Mansell v The State of Western Australia [No 6] - [2013] WASCA 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MANSELL -v- THE STATE OF WESTERN AUSTRALIA [No 6] [2013] WASCA 120

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 3 APRIL 2013

DELIVERED : 15 MAY 2013

FILE NO/S: CACR 190 of 2011

BETWEEN: CAMERON JAMES MANSELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
File No  :INS 177 of 2010

Catchwords:

Criminal law - Application for leave to appeal against conviction - Unreasonable verdict - Circumstantial evidence - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)

Result:

Application for leave to appeal dismissed
Appeal dismissed
Applications in relation to additional evidence dismissed
Applications to rely on additional documents dismissed
Application for bail dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B Fiannaca SC & Mr L M Fox

Solicitors:

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

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mansell v The State of Western Australia [2012] WASCA 223
Mansell v The State of Western Australia [No 2] [2013] WASCA 41
Mansell v The State of Western Australia [No 3] [2013] WASCA 62
Mansell v The State of Western Australia [No 4] [2013] WASCA 82
Mansell v The State of Western Australia [No 5] [2013] WASCA 83
Mule v The Queen [2005] HCA 49
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Hillier [2007] HCA 13; (2007) 228 CLR 618

McLURE P: The appellant applies for leave to appeal against his conviction of the murder of Craig Puddy and, if leave is granted, to appeal (the appeal).

Appeal history

Originally, the appellant was represented in the appeal by senior counsel. The sole ground of appeal was that, having regard to the evidence, the verdict is unreasonable or cannot be supported. After the filing of the Appellant's case, the appellant commenced to act for himself. A further six grounds of appeal were added. Ground 7 is broadly to the same effect as ground 1. Mazza JA referred the question of leave to appeal in respect of grounds 1 and 7 to the hearing of the appeal.
Leave to appeal has been refused on each of grounds 2, 3, 4, 5 and 6: Mansell v The State of Western Australia [No 2] [2013] WASCA 41 (Mansell No 2).
To the extent that ground 7 seeks to traverse issues the subject of grounds 2, 3, 4, 5 or 6, they have been dealt with and disposed of in Mansell No 2. The only outstanding issue is whether the guilty verdict is unreasonable or cannot be supported.
In Mansell No 2, the court also dismissed the appellant's applications to review multiple interlocutory decisions made by Mazza JA. See Mansell v The State of Western Australia [2012] WASCA 223.
After Mansell No 2, the appellant made several more interlocutory applications most of which were dismissed: Mansell v The State of Western Australia[No 3] [2013] WASCA 62, Mansell v The State of Western Australia[No 4] [2013] WASCA 82 and Mansell v The State of Western Australia[No 5] [2013] WASCA 83. However, a number of applications were referred to the hearing of the appeal. The first is an application for bail; the second, an application to file an amended schedule under Practice Direction 7.4 and an amended chronology (the amendment application); the third, fourth and fifth being applications to adduce additional evidence in the appeal.
The evidence in question is two statements of Katherine Young, a licensed private investigator, police running sheets, a police exhibits log, a statement of Lindy McQueen, a statement of Kristian Groves Lawrence, two maps drawn by Allan Mansell and an affidavit sworn by Detective Craig Stephen on 23 June 2011 in opposition to the appellant's application for bail.
Ms Young's statements are to the effect that 'in or around September 2011' she was asked by the appellant to undertake work in relation to 'a trial he was involved in'. The appellant's trial was conducted in the period 6 September ‑ 7 November 2011. It is apparent from the statements that the information obtained by Ms Young was conveyed to the appellant's legal advisors during the course of his trial.
The running sheets, exhibits log, maps and statements of Lindy McQueen and Kristian Lawrence were disclosed by the prosecution prior to trial.
The inference is that a forensic decision was made by the appellant's legal advisors not to use the material in the appellant's defence. In any event, the evidence falls well short of disclosing an irregularity in the trial or one that is arguably capable of affecting its outcome.
As to the affidavit of Detective Stephen, the appellant contends that in his affidavit the police officer recanted his evidence at trial on the subject of whether the appellant told him that he (the appellant) wished to go to Adelaide to see his family. The appellant misstates the police officer's evidence at trial. His evidence at trial was that the appellant said that 'he may go home or he may travel to South Australia, but he immediately then said: "[n]o, I won't travel to South Australia, because if I go there I may put my wife and child in harm"' (ts 3378).
Leave to adduce the further evidence in the appeal should be refused. The evidence in question falls well short of supporting any ground of appeal for which leave was refused in Mansell No 2 or any other ground of appeal.
At the commencement of the appeal hearing, the appellant sought leave to file two further applications, both dated 28 March 2013. The appellant sought leave to rely on a 34‑page affidavit sworn by him on 2 April 2013, a 48‑page document headed 'The Case', a Shareholder Deed and letters relating to that Deed. These applications superseded the amendment application.
Both applications should be dismissed. The respondent had no prior notice of the applications. The affidavit contains evidence from the appellant relevant to the murder of Mr Puddy and advances conspiracy theories and allegations that were not part of the appellant's case at trial. The affidavit also overlaps with documents already filed in the appeal by the appellant and contains much irrelevant information. The same observations apply to 'The Case'. As to the Shareholder Deed and supporting letters, there is no material difference between those documents and the evidence given at trial.
A criminal appeal does not provide an appellant with an opportunity for a second trial. The appellant elected not to give evidence at his trial. He is bound by that election. The only grounds of appeal for which leave has not been refused require this court to confine itself to the evidence adduced at trial. The extraneous evidence and other material on which the appellant seeks to rely in his written and oral submissions must be ignored. The appellant's written submissions on ground 7 are irretrievably infected by extraneous, inadmissible material.

Unreasonable verdict

This court must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
Courts frequently express their conclusion on whether a verdict is unreasonable or not supported by the evidence in terms of a verdict that is 'unsafe or unsatisfactory': M v The Queen (1994) 181 CLR 487, 492.
In M, the plurality held that the test for an unsafe or unsatisfactory verdict was whether the court thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493). In answering that question the court must not disregard nor discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or that the jury had the benefit of having seen and heard the witnesses (493). The plurality explained the application of the test as follows:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 ‑ 495).
The question before the court is whether it was open to the jury as a matter of fact to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen (2007) 230 CLR 559 [113].

Circumstantial evidence

The case against the appellant was circumstantial. Circumstantial evidence is not necessarily inherently less compelling than direct evidence. As Gleeson CJ and Kiefel J noted in AK v The State of Western Australia (2008) 232 CLR 438:
Undisputed objective circumstances may be more reliable than direct testimony [27].
Where the prosecution relies upon circumstantial evidence, guilt must be the only reasonable and rational inference that could be drawn from the circumstances: Plomp v The Queen (1963) 110 CLR 234, 243; Shepherd v The Queen (1990) 170 CLR 573, 578.
Circumstantial evidence must be evaluated in its entirety, not considered on a piecemeal basis in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Shepherd (579 ‑ 580). In R v Hillier (2007) 228 CLR 618, Gummow, Hayne and Crennan JJ stated:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal [48].

The State case

The trial went for approximately eight weeks and heard from 178 witnesses. In broad terms, the State case was that on 3 May 2010 the appellant went to Mr Puddy's house at 2A Bateman Road, Mount Pleasant where a violent confrontation occurred that led to the appellant killing Mr Puddy by striking a number of blows to his head. It was alleged that the appellant then disposed of Mr Puddy's body at an unknown location. Mr Puddy's body has never been found. Members of his family, with whom he was close, testified at trial that they had not seen or heard from him since 3 May 2010. No withdrawals had been made by Mr Puddy from his bank accounts after that date. Mr Puddy's blood was found inside a recycling bin that had been taken from his house and hidden in bushland near Yanchep.
On 4 May 2010 Mr Puddy was reported missing and a homicide investigation commenced. The appellant had a black Jeep Cherokee 4‑wheel drive (the Jeep). On 6 May 2010, the appellant deliberately destroyed the Jeep by fire. The appellant was arrested on 7 May 2010 and released without charge after spending about 15 hours in custody. Some days later the appellant left Western Australia and ultimately travelled to Townsville, Queensland, where he stayed with relatives. He left those relatives and went camping in nearby bush. On 25 May 2010 the appellant was arrested, charged with Mr Puddy's murder and extradited to Western Australia.
Prior to Mr Puddy's disappearance, the appellant and Mr Puddy had a social and business relationship. They both had a business interest in a bar at the Broadway Fair Shopping Centre in Nedlands called 'Basement on Broadway' (BOB). Mr Puddy was a significant investor in, and co‑owner of, BOB. The appellant had a role in the day‑to‑day operations of the bar. On the State case, BOB was losing money and Mr Puddy was unhappy with the appellant. Mr Puddy believed that the appellant was stealing money from the business.
The appellant admitted that he was present in Mr Puddy's kitchen on 3 May 2010 when Mr Puddy was violently assaulted. He said the violence was inflicted by three unknown men.
In its written submissions, the respondent provided a detailed summary of the evidence in the prosecution case against the appellant. The summary is consistent with the evidence, the closing addresses and the trial judge's summing up.

Mr Puddy's involvement in BOB prior to January 2010

BOB was owned by, and was the only asset of, Our Loungeroom Pty Ltd (Our Loungeroom). The shareholders of Our Loungeroom were Martyn Rogers and Mark Elliott, both friends of Mr Puddy. By May 2008, Mr Puddy had contributed $500,000 to Our Loungeroom to help pay for renovations to, and the outgoings of, BOB. Thereafter, Mr Puddy contributed at least another $200,000 to BOB and became a guarantor of a $700,000 loan that Our Loungeroom had with the National Australia Bank (NAB). As a result of his financial contributions, Mr Puddy ultimately owned 30% of the share capital of Our Loungeroom. He continued to supply further funds in order to pay the rent and other outgoings of the business.
By early 2010, Mr Puddy was frustrated at having to regularly provide financial support and made it known he wanted to get out of the BOB business.

The appellant's involvement in BOB prior to January 2010

The appellant met Mr Rogers through rugby league circles and assisted him with the paperwork for setting up Our Loungeroom in 2007.
The appellant operated his own small financial planning business named Dolphin Financial Management Pty Ltd. He contributed his own clients' funds to the BOB business. By July 2009 the appellant had contributed $130,000 of his clients' funds to Our Loungeroom. On 31 December 2009, he contributed a further $24,200 of his clients' funds.

Inability to sell BOB - January to early May 2010

In January 2010 the appellant assumed the role of manager of BOB. The appellant had a key to the BOB premises and access to its safe.
Some time after the appellant became the manager of BOB in January 2010, Mr Puddy came to believe that money was missing from the safe.
The appellant was proposing that he and a syndicate of (unascertained) investors take over ownership of BOB. The appellant set up a company called Neddys Pty Ltd (Neddys) to buy BOB from Our Loungeroom. Mr Rogers had not seen any success in the appellant's search for investors.
The prosecution adduced evidence at trial from potential investors who had been approached and who could be identified from the appellant's documents. They either did not want to invest or had not reached a point where they were willing to contribute funds. The appellant contends that Mr G Ralston had committed to invest. That proposition was not put directly to the witness by defence counsel (ts 3312 ‑ 3313). In any event, nothing turns on this point.
Mr Puddy wanted to sell his shares in BOB as he was moving to Sydney and wanted to cut his losses. He was resigned to the fact that he was going to lose some money but he could offset the loss against a capital gains tax liability arising from the recent sale of his main business. Mr Puddy was preparing to move to Sydney in the week he was murdered.
In April 2010, the non‑payment of rent for the BOB premises became a pressing issue. There was a risk of foreclosure by the landlord. That would put an end to the business. The failure to pay rent would also trigger a default on the NAB loan to Our Loungeroom and Mr Puddy's guarantee.
On 22 April 2010, NAB emailed Mr Rogers stating that the rent was due and payments on the bank loan were outstanding. The appellant indicated to Mr Rogers that the rent had been paid. Mr Rogers called the landlord and discovered that this was not the case.
On 23 April 2010 the appellant, Mr Rogers and Mr Puddy had a meeting. The appellant indicated that he 'was halfway there' to securing investors for BOB and would produce a letter of intent to present to NAB to move forward with a serious offer. The appellant's assertion that he was halfway towards securing funds from investors was untrue.
On 29 April 2010 a letter of intent signed by the appellant on behalf of Neddys was forwarded to Mr Ernest Leone, a senior manager in NAB's Credit Risk Department. The letter referred to an intention to purchase specified assets of Our Loungeroom for approximately $690,000 and proposed a transfer of Our Loungeroom's NAB debt to Neddys.
Matters came to a head on the weekend prior to Mr Puddy's murder, being Friday 30 April 2010 to Sunday 2 May 2010. The rent had not been paid, money was (or was thought to be) missing from the safe and the appellant had failed to find investors to purchase BOB.

Mr Puddy's boat

Mr Puddy owned a 46 foot Mustang sports cruiser named Hoo‑Haa (the boat). Mr Puddy intended to sell the boat because he was relocating to Sydney.
The appellant was also attempting to find a syndicate of people (of which he would be a member) to buy the boat.
On 25 April 2010, Mr Puddy said to the appellant that if he made a quick sale on the boat, he would contribute $50,000 to BOB to assist with its financial problems. However, the clutch on the boat had to be replaced and the boat could not be operated until it was fixed.
When informed of the mechanical problem on 29 April 2010, the appellant said to Mr Puddy 'You've put me in a really bad position'. According to Peter Kelly, a witness to the conversation, the appellant appeared agitated.
The appellant also spoke about the boat to a recent friend, Mica De Jager. The appellant told her that he had gone to the boat with some investors and that there was a mechanical problem with it. Ms De Jager observed that the appellant was frustrated and agitated.
On 3 May 2010, the day of his murder, Mr Puddy told his friend Justin Nixon that the appellant was 'full of shit' and the boat wouldn't be sold. Mr Puddy started to get angry and frustrated as the conversation went on, saying that if the boat sold for $750,000, he could pay half the NAB loan for which he was guarantor.

Saturday 1 May 2010

At 9.44 am on 1 May 2010, Sam Rarasea, a bar manager at BOB, forwarded a text message to the appellant that Rarasea had received the night before from Mr Rogers. The message was an instruction to tally up all of the money on Friday and to give the total amount (minus a float for the till) to Mr Puddy. The appellant's reply three minutes later was:
No worries we'll pay the wages then the rent if were short those fuckers can cover it.
Just before 10.00 am on 1 May 2010, Mr Leone of NAB emailed Mr Puddy and Mr Rogers advising them both that a default notice had issued in respect of the NAB loan due to the failure to pay rent.
At 10.35 am Mr Rogers sent a text message to the appellant saying 'You need to call me ASAP, this bullshit cannot continue'. He did not receive a reply from the appellant.
Between 11.30 am and 12.00 pm Mr Puddy went to BOB. He was agitated and angry. He asked if the appellant was working and was told not until later that day. One of the staff opened the safe at Mr Puddy's request.

After leaving BOB, Mr Puddy rang Mr Rogers and told him there was no money in the safe. That afternoon Mr Puddy exchanged text messages with his friends Peter Kelly and Justin Nixon about the appellant having 'disappeared' with the money from BOB and saying that he, Mr Puddy, was going to contact the police.
Some time that afternoon the appellant went to BOB. He was told about Mr Puddy's attendance that morning and replied 'that motherfucker'. He appeared to be dejected rather than angry.

Sunday 2 May 2010

Some time during the night of Friday 30 April 2010 and the early hours of Saturday morning, the appellant went to a bar in Subiaco. Ms De Jager saw him there, describing him as 'a little bit disorientated, very drunk'.
The appellant was hung over when he arrived at BOB after midday on Sunday. He stayed at BOB until at least 9.30 pm.
Just after 10.00 pm an associate invited the appellant to join him at Club Bayview that night. The appellant replied, 'I had no sleep since Thursday'.

Monday 3 May 2010

On 3 May 2010 Mr Puddy had a series of telephone calls with NAB staff, Mr Rogers and the appellant concerning the default on the NAB loan and the money missing from the safe. The telephone calls were overheard in part by people present at Mr Puddy's home that day, particularly by Paul Veza.
At about 11.00 am Mr Puddy had a telephone conference with NAB officers. It was the subject of a bank diary note which was tendered in evidence. Mr Puddy said he would pay the lease arrears tomorrow. Mr Puddy seemed to think that the appellant had spoken with the bank and that everything was fine, but that was incorrect. Mr Puddy also said he had been to BOB and there was no sign of the appellant and no money in the safe. Mr Leone told Mr Puddy that he did not think that the appellant was 'seriously interested' in buying the business and was 'simply playing all involved' (ts 2393). Mr Puddy said that the appellant was 'not to be allowed on the premises'.
After the phone call with the bank, Mr Puddy left a message for the appellant to call him. He then called Mr Rogers. Mr Rogers informed Mr Puddy that the appellant had told him the missing money was in the safe, hidden under one of the cash drawers. Mr Puddy was not happy that the appellant was saying that the money had been found, as the safe did not have any 'secret pockets' and the money was not in there when Mr Puddy went to look for it. Mr Puddy told Mr Rogers to get on a plane to Perth to 'sort all this out'.
The appellant then called Mr Puddy. Mr Puddy's tone was aggressive. He asked the appellant where the money was to pay the rent. He asked for an outgoings and ingoings sheet to be emailed to him by the end of the day. That occurred.
The next call between Mr Puddy and Mr Rogers also touched upon money missing from the safe. Mr Puddy said to Mr Veza after the call that the appellant had told Mr Rogers that he (Mr Puddy) had taken the money from the safe.
There followed a further phone call between Mr Puddy and the appellant in which Mr Puddy expressed disbelief that the missing money had returned to the safe. Mr Puddy was angry during the phone call. After the call, Mr Puddy remarked to Mr Veza that the appellant was 'a fucking liar'.
The last witness at trial to see Mr Puddy alive was his mother, Denise Wood. She had been assisting her son to pack on the afternoon of 3 May 2010 and left his home at about 6.30 pm. Mr Puddy refused her offer to make him dinner, saying he was meeting someone that night.
The prosecution case was that by the evening of 3 May 2010 the relationship between the appellant and Mr Puddy was one of mutual animosity and frustration, and mistrust by Mr Puddy of the appellant.

The final text message from Mr Puddy's phone

At approximately 8.30 pm on 3 May 2010 Mr Veza sent Mr Puddy a text message that simply said, 'Any good?' This message related to an earlier conversation between the men that day at Mr Puddy's house. Mr Puddy had found a small amount of cocaine in one of the pockets of an old pair of jeans. Mr Veza intended the message to refer to the quality of the cocaine.
The final message sent from Mr Puddy's mobile telephone (an iPhone) was to Mr Veza at 10.16 pm. The message read:
Yep it done me world good. Changed my luck too that Cammo turned up with Cheque fir 750k for my boat if it doesn't bounce. Things might be turning around. Fuck that be change'.
The prosecution case was as follows. This message was sent by the appellant. The vague opening could have been sent by a person without knowledge of the earlier discussions between Mr Puddy and Mr Veza. The reference to the cheque was inherently implausible because the evidence established that: the appellant had been unable to sell the boat; there was no evidence of a syndicate or anyone willing to purchase the boat for that amount of money; the boat had a mechanical problem which required a part to be imported from overseas before the boat could be operated; there was no evidence that a cheque ever existed; and the appellant was not in a financial position to purchase the boat himself.
Mr Puddy's mobile phone was moved some time after the violent acts had occurred. There was expert evidence that the location of the mobile phone was consistent with it being at Mr Puddy's house at the time the text message was sent at 10.16 pm. When the mobile phone made contact with the network at 7.14 am the following morning, it connected with the Melville mobile phone tower, which was inconsistent with the mobile phone being at Mr Puddy's home. This was the last occasion that Mr Puddy's mobile phone made contact with the mobile phone network.
In further support of an inference that the appellant sent the 10.16 pm text message, the State relied on an unsuccessful attempt to send a text message from Mr Puddy's old iPhone (the old phone). That was found on the kitchen bench at Mr Puddy's home on the evening of 4 May 2010 by Mr Nixon. He picked up the old phone, pressed the round button and saw an unsent message on the phone. Mr Nixon believed the message to say, 'It wasn't 750,000 but an undisclosed figure. Fuckin Marty, I'll kill him'. When Mr Nixon tried to look at the message a short time later it had disappeared.
Expert evidence confirmed that the old phone was not the mobile phone used by Mr Puddy in 2010. It did not have a SIM card and thus was unable to send or receive calls or text messages. The most recent outgoing call, incoming call and SMS message sent or received on the old phone was on 14 September 2009. The activation date of the mobile phone Mr Puddy was using at the time of his murder was 14 September 2009.
The last message attempted to be sent from the old phone had a date stamp of 1 January 2000 and a time stamp of 9.35 and 22 seconds in the morning. When an iPhone completely runs out of power and is then recharged, the date and time resets to 9.00 am on 1 January 2000. This was consistent with someone attempting to send a message 35 minutes and 22 seconds after the old phone had been connected to a power source.
The last message attempted to be sent from the old phone was similar but not identical to that described by Mr Nixon. It reads:
Still drinking mate celabrating the boat I lied it wasn't 750k but a undisclosed amount of cash put it this way I'm very happy cheers.
The prosecution case was that it was inconceivable that anyone other than the appellant attempted to send this SMS message. Mr Puddy had not used the old phone for seven months and knew it did not have a SIM card; his current mobile phone was working on the night of 3 May 2010 and was still working the following morning at 7.14 am when removalists attempted to contact him on it. By that stage his new phone had been moved away from Mr Puddy's home.
The prosecution contended that the attempt to send the message on the old phone was made some time after the message sent at 10.16 pm, relying on the statement 'I lied'.
As discussed below, the appellant attempted to retain custody of the boat transfer papers after the murder of Mr Puddy. Further, the appellant had an interest in creating the false impression that the boat had been sold, that money had been paid to Mr Puddy, and that it was the appellant who had paid it.
Given all the circumstances, the State contended the only reasonable inference was that the appellant found the old phone somewhere in Mr Puddy's house, connected it to the phone charger and attempted to send the message after sending the 10.16 pm message. That could only have occurred after the acts of violence were committed and, importantly, was inconsistent with the appellant's version of the events of that night.

The assault on Mr Puddy

Mr Puddy was assaulted after his mother left the house which was some time around 6.30 pm on 3 May 2010. On the prosecution case, Mr Puddy must have been assaulted before the text message at 10.16 pm.
The injuries that resulted in Mr Puddy's death were inflicted in the kitchen of his home at 2A Bateman Road, Mount Pleasant. This was established by bloodstains, both visible to the eye and revealed by chemical reaction, notwithstanding that obvious attempts had been made to clean the area.
An expert in interpreting bloodstain patterns, Dr Mark Reynolds, concluded that Mr Puddy was assaulted to the head. There were at least two applications of force to a source of blood, established to be Mr Puddy's, that occurred in the kitchen of his home.
The first impact occurred whilst Mr Puddy was above the level of the kitchen bench and below the ceiling, which is consistent with him standing at the time of the blow. The second blow occurred at about 30 cm above the ground, which is consistent with him being on the ground at the time that blow was inflicted.
A storage box subsequently recovered from the back of the Leopold Hotel, which contained property belonging to Mr Puddy, had bloodstains on it consistent with the box having been on the floor of Mr Puddy's kitchen adjacent to the northeast corner of the curved bench at the time of the second impact. The only reasonable inference was that the box was removed from Mr Puddy's house by the assailant after the assault.
The forensic evidence alone did not establish what was used to strike Mr Puddy. However, Ms De Jager said the appellant, who on his own admission was present at the scene, told her that it sounded like Mr Puddy was hit with a hammer. A hammer was found inside the appellant's burnt out Jeep.

Tuesday 4 May 2010 - the early morning

A green‑lidded general waste wheelie bin (the waste bin) and a yellow‑lidded recycling wheelie bin (the recycling bin) were removed from Mr Puddy's house shortly after the murder.
Between 2.00 am and 3.00 am on the morning of 4 May 2010 a witness in Attadale heard the sounds of a wheelie bin being moved. The hour was unusual and it was not 'bin night' in the suburb. The waste bin from Mr Puddy's home was found on 4 May 2010 at a nearby house in Haig Road.
At 3.30 am a jogger saw a dark coloured 4-wheel drive (4 WD) turn into the driveway of Mr Puddy's house.
There was a motion sensor CCTV camera on the driveway of 4 Bateman Road. Footage was tendered. At 4.44 am a dark coloured 4 WD was recorded driving towards Mr Puddy's home with its brake lights activated at a point consistent with where a car would slow down to turn into Mr Puddy's driveway.
At 5.03 am a dark coloured 4 WD was parked on Park Road facing south. A person got out of the 4 WD and headed south to the intersection of Bateman Road and Park Road in the direction of Mr Puddy's home.
At about 5.20 am a man walking his dog, Mr Mellows, saw someone whose description was broadly consistent with the appellant, walk out of the pedestrian gate of Mr Puddy's house and walk towards Park Road. He was holding what looked to be phones and wallets in his hands.
At 5.22 am the CCTV recorded a man walking north away from the direction of Mr Puddy's home and back towards the parked 4 WD on Park Road. The figure entered the 4 WD and drove away. The prosecution case was that the person returning to the car was the same man that Mr Mellows had seen walking out of Mr Puddy's home with what he saw as being wallets and phones.
At about 7.00 am on 4 May 2010 furniture removalists arrived at Mr Puddy's home. Nobody answered the front door and nobody answered Mr Puddy's mobile phone when it was called. They waited at the house. At about 9.00 am one of the removalists saw a dark 4 WD pull up behind the removalists' ute which was parked out the front of Mr Puddy's house. The 4 WD was driven by a man. It stayed there for about 20 seconds before driving off.

4 May 2010 - later that day

The appellant was present in the northern suburbs of Perth on 4 May 2010. At 6.48 pm he parked his Jeep outside the Vehicle Licensing Centre in Joondalup. He caught a taxi into the Perth CBD. He had with him a suitcase and lots of papers with a file. Unable to obtain a room for the night in a hotel in the vicinity of the Perth CBD, the taxi took the appellant to Observation City where he checked in for the night just after 8.30 pm.
A key to Mr Puddy's house was found hidden beneath the airconditioning vent in the room the appellant had occupied at Observation City on the night of 4 May 2010. The only inference is that the appellant put the key there.

5 May 2010 - the appellant's movements

At around 11.30 am the appellant checked out of Observation City and caught a taxi to National Storage in Subiaco where he kept a self‑storage unit. As he was unable to access his own unit, he was allowed to store his items in a different unit which was searched by police. They found, among other things, a street directory, a member information booklet for Perth Flying Squadron Yacht Club where the boat was moored, an information booklet, an unused cheque book for Neddys, various documents concerning the financial affairs of BOB, an owner's manual for the type of boat owned by Mr Puddy and a diary that recorded potential investors in BOB.
The appellant then returned to Observation City. He hired a bicycle from Scarborough Beach Cycles at about 12.50 pm. CCTV footage from Joondalup recorded him returning to his Jeep at around 1.50 pm.

5 May 2010 - the discovery of Mr Puddy's wallet and keys

On 5 May 2010 Mr Puddy's wallet and car keys were found wrapped in a tea towel in a green wheelie bin at Stanley Street in Nedlands. That street is near the main access route between the appellant's unit in Claremont, where he resided, and BOB in Nedlands.
The evidence established that the tea towel in which Mr Puddy's wallet and car keys were wrapped belonged to the appellant.
The tea towel contained a DNA profile matching that of Jayson Whyatt who had been to the appellant's unit on the Saturday morning before the murder.

6 May 2010 - the destruction of the Jeep

Some time between 10.00 am and 12.30 pm on 6 May 2010 the appellant called Scarborough Beach Cycles and requested an extension of his bicycle hire.
Just after 1.30 pm the appellant set his Jeep alight in bushland in Banksia Grove. The fire was deliberately lit and involved the use of an accelerant. The Jeep was destroyed. The appellant was seen leaving the scene with a bicycle and helmet.
The appellant made his way to the nearby Carramar shopping centre where he caught a taxi which took him to the Warwick shopping centre. He then caught another taxi to Scarborough, returned the hired bicycle, and made his way to the CBD. The appellant stayed the night at the Holiday Inn.
At about 5.30 pm the appellant reported to police and RAC Insurance that the Jeep had been stolen, falsely asserting that he had been jogging along the beach when his car keys must have fallen out of his pocket.
The remains of a hammer was found in the rear passenger foot well of the burnt wreckage of the Jeep. The prosecution case was that the items placed in National Storage by the appellant, such as the street directory, were removed from the Jeep before it was destroyed and that the appellant put the hammer in the Jeep in order to destroy it.
Two physical findings at the scene of the murder in the kitchen of Mr Puddy's home supported the theory that a hammer was used. First, there was damage to one of the kitchen drawers consistent with being caused by an object such as a hammer. Second, there was damage to a floor tile in the same general area consistent with being caused by an object such as a hammer.
Two keys that opened the front door and the garage door of Mr Puddy's house were also found in the burnt wreckage of the appellant's Jeep. The State contended that it was open to conclude that the appellant tried to destroy the keys when he torched his car as they implicated him in the death of Mr Puddy.
The boot of the Jeep was capable of accommodating both the waste bin and the recycling bin.

The boat transfer papers

Australia Post intercepted a letter addressed by the appellant to his wife who was living in South Australia. The envelope was postmarked 7 May 2010 and originated from the Perth Mail Centre.
Within the envelope were signed transfer papers for the boat. They had been filled out with all the necessary information except the purchaser's details and signature. All of the necessary particulars for Mr Puddy and the various registration numbers had been filled out.
There was expert evidence that the signature of Mr Puddy on the boat transfer papers was genuine and that he may have forged his father's signature on the same document.
The appellant's fingerprints were on the transfer papers and on the envelope. The stamp on the envelope, depicting a bird, was similar to stamps that were found and photographed at the Holiday Inn where the appellant stayed on 6 May 2010.
The envelope also contained a note saying 'BABE - PLEASE HIDE THIS IN A SAFE PLACE IMPORTANT!!! LOTS OF LOVE xxoo'.
The appellant posted the boat transfer papers after Mr Puddy's murder. The prosecution contended that this evidence, together with the text messages, indicated the appellant had the intention of transferring the ownership of the boat from Mr Puddy to others.
It was not known whether Mr Puddy gave the signed papers to the appellant, whether they were lying around Mr Puddy's house at the time he was murdered or whether the appellant obtained them from Mr Puddy's boat. There was evidence suggesting that someone went to the boat prior to Mr Veza going to it on 4 May 2010 because the key that was kept on the boat was missing and had not been recovered.

7 May 2010 - arrest

On 7 May 2010 the appellant was arrested and taken into custody for questioning. At that time, there was very little forensic evidence available.
The investigating police officer, Craig Stephen, had an unrecorded conversation with the appellant over many hours. The appellant was released unconditionally but was told that the matter was not going away, that the police were not going away and that they would be speaking to him again after more evidence had been obtained.

9 May 2010 - the appellant's campsite

By this stage the appellant was under covert police surveillance. At 7.30 am on 9 May 2010 the appellant left his Claremont unit on a motor bike and drove north.
At 9.10 am he turned off Wanneroo Road into 'Bindiar Road', which was little more than a bush track. At 9.40 am the appellant arrived at a service station in Nowerup where he filled a jerry can with petrol and purchased some refreshments. He then drove north on Wanneroo Road and turned back onto Bindiar Road at about 10.00 am.
At about 9.45 am Tactical Response police travelled down Bindiar Road and located a brown jacket which the appellant had been wearing earlier in the day, a backpack, a sleeping bag and a battery charger. The location of this makeshift campsite was in the same general area of bushland where the recycling bin was found 21 days later.
Over the rest of the day, the appellant was observed travelling along Wanneroo Road and adjacent bush tracks. In his summing up, the trial judge goes into the detail of the appellant's movements, observing that 'there's a lot of driving about and a lot of turning off roads and coming back onto Wanneroo Road, using that as a sort of central communication spine' (ts 3725).

An inference from the appellant's movements around this area on 9 May 2010 was that the appellant was searching for something that he was unable to find. The prosecution case was that it was open to infer that the appellant was looking for the recycling bin in order to burn it, but was unable to retrace his steps to the exact bush track where he had dumped the recycling bin on 4 May 2010.

11 May 2010 - appellant's version to Mica De Jager

On 11 May 2010 the appellant told Mica De Jager what he said had occurred on the night of 3 May 2010. The appellant told her he went to Mr Puddy's house for 'lazy afternoon Sunday [sic] drinks'; there was a knock on the door and three men came in the front door; two of the men were apparently 'muscle' and the third was more of the 'slick brain' to do the talking; the men were demanding money from Mr Puddy for an unresolved drug debt; Mr Puddy said he was not going to give the money so he got hit; the appellant got hit in the stomach, fell to the floor and stayed down; the appellant chose to stay down because he thought getting up would just aggravate the guys more and he'd just get hurt further; Mr Puddy got up and said he wasn't going to give them a cent; Mr Puddy was then hit on the head with an object or a blunt object; it was like a hollow knock to the head and sounded like a hammer; the appellant and Mr Puddy were on different sides of a bench; after being hit again, Mr Puddy was not making too much noise. He was just gurgling. The appellant then heard snoring and then nothing; the slicker looking guy recognised the appellant and said, 'You're Mansell'; one of the guys took a photo of the appellant's driver's licence; the appellant and Mr Puddy were separated; one of the three guys took Mr Puddy away, two of the guys went with the appellant in his car; the appellant drove; they were looking for something to sink them both in; the appellant was able to 'talk his way out of it'; and the appellant did not know where Mr Puddy was now.
The appellant gave a version of the events on the night of 3 May 2010 to Mr Rogers in a telephone call on 11 May 2010. The call was recorded by Mr Rogers (exhibit 142). The appellant also gave an account to his uncle and aunt, Allan and Narelle Mansell, before his arrest on 25 May 2010 in Queensland.
The prosecution relied on inconsistencies in the various versions. One inconsistency concerned the number of assailants who 'took' the appellant from Mr Puddy's house. He told Ms De Jager that two of the assailants accompanied the appellant and one went with Mr Puddy. The appellant told his aunt and uncle that one assailant took him in his car.
Secondly, the appellant told Ms De Jager, but not the others, that the assailants demanded money from Mr Puddy for an unresolved drug debt. He told Mr Rogers that he thought the assailants came, 'to do a standover for cash'. He told his uncle and aunt that it was 'over money' or that they were 'after money'.
Thirdly, the appellant told Mr and Mrs Mansell, but not the others, that he had been forced by the assailants to clean the blood in the kitchen and that he burnt his vehicle because Mr Puddy's blood was on his vehicle.
Fourthly, the appellant told Mr and Mrs Mansell that Mr Puddy, while still alive, was placed into a car by two assailants and driven off in the opposite direction to that taken by the appellant.
In none of the appellant's accounts did he mention the recycling bin in which Mr Puddy had been placed. The recycling bin was not found until 30 May 2010.

Mr Puddy's recycling bin

Mr Puddy's missing recycling bin (identified by the serial number) was discovered by chance by two 4 WD enthusiasts in bushland off Breakwater Drive near the suburbs of Two Rocks and Yanchep on 30 May 2010.
As previously noted, this was in an area of bushland near where the appellant had set up his makeshift campsite on 9 May 2010. The evidence established that the appellant was present in the northern suburbs of Perth on 4 May 2010.
The recycling bin was recovered by police. Mr Puddy's body had been placed in the bin after he was assaulted. His blood was found inside the bin, including a 'hair print' in blood on the inside of the lid. The appellant's fingerprint was found on the top of the bin lid.
Dr Reynolds, the bloodstain pattern expert, gave evidence concerning his analysis of the bin and his report was also tendered. The internal and external surfaces of the bin displayed obvious bloodstains. Transferred bloodstains were seen on all four inner surfaces of the bin as well as the inner surface of the bin lid.
Four human hairs were found on the underside surface of the bin lid. Three of them were within a bloodstain that looked very much like the impression of part of someone's head, including impressions of hair.
The DNA profile of various blood swabs from the bin, both on the inside and the outside, were consistent with the blood having come from Mr Puddy.
The presence of hair and blood on the inside lid of the bin supported the conclusion that the person inside the bin was suffering from an injury to his head.
The forensic findings were consistent with two possibilities. The first is that Mr Puddy was put in the recycling bin while he was still bleeding freely. The second is that there was blood in liquid form on Mr Puddy's body that came into contact with the surfaces. Dr Reynolds was unable to say whether Mr Puddy was dead or alive when he was in the recycling bin.
Whilst it was not possible to specifically quantify the volume of blood observed within the wheelie bin, Dr Reynolds' opinion was that it was likely to be less than 500 ml.
The appellant's fingerprint from his right middle finger was found on the top of the lid of the recycling bin. The location and orientation of the print were described in the evidence of the fingerprint expert, Leon Cooper.
The print was not near the edge of the recycling bin lid. The print was oriented in such a way that the rest of the hand would be angled away from the handles of the lid. The orientation and location of the print were inconsistent with the appellant opening or closing the lid by the handle.
Directly underneath the fingerprint on the inside of the recycling bin lid was the area where the hair print in blood was formed by the bin lid coming into contact with Mr Puddy's head while his body was positioned feet first in the bin.
The prosecution contended that the only reasonable inference to be drawn from the location and orientation of the fingerprint was that it was deposited by the appellant while Mr Puddy was in the bin. The appellant used his hand to close the recycling bin lid on the top of the head of Mr Puddy, and the fingerprint was deposited when he placed his hand and exerted force on the top of the lid to achieve that.

Flight and consciousness of guilt

On 12 May 2010 the appellant went to the Perth City Flight Centre office and booked a one-way flight to Adelaide. He did so under a false name.
At that time, the appellant was not under arrest and had previously been unconditionally released from police custody. The appellant told detectives that he may be going to Adelaide. He then said to them he would not go to South Australia as it might place his wife and child at risk.
The appellant did not tell police he would be using a false identity or that he would be travelling to Melbourne or Queensland.
At 6.25 am on 13 May 2010, the appellant departed Perth and flew to Adelaide. By coincidence, two detectives were on the same flight. They were not aware that the appellant was on the plane until they saw him as they were leaving the aircraft. The detectives noted that the appellant had freshly shaved his head.
Between 14 and 17 May 2010 the appellant travelled by train, via Melbourne, to Queensland.
The appellant arrived at the Townsville home of his uncle and aunt, Allan and Narelle Mansell, on 17 May 2010. He took extensive steps to acquire a false driver's licence in the name of Charles Pickworth. The deception involved in acquiring the fake identification included the forgery of the signature of a South Australian Justice of the Peace in support of the licence application.
The appellant was arrested in Queensland on 25 May 2010.
While remanded in custody after his arrest, the appellant endeavoured to interfere with Mr Allan Mansell and his family giving evidence. On 19 January 2011 the appellant spoke to his brother by telephone. The call was recorded. After asking his brother whether he had a chance to speak to 'uncle Al', the appellant went on to say:
-'We prefer that he made no statement';
-'Could you do me a favour, because it is getting to the point now where he has to make a pretty big decision on which way he's going to go with it';
-' … the only thing holding the case together for them is [Allan Mansell's] statement, believe it or not. Him and his family';
-The evidence of Allan Mansell was one of the 'pillars' of the prosecution case and 'we don't want it there'.

The defence case

The positive case advanced on behalf of the appellant at trial was that on the night of 3 May 2010 Mr Puddy was the victim of a violent assault by three men as a consequence of an unpaid drug debt or a demand for money. The evidence for that case was based on what the appellant told Ms De Jager, Mr Rogers and Allan and Narelle Mansell.
In support of that case, reliance was placed on Mr Puddy's use of drugs, primarily cocaine, and his association with drug traffickers. Mr Puddy's sister, Nadine Puddy, gave evidence of seeing her brother use cocaine on occasions which started, as far as she knew, on his 40th birthday. A former girlfriend, Amy O'Brien, gave evidence of considerable cocaine use by Mr Puddy, particularly on the occasion of his 43rd birthday.
Adam Cranwell supplied Mr Puddy with cocaine and occasionally ecstasy between 2006 to April 2008. Mr Puddy always paid him in cash and never asked him to obtain drugs on credit. Due to supply problems, Mr Cranwell supplied Mr Puddy with cocaine on only a small number of occasions. In 2008 Mr Cranwell was convicted of drug dealing and imprisoned.
Witness X (name suppressed) gave unchallenged evidenced as follows. He was also at Mr Puddy's 43rd birthday. He admitted that he brought the cocaine and that Mr Puddy paid for it. Witness X described the amount as an ounce and said an ounce can cost $6,000 ‑ $11,000, depending on supply.
Witness X had occasionally obtained cocaine for Mr Puddy from around 2006. It was never less than an ounce and never more than 5 or 6 ounces. Mr Puddy always paid in cash and, on the majority of the occasions, he paid in advance. The last time that Witness X supplied Mr Puddy with drugs was some time prior to Witness X's arrest on drug charges in May 2008.
Soon after his arrest in May 2008 Witness X discussed his drug charges with Mr Puddy at length. Witness X had learnt that if he was in possession of more than a certain amount of drugs, which he believed to be a couple of grams, then all his property whether or not legitimately obtained would be confiscated. Witness X warned Mr Puddy that if he was found with more than a couple of grams of drugs he would lose all his assets including those legally acquired. Witness X was also convicted of drug dealing and imprisoned.
Witness X's evidence of what he told Mr Puddy is supported by the evidence of Witness Y (name suppressed). Mr Puddy told Witness Y that he did not want more than 3.5 g of cocaine because:
If he ever got obviously searched, his house, that if they found any more than that, then they could confiscate everything he's got. And he wasn't prepared in any way to put that - put himself in that position, because, you know, have the conversation about it, and he said he's worked fucking hard for what he's got and he wouldn't want that taken away (ts 2080).
I will address the other matters raised by the appellant in the order in which they appear in his written submissions.

Motive

Counsel for the appellant in his closing address at trial told the jury that the prosecution case was that the appellant had a motive to cause harm to Mr Puddy (ts 3589). There are echoes of that in the appellant's submissions in the appeal, especially in connection with the boat. That misstates the position.
It was no part of the prosecution case that the murder of Mr Puddy was planned or involved any premeditation on the appellant's part. In its essence, the prosecution case was that there was a build up of circumstances involving the appellant and Mr Puddy, culminating in a highly volatile situation on the night of 3 May 2010 which resulted in the appellant causing fatal injuries to Mr Puddy.
The prosecution did not ask the jury to conclude that the appellant killed Mr Puddy in order to benefit from the sale of the boat. It was raised as a possibility to explain conduct that occurred in the course of a volatile confrontation. In his closing address, counsel for the prosecution informed the jury that the State did not have to prove motive, described as 'a purpose, a reason for doing something'. He continued:
It is a matter for you when you have regard to all the evidence in this case whether such a purpose is established on the evidence for [the appellant] taking the life of Mr Puddy.
You will no doubt consider the fact that at a time after it was clear that Mr Puddy was dead [the appellant] sent the boat transfer document to his wife in South Australia with a message that she was to hide it in a safe place …
Anyway, we'll be suggesting to you that what [the appellant] did in sending this document to his wife, however it might have come into his possession, points compellingly to his intention to profit from Mr Puddy's death … [A]s I said … was it just opportunistic conduct on his part, having got his hands on the document and at some later stage of wanting to pass himself off as having the means to transfer the boat to a potential buyer, or was it a motive [that] lead him to kill Mr Puddy?
Those are matters that you may need to consider. But in the broader sense ‑ in a broader sense … what we're really concerned with here, and what I had been spending time on in terms of going back over the nature of the relationship, the deterioration of the relationship, is perhaps the way in which motive might be understood to mean simply what it was that resulted in the commission of a particular offence (ts 3478 ‑ 3479).
The prosecution went on to identify the reason for the offence as being the build up of circumstances leading to a highly volatile situation on the night of 3 May 2010 (ts 3480).
The appellant's submissions concerning the boat are to the following effect. He was to receive a benefit ($50,000 to BOB or alternatively the balance of any purchase price in excess of $650,000) from the sale of the boat. Sending the transfer papers to his wife in Adelaide was of no financial benefit to him because the boat was in disrepair. He made no attempt after 3 May 2010 to sell the boat. The only conclusion open on the evidence is that the transfer papers for the boat were provided by Mr Puddy to the appellant before 3 May 2010, that he kept them at his place of work and sent them to Adelaide for safe keeping. They are not the only conclusions open on the evidence. Indeed, the first two conclusions are speculative and are not open on the evidence. Further, defence counsel at trial did not take issue with the fact that, in sending the transfer papers to Adelaide, the appellant potentially sought to benefit from Mr Puddy's demise (ts 3590). The evidence clearly supported that inference.
More importantly, the evidence of the appellant's conduct relating to the boat transfer papers must be considered in the broader evidentiary context, including the evidence relating to the text messages to Mr Veza on Mr Puddy's mobile phones on the night of 3 May 2010.
The appellant also challenges the State case of a background of, and build up in, animosity and volatility in the relationship between the appellant and Mr Puddy. He makes the following points.
First, the appellant was taking active steps to get investors to purchase the BOB business. Second, he was drawing no income from BOB as a manager. Third, Mr Puddy knew that BOB was not a good investment, having cautioned a friend against investing in the business.
Fourth, money missing from the safe could not logically form the basis of a motive on the appellant's part as he was owed more money than was missing from the safe. There was evidence that BOB money was going into the appellant's personal account and he was paying some BOB creditors. It is said by the appellant that this would have been known to Mr Puddy (of which there is no evidence).
Fifth, in any event, the evidence of theft was tenuous and not a sufficient basis in fact for Mr Puddy to be hostile towards the appellant. Moreover, even if Mr Puddy had threatened to report the appellant to police, that was not a sufficient motive for the appellant to kill Mr Puddy.
Sixth, Mr Puddy was businesslike, even‑tempered and in control when dealing with matters relating to BOB on 3 May 2010. Reliance is placed on an email from Mr Puddy to the appellant commenting on the BOB financials the appellant had provided to him earlier that day (exhibit 227) as well as evidence from Mr Leone and Ms Miller, a NAB employee who worked with Mr Leone on the BOB matter.
Seventh, it was not in Mr Puddy's best financial interests to give up on the appellant because he could bring a purchase price for BOB that was greater than its market value. That proposition is clearly contestable on the objective facts. In any event, the focus at trial was on Mr Puddy's state of mind.
Eighth, Mr Puddy had told his accountant that he was concerned that the appellant was responsible for money going missing from the BOB business and that he was going around to have it out with the appellant. Mr Puddy, in company with his friend Paul Kelly, went to BOB on 29 April 2010 and met with the appellant but there was no explosive confrontation with the appellant on the subject.
Ninth, the BOB business was in financial difficulty long before the appellant was involved in it and therefore there was no logical basis for Mr Puddy to blame the appellant's management of the business.
Tenth, any loss suffered by Mr Puddy arising out of his investment in the BOB business could be offset by capital gains on the sale of his other business. It is correct that Mr Puddy proposed to use his losses from the sale of his interest in BOB to offset his capital gains tax liability, although the extent of the offset is not clear. Mr Puddy's capital contributions to BOB were in the order of $750,000 and he was the guarantor of the NAB loan. Mr Puddy told Justin Nixon that it did not matter if he lost $750,000 but he did not want to lose $1.4 million (ts 721).
Eleventh, the appellant had nothing to gain from Mr Puddy's death. However, he also had much to lose, including his clients' funds, if Mr Puddy was to withdraw his financial support for the BOB business.
Finally, it is said by the appellant that he (and Mr Puddy) had no history of violence. There was no evidence adduced at trial of violent conduct on the part of the appellant. However, the reason for that was explained by the prosecutor (ts 3661 ‑ 3662). There was evidence to that effect in the prosecution brief which was treated as inadmissible propensity evidence. This led to the trial judge addressing the matter in his summing up. See Mansell No 2 [23] ‑ [24].
Based on those matters, the appellant contends that there is no factual basis for a conclusion that Mr Puddy felt animosity towards the appellant or would act in a volatile fashion towards him and vice versa. The contention is not correct.
The appellant is selective in his identification of the relevant evidence as to the circumstances underpinning the prosecution case that by 3 May 2010 there was significant animosity and volatility in the relationship between the appellant and Mr Puddy. Moreover, hostility and volatility is not conducive to participants acting in a rational and controlled fashion.

The prosecution case on motive was part of a broader tapestry of circumstances relied on to establish guilt.

The assault on Mr Puddy and the aftermath

The appellant contends that the expert evidence did not eliminate the real possibility of other unidentified persons being present at Mr Puddy's house on the night of 3 May 2010. This relates to the shoeprint evidence and the DNA evidence.
Mr Puddy's house was cleaned on the Wednesday before he was murdered. There were four sets of unidentified footprints in Mr Puddy's house. Two sets were in the ground floor kitchen/lounge/foyer area, one set in the gym and one set on the stairs. Two of the four sets of footprints must have belonged to Mr Puddy and the appellant. They could not be identified because the police were not in possession of the shoes worn on the night of 3 May 2010 by either man. There was evidence from Detective Stephen that the appellant had admitted destroying the clothing he was wearing on the night of 3 May 2010 (ts 3383).
The presence of two unidentified shoe prints does not support the appellant's evidence that there were three men, in addition to Mr Puddy and the appellant, in the kitchen/lounge/foyer area of Mr Puddy's house.
The appellant also relies on the fact that a wicker laundry basket was missing from the upstairs bathroom. There was no shoeprint evidence that the appellant had gone upstairs. However, there was no shoeprint evidence of the appellant's presence because the shoes he was wearing on that night were not available. In any event, as Mr Puddy had been packing his household contents on the day in question, it was a possibility that Mr Puddy may have taken the wicker basket downstairs.
The appellant also claims that three unidentified male DNA profiles were recovered from Mr Puddy's home. That is incorrect. There were three unknown DNA profiles in total, one on a cigarette butt on the road outside Mr Puddy's house, one on a bicycle available for hire from Scarborough Beach Cycles and one in a bathroom at Mr Puddy's house (exhibit 165 pp 24, 28, 34; evidence of Mr L Webb ts 2525, 2540 and 2530).
The appellant also addressed the fingerprint evidence on the recycling bin. The defence case at trial was that the fingerprint was deposited on 29 April 2010 when the appellant lifted the lid of the recycling bin after having eaten a pork roll. The defence also called Mr Glenn Cook from the Bureau of Meteorology who gave evidence of considerable rainfall on three dates between 3 May 2010 and 30 May 2010 when the recycling bin was discovered. The defence case at trial was that fingerprints do not persist for a lengthy period in the elements, in support of a suggestion that the recycling bin was placed where it was found some time after 9 May or 12 May 2010 (ts 3620 ‑ 3621).
The fingerprint expert gave evidence that, if exposed, fingerprints can deteriorate but could not be specific about how long that would take. Further, there were trees and vegetation in the location where the recycling bin was found (exhibit 55B ‑ G). Thus, the extent to which rain fell on the lid of the recycling bin could not be determined (ts 3432).
The final matter relates to the DNA evidence on the appellant's tea towel in which Mr Puddy's wallet and car keys were wrapped. The appellant contends that the DNA evidence showed that Mr Puddy's mother, Denise Wood, had handled the tea towel. That submission reflects a misunderstanding of the expert report and evidence. The evidence was that there was insufficient DNA recovered to draw a conclusion about whether Mr Puddy's mother (and other nominated individuals) had contributed to the mixture (ts 2532). That is, Ms Wood could neither be included nor excluded as a contributor to the DNA on the tea towel.

Statements made by appellant

The essence of the appellant's contention is that it was not open to the jury to positively reject the version of events on the night of 3 May 2010 given by him to Ms De Jager, Mr Rogers and his aunt and uncle. He relies primarily upon the following matters.
First, Mr Puddy's significant drug use and his association with persons who were subsequently convicted and imprisoned for drug dealing (Witness X and Mr Cranwell). A close friend of Mr Puddy was a nominee of an outlaw motor cycle gang and also supplied him with drugs. In addition, the first manager of BOB, Chris Billington, was also convicted of, and imprisoned for, drug dealing.
Secondly, Witness X gave evidence that on one occasion when he was at Mr Puddy's house, three undesirable characters involved in drug dealing turned up (ts 2633). Witness X explained in re‑examination that this occurred in early 2007 and that what he meant by undesirables was 'people from Balga … the just wannabies … that's what they do for their living … undesirables you wouldn't let in the suburb of Mount Pleasant, let alone into Craig Puddy's house' (ts 2639).
Thirdly, on the subject of Mr Puddy's financial liquidity with which to pay debts, the appellant relies on the evidence of Alex Morton, a plumber who was owed around $60,000 for services provided to BOB. In the context of Mr Puddy paying that debt, he indicated to Mr Morton that he had some financial difficulties due to his move to Sydney.
The respondent counters with the fact that Mr Puddy was not personally liable for BOB's debts and in any event there was evidence from Mr Puddy's accountant that he was able to pay $193,000 in expenses after Mr Puddy's death. Further, the only evidence of the existence of a drug debt was from the appellant. Others with knowledge of Mr Puddy's drug use gave evidence that he always paid for drugs in cash and often in advance.
Finally, the appellant contends that the prosecution case that he had fabricated his version of events in order to exculpate himself was somehow inconsistent with the onus of proof in a criminal trial. It is not. See Mule v The Queen [2005] HCA 49 [22].
The appellant also claims that the discrepancies in the evidence of the State witnesses as to what they had been told by the appellant were to be expected and could not reasonably be held against his credibility. He also claims there should have been a direction or warning from the trial judge because of a risk that the jury would place too much weight on the discrepancies.
The weight to be given to the evidence of discrepancies is a matter within the province of the jury and is not such as to require any direction or warning from the trial judge. Moreover, the trial judge clearly put the defence case on the subject:
It is put to you on behalf of [the appellant] that, of course, there are some inconsistencies and variations, but by and large, it is put to you that the account that he gave to others after the event was a generally consistent story and you may think there's something in that. It's a proposition which needs careful consideration (ts 3729).
In his summing up, the trial judge repeatedly stressed (including at ts 3693 ‑ 3695, 3728 ‑ 3730, 3742) that the jury could not be satisfied beyond reasonable doubt that the appellant killed Mr Puddy unless they positively rejected the appellant's version of events given to the four witnesses who gave evidence on the subject. There can be no doubt that the jury positively rejected the appellant's evidence.

Post-event conduct

Under this heading, the appellant deals with the text messages on Mr Puddy's mobile phones, his destruction of the Jeep, the dumping of the recycling bin and his conduct on 9 May 2010.
The appellant provides detailed submissions as to why it must have been Mr Puddy who sent the 10.16 pm text message and composed the second message on the old phone. In broad terms he submits that he did not have knowledge of what had transpired between Mr Puddy and Mr Veza earlier on 3 May 2010; that such knowledge was required in order to compose the 10.16 pm text message; and the person who wrote that text message must have written the message on the old phone. The appellant seeks to support his claim that Mr Puddy wrote the text messages by speculating as to possible explanations about which there was no evidence at trial.
In fact, the evidence at trial was that the statements in the text messages as to the sale of and payment for the boat had no foundation in fact. Moreover, there was no positive evidence of what the appellant knew. In any event, knowledge of what had transpired between Mr Puddy and Mr Veza on 3 May 2010 was not required to compose the text messages. Finally, the evidence has to be seen in the broader context of the appellant's conduct in relation to the boat papers and all of the circumstances of the case as a whole.
As to the Jeep, the appellant states in his written submissions that torching the Jeep was agreed as a condition of his release by the assailants due to a satellite positioning computer and potential physical evidence (Mr Puddy's blood on the vehicle). The appellant submits that it is a reasonable hypothesis consistent with innocence that he kept his commitment to torch the Jeep because of duress caused by the threat to himself and his family from the assailants. The submission is without merit. There was no evidence at trial of any such agreement with or commitment to his alleged assailants. The balance of the submission may be accepted as an admission against interest.
Avoiding the dangerous assailants was also relied on by the appellant as a reasonable hypothesis consistent with his innocence to explain his odd conduct on 9 May 2010. Even when looked at in isolation, the appellant's conduct on 9 May 2010 has no objective connection with that hypothesis.
The appellant contends that the prosecution case that he dumped the recycling bin on 4 May 2010 defied logic, there being no sign that the Jeep had travelled on dirt roads. It is the case that photographs of the Jeep at Joondalup on 4 May 2010 do not show dust or dirt. There may be a number of explanations for that.
Finally, and notwithstanding that his aunt's evidence on the subject of the false driver's licence was not challenged at trial, the appellant claimed in the appeal that she had given false evidence (ts 170). The appellant also sought to give an innocent explanation for leaving his relatives' house to camp in the bush (ts 170 ‑ 171).

Consciousness of guilt

The appellant contends in effect that his one‑way flight to Adelaide (under a false name), his travel to Queensland, the deception involved in creating a false identity and his request to his brother to speak to his uncle and aunt about not giving statements to police could not be relied upon as evidence of consciousness of guilt. As to the latter, his submission (in fact, evidence) is to the effect that he did not expect the people to whom he had confided about what had happened on the night of 3 May 2010 to tell police because that would be putting the appellant and his family at risk from harm from the three assailants. It was open to the jury to find that the appellant's post‑offence conduct supported the prosecution case.

Analysis

The prosecution case against the appellant was truly compelling. It was open to the jury, as a matter of law and fact, to be satisfied beyond reasonable doubt that the appellant killed Mr Puddy on or about 3 May 2010 at Mr Puddy's home. I am satisfied on the whole of the evidence that the only reasonable inference is that the appellant is guilty of the crime of which he has been convicted.
In his submissions in the appeal, the appellant focuses attention on parts of the evidence in a piecemeal way. The strength of the case against the appellant derives from the circumstances as a whole.
The jury positively rejected the appellant's unsworn exculpatory evidence. It was clearly entitled to do so. The balance of the evidence compels the conclusion that the appellant murdered Mr Puddy.
The starting point is that, by his own admission: the appellant was present at Mr Puddy's house when Mr Puddy was seriously assaulted; he cleaned up Mr Puddy's blood in the house; he had Mr Puddy's blood on him when he left Mr Puddy's house in his Jeep; and he destroyed his Jeep to get rid of evidence linking the vehicle to those events.
In addition, there was a very significant body of evidence at trial that was inconsistent with, or undermined, the unsworn exculpatory evidence of the appellant and inculpated him in the murder of Mr Puddy.
First, Mr Puddy's body was placed in the recycling bin which was taken from his house on the night of 3 May or in the early hours of 4 May 2010.
Second, the fact and location of the appellant's fingerprint on the lid of the recycling bin that had contained Mr Puddy's body.
Third, Mr Puddy's wallet and keys were wrapped in a tea towel belonging to the appellant and placed in a bin near the main access route between the appellant's unit in Claremont and the BOB premises in Nedlands.
Fourth, after the murder the appellant was in possession of keys to Mr Puddy's house. Two were in the appellant's Jeep which he destroyed by fire and one was placed by him beneath the airconditioning vent in the room he occupied at Observation City on the night after the murder.
Fifth, the inference from the appellant's conduct on 9 May 2010, in particular the path travelled by him on his motor bike, is that he was looking for something in the area in which the recycling bin, which had contained Mr Puddy's body, was subsequently located. The importance of the evidence was highlighted by the trial judge in his summing up:
It would seem to be evidence which would be inconsistent with the account which he previously gives, which doesn't have in it any element of consciousness that Mr Puddy was taken away from the house in the yellow bin and it may be a matter which indicates that his connection with the yellow bin at a time when Mr Puddy was in it, is rather more sinister than otherwise would appear to be the case.
So that's the sort of consideration which is required of you, it would seem to me, in relation to this area of the evidence and the question really is whether this is a piece of circumstantial evidence which leads you to a view of the case which is inconsistent with the maintenance of an innocent account or not (ts 3726).
Sixth, there is no independent evidence, forensic or otherwise, that supported, or arguably tended to support, the appellant's claim that three unknown assailants were present, and inflicted life threatening injuries on Mr Puddy, at his home on 3 May 2010.
Seventh, the inconsistencies in the appellant's versions of what occurred are significant. Of particular significance is the inconsistency relating to the number of assailants who accompanied the appellant and Mr Puddy. What the appellant told Mr and Mrs Mansell was significantly different and went further than his previous versions. The differences are capable of explaining the appellant's attempt to divert his relatives from giving evidence against him. Moreover, the appellant's versions were given before the recycling bin was located.
Eighth, the evidence about the dark coloured 4 WD seen in the vicinity of Mr Puddy's home in the early hours of 4 May 2010 (the appellant at that time having had a black Jeep Cherokee 4 WD vehicle).
Ninth, the evidence that by the evening of 3 May 2010 Mr Puddy mistrusted the appellant and the relationship between the men was tainted by mutual animosity and frustration.
Finally, the fact and content of the text messages are, on the State case, positively inconsistent with the appellant's unsworn exculpatory evidence.
It also stretches credulity that an unknown assailant or assailants who had caused life threatening injuries to Mr Puddy would travel as passenger(s) in the appellant's Jeep and then leave him to his own devices. The appellant's submission in the appeal that he torched his Jeep in order to destroy inculpatory evidence pursuant to an agreement with the assailants formed no part of the appellant's version of events to the various witnesses.
Having regard to the evidence as a whole, the jury could safely conclude that the appellant's post‑event conduct, including destroying the Jeep and his flight from Western Australia, reflected a consciousness of guilt.
Having considered all the relevant evidence adduced at trial, I am satisfied that the evidence does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. Grounds 1 and 7 do not have a reasonable prospect of success. Accordingly, I would refuse leave to appeal and dismiss the appeal. The application for bail must also be dismissed.

POSTSCRIPT

After the hearing of the appeal and the preparation of these reasons, the applications kept coming. One application dated 16 March 2013 was filed on 26 April 2013. Applications dated 16 March 2013 (two), 18 April 2013 and 22 April 2013 were filed on 30 April 2013. An application dated 30 April 2013 was filed on 9 May 2013.
In the application dated 16 March 2013 filed on 26 April 2013 the appellant submits further documents in support of his application for bail.
By a further application dated 16 March 2013 filed on 30 April 2013 the appellant seeks to rely on yet another version of the document titled 'The case'. The appellant has had more than an ample opportunity to make written and oral submissions in support of his case.
The third application dated 16 March 2013, also filed on 30 April 2013, is for the handwriting expert at trial to give his opinion on the handwriting on the boat transfer documents to confirm the handwriting on the documents is that of Mr Puddy. That is consistent with the evidence already given at trial.
The application dated 18 April 2013 is to have the DNA expert who gave evidence at trial calibrate the random match probability of the DNA profiles of Denise Wood, Laurie Puddy, and Warren Morrison found on the appellant's tea towel. As already noted, the appellant misunderstands the effect of the DNA evidence.
The application dated 22 April 2013 seeks the admission of yet another statement from Katherine Young. Once again she states that 'in or around September 2011' she was asked by the appellant to undertake work in relation to 'a trial he was involved in'. This statement relates to an interview with Mr Ralston. It adds nothing of significance to the evidence at trial. The appellant also seeks to adduce more running sheets, an ageing summary of creditors of BOB and a document summarising TV news articles relating to the appellant. The appellant has not provided an explanation (let alone a satisfactory explanation) for the failure to adduce the additional evidence at the trial.

The application dated 30 April 2013 seeks to rely on yet more submissions about the evidence given and not given at trial.
In any event, none of the material is capable of affecting the outcome of the appeal or provides a reasonably arguable basis for widening the grounds of appeal. The applications must be dismissed.
BUSS JA: I agree with McLure P, for the reasons she gives, that:
(a)the numerous applications by the appellant, which are referred to by her Honour, should be dismissed; and
(b)the appeal should be dismissed.
I note, specifically, that on my examination of the trial record, it was open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt. A jury, acting reasonably, was not precluded by the state of the evidence from being satisfied to the requisite standard that the appellant murdered Mr Puddy. The jury had the very significant advantage of seeing and hearing the witnesses. The evidence does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. I do not have such a doubt. The jury's verdict was not unreasonable. It is supported by evidence that the jury was entitled to accept.
MAZZA JA: I agree with McLure P.