had gone to the construction site in response to shouting coming from the construction site;
(b)Mr Ravelich and Arafat Kuc began fighting near the entrance to the basement area after Mr Ravelich had struck Arafat Kuc on the face; and
(c)the appellant was not involved in any assault upon Mr Ravelich.
The role of the jury was not, of course, to choose between the State's version and the appellant's version of events. The jury was entitled to arrive at a view of the case which did not precisely replicate either of those versions. See LFG v The State of Western Australia[1] and the cases there cited.
[1] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [356] (Buss JA; Mazza JA agreeing).
Recently, in Julien v The State of Western Australia,[2] this court set out the principles to be applied by an intermediate appellate court where a ground of appeal alleges that, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.
[2] Julien v The State of Western Australia [2021] WASCA 79 [33] ‑ [45].
In our opinion, after evaluating and weighing the evidence given by the appellant, Mr Nenadic and Mr Miller, in the context of the trial record as a whole, the jury was entitled to reject the evidence of the appellant, Mr Nenadic and Mr Miller to the extent that their evidence:
(a)exculpated, or tended to exculpate, the appellant from criminal responsibility for intentionally and unlawfully doing grievous bodily harm to Mr Ravelich as alleged by the State at the trial; or
(b)created a doubt, or tended to create a doubt, about the appellant's guilt of the charged offence.

A jury, acting reasonably, was not precluded by the state of the evidence from convicting the appellant of the charged offence. In particular, a jury, acting reasonably, was entitled to accept the evidence of Mr Ravelich and Mr Jeong in all material respects.
A jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of the evidence of Mr Ravelich and Mr Jeong and the objective evidence (in particular, the inferences to be drawn from what is visually depicted on the CCTV footage and the absence of any yelling or shouting being recorded on the audio associated with the CCTV camera), that the appellant, acting jointly with at least Arafat Kuc, physically attacked Mr Ravelich and, with intent to maim, disfigure, disable or do some grievous bodily harm to Mr Ravelich, unlawfully did grievous bodily harm to Mr Ravelich.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt of the charged offence. The verdict of guilty was not unreasonable. It was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the very significant benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt of the charged offence or as to the correctness of his conviction on that charge. It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand.
The appellant's application in an appeal dated 12 January 2021 seeks leave to adduce evidence in the appeal as to the appellant's height. Plainly, that evidence is new as distinct from fresh. The common law test for the admissibility of new evidence on appeal is not satisfied. The probative value of the proposed evidence, having regard to the evidence adduced at the trial, is weak. The proposed evidence does not materially advance the appellant's case in relation to ground 1 or otherwise. Leave to adduce the additional evidence, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), should be refused.
Ground 1 fails.

Ground 2 of the appeal

As we have mentioned, ground 2 of the appeal alleges, in essence, that the trial judge misdirected the jury on the onus and standard of proof by failing to give the jury a Liberato direction in relation to the evidence of Mr Nenadic and Mr Miller.
We agree with Mitchell JA, generally for the reasons he gives, that ground 2 has not been made out.

Ground 3 of the appeal: its terms

As we have mentioned, ground 3 alleges, in essence, that the appellant's trial was rendered unfair, and he suffered a miscarriage of justice, in that the prosecutor invited the jury to conclude that Mr Nenadic and Mr Miller deliberately and knowingly gave false evidence to protect the appellant, when the basis on which that invitation was put to the jury was:
(a)as regards Mr Nenadic, without any support in the evidence and contrary to his unchallenged evidence; and
(b)as regards Mr Miller, an invitation to speculate and was never put to Mr Miller in cross‑examination.

Ground 3 of the appeal: the cross‑examination of Mr Nenadic

The prosecutor began her brief cross‑examination of Mr Nenadic by confirming parts of his evidence in chief (ts 349 ‑ 350).
Mr Nenadic then gave evidence, in response to the prosecutor's questions that:
(a)before 23 February 2017, Mr Nenadic had seen the appellant 'quite a few times' and had met with him;
(b)before 23 February 2017, Mr Nenadic had met with Arafat Kuc;
(c)as at February 2017, Mr Nenadic was familiar with the appearance of the appellant and Arafat Kuc;
(d)as at February 2017, Mr Nenadic knew that the appellant drove a Porsche motor vehicle and had previously seen the vehicle;
(e)there was no particular reason why the Mount Street café had been chosen for the meeting: 'it was just somewhere we met before but … we met around different places';
(f)Mr Nenadic sat in his vehicle, as opposed to going inside the Mount Street café when he arrived, so that he could answer emails; and
(g)there was no particular reason why Mr Nenadic remained in his vehicle and did not approach the appellant and Arafat Kuc when he saw them arrive (ts 350 ‑ 351).
Mr Nenadic confirmed that the first time he saw the appellant and Arafat Kuc on 23 February 2017 was when they were crossing the road towards the construction site (ts 351).
Mr Nenadic said that the yelling he heard involved swearing, but he could not recall the exact words (ts 351).
Mr Nenadic said there was no particular reason why he did not alight from his vehicle and approach the appellant and Arafat Kuc when he saw them crossing the road towards the construction site, apart from the meeting having been arranged to occur at the Mount Street café (ts 351).
Mr Nenadic also confirmed that he was able to see the events he recounted in his evidence in chief while he sat in his vehicle (ts 352).
The remainder of the prosecutor's cross-examination of Mr Nenadic reads:
Is there any reason why when you saw these things happening from your car … you didn't approach and … see what was happening ---Yeah, it's not something I would get involved in to be honest.
… I think your evidence was, wasn't it, that … you distinctly saw that taller man punch Ari first? --- Correct, yeah.
You didn't make any efforts to report that to police, did you? --- No, no.
And I think you said in your evidence as well that you saw - you saw Ari come back out of the site, is that right --- Correct, yeah.
And how did Ari appear when he came out of the site? How did he look --- He - he was a bit scruffed up and he had a runny nose as well.
And when you say a runny nose---? --- Blood, sorry, blood.
--- what do you mean by that? --- Like a bloody nose.
And when he was leaving the site, we're talking about Ari with a bloody nose, you still didn't approach him and ask if he was okay? --- No, again.
Ask if you could call anyone? --- No.
Mr Nenadic, you knew [the appellant] quite well before that day, is that fair to say? --- Not very well - yeah, through the business dealings, yeah, yeah.
But he had a nickname for you, didn't he? --- Yeah.
He used to call you Super Mario? --- Yeah.
So you were relatively close, weren't you? --- Not really, a lot of people call me Super Mario, based on the name.
And … your interactions weren't limited to just catching up for business meetings, were they? --- No, sometimes we'd catch up for lunch and (indistinct) yeah.
Sometimes you'd have beers, is that fair to say? --- Maybe, sometimes, yeah.
Sometimes you'd play golf, is that fair to say? --- We … never played golf, we did plan but we never did, yeah.
Mr Nenadic, I'm going to put it to you that you were never there on that day. What do you say to that? --- I'm … sorry, but I was there. Yeah.
And I put it to you that you're lying and that - well I - and put it to you, you're lying about being there that day? --- Yeah, I'm not lying and I wouldn't do it under oath either, so I'm sorry.
I'm going to put it to you that the reason why you're lying is to try and protect someone that you're quite close to? --- No, that's not the case. I wouldn't put myself in a position like that (ts 352 ‑ 353).
Defence counsel did not re-examine Mr Nenadic.

Ground 3 of the appeal: the cross-examination of Mr Miller

The prosecutor began her very brief cross-examination of Mr Miller by confirming parts of his evidence in chief (ts 339 ‑ 340).
Mr Miller said that he could not remember exactly what day it was that he jogged past the construction site in Mount Street and saw the events he had described in his evidence in chief (ts 339).
Normally, Mr Miller jogged on the side of Mount Street next to the construction site; that is, not on the café side (ts 339).
Mr Miller confirmed that he did not know the appellant, although 'when [Mr Miller] attended the lawyer's office' he believed he met the appellant 'in passing' (ts 340).
Mr Miller also confirmed that he did not know Arafat Kuc (ts 340).
The remainder of the prosecutor's cross-examination of Mr Miller reads:
Never met either of them apart from some meeting you might have had with a lawyer?---Yeah, that's correct, yes.
And your evidence is that after that scuffle you got out of the area? You didn't hang around?---That's correct, yes.
Did you give your details to anyone before you left?---No.
Mr Miller, I'm going to put something to you quite squarely. Are you making up that you were there that day? Is that something - - - ?---No.
- - - that you're saying that's not true?---No.
Have you at any point had quite a long beard, a beard down to say the top of your chest?---No.
No?---No.
Never had a long beard?---No.
All right. Well, I'm just going to put it to you quite directly. You weren't there on 23 February, were you?---I - it was in February. I can't tell you - - -
Do you know then whether on 23 February you were in that area? Can you say regardless of what happened on that day, can you think of any reason that you might be able to particularise whether you were there on that day?---The 20th, no, I can't say (indistinct) (ts 340).
Defence counsel did not re-examine Mr Miller.

Ground 3 of the appeal: the prosecutor's closing address

The prosecutor told the jury in her closing address that the appellant had admitted that he was present on the construction site when an incident occurred involving, relevantly, Mr Ravelich, the appellant and Arafat Kuc.
The prosecutor said the State had to prove that:
(a)Mr Ravelich had suffered injuries constituting grievous bodily harm;
(b)the appellant intended to maim, disfigure or do some grievous bodily harm to Mr Ravelich;
(c)the appellant was criminally responsible for the injuries suffered by Mr Ravelich; and
(d)the inflicting of the injuries on Mr Ravelich was unlawful (ts 2 ‑ 3).
The prosecutor referred to the different versions of the incident at the construction site which had been advanced on behalf of the State and on behalf of the appellant.
The prosecutor referred to various matters which she submitted supported the version of the incident advanced on behalf of the State.
The prosecutor made these submissions in relation to Mr Nenadic's evidence:
A couple of hours later that day, [the appellant's] back in that area with five other largely built men. All of them ended up on the construction site. And the State says that's why they were there. They were there to go to that construction site, just like they did. There's also a part of Mr Jeong's evidence that the State says is crucial to your assessment of why [the appellant] was there. Mr Jeong says that when the men came onto the site, he was approached, and the first thing he was asked is, 'Where's Josh?'
When Josh emerges from the basement, Mr Jeong says he sees three men on the site set upon him straight away. And that's a critical part of the evidence, the State would say, because it speaks volumes. Not only does it say that that's the reason why one of them was there, it says that's the reason why all of them were there.
They all knew what they were going to do. They were all there to attack Joshua Ravelich. And they all acted in unison in doing that. That was the plan … and they were there to carry that out. Mr Jeong says that a bald man put him in a headlock and told him to, 'Fuck off.' That man, too, clearly knew why they were there. It was organised. It was an ambush. Not a business meeting.
What, in that sense then, can you make of Mr Nenadic's evidence? Well, ladies and gentlemen, the State would simply say this. He's a friend of [the appellant]. He's referred to by [the appellant] as 'Super Mario', and he's lying to protect, effectively, a business associate and a friend (ts 5). (emphasis added)
The prosecutor made these submissions in relation to Mr Miller's evidence:
There are some other key parts of the evidence that are relevant to whether [the appellant] was involved in the assault that caused the grievous bodily harm. But before I talk about those in detail, let's talk about Michael Miller's evidence this morning.
Ladies and gentlemen, what that comes down to is [Mr Miller] didn't give anyone his details before he left. He says he didn't know anyone. He didn't know [Arafat] Kuc, he didn't know [the appellant], he knew no one and yet somehow, he's been contacted without giving his details. The State would simply say, ladies and gentlemen, that he is another person who is lying to try and protect [the appellant] (ts 8). (emphasis added)

Ground 3 of the appeal: defence counsel's closing address

Defence counsel referred in his closing address to Mr Nenadic and Mr Miller, whom defence counsel described as 'eye witnesses to the assault'. Defence counsel noted that Mr Nenadic said he arrived 10 minutes before the meeting that had been scheduled for 2.30 pm. Mr Nenadic heard 'the shouting and he saw what took place' (ts 26). Mr Nenadic saw the two men who were fighting, one of whom was Arafat Kuc. The two men moved out of Mr Nenadic's sight as they 'went down the incline' towards the basement. Defence counsel referred to Mr Miller, who 'observed exactly the same thing, although he [did not] see who hit [whom] at that particular moment' (ts 26). However, both Mr Nenadic and Mr Miller said there were only two men fighting, and one of those men was Arafat Kuc (ts 26).
Later in his closing address, defence counsel made more extensive submissions in relation to the evidence of Mr Nenadic and Mr Miller, as follows:
I think the significant thing in this case is here, you have two independent witnesses called by the defence.
Mario Nenadic, the prosecutor didn't lay a glove on him. Said quite directly what he saw. He wasn't going to get involved with what he'd seen, the violence that he'd seen take place across the road.
But he had a direct view of what took place, and that wasn't contradicted. He wasn't shown to have lied or to have fabricated his testimony. Just an assertion put to him, 'Well, you're not telling the truth'.
Not worth anything. It's not worth anything unless you can contradict someone, like the way I did with [Mr Ravelich]. I could contradict him based upon what he had said. That didn't happen with Mr Nenadic.
And the same with Mr Miller. The prosecutor said – again, all she could do was put, 'Well, you're lying. You're lying'. Well, but there has to be some basis for that. You can't just make a wild allegation, just because it doesn't suit your case. Just because independent witnesses are called and they say, 'Well, that's not what we saw'. Well, that doesn't mean they were lying. Just doesn't suit the prosecution case. That's the problem.
And then there was a comment made about Mr Miller, and said there was no details about who had contacted him and how he was able to come to court and testify. He wasn't asked. You can't just keep quiet.
If your concern that it was impossible for him, actually, to be contacted by the defence, ask him about that. You can't just not ask him and then be critical and say, 'Well, you know, we didn't know how he came to come to court'. Well, he wasn't asked.
You can't just run dead on that and then use that against the accused or against the witness. It's just not appropriate, nor is it proper. If you had a concern about his authenticity and the fact that he had been contacted by the defence, you should ask him about that. You can't just leave it hanging in mid-air.
Anyway, both of them directly contradicted Mr Ravelich's account of what took place. And, for that matter, Mr Jeong. … I submit to you that you must take that into account. There's got to be some doubt in your minds about whether what is alleged against [the appellant] actually took place in the way that [Mr Ravelich] says.
Otherwise, you have to conclude, 'Well, we are rejecting the evidence of the two independent witnesses right. That they've come to court, they have lied under oath. But we prefer the evidence of [Mr Ravelich]', who's been demonstrated to have lied in court and contradict himself a number of times, on significant points of difference (ts 49 ‑ 51). (emphasis added)

Ground 3 of the appeal: the trial judge's summing up

The trial judge emphasised in his summing up that the jury were the judges of the facts. It was the jury's responsibility to judge the facts based on the evidence they had heard; that is, the answers the witnesses gave to the questions they were asked. The answers of the witnesses were the evidence. The questions asked by the prosecutor and defence counsel were not evidence. When counsel put a question to a witness and the witness did not accept the proposition contained in the question, the proposition was not evidence of the facts asserted in the proposition. What the prosecutor and defence counsel said in their closing addresses was not evidence. The jury should consider the submissions of the prosecutor and defence counsel, but the jury must always bear in mind that the jury were the judges of the facts. His Honour explained to the jury that the jury must decide the case based upon the evidence and based only upon the evidence (ts 361 ‑ 362).
His Honour told the jury that they must not speculate about matters that were not in evidence. The jury must address the evidence in an objective and analytical way. The jury were the sole judges of the credibility of each witness and the weight to be given to his or her testimony. The jury may accept part of a witness's evidence and reject other parts of the witness's evidence. The jury were entitled to accept a witness's evidence in its entirety or to reject a witness's evidence in its entirety (ts 364).
The trial judge said that the prosecution case depended upon Mr Ravelich's evidence. If the jury was not satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of Mr Ravelich's evidence, then the jury would not convict the appellant (ts 364).
During an adjournment in his summing up, his Honour raised with defence counsel, in the absence of the jury, submissions in defence counsel's closing address about a matter not having been put to Mr Miller. The following exchange occurred between his Honour, defence counsel and the prosecutor:
STAVRIANOU DCJ:     Mr Trowell, in your submissions you referred       to a matter not being put to the witness, Mr Miller. Do I need to go there or just leave       it alone?
TROWELL, MR:         Leave it alone.
STAVRIANOU DCJ:    Yes.
TROWELL, MR:         I'm happy with that.
STAVRIANOU DCJ:    Are you happy for me to leave it alone?
TROWELL, MR:         I'm happy. Yes, I am, sir.
STAVRIANOU DCJ:    All right. Do you want to say anything about        that, Ms Cusato?
CUSATO, MS:           No, your Honour, nothing.
STAVRIANOU DCJ:    Yes, thank you. … You know the issue I'm talking about, Mr Trowell, the not having been   asked about going to the police I think it   was, wasn't it?
TROWELL, MR:         That's right; that's right.
STAVRIANOU DCJ:    We can leave that alone?
TROWELL, MR:         Yes, that's fine (ts 370).
The trial judge referred generally to the different versions of the incident at the construction site that had been advanced on behalf of the State and on behalf of the appellant (ts 377 ‑ 378). His Honour said that the jury would not be able to convict the appellant unless the jury was satisfied beyond reasonable doubt as to three matters. First, that the appellant and at least one other person were acting jointly to commit the charged offence. Secondly, '[the appellant] did an act that was one act in a series of acts that taken together with all the other acts constitute all the acts necessary to commit the offence' (ts 378). The act that the appellant did must have been an act in furtherance of the arrangement, agreement or understanding to act together with the others to commit the offence. Thirdly, all the other acts in the series of acts which constitute the offence were performed by the persons with whom the appellant was acting jointly (ts 378).

His Honour explained the elements of the charged offence and summarised the prosecution case and the defence case (ts 378 ‑ 382).
The trial judge reminded the jury of some of the evidence that had been given (ts 383 ‑ 390). Relevantly, his Honour summarised the evidence of Mr Nenadic and Mr Miller (ts 389 ‑ 390).
His Honour summarised the submissions made by the prosecutor and defence counsel in their closing addresses (ts 390 ‑ 396). His Honour did not repeat or refer to the prosecutor's cross‑examination of Mr Nenadic or Mr Miller or the prosecutor's submissions in her closing address about Mr Nenadic and Mr Miller. However, his Honour did refer to the evidence of Mr Nenadic and Mr Miller in the course of summarising defence counsel's submissions. His Honour noted that defence counsel had referred to Mr Nenadic and Mr Miller as 'the two independent witnesses' and had submitted that their evidence supported the appellant's account of events (ts 395).
Defence counsel did not request the trial judge to give the jury a redirection or a further direction in relation to the prosecutor's cross‑examination of Mr Nenadic and Mr Miller or the prosecutor's submissions in her closing address in relation to them.

Ground 3 of the appeal: the appellant's submissions

Counsel for the appellant submitted that for the jury, acting reasonably, to have convicted the appellant, it would have been necessary for the jury to reject the evidence of Mr Nenadic and Mr Miller.
It was submitted that, in her closing address, the prosecutor sought to persuade the jury that each of Mr Nenadic and Mr Miller was lying, 'to protect [the appellant]'. It was submitted there was no basis in the evidence for the assertions which the prosecutor made to the jury in support of her contention that each of them was lying.
Counsel submitted that it was never put to Mr Nenadic that he could not have heard shouting coming from across the road, as he described it. Nor was it ever put to Mr Nenadic that he could not have seen the fight begin, with only two men involved, being Mr Ravelich and Arafat Kuc. The prosecutor merely put to Mr Nenadic that he was not present at the Mount Street location that day and he was lying 'to protect' the appellant.
Similarly, counsel submitted that it was never put to Mr Miller that he could not have seen the fight he described from his position in Mount Street.
Counsel argued that the prosecutor's reliance on propositions that were never put to Mr Nenadic or Mr Miller, for the purpose of discrediting them, was unfair and contrary to the rule in Browne v Dunn.[3] Matters in respect of which, or by reason of which, counsel intends to contradict a witness's evidence must be put to the witness.
[3] Browne v Dunn (1893) 6 R 67, 70 ‑ 71.
According to counsel for the appellant, the unfairness in suggesting to the jury 'reasons' why both Mr Nenadic and Mr Miller were lying, unsupported by any evidence and never put to them, is manifest. There was a perceptible risk of a miscarriage of justice.
Counsel contended that, in the circumstances, the trial judge should have directed the jury that the basis put to the jury by the prosecutor for concluding that Mr Nenadic and Mr Miller had lied:
(a)as regards Mr Nenadic, was not supported by any evidence and was contrary to his unchallenged evidence; and
(b)as regards Mr Miller, it was never suggested to Mr Miller in cross‑examination that he was lying to 'protect' the appellant,
and there was no evidence that either Mr Nenadic or Mr Miller had any reason or motive to lie.
Counsel acknowledged that defence counsel did not request a direction to that effect. However, counsel emphasised that defence counsel's failure to request such a direction could not have been for any conceivable forensic reason or strategy and it could only have been an oversight.
Counsel argued that Mr Ravelich gave the only evidence that the appellant had attacked him. The appellant denied this and said that Arafat Kuc became involved in a fight after Mr Ravelich punched Arafat Kuc. The appellant's evidence was supported by the evidence of Mr Miller and Mr Nenadic, who saw the fight from different vantages.

Ground 3 of the appeal: the respondent's submissions

Counsel for the State submitted that the differences between Mr Ravelich and Mr Jeong, on the one hand, and the appellant, Mr Nenadic and Mr Miller, on the other, in their accounts of the events immediately preceding the violence are incapable of sensible reconciliation.
It was submitted that the differences in the accounts of the witnesses are inexplicable on the basis that some witnesses had superior vantages in the observation of events or some witnesses were more reliable than others.
Counsel contended that one of the two competing accounts was a deliberate falsehood.
It was submitted that the defence case as to how the incident commenced was not properly put to Mr Ravelich and was not put to Mr Jeong at all in cross‑examination. In particular, neither Mr Ravelich nor Mr Jeong was challenged in his evidence that Mr Ravelich was within the basement on the construction site when Mr Jeong encountered the appellant's group, who asked him 'where's Josh?'. Accordingly, so it was submitted, at the close of the State's case the jury was left with unchallenged evidence that the first person to observe the appellant's group was Mr Jeong, when the group entered through a gap in the exterior fencing, and that this group enquired about the appellant's whereabouts.
Counsel argued that given:
(a)the unchallenged evidence of Mr Ravelich and Mr Jeong as to how the incident commenced;
(b)the inferences to be drawn from objective evidence, such as what is visually depicted on the CCTV footage;
(c)the lack of any yelling or shouting being recorded by the microphone associated with the CCTV camera; and
(e)other improbabilities in the appellant's evidence,
it was fairly open to the prosecutor to contend that Mr Nenadic's evidence was a deliberate fabrication.
Counsel also submitted that it was fairly open to the prosecutor to suggest that Mr Nenadic was not present at the Mount Street location, given the evidence (especially the CCTV footage) supported the proposition that the appellant's group travelled to the construction site for the purpose of inflicting violence on Mr Ravelich, rather than for the purpose of attending a business meeting.
Counsel argued that the existence of a friendship between the appellant and Mr Nenadic was supported by the appellant's use of the diminutive nickname 'Super Mario'. The prosecutor cross-examined Mr Nenadic on the use of this nickname in the context of the nature of the relationship between them. Mr Nenadic admitted in cross‑examination that the interaction between the appellant and him was not limited to business meetings and that 'sometimes' they would catch up for lunch and beers. It was not an issue that the two men were business associates at the time of the incident.
It was submitted that it was a matter for the jury to determine, if necessary, the true nature of the relationship between the appellant and Mr Nenadic. There were aspects of the evidence which supported the proposition that their friendship was more than merely a business relationship. There were also aspects of the evidence which pointed against that proposition.
As to Mr Miller's evidence, counsel for the State submitted that the existence of evidence as to a motive to lie is not a necessary pre‑condition for a submission to a jury that a witness's evidence is a deliberate fabrication.
It was submitted that two competing versions with respect to Mr Miller's account were, in substance, that:
(a)Mr Miller was an eye witness who coincidentally passed by at the time of the incident, who had no connection with the appellant, and was merely relating to the jury what he had observed; or
(b)Mr Miller's evidence was a deliberate fabrication.
On Mr Miller's own evidence, he did not stop to give his contact details to anyone. How Mr Miller came to be in a position to give exculpatory evidence on behalf of a stranger was not explained in his evidence in chief or his re-examination.
Counsel contended that if a person is called as a witness for the defence, and the witness gives evidence that is both exculpatory and false, then the self-evident purpose of giving the evidence is to assist the accused person by 'protecting' them from the allegations contained in the charge.
It was submitted that the prosecutor could not and did not suggest a motive as to why Mr Miller would give knowingly false evidence; for example, that Mr Miller was a friend of the appellant, that he was indebted in some way to the appellant or that there was some other reason why Mr Miller would give deliberately false evidence.
According to counsel, the prosecutor's submission in her closing address that Mr Miller was lying to 'protect [the appellant]' was a simple acknowledgement of the obvious effect of giving deliberately false exculpatory evidence. The prosecutor was not endeavouring to attribute to Mr Miller a motive to lie. Rather, the prosecutor was merely making an observation as to the purpose of Mr Miller's deliberately false evidence and the effect that it would have if the account were (wrongly) accepted as truthful.
Counsel contended that the prosecutor was fairly entitled to make submissions about the absence of an explanation in evidence in chief or re‑examination as to how Mr Miller was in a position to give evidence in the defence case, given the inherent unlikelihood that Mr Miller's existence, let alone the fact that he could give relevant evidence, would have come to the attention of the appellant or his lawyers prior to trial. It was submitted that there had clearly been contact between Mr Miller and the appellant's lawyers prior to trial, yet the circumstances of how that happened were not adduced in evidence by defence counsel. In the circumstances, it was fairly open to the prosecutor to make the submission she did.
Counsel noted that defence counsel did not request the trial judge to deal in his Honour's summing up with any of the matters complained about in ground 3.

Ground 3 of the appeal: its merits

The prosecutor in a criminal trial represents the State. The prosecutor must act 'with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one': Whitehorn v The Queen.[4]
[4] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 ‑ 664 (Deane J).
As Mazza JA (McLure P agreeing generally & Newnes JA agreeing) noted in Goedecke v The State of Western Australia:[5]
Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R vCallaghan [1993] QCA 419; [1994] 2 Qd R 300, 306; offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.
See also JJS v The State of Western Australia;[6] MAM v The State of Western Australia.[7]
[5] Goedecke v The State of Western Australia [2013] WASCA 25 [36].
[6] JJS v The State of Western Australia [2014] WASCA 136 [134] (Martin CJ; Pullin JA agreeing & Buss JA relevantly agreeing).
[7] MAM v The State of Western Australia [2018] WASCA 35 [101] - [108] (Martin CJ; Beech JA agreeing & Hall J agreeing generally).
If a prosecutor breaches his or her duty at trial it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel. See Whitehorn (664); Goedecke [35], [37]; JJS [134].
The rule in Browne v Dunncomprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross‑examiner's intention to rely upon such matters, a party or cross‑examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross‑examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross‑examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence. See NCH v The State of Western Australia[8] and the cases there cited.
[8] NCH v The State of Western Australia [2013] WASCA 29 [99] (Buss JA; Martin CJ & Mazza JA agreeing).
The policy rationale that underpins the rule in Browne v Dunn is the securing of fairness in the conduct of adversarial proceedings. The first limb is concerned with achieving fairness to witnesses and a fair trial between the parties. The second limb is concerned with the weight or cogency of evidence. See NCH [100] and the cases there cited.
Where the rule in Browne v Dunn has been breached in a criminal trial, the manner in which the breach should be dealt with will depend on the nature and extent of the breach and the particular facts and circumstances generally. See R v Foley;[9] R v Ferguson;[10] R v Morrow;[11] Burke v Corruption and Crime Commission.[12]
[9] R v Foley [1998] QCA 225; [2000] 1 Qd R 290, 291 ‑ 292 (de Jersey CJ, Thomas JA & Derrington J).
[10] R v Ferguson [2009] VSCA 198; (2009) 24 VR 531 [276] ‑ [278] (Maxwell P, Buchanan & Weinberg JJA).
[11] R v Morrow [2009] VSCA 291; (2009) 26 VR 526 [3] ‑ [6] (Nettle JA), [56] ‑ [70] (Redlich JA; Lasry AJA agreeing).
[12] Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150 [191] (Buss JA; Martin CJ & Mazza JA agreeing).
Where the rule in Browne v Dunn has been breached in a criminal trial before a judge and jury, it will be necessary for the trial judge to decide how, in the particular circumstances and in the interests of justice, the breach should be dealt with. The authorities indicate that, depending on the particular circumstances, the discretionary responses available to a trial judge include:
(a)having a witness or witnesses recalled for cross‑examination or further cross‑examination;
(b)ruling that it is not fairly open to counsel who breached the rule to make a particular submission in his or her closing address;
(c)drawing to the jury's attention in summing up that a witness was not given the opportunity to respond to particular evidence led from another witness;
(d)informing the jury that the failure to put specified matters to a witness may be taken into account by the jury in assessing the weight to be given to the witness's evidence about those matters;
(e)if the trial judge is satisfied that the omission was the fault of defence counsel or the instructing solicitor and not the accused, informing the jury of the potential disadvantage to the State's case or other witnesses from the omission, and stating that this was defence counsel's or the instructing solicitor's fault and not that of the accused; and
(f)discharging the jury.
See Foley (292); Ferguson [277] ‑ [278]; Morrow [3] ‑ [6], [59] ‑ [70]; Merrey v The State of Western Australia.[13]
[13] Merrey v The State of Western Australia [2010] WASCA 62 [17] (McLure P; Owen JA & Jenkins J agreeing).
A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen;[14] Longman v The Queen;[15] Tully v The Queen.[16] This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen.[17]
[14] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 ‑ 325 (Brennan J).
[15] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ).
[16] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).
[17] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).
As the trial judge directed the jury in his summing up, it was necessary for the jury to address the evidence in an objective and analytical manner. The jury was entitled to accept part of a witness's evidence and to reject other parts of the witness's evidence. Also, the jury was entitled to accept a witness's evidence in its entirety or to reject the witness's evidence in its entirety.
His Honour explained to the jury that the answers of the witnesses were the evidence. The questions asked by the prosecutor and defence counsel were not evidence. When counsel put a question to a witness and the witness did not accept the proposition contained in the question, the proposition was not evidence of the facts asserted in the proposition. What the prosecutor and defence counsel said in their closing addresses was not evidence.
We turn to that part of ground 3 which complains about the prosecutor's closing address in relation to Mr Nenadic.
The prosecutor put to Mr Nenadic in cross-examination, relevantly, that:
(a)before the day in question, Mr Nenadic knew the appellant 'quite well';
(b)before the day in question, Mr Nenadic and the appellant were 'relatively close';
(c)before the day in question, the interactions between Mr Nenadic and the appellant were not limited to business meetings;
(d)sometimes Mr Nenadic and the appellant would 'have beers' together;
(e)sometimes Mr Nenadic and the appellant would 'play golf' together;
(f)the appellant called Mr Nenadic by his nickname 'Super Mario';
(g)Mr Nenadic was not at the Mount Street location on the day in question;
(h)Mr Nenadic was lying about having been at the Mount Street location on the day in question and about the evidence he gave as to the incident involving Mr Ravelich, the appellant and Arafat Kuc; and
(i)the reason Mr Nenadic was lying about those matters was 'to try and protect someone that [Mr Nenadic was] quite close to' (ts 353).
Mr Nenadic responded to those questions by the prosecutor, relevantly, as follows:
(a)Mr Nenadic said that before the day in question he knew the appellant through business dealings, but not very well;
(b)Mr Nenadic said that he and the appellant would sometimes catch up for lunch;
(c)Mr Nenadic agreed that he and the appellant would sometimes have beers together;
(d)Mr Nenadic said that he and the appellant planned to play golf together, but they never actually did;
(e)Mr Nenadic said that he and the appellant were 'not really' relatively close;
(f)Mr Nenadic agreed that the appellant called him by his nickname 'Super Mario', but said that a lot of people called him by his nickname;
(g)Mr Nenadic insisted that on the day in question he was at the Mount Street location; and
(h)Mr Nenadic denied that he was lying about being at the Mount Street location on the day in question, denied that he had been lying in his evidence about the incident and denied that he was endeavouring to protect the appellant because he and the appellant were 'quite close' (ts 353).
The prosecutor made these submissions about Mr Nenadic in her closing address:
(a)Mr Nenadic was a friend of the appellant;
(b)Mr Nenadic referred to the appellant as 'Super Mario'; and
(c)Mr Nenadic was lying in the evidence he gave 'to protect, effectively, a business associate and a friend' (ts 5).
As to the prosecutor's submission that Mr Nenadic was a friend of the appellant, the prosecutor did not, in terms, put that proposition to Mr Nenadic in cross‑examination, but the prosecutor did, in substance, put to Mr Nenadic that he and the appellant were friends. Mr Nenadic said that he did not know the appellant 'very well' and that he and the appellant were 'not really' relatively close. However, the prosecutor obtained admissions from Mr Nenadic to the effect that, before the day in question, Mr Nenadic knew the appellant 'through business dealings'; they would sometimes catch up for lunch together; they would sometimes have beers together; and they had planned to play golf together (although they never actually did). Those admissions indicated that friendly relations existed between Mr Nenadic and the appellant and that they sometimes interacted socially. Their dealings were not confined to business dealings. In our opinion, the admissions were sufficient to sustain a submission, fit for the jury's consideration, that Mr Nenadic was a friend (although not a close friend) of the appellant.

Mr Nenadic accepted in cross-examination by the prosecutor that the appellant called him 'Super Mario', but qualified his answer by saying that a lot of people called him by that nickname.
As to the prosecutor's submission that Mr Nenadic was lying in the evidence he gave, the prosecutor expressly put that proposition to Mr Nenadic in cross‑examination. Mr Nenadic denied that he was lying. However, the version of events given by Mr Ravelich and Mr Jeong, on the one hand, and the version of events given by the appellant, Mr Nenadic and Mr Miller, on the other, were radically different. It was unlikely, having regard to the evidence as a whole, that the radical differences in the versions could be explained on the basis of an honest but mistaken perception of the incident. Indeed, defence counsel asserted in his opening statement that it was most likely that Mr Ravelich was 'making up the allegation' against the appellant 'for a reason that may never become apparent during the course of this trial' (ts 55). Defence counsel submitted in his closing address that Mr Ravelich had 'lied to [the jury]' (ts 31) and that 'there must be heaps of doubt on [the jury's] part' in relation to Mr Ravelich's account of events (ts 51). Defence counsel then suggested reasons why Mr Ravelich would lie about what had occurred (ts 51).
In our opinion, having regard to:
(a)the evidence of Mr Ravelich, Mr Jeong, the appellant, Mr Nenadic and Mr Miller, considered as a whole; and
(b)the objective evidence (in particular, the inferences to be drawn from what is visually depicted on the CCTV footage and the absence of any yelling or shouting being recorded on the audio associated with the CCTV camera), which supported the State's version rather than the appellant's version,
there was a proper basis for a submission, fit for the jury's consideration, that Mr Nenadic gave a fabricated account of the incident involving Mr Ravelich, the appellant and Arafat Kuc.
As to the prosecutor's submission that the reason Mr Nenadic was lying in the evidence he gave was 'to protect, effectively, a business associate and a friend', there was no doubt that the appellant and Mr Nenadic were business associates and, as we have indicated, there was a proper basis for the prosecutor's submission to the jury that Mr Nenadic and the appellant were friends (although not close friends). If it was reasonably open to the prosecutor to submit to the jury that Mr Nenadic was lying in the evidence he gave (and, as we have stated, we consider that it was reasonably open), then it was also reasonably open to infer, on the evidence, that the reason why Mr Nenadic gave a fabricated account of the incident involving Mr Ravelich, the appellant and Arafat Kuc was to be found in the nature of the relationship between the appellant and Mr Nenadic.
That part of ground 3 which complains about the prosecutor's closing address in relation to Mr Nenadic has not been made out.
We turn to that part of ground 3 which complains about the prosecutor's closing address in relation to Mr Miller.
The prosecutor put to Mr Miller in cross-examination, relevantly, that:
(a)Mr Miller had not met either the appellant or Arafat Kuc 'apart from [at] some meeting [Mr Miller] might have had with a lawyer';
(b)Mr Miller did not remain at the scene after observing the fight;
(c)Mr Miller did not give his details to anyone before he left the scene;
(d)Mr Miller was 'making up' that he was at the Mount Street location when the fight occurred; and
(e)Mr Miller was not at the Mount Street location on the day in question (ts 340).
Mr Miller responded to those questions by the prosecutor, relevantly, as follows:
(a)Mr Miller had not met either the appellant or Arafat Kuc, although he may have met the appellant 'in passing' when Mr Miller attended a lawyer's office;
(b)Mr Miller did not remain at the scene after observing the fight;
(c)Mr Miller did not give his details to anyone before he left the scene;
(d)Mr Miller denied 'making up' that he was at the Mount Street location when the fight occurred; and
(e)Mr Miller insisted that on the day in question he was at the Mount Street location (ts 340).
The prosecutor made these submissions about Mr Miller in her closing address:
(a)Mr Miller did not give his details to anyone before he left the Mount Street location;
(b)Mr Miller claimed that he did not know the appellant or Arafat Kuc or anyone else involved in the fight and yet, somehow, he had been contacted (by implication, by the appellant's lawyers) without giving his details to anyone at the scene; and
(c)Mr Miller was 'lying to try and protect [the appellant]' (ts 8).
Mr Miller accepted in cross-examination by the prosecutor that he did not give his details to anyone before he left the Mount Street location.
As to the prosecutor's submission that Mr Miller claimed that he did not know the appellant or Arafat Kuc or anyone else involved in the fight and yet, somehow, he had been contacted (by implication, by the appellant's lawyers) without giving his details to anyone at the scene, neither defence counsel nor the prosecutor questioned Mr Miller on that issue. It was implicit, in the prosecutor's submission, that Mr Miller must have been known to the appellant, Arafat Kuc or one of their associates who went to the construction site because Mr Miller was called as a defence witness and, on the evidence he gave, Mr Miller's name and contact details would have been unknown to the appellant or anyone acting on his behalf.
Defence counsel referred to this issue in his closing address to the jury and said:
And then there was a comment made [by the prosecutor] about Mr Miller, and said there was no details about who had contacted him and how he was able to come to court and testify. He wasn't asked. You can't just keep quiet.
If your concern that it was impossible for him, actually, to be contacted by the defence, ask him about that. [The prosecutor] can't just not ask him and then be critical and say, 'Well, you know, we didn't know how he came to come to court'. Well, he wasn't asked.
[The prosecutor] can't just run dead on that and then use that against the accused or against the witness. It's just not appropriate, nor is it proper. If you had a concern about his authenticity and the fact that he had been contacted by the defence, you should ask him about that. You can't just leave it hanging in mid-air (ts 50).
As we have mentioned, during an adjournment in his summing up, the trial judge raised with defence counsel, in effect, those submissions in defence counsel's closing address about the prosecutor not having questioned Mr Miller as to how he was able to give evidence as a defence witness even though Mr Miller claimed that he had not met either the appellant or Arafat Kuc (although he may have met the appellant 'in passing' when Mr Miller attended a lawyer's office) and also claimed that he had not given his details to anyone before he left the scene. See [85] above. Defence counsel, who is a competent and very experienced criminal defence lawyer and who has been Queen's Counsel since 2000, expressly stated to his Honour, on multiple occasions, that his Honour should not deal with this issue in his summing up.
Defence counsel contended at the trial and counsel for the appellant contended in the appeal that it was not proper for the prosecutor to have submitted in her closing address, in effect, that Mr Miller must have been known to the appellant, Arafat Kuc or one of their associates because, on the evidence Mr Miller gave, his name and contact details would have been unknown to the appellant or anyone acting on his behalf. It was contended that the submission was not proper in that Mr Miller was never asked (either by the prosecutor or defence counsel) how his name and contact details became known to the defence.
We will proceed, favourably to the appellant but without deciding, on the basis that in the circumstances the prosecutor should not have made the submission.
In our opinion, the appellant's trial was not rendered unfair and the appellant did not suffer a miscarriage of justice arising from the prosecutor's submission in her closing address as to how, on the evidence, Mr Miller could have been contacted by the defence if, as he asserted, Mr Miller did not know the appellant or Arafat Kuc or any of their associates who went to the construction site.
As we have mentioned, defence counsel expressly dealt with that issue in his closing address to the jury. Also, as we have mentioned, when the trial judge expressly raised the issue with defence counsel and enquired whether his Honour should give the jury a direction in relation to the issue, defence counsel repeatedly told his Honour, in effect, that no direction was necessary or desirable. We are satisfied that, in the circumstances, defence counsel made a rational forensic decision to urge his Honour not to give a direction. The forensic strategy was that defence counsel had criticised the prosecutor's approach to the issue and had told the jury that what the prosecutor had done was neither appropriate nor proper. The only reasonable inference is that defence counsel was content with the manner in which he had dealt with the issue. Defence counsel had 'the last word'. Any direction from his Honour may have weakened the force of defence counsel's submissions, including his criticism of the prosecutor.
As to the prosecutor's submission that Mr Miller was 'lying to try and protect [the appellant]', the prosecutor did not expressly put that proposition to Mr Miller in cross-examination. The prosecutor did, however, put to Mr Miller that he was 'making up' his evidence about having been at the Mount Street location on the day in question. If, as the prosecutor suggested, Mr Miller was 'making up' his evidence about having been at the Mount Street location, it necessarily followed that Mr Miller was also fabricating his account of the incident involving Mr Ravelich, the appellant and Arafat Kuc.
Mr Miller denied that he was 'making up' his evidence about having been at the Mount Street location on the day in question. If the prosecutor had expressly put to Mr Miller that he was fabricating his account of the incident involving Mr Ravelich, the appellant and Arafat Kuc (that proposition being inherent in the suggestion the prosecutor did make to the effect that Mr Miller was 'making up' his evidence about having been at the Mount Street location), Mr Miller would, no doubt, have denied it.
As we have mentioned, the version of events given by Mr Ravelich and Mr Jeong, on the one hand, and the version of events given by the appellant, Mr Nenadic and Mr Miller, on the other, were radically different. It was unlikely, having regard to the evidence as a whole, that the radical differences in the versions could be explained on the basis of an honest but mistaken perception of the incident.
In our opinion, having regard to:
(a)the evidence of Mr Ravelich, Mr Jeong, the appellant, Mr Nenadic and Mr Miller, considered as a whole; and
(b)the objective evidence (in particular, the inferences to be drawn from what is visually depicted on the CCTV footage and the absence of any yelling or shouting being recorded on the audio associated with the CCTV camera), which supported the State's version rather than the appellant's version,
there was a proper basis for a submission, fit for the jury's consideration, that Mr Miller gave a fabricated account of the incident involving Mr Ravelich, the appellant and Arafat Kuc.
We are satisfied that there was an adequate basis for the prosecutor's submission that the reason why Mr Miller made up his evidence about having been at the Mount Street location and why Mr Miller gave a fabricated account of the incident was to 'protect [the appellant]'. If the jury was of the view that Mr Miller had made up his evidence about having been at the Mount Street location and had given a fabricated account of the incident, then it was reasonably open to infer that Mr Miller's objective in telling the lies was to protect the appellant from the allegations made by the State in the indictment.
That part of ground 3 which complains about the prosecutor's closing address in relation to Mr Miller has not been made out.

Conclusion

The appellant's application in an appeal dated 23 February 2021, for leave to rely on an additional ground of appeal, should be granted.
We would grant leave to appeal on grounds 1, 2 and 3.
The appellant's application in an appeal dated 12 January 2021, for leave to adduce additional evidence in the appeal, should be dismissed.
We would dismiss the appeal.

MITCHELL JA:

Summary

The appellant appeals against his conviction of one count of intentionally causing grievous bodily harm to the complainant on 23 February 2017 at West Perth. He was convicted of that offence on 3 July 2019, after trial by jury. On 9 December 2019, the appellant was sentenced to 5 years' imprisonment with eligibility for parole.
Section 294(1) of the Criminal Code provides for the offence of which the appellant was convicted, in the following terms:
Any person who, with intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, …:
(a) … does any grievous bodily harm to any person by any means whatever …
is guilty of a crime, and is liable to imprisonment for 20 years.
'Grievous bodily harm' is defined in s 1 of the Code to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'.
The appellant initially appealed against his conviction on two grounds. Ground 1 contends that the guilty verdict was unreasonable or cannot be supported having regard to the evidence. Ground 2 in effect complains of the failure by the trial judge to give a Liberato direction in relation to the evidence of two defence witnesses. After the hearing of the appeal, the appellant applied to add a ground of appeal. Proposed ground 3 contends that the appellant's trial was rendered unfair, and he suffered a miscarriage of justice, as a consequence of the prosecution inviting the jury to conclude that two defence witnesses deliberately and knowingly gave false evidence to protect the appellant.
For the following reasons, in my view none of these three grounds of appeal are established. While I would grant leave to amend the grounds of appeal, and grant leave to appeal in relation to all three grounds, in my view the appeal should be dismissed.

The prosecution case at trial

The State's case at trial was that the appellant and the complainant knew of each other and did not like each other. On 23 February 2017, the complainant was working on a construction site in Mount Street, West Perth. At about 10 am that morning, he saw the appellant and the appellant's partner, Natasha Del Bianco, go into a cafe across the road from the construction site. The complainant had dated Ms Del Bianco in around early 2014.[18]
[18] Trial ts 43.
The complainant decided to go across the road and see whether the appellant would come out to talk about some of the issues between them. The complainant was standing outside the cafe for about five minutes or so, but was speaking on his phone for most of that time. When he finished his call, the complainant walked back across the road to the construction site. A little later, the complainant saw the appellant and Ms Del Bianco get into a black Porsche that was parked along the road. The car took off so quickly that Ms Del Bianco barely had her legs inside the car.[19]
[19] Trial ts 44.
At about 2.30 pm that same afternoon one of the other workers on the same construction site, Kun Pill Jeong, noticed about six men arrive on the site. One of them, a man with a short black beard, walked up to Mr Jeong and asked, 'Where's Josh?' (the complainant's first name). Mr Jeong replied, 'I don't know.'[20]
[20] Trial ts 44.
Almost at that same moment, the complainant, who had heard his name and came up to see what was happening, walked out of the basement area of the construction site. He saw the appellant and the appellant's brother, Arafat Kuc (who the complainant also recognised). The complainant did not recognise any of the other men on site. The complainant noticed that Arafat Kuc had a large wooden handle in his hand. As the complainant emerged, the appellant and Arafat Kuc set upon him. A fourth man grabbed Mr Jeong around the neck in a headlock, held him for a few moments and then told him to 'fuck off'.[21]
[21] Trial ts 44.
The appellant threw the first blow at the complainant, punching him in the throat. Just before the punch, the complainant saw that the appellant had large gold rings on his fingers. The complainant tried his best to defend himself, but was hit with the wooden handle and eventually he ended up on the ground. Whilst he was on the ground, the appellant put his hand around the complainant's throat and choked and squeezed until the complainant felt like he was going to pass out.[22]
[22] Trial ts 44 - 45.
The complainant managed to break the grip around his throat and rolled onto his side. He started yelling out, 'Enough,' telling the men to stop. However, they continued to assault him, kicking him, punching him and hitting him with the wooden handle. When the men eventually did stop, the complainant tried to stand. Arafat Kuc pushed the wooden handle into the complainant's face, and the appellant told the complainant that, if he told the police what they had done to him, the appellant would put a bullet in his head and do the same to the complainant's brother.[23]
[23] Trial ts 45.
Mr Jeong, who was by this time standing upstairs in the construction site looking out through the glass frontage, saw the men that had been on the site go back to two sporty black cars across the road. They fidgeted with the plates of the cars in such a way that Mr Jeong thought they were trying to hide or disguise the plates, and then got into the cars and drove off.[24]
[24] Trial ts 45.
As a result of the assault, the complainant suffered fractures to his nose, eye socket and upper cheek area, and four chipped teeth. The facial fractures required surgical treatment involving the insertion of metal plates into the complainant's face, without which the complainant would have been likely to suffer permanent injury.[25]
[25] Trial ts 45 - 46.

The defence case at trial

The defence case at trial was that the appellant attended Mount Street at about 2.30 pm on 23 February 2017 with his brother and another person, to meet a building contractor at the cafe to discuss one of their building projects. Coincidentally, the appellant had been at the Mount Street cafe earlier that day with his girlfriend, but had not seen the complainant at that time.[26]
[26] Trial ts 53 - 54.
When he arrived at about 2.30 pm, the appellant heard shouting coming from the building site across the road and a bit further down a hill. Arafat Kuc got out of the car and, as soon as the shouting started, ran towards the building site. The appellant could not hear what was being shouted from the building site, other than he could hear the name 'Kuc'. The appellant followed his brother to the building site. Arafat Kuc's friends, who were in the car behind, got out of the car and went to the building site as well.[27]
[27] Trial ts 54.
As the appellant got to the building site, he saw the complainant and Arafat Kuc facing off and shouting at each other. The complainant punched Arafat Kuc, then Arafat Kuc punched the complainant and the two men fought. They rolled down an incline into a garage area of the construction site where building materials and tools were stored. The appellant's only involvement was to take Mr Jeong into a headlock and shake a rubber mallet out of his hand, after Mr Jeong tried to strike Arafat Kuc with the mallet.[28]
[28] Trial ts 54 - 55.

A second significant aspect of the CCTV recording is that it shows Arafat Kuc following another person, who it can be inferred is the appellant, who is running towards the building site. The CCTV recording undercuts the appellant's explanation of why he went to the building site, namely that he was following his brother.
A third significant aspect of the CCTV recording is that, on alighting from the two vehicles, none of the six men who arrived at Mount Street look in the cafe, or appear to look to see if Mr Nenadic has arrived and is waiting for them. Nor do any of the men appear to look in the cafe or for Mr Nenadic when they return to the vehicles a short time later. Further, neither the appellant nor Mr Nenadic gave evidence of any contact with each other after the incident, which could be expected if their planned meeting had been unexpectedly prevented by a fight. The behaviour of the men shown in the CCTV footage is not what would be expected if they were attending Mount Street to meet a business associate. It is consistent with the men arriving together in two separate vehicles for the purpose of attending the building site.
A fourth significant aspect of the CCTV recording is that it does not show any form of greeting between Arafat Kuc and the three men in the sedan. Senior counsel for the appellant submits that different people may greet each other in different ways. However, the jury could reasonably take the view that if the men were meeting for the first time as they alighted from the cars, there would have been some form of acknowledgement or greeting. The absence of any form of acknowledgement or greeting could reasonably be regarded as supporting an inference that the men had met previously and before travelling in convoy to Mount Street.
A fifth significant aspect of the CCTV footage is that it shows the appellant bending the number plate at the front of the Porsche and two of the men from the sedan bending the number plates at the front and rear of the sedan. This aspect of the recording, and the recording as a whole, shows the six men acting in what appeared to be a coordinated manner. It is also conduct suggestive of a consciousness of guilt. The appellant's explanation was that he bent the number plate, at his brother's suggestion, to avoid his address being identified by men standing around at the building site. The jury could reasonably have rejected that explanation. Number plates ordinarily assist police or other government officials, as opposed to private citizens, to identify and locate the owner of a vehicle. A jury could regard general knowledge of this to be sufficiently common as to make the appellant's explanation of his reason for bending the number plates implausible.

Evidence supporting the attack scenario

The complainant's account was entirely consistent with the objective physical evidence. The CCTV footage on its face appears to show six men arriving together in two vehicles and purposefully moving directly to the building site with the appellant in the lead. The footage of Arafat Kuc appearing to retrieve something from the boot of the Porsche is consistent with the complainant's evidence that Arafat Kuc was carrying and used a wooden handle in the assault. The ring located in the appellant's kitchen matched the complainant's description of the ring worn by the appellant when punching the complainant.
The complainant's physical injuries were, on Dr Siddens' evidence, consistent with the assault described by the complainant. While the medical evidence did not exclude other mechanisms for the injury as reasonable possibilities they were, on that evidence, less likely.
The complainant's account was also supported in significant respects by the evidence of Mr Jeong. Mr Jeong's evidence was that the group of men arrived at the building site and attacked the complainant as he emerged from the basement area. The principal differences between the complainant's and Mr Jeong's accounts of the actual assault were that:
(1)Mr Jeong did not see Arafat Kuc holding a weapon whereas the complainant described Arafat Kuc holding a handle, striking him with it and holding it against his face; and
(2)Mr Jeong described three men attacking the complainant whereas the complainant only described being assaulted by the appellant and Arafat Kuc.
The jury could well have regarded those differences as reflecting the understandably different perceptions which witnesses of a violent incident may have of the details of the incident. They could reasonably conclude that:
(1)Mr Jeong may not have noticed what Arafat Kuc was carrying as he moved towards the complainant;
(2)Mr Jeong's attention was diverted by the bald man (who could not have been the appellant, as the appellant was not bald[104]) placing him in a headlock when the weapon may have been used against the complainant; and
(3)Mr Jeong could not see the latter part of the assault as he went upstairs.
The jury could also reasonably conclude that the complainant was focussed on the appellant and Arafat Kuc and did not notice a third person in the vicinity.
[104] Trial ts 309.
None of the matters referred to at [244](3) above demanded rejection of the complainant's evidence. The animosity which the complainant described between himself and the appellant was a part of the State's case which explained why the assault occurred. While the jury might have regarded that animosity as providing a motivation for the complainant to make false allegations against the appellant, the mere existence of that motivation does not demand rejection of the complainant's evidence. The fact that a witness has given statements to police which do not disclose aspects of his or her evidence is far from unusual. While relevant to the assessment of the complainant's credibility, the omissions referred to by the appellant are not of a nature to demand rejection of his evidence. The debate in cross-examination as to whether the complainant had 'met' or merely 'seen' the appellant in nightclubs was largely semantic.[105] The complainant's admitted uncertainty about the number of men who came to the site is of limited relevance given that the CCTV recording shows the number to have been six.

Basis for concluding that the fight scenario was not reasonably possible

[105] Trial ts 101, 115 - 119.

There were a number of aspects of the fight scenario which could reasonably be taken by the jury to be inherently unlikely. These include that the appellant attended the Mount Street cafe twice on the same day, that he and Arafat Kuc attended a planned business meeting concerning a significant construction project in shorts and t-shirts, that Arafat Kuc would invite three of his friends to join them at such a business meeting and that the friends' sedan and the appellant's Porsche arrived to park outside the cafe at precisely the same time. As noted above, the jury could regard the reason advanced by the appellant for the men folding the number plates of their vehicles as implausible.
These improbable aspects of the fight scenario may not, considered individually and in isolation, provide a basis for rejecting the fight scenario as a reasonable possibility. However, the combined effect of all of these implausible aspects of the fight scenario could cause the jury, applying its collective wisdom and experience, to positively reject the fight scenario as a reasonable hypothesis. To that combined effect may be added the CCTV recording, discussed above. The CCTV recording, considered in light of the inherently improbable aspects of the fight scenario, could reasonably have led the jury to reject the appellant's evidence giving that account, and Mr Nenadic's and Mr Miller's evidence supporting that account.
In deciding whether to reject the fight scenario as a reasonable possibility, the jury should necessarily have had regard to the fact that the scenario was supported by the evidence of Mr Miller and Mr Nenadic. There was no evidence that Mr Miller had any motivation to lie about what he observed. The only motive suggested by the prosecution for Mr Nenadic to lie was that he was a friend and business associate of the appellant. However, the inherent improbabilities involved in the fight scenario combined with the contradictory indicators in the CCTV recording could lead the jury to reasonably conclude that the fight scenario could not have occurred, notwithstanding the evidence of Mr Miller and Mr Nenadic. The jury could conclude that Mr Miller and Mr Nenadic must have been lying on the basis that they were describing events which other evidence satisfied the jury could not have occurred, and about which the men could not reasonably be mistaken. The absence of evidence of motive for the men to lie, while relevant and potentially significant, did not preclude a conclusion that they were lying for unknown reasons.

Other matters

I note four further matters relevant to the consideration of this ground of appeal.
First, the jury could reasonably regard the appellant's friendly text message exchanges with Mr Hanoof to be inconsistent with the appellant's evidence that Mr Hanoof had previously tried to extort $100,000 from the appellant. That could reasonably lead the jury both to reject that aspect of the appellant's evidence and draw an adverse conclusion as to the credibility and reliability of his evidence generally.
Secondly, I have not relied on a matter to which senior counsel for the respondent referred in support of the verdict. Counsel submitted that the jury could have inferred that Mr Miller and Mr Nenadic were lying from:
(1)the fact that the complainant and Mr Jeong were not cross‑examined as to the location (in the undercroft area) where the altercation with the complainant occurred; and
(2)a conclusion, based on the photographs of the building site, that Mr Miller and Mr Nenadic could not have seen into the undercroft area from the positions they said they were in when observing the altercation.
Counsel accepted that this submission had not been advanced by the prosecutor at trial, but contended that it was a conclusion that the jury could have reached from their own consideration of the evidence.
The difficulty I have with this submission is that neither Mr Miller nor Mr Nenadic were ever asked to identify precisely where they were when they made the observations, or the location where they saw the complainant and Arafat Kuc fighting. It cannot simply be assumed that the location at which Mr Miller and Mr Nenadic claimed to have observed the fighting was the same as that described by the complainant and Mr Jeong. Further, it was never put to either witness that they could not have seen what they described from the position they claimed to have observed the fight. In my view, Mr Miller's and Mr Nenadic's evidence was insufficiently specific as to locations to enable an inference to safely be drawn that they must be lying because they could not have seen what they described.
Thirdly, in reaching the above conclusion, I have not placed any reliance on the absence of any explanation as to how Mr Miller came to give evidence. It was not apparent from the material before the jury how Mr Miller could have come to give evidence at trial. On his account he was a jogger, who did not know the participants, passing by the altercation. He did not leave his contact details. As counsel for the State submitted, on the face of Mr Miller's evidence it seemed unlikely that Mr Miller's existence, let alone the fact that he could give relevant evidence, could have come to the attention of the appellant or his lawyers prior to trial. The fact that defence counsel did not ask Mr Miller how he came to give evidence, at least in re-examination after the prosecutor's cross-examination of Mr Miller made it clear that the State contended that he was lying, was a curious omission. That gap in the evidence which the appellant adduced from Mr Miller was capable of adversely affecting the weight which the jury might give to his evidence. However, I do not think that a positive inference that Mr Miller was lying can safely be drawn merely from the absence of an explanation as to that matter in circumstances where Mr Miller was never asked how he came to give evidence. In light of the limited manner in which the absence of an explanation could have affected the jury's assessment of Mr Miller's evidence, I have left it out of account in considering whether the jury's verdict was unreasonable.
Fourthly, by application in an appeal dated 12 January 2021, the appellant applied to adduce evidence as to his above average height as additional evidence in the appeal. The purpose of adducing this evidence was to show that the man who Mr Miller saw fighting with the complainant could not have been the appellant. However, at the hearing of the appeal senior counsel for the State accepted that the person who Mr Miller described fighting with the complainant was not the appellant.[106] In these circumstances, there is no forensic need for the additional evidence to be adduced. I would dismiss the application in an appeal on that basis.

Conclusion as to ground 1

[106] Appeal ts 63 - 64.

In my view it was open to the jury, considering the evidence as a whole, to:
(1)positively reject the evidence of the appellant, Mr Miller and Mr Nenadic;
(2)accept the account given by the complainant and Mr Jeong as truthful and reliable;
(3)be satisfied, beyond reasonable doubt, that the complainant was assaulted by the appellant and Arafat Kuc in the manner described by the complainant's evidence; and
(4)having reached that conclusion, be satisfied beyond reasonable doubt that each of the elements of the charged offence were established.
Having reviewed the transcript of the trial and the exhibits, I am not left with any reasonable doubt as to the appellant's guilt of the offence of which he has been convicted. Further, this court's assessment must allow for the possibility that the manner in which the appellant, Mr Nenadic and Mr Miller gave their evidence led the jury to the view that it was not credible or reliable. In my view, it was well-open for the jury to be satisfied, beyond reasonable doubt, that the appellant committed the offence of which he was convicted.

Ground 2: Liberato direction

Appellant's submissions

In essence, the appellant submits that the Liberato direction given by the trial judge ought to have specifically referred to the evidence of Mr Miller and Mr Nenadic, in addition to the evidence of the appellant. He submits that such a direction was required, given the importance of the evidence of Mr Miller and Mr Nenadic in contradicting the evidence of the complainant. The appellant contends that the judge should have added a direction to the following effect after his Liberato direction:[107]
To discharge the burden of proving the charge beyond reasonable doubt, the prosecution must also satisfy you beyond reasonable doubt that the evidence of both Mr Miller and Mr Nenadic was untruthful.
Even if you have difficulty in accepting the evidence of those witnesses, but think that there is a reasonable possibility that it might be true, you must find the [appellant] not guilty.
And even if you were to reject the evidence of both Mr Miller and Mr Nenadic, it would not automatically follow that you would find the [appellant] guilty.
[107] Appellant's submissions, par 67.
The appellant submits that the phrase 'or any evidence for that matter', emphasised in the quote at [236] above, was inadequate to reinforce the directions on the onus and standard of proof as they applied to the evidence of Mr Miller and Mr Nenadic. The appellant submits that the direction given by the trial judge failed to eliminate the real risk that the jury may otherwise have been left with the impression that:[108]
(1)The content of the Liberato direction applied only to the evidence of the appellant and not to the evidence of Mr Miller or Mr Nenadic.
(2)Difficulty in accepting the evidence of Mr Miller and Mr Nenadic, together with a preference for the complainant's evidence, meant the prosecution had proven its case beyond reasonable doubt.
[108] Appellant's submissions, par 68.
While the appellant accepts that trial counsel did not seek a redirection, he contends there was no basis for concluding that this was a deliberate forensic strategy and the failure does not prevent this court from concluding that there was a miscarriage of justice.

Disposition

The general principles relating to a Liberato direction were recently summarised by Quinlan CJ and Beech JA (with whom I agreed on this point) in MEN.[109] As in the present case, in MEN the appellants contended that a Liberato direction ought to have been given in relation to the evidence of defence witnesses whose evidence, like that of the appellants in MEN, contradicted the account of the complainant in that case.This court accepted that the considerations giving rise to a possible need for a Liberato direction are not, as a matter of principle, confined to defence evidence given by an accused. However, the court in MEN was of the view that the ordinary Liberato direction in that case was sufficient to avoid any perceptible risk of a miscarriage of justice.[110]
[109] MEN [687] - [691].
[110] MEN [694].
As the majority of the High Court held in De Silva v The Queen,[111] a Liberato direction is not required in every case even where there is a conflict between a complainant's and an accused's account. The majority held that a Liberato direction should be given where the trial judge perceives that there is a real risk that the jury will reason that the accused's evidence, or the accused's answers in a record of interview, can only give rise to a reasonable doubt if they believe the accused's account to be truthful, or that a preference for the evidence of the complainant over the accused's account suffices to establish guilt.[112] Further, and consistently with the approach adopted in relation to an accused person's evidence in De Silva, there is no general requirement to give a direction akin to a Liberato direction in relation to each piece of evidence which might, even if not positively accepted, give rise to a reasonable doubt as to the accused's guilt.
[111] De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100.
[112] De Silva [10] - [11].
In the present case, the trial judge gave a Liberato direction. Further, the direction was not confined to the jury's consideration of the appellant's evidence. The direction expressly indicated that:[113]
you cannot find an issue against the [appellant] contrary to his evidence if his evidence or any evidence for that matter has given rise to reasonable doubt on that issue
and that:
if the [appellant's] evidence or any evidence for that matter has given rise to a reasonable doubt then you cannot convict him on the charge on the indictment.
[113] Trial ts 373.
In my view, these directions, given against the background of the judge's general directions about the onus and standard of proof, made it very clear that:
(1)the jury could only convict if satisfied, beyond reasonable doubt, of each element of the offence; and
(2)the jury could not convict if any evidence (including the evidence of Mr Miller and Mr Nenadic) gave rise to a reasonable doubt about any element.
In the course of oral submissions, senior counsel for the appellant contended that the need for a direction may have arisen from the trial judge's direction that the jury should proceed on the basis of the evidence of witnesses whose evidence they accept. He contended that, in the case of Mr Nenadic and Mr Miller, the question was not whether they accepted the evidence but whether the evidence gave rise to a reasonable doubt.[114] However, the direction about proceeding on the basis of evidence which the jury accepted was cast in terms of the proof of the State's case. The judge directed that if the jury put aside the appellant's evidence, the question would be:[115]
[H]as the State, upon the basis of the evidence that you do accept, proven the guilt of the [appellant] beyond reasonable doubt? (emphasis added)
Nothing in this direction suggests that only evidence which the jury accepts could give rise to a reasonable doubt as to the appellant's guilt.
[114] Appeal ts 35 - 36.
[115] Trial ts 374.

In my view, the trial judge's direction, taken as a whole, left no scope for the jury to apprehend that Mr Miller's and Mr Nenadic's evidence could only give rise to a reasonable doubt if they believed it to be truthful. Nor did the direction leave any scope for the jury to apprehend that they might find the appellant guilty based on a mere preference of the evidence of the prosecution witnesses over the defence witnesses. In my view, in light of the directions given by the trial judge, a further direction specifically referring to the evidence of Mr Miller and Mr Nenadic was not required. The direction given was sufficient to avoid any perceptible risk of a miscarriage of justice.
In my view, ground 2 is not established.

Ground 3: prosecutor's submissions

By application in an appeal filed on 23 February 2021, the appellant sought leave to add the following ground of appeal:
The [appellant's] trial was rendered unfair, and he suffered a miscarriage of justice …, as a consequence of the prosecution inviting the jury to conclude that [Mr Nenadic and Mr Miller], deliberately and knowingly gave false evidence to protect the [appellant], when the basis on which it was put to the jury that it should reach that conclusion was (as regards Nenadic) without any support in the evidence and contrary to his unchallenged evidence; and (as regards Miller) an invitation to speculate, and never put to Miller in cross-examination.
The respondent does not oppose this application to add a ground of appeal, which in my view should be granted.

Prosecutor's submissions in relation to Mr Nenadic's evidence

The appellant's complaint in relation to the prosecutor's closing address about Mr Nenadic's evidence relates to the following submission. After referring to evidence which the prosecutor contended supported the inference that the men were attending the building site as part of an organised ambush rather than a business meeting, the prosecutor said:
What, in that sense then, can you make of Mr Nenadic's evidence? Well, ladies and gentlemen, the State would simply say this. He's a friend of [the appellant]. He's referred to by [the appellant] as 'Super Mario', and he's lying to protect, effectively, a business associate and a friend.
The appellant says that the submission that Mr Nenadic lied to protect a friend and business associate had no basis in the evidence and was contrary to Mr Nenadic's evidence. In that regard, the appellant refers to the following passages of Mr Nenadic's cross-examination by the prosecutor:[116]
[116] Trial ts 353.
Mr Nenadic, you knew [the appellant] quite well before that day, is that fair to say?---Not very well - yeah, through the business dealings, yeah, yeah.
But he had a nickname for you, didn't he?---Yeah.
He used to call you Super Mario?---Yeah.
So you were relatively close, weren't you?---Not really, a lot of people call me Super Mario, based on the name.
And it wasn't just - your interactions weren't limited to just catching up for business meetings, were they?---No, sometimes we'd catch up for lunch and (indistinct) yeah.
Sometimes you'd have beers, is that fair to say?---Maybe, sometimes, yeah.
Sometimes you'd play golf, is that fair to say?---We - we never played golf, we did plan but we never did, yeah.
Mr Nenadic, I'm going to put it to you that you were never there on that day. What do you say to that?---I'm - I - sorry, but I was there. Yeah.
And I put it to you that you're lying and that - well I - and put it to you, you're lying about being there that day?---Yeah, I'm not lying and I wouldn't do it under oath either, so I'm sorry.
I'm going to put it to you that the reason why you're lying is to try and protect someone that you're quite close to?---No, that's not the case. I wouldn't put myself in a position like that.
The appellant also refers to Mr Nenadic's unchallenged evidence that, since July 2018, he had been living and working in Melbourne.[117] The appellant submits that there was no evidence that Mr Nenadic had any association with the appellant since 28 February 2018 or that he was, at the date of the trial, either a business associate or a friend of the appellant. The appellant submits that the prosecutor's submission was calculated to give and likely to give the jury the impression that Mr Nenadic had a motive to lie, when there was no evidence that he did.
[117] Trial ts 341.
In my view, there is no merit to this submission. As noted above in dealing with ground 1, this was a case in which it was open to the jury to consider that the evidence, considered as a whole, established that Mr Nenadic was lying about having observed the fight scenario. It was open to the prosecutor to invite the jury to reach the same conclusion, and to suggest a motive for Mr Nenadic to have done so. It was common ground that Mr Nenadic had a business relationship with the appellant at the time of the incident. Mr Nenadic's responses to questions asked in cross-examination indicated that his association with the appellant was not confined to a business relationship. They had, on Mr Nenadic's account, met for lunch and planned to play golf. The jury were not bound to accept Mr Nenadic's other evidence as to the closeness of that relationship. If they were satisfied that the men were friends at the time of the incident, it could readily be inferred that the way they regarded each other had not changed by the time of trial.
Looking at the evidence as a whole in the manner described in dealing with ground 1, the jury could reasonably have inferred that Mr Nenadic was lying about having observed the fight scenario, and that he was (and remained) a friend and business associate of the appellant. While the State was not required to establish a motive to lie, the prosecutor's submissions invited the jury to infer from the whole of the evidence that Mr Nenadic was lying and that the reason that he was doing so was to protect a friend and business associate. It would be a matter for the jury whether they drew such an inference, which had been squarely put to the appellant in the passage of cross-examination quoted at [289] above. Even if the evidence supporting such an inference was weak, there was no unfairness or impropriety in the prosecutor making the submission to the jury.

Prosecutor's submissions in relation to Mr Miller's evidence

The appellant's complaint in relation to the prosecutor's closing address about Mr Miller's evidence relates to the following submission:[118]
There are some other key parts of the evidence that are relevant to whether [the appellant] was involved in the assault that caused the grievous bodily harm. But before I talk about those in detail, let's talk about Michael Miller's evidence this morning.
Ladies and gentlemen, what that comes down to is he didn't give anyone his details before he left. He says he didn't know anyone. He didn't know [Arafat] Kuc, he didn't know [the appellant], he knew no one and yet somehow, he's been contacted without giving his details. The State would simply say, ladies and gentlemen, that he is another person who is lying to try and protect [the appellant].
[118] Closing ts 8.
The appellant contends that there was no evidentiary foundation for the proposition that Mr Miller was lying to try and protect the appellant. I do not accept that submission. That is for similar reasons to those explained in relation to the appellant's complaint as to the prosecutor's submissions about Mr Nenadic's evidence. It was open to the jury to:
(1)reject the fight scenario as a reasonable possibility on the whole of the evidence;
(2)be satisfied that Mr Miller's evidence about the fight scenario could not be mistaken;
(3)therefore conclude that Mr Miller's evidence as to his observation of the fight scenario must be a lie; and
(4)infer from the fact and subject of the lie that the reason for the lie was to 'protect' the appellant.
It was likewise open to the prosecutor to advance a submission inviting the jury to reach the conclusion that Mr Miller was lying to try to protect the appellant. As the State submits, if a person is called as a witness as part of the defence case, and that evidence is both exculpatory and knowingly false, then the self-evident purpose of giving evidence which possesses both those characteristics is to assist the accused person by 'protecting' them from the allegation brought against them. The prosecutor could not, and did not, suggest a motive as to why Mr Miller would give knowingly false evidence. The submission that Mr Miller was lying to try to protect the appellant was simply an acknowledgment of the obvious effect of giving deliberately false exculpatory evidence.
Some of the appellant's submissions appear to proceed on the basis that the prosecutor was submitting that the jury should find that Mr Miller was lying solely on the basis that there was no explanation of how he came to give evidence. The passage quoted at [293] above, taken in isolation, is capable of bearing that meaning. However, in my view, when the prosecutor's closing submissions are considered as a whole, that was not what the prosecutor intended or the way in which a jury would have understood the submission. The prosecutor's submission as a whole in effect invited the jury to conclude from the whole of the evidence that the fight scenario did not occur and that those witnesses who gave evidence that it had occurred must be lying. In the course of doing so, the prosecutor pointed out what she contended was a weakness in Mr Miller's evidence, namely that on its face of that evidence there was no way in which he would have known to contact the appellant or vice versa, in circumstances where the appellant adduced no evidence as to how he came to do so. She was entitled to make that observation as to what the State contended was a weakness in the evidence adduced by the appellant.
I am fortified in my reading of the transcript of the prosecutor's closing address by the fact that neither the trial judge nor senior counsel who appeared for the appellant at trial objected to the prosecutor's closing address. The absence of any objection by senior counsel is, as the State submits, cogent evidence that, absorbed in the atmosphere of the trial, the appellant's counsel did not perceive that the prosecutor's closing submissions resulted in any unfairness. The High Court has recently reiterated that the fact that defence counsel in a criminal trial does not seek a redirection may support a conclusion that, in the context of a judge's charge as a whole, a challenged statement does not bear the interpretation sought to be placed upon it on appeal.[119] The same can follow from the absence of any objection about a prosecutor's submission to the jury which is said on appeal to be so unfair as to give rise to a miscarriage of justice.
[119] GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037 [25].
The prosecutor has a duty to present its case fully and fairly, which is an aspect of the general obligation imposed on a prosecutor to act fairly in the discharge of the function which he or she performs in a criminal trial.[120] Recently, in Dayananda v The State of Western Australia,[121] this court adopted the following passage of the judgment of Mazza JA in Goedecke v The State of Western Australia:[122]
Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence, offer a personal opinion, introduce false lines of reasoning or invite a jury to speculate about the evidence. (citations omitted)
[120] Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686 [26], [32], [37].
[121] Dayananda v The State of Western Australia [2021] WASCA 11 [76], [126].
[122] Goedecke v The State of Western Australia [2013] WASCA 25 [36].
In my view, the impugned passage of the prosecutor's submissions did not breach these requirements. The submission was directed to aspects of the evidence. The prosecutor submitted that Mr Miller had been contacted despite not giving details at the time of the alleged offence, but did not expressly or implicitly invite the jury to speculate about how Mr Miller came to give evidence. She did not offer a personal opinion or (for the reasons explained above) introduce a false line of reasoning.
The appellant submits that the prosecutor's failure to put to Mr Miller that he was lying 'to try and protect' the appellant amounted to a breach of the rule in Browne v Dunn.[123]For the following reasons I do not accept that submission.
[123]Browne v Dunn (1893) 6 R 67 HL.
The first limb of the rule in Browne v Dunnis that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The policy rationale that underpins this limb of the rule is concerned with achieving fairness to witnesses and a fair trial between the parties.[124]
[124] NCH v The State of Western Australia [2013] WASCA 29 [99] - [100].
I am not satisfied that, in the present case, fairness required the prosecutor to put to Mr Miller that he was lying to protect the appellant. The prosecutor asked Mr Miller whether he was 'making up that you were there that day' and put to Mr Miller that his evidence was not true. Mr Miller denied that he was lying. He also denied knowing the appellant or Arafat Kuc.[125] If the prosecutor had asked Mr Miller if he was lying to protect the accused, then his predicable response would have been to reject the premise that he was lying at all. As noted above, the prosecutor never suggested to the jury that Mr Miller had some specific motive for wanting to protect the accused. In these circumstances, fairness did not require the prosecutor to put to a witness who had just denied lying or knowing the appellant the bald proposition that he was lying to protect the appellant. Again, that view is reinforced by the fact that defence counsel did not seek from the trial judge one of the recognised remedies for a breach of the rule in Browne v Dunn.[126] Indeed, having dealt with the issue in his closing address to the jury,[127] the appellant's senior trial counsel expressly submitted that a direction from the trial judge was not required.[128] The absence of any intervention by either senior counsel for the appellant or the trial judge supports an inference that, in the context of the trial, there was no unfairness to the appellant in the prosecutor's approach.
[125] Trial ts 340.
[126] See NCH [104] - [105].
[127] Closing ts 50.
[128] Trial ts 370.
I am also not satisfied that the prosecutor needed to ask Mr Miller how he came to give evidence before she could submit to the jury that he was lying to protect the appellant. The prosecutor was not obliged to put to Mr Miller that he had a motive for lying before she could submit that he was lying, and the prosecutor did not do so. I do not accept the appellant's submission that the prosecutor was implicitly submitting that Mr Miller was lying because he was a friend of the appellant. The prosecutor did not identify the reason that Mr Miller was lying or invite the jury to speculate about why he might be lying in his evidence, as the State contended.
Further, not every breach of the rule of practice in Browne v Dunn by a prosecutor in a criminal trial will involve a breach of the prosecutor's duty to fairly discharge his or her prosecutorial function or occasion a miscarriage of justice. The court in Dayananda also recognised that, if a prosecutor breaches his or her duty at trial, it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel.[129] Lack of objection will be relevant because it may support an inference that, in the context of the trial, the breach of duty was not so prejudicial as to deny the accused a fair trial.[130] While in Dayananda it was found that the prosecutor in that case had breached his duty,[131] the court held that, in the circumstances of that case, the breach did not occasion a miscarriage of justice at the trial.[132]
[129] Dayananda [78].
[130] Dayananda [84], [126].
[131] Dayananda [80] - [81].
[132] Dayananda [82] - [85].
In the present case, there was no objection by the appellant's senior counsel at trial to either the prosecutor's submissions to the jury or her cross-examination of Mr Miller. It would have been clear to defence counsel after the cross-examination that the honesty and truthfulness of Mr Miller's evidence was being challenged by the State. Counsel could have asked questions in re-examination seeking to rebut that submission, including about how Mr Miller came to give evidence in circumstances when, on the evidence adduced by the appellant, he was a passer-by who did not know anyone involved in the altercation and did not leave any details. It would have been open to defence counsel, who must have had instructions as to how Mr Miller came to give evidence, to have pursued that line of questioning in re‑examination. The appellant's senior trial counsel would be expected to have raised the point if he felt that the prosecutor's impugned submission had taken him by surprise, or her approach to cross‑examination deprived him of the opportunity of calling evidence in re‑examination which might rebut the submission. The absence of objection by the appellant's senior trial counsel supports my inference that the prosecutor's approach did not give rise to any unfairness in the appellant's trial.
In my view, the prosecutor's approach to cross-examining Mr Miller, and making submissions about his evidence, did not deprive the appellant of a fair trial or otherwise occasion a miscarriage of justice.

Orders

For the above reasons, I would make the following orders in the appeal:
(1)The appellant's application in an appeal dated 23 February 2021, seeking leave to add a new ground of appeal, is granted.
(2)Leave to appeal is granted on grounds 1, 2 and 3.
(3)The appellant's application in an appeal dated 12 January 2021, seeking to adduce additional evidence in the appeal, is dismissed.
(4)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
8 JUNE 2021