Marchesano v The State of Western Australia

[2017] WASCA 177

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MARCHESANO -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 177

CORAM:   BUSS P

MAZZA JA
MITCHELL JA

HEARD:   10 APRIL 2017

DELIVERED          :   29 SEPTEMBER 2017

FILE NO/S:   CACR 16 of 2016

CACR 17 of 2016

BETWEEN:   DANIEL MICHAEL MARCHESANO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MARTINO J

File No  :INS 255 of 2014

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of one count of murder - The proper construction of the defence of duress in s 32 of the Criminal Code (WA) - Whether the trial judge erred by not directing the jury on the defence of duress - Whether the appellant had discharged the evidential burden in relation to the defence - Whether the trial judge misdirected the jury on criminal liability for enabling or aiding under s 7(b) or s 7(c) of the Code

Criminal law - Appeal against sentence - Appellant sentenced to life imprisonment with a minimum non-parole period of 23 years - Appellant aged 18 at the time of the offending - Whether the minimum non-parole period was manifestly excessive

Legislation:

Criminal Code (WA), s 1, s 2, s 7, s 32, s 279

Result:

CACR 16 of 2016
Leave to appeal on ground 2 refused
Appeal against conviction dismissed

CACR 17 of 2016
Leave to appeal refused
Appeal against sentence dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr S Vandongen SC

Respondent:     Mr R G Wilson

Solicitors:

Appellant:     Terry Dobson Legal

Respondent:     Director of Public Prosecutions (WA)

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

Ainsworth v D (a child) (1992) 7 WAR 102

Ajayi v The Queen [2012] WASCA 126; (2012) 263 FLR 465

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437

Angliss v The State of Western Australia [2015] WASCA 8

Atherden v The State of Western Australia [2010] WASCA 33

Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87

Austic v The State of Western Australia [2010] WASCA 110

BG v The State of Western Australia [2005] WASCA 45; (2005) 152 A Crim R 207

Bomford v The State of Western Australia [2014] WASCA 43

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Brennan v The King [1936] HCA 24; (1936) 55 CLR 253

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525

Butler v The State of Western Australia [2010] WASCA 104

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Cockram v The State of Western Australia [2011] WASCA 179

Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Corbett v The State of Western Australia [2016] WASCA 97

Crossland v The State of Western Australia [2016] WASCA 93

de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

Director of Public Prosecutions (Vic) v Parker (A Pseudonym) [2016] VSCA 101

Egitmen v The State of Western Australia [2016] WASCA 214

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166

George v Rockett (1990) 170 CLR 104

Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328

Johnston v The State of Western Australia [2012] WASCA 18

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Khan v The State of Western Australia [2013] WASCA 193

Kia v The Queen [2011] WASCA 104

L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545

Lau v The State of Western Australia [2017] WASCA 16

Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272

Liyanage v The State of Western Australia [2017] WASCA 112

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mack v The State of Western Australia [2014] WASCA 207

McIntosh v The State of Western Australia [2017] WASCA 45

Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194

Mirzazadeh v The Queen [2016] NSWCCA 65; (2016) 312 FLR 1

Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325

Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529

Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619

O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997)

Pedersen v The State of Western Australia [2010] WASCA 175

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

Pickering v The Queen [2017] HCA 17; (2017) 91 ALJR 590

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

Prestidge v The State of Western Australia [2014] WASCA 16

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Quartermaine v The State of Western Australia [2008] WASCA 22; (2008) 36 WAR 384

R v Abusafiah (1991) 24 NSWLR 531

R v Beck [1990] 1 Qd R 30

R v Graham [1982] 1 WLR 294

R v Howe [1987] AC 417

R v Hudson [1971] 2 QB 202

R v Hurley [1967] VR 526

R v Jeffrey [2003] 2 Qd R 306

R v Oblach (2005) 65 NSWLR 75

R v Pascoe (Unreported, QCA, Library No CA 242 of 1997, 19 December 1997)

R v Rogers (1996) 86 A Crim R 542

R v Solomon [1959] Qd R 123

R v Z [2005] UKHL 22; [2005] 2 AC 467

Ritchie v The State of Western Australia [2016] WASCA 134

Rosewood v The State of Western Australia [2014] WASCA 21

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Scafetta v The State of Western Australia [2010] WASCA 209

Silva v The State of Western Australia [2013] WASCA 278

Smith v The State of Western Australia [2010] WASCA 205 (2010) 204 A Crim R 280

Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312

Stinson v The State of Western Australia [2014] WASCA 72

Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426

Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95

Taylor v The State of Western Australia [2016] WASCA 210

The State of Western Australia v Bropho [2013] WASCA 44

The State of Western Australia v Churchill [2015] WASCA 257

The State of Western Australia v Lee [2013] WASCA 246

The State of Western Australia v O'Kane [2011] WASCA 24

The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285

The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468

The State of Western Australia v Stoeski [2016] WASCA 16

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115

Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

Zwerus v The State of Western Australia [2015] WASCA 174

Table of Contents

Buss P's reasons........................................................................................................................ 8
Overview of the State's case at the trial
Overview of the appellant's case at the trial
The evidence relied on by the State at the trial
The appellant's attempt at the trial to rely on the defence of duress under s 32 of the Code
Appeal against conviction:  the grounds of appeal
Appeal against conviction:  ground 1:  s 32 of the Code
Appeal against conviction:  ground 1:  the trial judge's reasons for refusing to leave duress to the jury
Appeal against conviction:  ground 1:  the evidence at the trial relied on by the appellant in support of the allegation that duress should have been left to the jury

26 October 2013 at 126 Pickering Brook Road:  prior to the deceased's death

At Mr Mansfield's parents' address
In the shed at 126 Pickering Brook Road when Mr Mansfield was in possession of the rifle
The appellant's perception of Mr Mansfield at this time
After Mr Mansfield had driven to Scene 1

26 October 2013:  when the appellant was at Scene 1 with Mr Mansfield after the shooting
26 October 2013 at 126 Pickering Brook Road:  after the deceased's death
About 10 days after 26 October 2013:  the night the deceased was buried
15 December 2013:  at Canning Mills Road
The appellant's prior knowledge of Mr Mansfield's violent disposition

The evidence of Ms Smillie
The evidence of Mr Gillmore

The appellant's explanation for not seeking help from police
The appellant's reasons, apparent from the circumstances, for not seeking police assistance

Appeal against conviction:  ground 1:  the appellant's submissions
Appeal against conviction:  ground 1:  the evidential burden on an accused in relation to a defence
Appeal against conviction:  ground 1:  aspects of the proper construction of s 32 of the Code
Appeal against conviction:  ground 1:  its merits
Appeal against conviction:  ground 2:  the appellant's submissions
Appeal against conviction:  ground 2:  its merits
Appeal against conviction:  ground 3:  the appellant's submissions
Appeal against conviction:  ground 3:  its merits
Appeal against conviction:  conclusion
Appeal against sentence:  the ground of appeal
Appeal against sentence:  the facts and circumstances of the offending and the appellant's personal circumstances
Appeal against sentence:  the appellant's submissions
Appeal against sentence:  its merits
Appeal against sentence:  conclusion
Mazza JA's reasons................................................................................................................. 59
Mitchell JA's reasons.............................................................................................................. 59

Summary
Ground of appeal 1: direction as to duress.

The appellant's evidentiary onus and the State's burden of proof
Circumstances as the appellant believed them to be
Trial judge's approach
Opportunity to seek assistance and reasonableness of the response
The role of the judge and jury in evaluating reasonableness

Duress and the offence of murder

Disposition

Ground of appeal 2: cross-examination of police officers
Ground of appeal 3: direction about aiding
Appeal against sentence

Orders

Appeal against conviction (CACR 16 of 2016)
Appeal against sentence (CACR 17 of 2016):

1. BUSS P:  The appellant appeals against conviction and sentence. 

2. The appellant and Ben Michael Mansfield were jointly charged on indictment with one count of murder contrary to s 279 of the Criminal Code (WA) (the Code).

3. The count alleged that on 26 October 2013, at Pickering Brook, the appellant and Mr Mansfield murdered Michael Paul Pruiti (the deceased).

4. The appellant and Mr Mansfield pleaded not guilty to the charge.

5. Between 19 October 2015 and 12 November 2015, the appellant and Mr Mansfield were tried in the Supreme Court before Martino J and a jury.

6. On 12 November 2015, the jury delivered unanimous verdicts of guilty in respect of both the appellant and Mr Mansfield.  His Honour entered judgments of conviction.

7. On 13 January 2016, the appellant was sentenced to life imprisonment with a minimum non‑parole period of 23 years.  The sentence was backdated to 18 December 2013.

8. I would dismiss the appeal against conviction and the appeal against sentence.  My reasons are as follows.

Overview of the State's case at the trial

1. The State's case was that the appellant and Mr Mansfield agreed to kill the deceased.  Pursuant to the agreement, the appellant accompanied and guided the deceased, in the deceased's car, from the appellant's house at 126 Pickering Brook Road to an isolated bush site (Scene 1) in Pickering Brook on the pretext that they would collect some stolen chainsaws.  However, by prior arrangement between the appellant and Mr Mansfield, Mr Mansfield was at Scene 1 armed with a loaded rifle.

2. A scale map of Pickering Brook and surrounding areas (exhibit 11) was tendered by the prosecutor through Detective Sergeant Christopher Turner.  The map and Detective Turner's evidence (ts 649 ‑ 650) established that the distance, by road, between 126 Pickering Brook Road and Scene 1 is about 3 km to 4 km.  The road is partly bitumen and partly gravel.  The route from 126 Pickering Brook Road to Scene 1 involves travelling along Pickering Brook Road, Davey Road, Carinyah Road and Westons Road.  Scene 1 is adjacent to Westons Road.

3. When the appellant and the deceased arrived at Scene 1 Mr Mansfield killed the deceased by shooting him once in the head.

4. After the shooting, the appellant and Mr Mansfield dumped the deceased's body at a bush location about 3 km from Scene 1.  About 10 days later, the appellant and Mr Mansfield, together with another man, Christian Gillmore, moved the deceased's body to a bush grave a few kilometres further away.

5. About six weeks later the deceased's body was found.  The police carried out investigations.  The appellant and Mr Mansfield were arrested and charged with the deceased's murder.

6. On 18 December 2013, being the day of his arrest, the appellant participated in electronically recorded interviews with police.

7. During the initial interviews the appellant denied any involvement in the killing.  He claimed that he had last seen the deceased during the week before the deceased was killed.  However, in later interviews the appellant admitted that he had accompanied and guided the deceased, in the deceased's car, to Scene 1 on the pretext that they would collect stolen chainsaws and in the knowledge that Mr Mansfield was at Scene 1, armed with a loaded rifle, and had said he intended to shoot and kill the deceased.  Further, the appellant admitted being involved in moving the deceased's body twice and, also, being involved in destroying the deceased's car.

8. During the later interviews the appellant told the police that the only reason he had participated in the deceased's killing was because Mr Mansfield had threatened to kill him, his mother and his sister.  The appellant said that everything he had done, including assisting in moving the deceased's body, was done because Mr Mansfield had threatened either him or members of his family.

9. The prosecutor informed the jury, at the conclusion of her opening address and in anticipation that the appellant would rely on the defence of duress under s 32 of the Code, that 'if any excuse [is] available the State says that this [is not] a case where it is open because [the appellant's] actions were simply not reasonable' (ts 196).

Overview of the appellant's case at the trial

1. At the trial the appellant's counsel (who was not his counsel in the appeal) made an opening statement. 

2. Counsel told the jury that in October 2013 the appellant was living with his mother and sister at a semi‑rural property in Pickering Brook.  The appellant knew the deceased and, also, Mr Mansfield.  The appellant had met Mr Mansfield through his (the appellant's) father.  The three men lived in the same area and were involved in the use of illicit drugs.

3. The appellant's counsel said that the appellant was much younger than Mr Mansfield.  The appellant was aged 18 years when the deceased was killed.

4. Counsel told the jury that before the deceased was killed the appellant was aware that Mr Mansfield had previously used violence and had previously behaved in a threatening manner.

5. The appellant's counsel said the appellant took 'little issue' with the State's case about what he had done on the night before the deceased was killed or about what had occurred on the following day in the lead up to Mr Mansfield, the appellant and Ms Smillie arriving at the appellant's house before the killing (ts 202).  Counsel also said the appellant accepted that it was the appellant's communication with the deceased that resulted in the deceased coming to Pickering Brook during the afternoon of 26 October 2013.

6. However, according to his counsel, the appellant arranged for the deceased to come to Pickering Brook because Mr Mansfield had threatened to kill him and his mother and sister, and when the threat was made Mr Mansfield was armed with a loaded rifle.  Counsel elaborated:

   Terrified that the older man would put his threats into action and aware of what this man was capable of and for those reasons alone, [the appellant] became a very reluctant and very frightened participant in [Mr Mansfield's] plans to kill [the deceased] (ts 203).

7. Later, the appellant's counsel referred to the defence of duress under s 32 of the Code and said:

   [T]here is clear and compelling evidence that [the appellant] was forced to do what he did by the threatening and intimidating behaviour [of] a man who he knew had committed acts of violence in the past (ts 206).

The evidence relied on by the State at the trial

1. The State's case against the appellant was based primarily on admissions he made during his electronically recorded interviews with police on 18 December 2013. 

2. During the interviews the appellant claimed that:

   (a)The appellant had been drinking with Mr Mansfield.

   (b)The appellant, Mr Mansfield and a friend of the appellant's, Tessa Smillie, travelled to the appellant's house, at 126 Pickering Brook Road, in Ms Smillie's car.

   (c)On the way to the appellant's house, they stopped at Mr Mansfield's parents' house.  Mr Mansfield collected a wooden box from the house which he put on the back seat of the car.  The box contained a gun.

   (d)At the appellant's house, Mr Mansfield said that he was going to kill the deceased.  Mr Mansfield instructed the appellant to arrange for the deceased to come to the appellant's house.

   (e)When the appellant refused, Mr Mansfield said the appellant had no choice and if he did not comply Mr Mansfield would kill him and his mother and sister.

   (f)Soon after that conversation, the deceased telephoned the appellant.  The appellant invited the deceased to 'come catch up for a sesh'.

   (g)Mr Mansfield instructed the appellant that, when the deceased arrived, the appellant must tell the deceased that he had some chainsaws in the bush which the deceased could sell.

   (h)When they heard the deceased's car approaching, Mr Mansfield departed in Ms Smillie's car in order to hide in the bush.

   (i)When the deceased arrived, the appellant told him the pre‑arranged story about the chainsaws.  The appellant and the deceased then went to Scene 1 in the deceased's car.  The deceased drove in accordance with the appellant's directions.  When the appellant saw Ms Smillie's car he instructed the deceased to stop and park.

   (j)The appellant alighted from the deceased's car and walked away calling out 'Tessa'.

   (k)The appellant heard a gunshot.

   (l)The appellant had intended to hide in the bush.  However, he was intercepted by Mr Mansfield who instructed him to return to Ms Smillie's car.

   (m)When he returned, the appellant found the deceased's body on the back seat of the deceased's car.

   (n)Mr Mansfield drove Ms Smillie's car to another location in the bush. Mr Mansfield had instructed the appellant to drive the deceased's car and follow him.  The appellant did so.

   (o)The appellant assisted Mr Mansfield to dig a hole at the other bush location.  The deceased's body was placed in the hole.  Mr Mansfield covered the body with branches and leaves.

   (p)The appellant drove the deceased's car and Mr Mansfield drove Ms Smillie's car to the appellant's house.

   (q)When they arrived at the appellant's house, the appellant burnt his clothes as directed by Mr Mansfield.  Mr Mansfield burnt his own clothes.  The appellant, Mr Mansfield and Ms Smillie were present when the clothes were burnt.

   (r)The next day, the appellant and Ms Smillie accompanied Mr Mansfield to Bartons Mill.  Mr Mansfield drove the deceased's car.  The appellant and Ms Smillie travelled in another car.  When they arrived at Bartons Mill, Mr Mansfield poured fuel into the deceased's car and set it alight.  The appellant and Ms Smillie gave Mr Mansfield a lift to his home.

   (s)About a week later, the appellant and Mr Gillmore accompanied Mr Mansfield to the place where the deceased's body had been dumped.  They moved the body to another location where it was burnt and buried.

1. In one of the interviews, Detective Sergeant Paul Thornton asked the appellant, on two occasions, why he took the deceased to Scene 1, even though he had been told by Mr Mansfield that the deceased would be killed.  The appellant explained, on each occasion, that he did not think that Mr Mansfield would actually kill the deceased.

2. The appellant elected not to give evidence or adduce any evidence at the trial (ts 1215).

3. Ms Smillie was a State witness at the trial.  She corroborated in some respects the appellant's version of events in his interviews.  In particular, Ms Smillie gave evidence that:

   (a)She and the appellant met with Mr Mansfield during the morning of the day on which the deceased was killed.

   (b)Mr Mansfield drove her car to an address which she believed was his parents' house.  The appellant and Ms Smillie were passengers.  Mr Mansfield parked the car and retrieved from the house a long wooden box which he placed in the car.  Mr Mansfield then drove to the appellant's house.

   (c)In the appellant's bedroom at his house, the appellant told her it was either she and the appellant, or the deceased, who would have to die.

   (d)When she went into the carport she saw that the long wooden box contained a rifle with a telescope.

   (e)Later, she saw Mr Mansfield drive her car away from the appellant's house.  Shortly afterwards, she saw the deceased's car arrive.  The appellant got into the deceased's car and they drove away.

   (f)The appellant had told her that he and Mr Mansfield had arranged to meet the deceased in the bush.  The appellant said they had told the deceased that they were meeting her in the bush so the deceased would not 'freak out' when he saw them.

   (g)About an hour later, she saw the appellant and Mr Mansfield return to the appellant's house in different vehicles.  A 'tarp' was placed over the deceased's vehicle.

   (h)She saw the appellant and Mr Mansfield place the clothes that they had been wearing and parts of the rifle into a fire.  The remaining parts of the rifle were taken away by Mr Mansfield's friend, Mr Gillmore.

   (i)A day or two later, she accompanied the appellant in the deceased's vehicle to Bartons Mill.  They were followed by Mr Mansfield who was driving Chloe Marchesano's (the appellant's sister's) car.  When they arrived at Bartons Mill Mr Mansfield used fuel to set fire to the deceased's vehicle.

   (j)On another occasion she accompanied the appellant and Mr Mansfield to a place where she saw the appellant pull out 'the top of [the deceased's] head'.  She suggested that they pour acid on the body.

The appellant's attempt at the trial to rely on the defence of duress under s 32 of the Code

1. The appellant's counsel attempted in cross‑examination of Detective Senior Constable Tracey Howell, who was an investigating police officer, to elicit evidence of the measures which the police could have taken to protect the appellant and his family from Mr Mansfield's threat had the appellant informed the police of the threat before he accompanied and guided the deceased to Scene 1, where Mr Mansfield was waiting (ts 970).

2. However, his Honour ruled that the evidence sought to be elicited by counsel was irrelevant and, accordingly, Detective Howell could not be cross‑examined on the point.

3. After all of the evidence had been adduced, but before the commencement of the closing addresses, the trial judge heard submissions as to whether he should direct the jury to consider whether the State had proved beyond reasonable doubt that the appellant was not acting under duress, within s 32 of the Code, when he accompanied and guided the deceased to Scene 1 in the knowledge that Mr Mansfield was at Scene 1, armed with a loaded rifle, and had said he intended to shoot and kill the deceased (ts 1270 ‑ 1283).

4. His Honour decided that the appellant had not satisfied the evidential burden and, accordingly, duress should not be left to the jury (ts 1283).

Appeal against conviction:  the grounds of appeal

1. The appellant relies on three grounds of appeal. 

2. Ground 1 alleges that the trial judge made a wrong decision on a question of law by erroneously concluding that, on the basis of the evidence that had been adduced at the appellant's trial taken at its highest, duress should not be left to the jury.

3. Ground 2 alleges that his Honour made a wrong decision on a question of law by erroneously ruling that the appellant's counsel should not be permitted to cross‑examine Detective Howell as to the measures that police would have been able to take to guarantee the safety of the appellant and his family if he had informed the police of Mr Mansfield's plan to kill the deceased rather than accompanying and guiding the deceased to Scene 1, where Mr Mansfield was waiting.

4. Ground 3 alleges that his Honour made a wrong decision on a question of law by erroneously failing to direct the jury that in order to find the appellant guilty of murder, on the basis that he aided a person (namely Mr Mansfield) to murder the deceased, the jury had to be satisfied that at the relevant time the appellant did or omitted to do something with the intention of aiding in the doing of the acts which constituted that offence; alternatively, that his Honour's failure to direct the jury in that manner occasioned a miscarriage of justice.

5. On 11 June 2016, Mazza JA granted leave to appeal on grounds 1 and 3 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.

Appeal against conviction:  ground 1:  s 32 of the Code

1. Section 32 of the Code provides:

   (1)A person is not criminally responsible for an act done, or an omission made, under duress under subsection (2).

   (2)A person does an act or makes an omission under duress if ‑ 

   (a)the person believes ‑ 

   (i)a threat has been made; and

   (ii)the threat will be carried out unless an offence is committed; and

   (iii)doing the act or making the omission is necessary to prevent the threat from being carried out;

   and

   (b)the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be; and

   (c)there are reasonable grounds for those beliefs.

   (3)Subsections (1) and (2) do not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of ‑ 

   (a)doing an act or making an omission of the kind in fact done or made by the person under duress; or

   (b)prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.

2. The term 'criminally responsible', referred to in s 32(1), is defined in s 1 of the Code to mean 'liable to punishment as for an offence'.

3. The term 'offence', referred to in s 32(2)(a)(ii), is defined in s 2 of the Code, as follows:

   An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.

Appeal against conviction:  ground 1:  the trial judge's reasons for refusing to leave duress to the jury

1. The trial judge held that there was no evidentiary foundation for the defence of duress and consequently duress should not be left to the jury. His Honour was satisfied that there was 'certainly evidence fit for the jury to consider' that the appellant believed all of the matters referred to in s 32(2)(a)(i), s 32(2)(a)(ii) and s 32(2)(a)(iii) and that there were reasonable grounds for those beliefs, for the purposes of s 32(2)(c).

2. However, his Honour concluded that:

   [I]t cannot be said that the act of accompanying [the deceased] to that location was a reasonable response to a threat in the circumstances as he believed them to be (ts 1283),

   within s 32(2)(b).

3. His Honour arrived at that conclusion because in his view there was an obvious alternative to the acts done by the appellant, namely:

   [The appellant] could have taken [the deceased] and [the appellant's] mother to police.  He could have telephoned police.  He could have contacted police in either of those ways while [Mr Mansfield] was not present (ts 1283).

Appeal against conviction:  ground 1:  the evidence at the trial relied on by the appellant in support of the allegation that duress should have been left to the jury

1. Counsel for the appellant relied on the following evidence at the trial in support of the allegation in ground 1 that the trial judge erroneously concluded that duress should not be left to the jury:

   (a)What the appellant said to police in his electronically recorded interviews on 18 December 2013 commencing at 3:55 pm (EROI #3) and 6:32 pm (EROI #4), namely:

   (i)Mr Mansfield had made threats to the appellant to compel him to participate in various acts before, during and after the deceased's death; and

   (ii)the appellant's prior knowledge of Mr Mansfield's violent disposition.

   (b)Various other incidents, deposed to by Ms Smillie and Mr Gillmore, relating to Mr Mansfield. 

26 October 2013 at 126 Pickering Brook Road:  prior to the deceased's death

At Mr Mansfield's parents' address

1. At interview transcript page 3 (EROI #3):

   … I seen him walk out with a wooden box, and I knew straight away what it was … And then [Mr Mansfield] got in the back, and said we'll go to yours, and I didn't want to question him, cos I was scared.

In the shed at 126 Pickering Brook Road when Mr Mansfield was in possession of the rifle

1. At interview transcript page 3 (EROI #3):

   [Mr Mansfield] said you're going to get [the deceased] to come out here, and I'm gonna kill him, and, and [Mr Mansfield] said you're the only person I've got to be able to lure him out … I said [Mr Mansfield] … I don't know what you're thinking bro … don't ‑ I was like, you're pissed.  He was drunk, and he was on gear, and I said this can't happen.  I don't want this to happen. I said fucking I've got a mum and my sister.  I'm fucking nineteen years old.  He said cunt, you don't have a choice otherwise I'll kill you, your mum and your sister.  (emphasis added)

2. At interview transcript pages 14 and 15 (EROI #3), the appellant said that the wooden box contained a semi-automatic rifle; a telescope was attached to the rifle; there was a '10-clip mag' with the rifle; and there were about 40 bullets in the wooden box. 

3. At interview transcript page 34 (EROI #3):

   I was fucking shitting myself when he told me what was gonna happen.

4. At interview transcript page 20 (EROI #3):

   I begged him.

   … 

   I said I've got nothing against [the deceased].  I can't kill an innocent person.

   … 

   I said I don't want no way, part or to do this.  I said I'm gonna go tell mum.  He said you're not gonna do nothing otherwise I'll kill you and your mum now.   (emphasis added)

   … And I'd never seen him so serious in his life.

The appellant's perception of Mr Mansfield at this time

1. At interview transcript page 25 (EROI #3):

   Q:  Okay.  Why, at that point, did you not … try and, um, make contact or, you know, ‑ either with your mum to let her know what was happening, or to ring the police, and let us know? 

   A:  Because he was watching me like a hawk.

   Q:  Yeah.

   A:  And I was scared.  I was petrified, cos I know he ‑ just the fear.  I know the fear he puts in my eyes.  It's like I know he will shake ‑ when he ‑ what he says he'll do, he'll do.  (emphasis added)

2. At interview transcript page 26 (EROI #3):

   Q:  So what did you think ‑ what was going through your mind at the ‑ at the time that he would do if you didn't contact [the deceased]? 

   A:  I thought he was going to shoot me. (emphasis added)

3. At interview transcript page 52 (EROI #3):

   … [Mr Mansfield said] this is our only option, and if we ever tell he's gonna kill us.  (emphasis added)

   Q:  All right, and what was [Mr Mansfield] like at that time? 

   A:  He was drunk.

   Q:  Yep.

   A:  And he was off his head, and he was fucking, not the same him, like, he was anger, he was enraged.

4. At interview pages 52 and 53 (EROI #3)

   [Mr Mansfield] was just playing it real, like real calm, like, like, oh, like scary calm, the way he was, he was explaining things, he wasn't yelling, or anything like that.  He was saying, this is what's gonna happen, this and this and this, and then he said, well, saying it really calm, and if you don't do this … I'm gonna kill your mum, your dad … [y]our sister.  (emphasis added)

   … 

   And [Mr Mansfield] goes, if you fucking tell this, he was, ah, he was saying it really, really calm, and that's when I just thought, fuck, I was just, I was fucking scattered, I was in shock, I didn't really know what to do. And I was fucking frightened for my own family.  (emphasis added)

   … 

   'Cause I love my sister and my mum with all my heart.

After Mr Mansfield had driven to Scene 1

1. At interview transcript pages 31 and 32 (EROI #3):

   Q:  [Mr Mansfield's] off in the bush.  [Mr Mansfield's] in [Ms Smillie's] car.  [Mr Mansfield's] out of sight, out of hearing.  Why, at that point, did you not say [the deceased], let's get the hell out of here.  Go grab your mum, go grab your sister, or sorry, grab [Ms Smillie] not your sister, jump in his car, and drive away? 

   A:  Cos I was terrified.  (emphasis added)

   Q:  Mmhmm.

   A:  … I was fucking absolutely terrified.  Like, the amount of fear that that guy put in me … From just the way he looks at me … I didn't wanna fucking risk­ ‑ have the risk of losing my sister and my mum.

26 October 2013:  when the appellant was at Scene 1 with Mr Mansfield after the shooting

1. At interview transcript page 4 (EROI #3):

   [Mr Mansfield] says you're getting ‑ you're gonna help me lift [the deceased] into that car, and you're gonna drive that car, and I'm gonna follow in [Ms Smillie's] car, or I'll shoot you where you stand, and I said okay.

2. At interview transcript page 44 (EROI #3):

   I just did exactly what [Mr Mansfield] told me to do, which was just get in the car, and drive it, and follow him out.

26 October 2013 at 126 Pickering Brook Road:  after the deceased's death

1. At interview transcript page 4 (EROl #3):

   [Mr Mansfield] said … if that car moved, then he would come down, and he would get my mum, and my sister, and me and do the same as what he did to [the deceased].

   … at the time, I was too petrified and scared to do anything, or call the police, or anything like that, because [Mr Mansfield] was sitting in my paddock.

2. At interview transcript page 16 (EROI #4):

   … he was saying to [Ms Smillie] in front of me, he was like I know you 're a girl and, um, if you fall, no matter what you say, you'll be looking at fifteen years [indistinct] and so if you ever dog or anything, you'll be looking at fifteen years and I'll get you killed in jail.  And he also said the same thing to me.  (emphasis added)

About 10 days after 26 October 2013:  the night the deceased was buried

1. At interview transcript page 5 (EROI #3):

   I hopped out of the car, and then [Mr Mansfield] said are you ready?  And I said what are you talking about [Mr Mansfield]?  He goes are you ready?  I said what are ‑ am I ready for what?  He said are you ready to die?  I said no [Mr Mansfield].  I'm not ready to die, and I dropped on my knees, and I started crying.  He says if you ever say a word to anyone about this, I will kill you, your father, your mum, your daughter [sic] and your girlfriend. I said yes.  I was begging him.  I was crying my eyes out, and I said I just wanna ‑ can we just drive home, this all to be over and done with.  (emphasis added)

   … 

   And then [Mr Mansfield] said … [i]f [Ms Smillie] loses your sight, or I find out that you haven't been in contact with her for one day … I'll come for both of you. (emphasis added)

2. At interview transcript page 6 (EROI #3):

   And [Mr Mansfield] and [Mr Gillmore] told me that, and they said you are gonna stick to that like concrete otherwise them two said that they were gonna put me in ‑ me and [Ms Smillie] in a hole and fill us up with concrete.  (emphasis added)

15 December 2013:  at Canning Mills Road

1. At interview transcript page 5 (EROI #3)

   [Mr Mansfield] told me to walk up the road with him, and I got out, and I was crying.  I was saying please.  He wasn't saying a word.  He wasn't saying nothing, and then we got about a hundred metres up the road, and he said when was the last time you talked to [Ms Smillie]?  I said a month.  He said what did I tell you, and I said, bro, and I just crossed my heart, I did everything I could, and that she had just vanished, and he said now you're gonna vanish, and then I begged him.  I said no, please [Mr Mansfield].  I said I'll get you in contact with [Ms Smillie] the next day, and I promised him.  He said to me if I hadn't got in contact, and seen him by five o'clock the next day, he was coming to do what he said he was going to do.  (emphasis added)

2. At interview transcript pages 68 and 69 (EROI #4):

   … I woke up 'cause I could hear yelling and I woke up and [Mr Mansfield] was standing over my bed and I was in, in the lounge room ‑ ‑ ‑ 

   … 

   On the mattress with my missus and he was standing over the top of me.  And he said get the fuck out of bed right now, cunt, and get in the car.

   … 

   But I said [Mr Mansfield], I'm not getting in a car.  I said what are you doing this for?  I said why are you here?  I said I'm in bed with my missus.  And then, um, and then he said you've got fucking four seconds to get out the house.  And then my missus said leave him alone.  And then he jumped up on the bed and stood over the top of my missus and said I'll fucking kill you, you fucking dog, if you say one more word come out of your mouth with his fists like that.  (emphasis added)

   … 

   Standing over the top of my missus.  And then my mum came out and was like what's going on?  And he told her to sit, get the fuck back in the room and, um, told my sister to sit the fuck and said [the appellant's] coming with me.  And then I just said alright, I'll get in the car.  And then I got in the car and he just turned the music up and he held it flat out to Canning Mills Road.

3. At interview transcript page 69:

   And then [Mr Mansfield] stopped about a kilometre up Canning Mills Road and he pulled over and he said start walking up the road.  And I said [Mr Mansfield], what are you doing, man, like, don't do this.  And then he said why, have you got, he's like, why, have you done, have you said something?  I said no, I haven't said nothing.  And he said why are you worried?  And I said [Mr Mansfield], it's just unusual for you to do this.  And then he said just come up here.  And then I followed him and then he got up to the top and he said when was the last time you spoke to [Ms Smillie]?  And I said I spoke to her about a month ago, I haven't heard from her, mate.  I just been at home.  And then [Mr Mansfield] said fucking, he asked if I had snitched out with [Ms Smillie], if I dobbed on him. I said no, man, I haven't heard from [Ms Smillie].  I haven't heard nothing from her.  I said I've spoken to the cops twice, told them what we spoked [sic] about. And then he said alright.  If I find out you're lying, I'll kill you, and you got till tomorrow five o'clock to speak to [Ms Smillie] and come tell me what she said.  And he said you better, he goes when you see her, you tell her straight away I know what you've said to the cops and then if she's, and if you can tell that she's had a reaction, come and tell me.  He didn't say anything else but that.  (emphasis added)

   … 

   And [Mr Mansfield] said by five o'clock tomorrow I'm expecting you at my house.

The appellant's prior knowledge of Mr Mansfield's violent disposition

1. In the appellant's electronically recorded interview on 18 December 2013, commencing at 3:55 pm (EROI #3), the appellant made comments in relation to the following incidents of which the appellant had personal knowledge or of which he had been informed:

   (a)Mr Mansfield attended 126 Pickering Brook Road one night when the appellant's father was not home and verbally abused the appellant's mother, Tina Marchesano:  Interview transcript page 21 (EROI #3).

   (b)An altercation occurred between Mr Mansfield's friend and the appellant's cousin during which Mr Mansfield ran at the appellant's cousin with a knife.  This incident allegedly occurred about six months prior to the deceased's death:  Interview transcript page 22 (EROI #3).

   (c)Mr Mansfield directly threatened the appellant when the appellant intervened during an argument between Mr Mansfield and his partner, Stevie-Lee Kent.  Mr Mansfield threatened to kill the appellant by caving in his skull if he ever intervened again.  This incident allegedly occurred prior to the incident referred to at par (b) above:  Interview transcript page 24 and 25 (EROI #3).

The evidence of Ms Smillie

1. When cross-examined by the appellant's counsel, Ms Smillie agreed that initially she did not tell anyone about the incident involving the deceased because Mr Mansfield had threatened to kill her and she was scared that Mr Mansfield would carry out his threat and would come after her if she told anyone (ts 304, 305, 335).

The evidence of Mr Gillmore

1. When cross-examined by the appellant's counsel:

   (a)Mr Gillmore confirmed that in May 2014, while he was on remand at Hakea Prison, Mr Mansfield had assaulted and threatened him, stating 'You took my family away from me, so I'll take your family away from you' (ts 512).

   (b)Mr Gillmore agreed that he had been scared that Mr Mansfield would exact revenge on him if he had 'gone to the police' (ts 519).

The appellant's explanation for not seeking help from police

1. In the appellant's electronically recorded interview on 18 December 2013, commencing at 3:55 pm (EROI #3), the appellant made comments as to why he did not seek help from police:

2. At interview transcript page 4 (EROI #3):

   … at the time, I was too petrified and scared to do anything, or call the police, or anything like that, because [Mr Mansfield] was sitting in my paddock.

3. At interview transcript page 25 (EROI #3):

   Because [Mr Mansfield] was watching me like a hawk.

   … 

   And I was scared.  I was petrified, cos I know he ‑ just the fear.  I know the fear he puts in my eyes.  It's like I know he will shake ‑ when he ‑ what he says he'll do, he'll do.

4. At interview transcript page 26 (EROI #3):

   I thought he was going to shoot me.

5. At interview transcript page 32 (EROI #3):

   … I was terrified.

   … was fucking absolutely terrified.  Like, the amount of fear that that guy put in me.

   … 

   From just the way he looks at me.

   … 

   I didn't wanna fucking risk ‑ have the risk of losing my sister and my mum.

   … 

   I wasn't thinking straight at the time.

The appellant's reasons, apparent from the circumstances, for not seeking police assistance

1. The appellant relied on the following to establish reasons, apparent from the circumstances of the case, as to why he did not seek assistance from the police:

   (a)The immediacy of the threat:  Mr Mansfield's initial threat to the appellant was made while Mr Mansfield was holding a loaded firearm (Interview transcript page 20 (EROI #3)).

   (b)Mr Mansfield was still holding the firearm when he requested further assistance from the appellant after Mr Mansfield had killed the deceased (Interview transcript pages 4 and 44 (EROI #3)).

   (c)Mr Mansfield knew where the appellant lived.  Mr Mansfield had been to 126 Pickering Brook Road on a number of occasions prior to 26 October 2013 (Interview transcript page 10 (EROI #2)).

   (d)Before, during and after the deceased's death on 26 October 2013, the preponderance of the evidence pointed to Mr Mansfield making the majority of the decisions as to what to do and directing the appellant and others as to the disposal of evidence.

   (e)Mr Mansfield had already been angry and aggressive towards the appellant on an occasion prior to 26 October 2013 (Interview transcript page 24 and 25 (EROI #3)).

   (f)Mr Mansfield actually carried out his stated intention to shoot and kill the deceased.

Appeal against conviction:  ground 1:  the appellant's submissions

1. The appellant's case at the trial was conducted on the basis of the alleged threat made by Mr Mansfield in relation to the life of the appellant and his mother and sister and not on the basis of any alleged threat made in relation to the life of the appellant's father.

2. Counsel for the appellant submitted that it was open to the jury, acting reasonably and based on the evidence that had been adduced at the appellant's trial (taken at its highest), to fail to be satisfied beyond reasonable doubt that the appellant was not acting under duress when he did the act which was alleged to render him criminally responsible for the deceased's murder.

3. It was argued that the trial judge erred in dealing with the question of whether there was an alternative open to the appellant, namely to have contacted the police.

4. Counsel submitted that the question of whether the appellant could have sought police protection, instead of accompanying and guiding the deceased to Scene 1 where Mr Mansfield was waiting, was not relevant to the issue raised in s 32(2)(b) of the Code. The issue raised by s 32(2)(b), in the context of the present case, was whether the appellant's act in accompanying and guiding the deceased to Scene 1, where Mr Mansfield was waiting, was proportionate to the threat which Mr Mansfield had made in the circumstances as the appellant believed them to be. It was submitted that the question of whether the appellant should have sought police protection should have been dealt with by his Honour in the context of s 32(2)(a)(iii) and s 32(2)(c).

5. Counsel for the appellant argued that, having regard to s 32(2)(a)(iii) and s 32(2)(c), on the version of the evidence most favourable to the appellant, a jury acting reasonably could fail to be satisfied beyond reasonable doubt that:

   (a)the appellant did not believe that doing the act of accompanying and guiding the deceased to Scene 1, where Mr Mansfield was waiting, was necessary to prevent Mr Mansfield's threat from being carried out; and

   (b)even if the appellant did have that belief, there were no reasonable grounds for the belief.

6. It was submitted that the real issue was whether there was some basis in the evidence for raising as a reasonable possibility the existence of reasonable grounds for the appellant's belief that doing the act of accompanying and guiding the deceased to the place where Mr Mansfield was waiting was necessary to prevent the threat from being carried out.  That issue required consideration of whether the evidence raised as a reasonable possibility the existence of reasonable grounds for not contacting the police before performing that act.

7. Counsel submitted that the evidence did not permit a conclusion that there was a reasonable possibility that the appellant could and should have contacted the police and sought their protection instead of accompanying and guiding the deceased to Scene 1, as demanded by Mr Mansfield.

8. Accordingly, it was contended that his Honour erred in failing to direct the jury to consider whether the State had proved that the appellant was not acting under duress when he accompanied and guided the deceased to Scene 1, where Mr Mansfield was waiting.

Appeal against conviction:  ground 1:  the evidential burden on an accused in relation to a defence

1. Section 112 of the Criminal Procedure Act 2004 (WA) states, relevantly, that 'the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice'.

2. The law in Western Australia concerning a summing up in a criminal trial before a judge and jury is not relevantly different from the law in trials at common law.  See Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [77] ‑ [78] (McHugh J).

3. If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as in the present case) the legal burden is on the State and the evidential burden is on the accused, will be:  is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, has been negatived?  Questions as to the weight to be given to the evidence and the credibility of the accused are matters for the jury.  See Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ).

4. A trial judge must leave a defence to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State has negatived the defence, even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it.  See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 ‑ 118 (Barwick CJ, Windeyer J agreeing), 132 ‑ 133 (Menzies J); Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 ‑ 162 (Gibbs CJ, Wilson, Brennan & Deane JJ); Fingleton [83] (McHugh J); Braysich [32].

5. In Pemble, Barwick CJ said:

   Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law.  This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

   …

   Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise.  However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused (117 ‑ 118).

6. In Pemble, Menzies J observed:

   [C]ounsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence.  The judge must submit that defence to the jury.  Even less can counsel concede a matter of law to the disadvantage of the accused.  The law is always for the judge (133).

7. In Van Den Hoek, Gibbs CJ, Wilson, Brennan and Deane JJ said:

   Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration (161).

8. In Fingleton, McHugh J emphasised, by reference to Barwick CJ's statement of the relevant principles in Pemble (117 ‑ 118), that a trial judge is bound to put to the jury 'every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it' [83].  See also Braysich [32].

9. The accused may discharge the evidential burden by giving or calling evidence, or by pointing to evidence called in the State's case.  See Braysich [37]. Slender evidence may be sufficient, depending on the facts and circumstances of the particular case, to discharge the evidential burden.

10. If the accused discharges the evidential burden then the jury is responsible for making findings of fact in relation to the elements of the defence.

11. In Braysich, the appellant, a stockbroker, was charged on indictment with numerous counts of creating a false or misleading appearance of active trading in securities on the stock market in contravention of s 998(1) and s 1311(1) of the Corporations Law (WA). Section 998(5)(a) deemed a person who 'enters into, or carries out, either directly or indirectly, any transaction of sale or purchase of any securities, being a transaction that does not involve any change in the beneficial ownership of the securities' to have created a false or misleading appearance of active trading in those securities on a stock market. Section 998(6) provided a defence to a prosecution for a contravention of s 998(1), constituted by an act referred to in s 998(5), 'if it is proved that the purpose or purposes for which the person did the act was not, or did not include, the purpose of creating a false or misleading appearance of active trading in securities on a stock market'. Section 1311(1) was a general offence provision which provided that a person doing an act that the person was forbidden to do by or under a provision of the Corporations Law was guilty of an offence unless that or another provision of the Law provided that the person was guilty, or not guilty, of an offence.

12. A majority of the High Court held that the trial judge had erred in ruling that there was no evidence upon which the statutory defence could be left to the jury.  The legal burden and the evidential burden in relation to the defence conferred by s 998(6) rested upon the appellant.  The critical point was whether there was evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established.

13. French CJ, Crennan and Kiefel JJ said in relation to the appellant's failure to produce evidence of his subjective purpose or purposes in relation to the share trading in question:

    The appellant was not required to produce evidence of his subjective purpose or purposes in order to meet the legal burden of establishing the statutory defence. The legal burden on him was to prove on the balance of probabilities that he lacked the proscribed purpose. One way of doing that was to adduce or point to evidence inconsistent with the proposition that he had that purpose. He did not have to point to evidence of his actual purpose in order to invoke the defence. Any evidence that could support an inference that the appellant did not have the proscribed purpose was relevant to the statutory defence. The question whether he had discharged the 'evidential burden' was to be answered accordingly [37].

Appeal against conviction:  ground 1:  aspects of the proper construction of s 32 of the Code

1. The proper approach to the construction of the Code was enunciated by Dixon and Evatt JJ in Brennan v The King [1936] HCA 24; (1936) 55 CLR 253:

   [The Code is] intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law.  It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered (263).

   See also Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 236 (Gibbs J, Stephen J agreeing); Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437 (Gibbs J, Mason J agreeing).

2. As Gibbs J noted in Stuart:

   (a)'it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground' (437); but

   (b)'it should be remembered that the first duty of the interpreter of [the provisions of the Code] is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance' (437).

   See also Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56, 74 ‑ 75 (Windeyer J).

3. Subject to those principles in relation to the proper approach to the construction of the Code, the following general principles of statutory interpretation are relevant.

4. In Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:

   'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].

   See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).

5. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The statutory text is the surest guide to Parliament's intention.  The meaning of the text may require consideration of the context, which includes the existing state of the law, the history of the legislative scheme and the general purpose and policy of the provision (in particular, the mischief it is seeking to remedy).  See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).

6. The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.  See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).

7. As Crennan J noted in Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ), not least because such material may confuse what was "intended … with the effect of the language which in fact has been employed" (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act 1984 (WA).  In other words, the statutory text, and not non-statutory language seeking to explain the statutory text, is paramount.  See Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22] (Gleeson CJ, Gummow, Hayne & Heydon JJ).

8. Section 32 of the Code, as currently enacted, was inserted by s 6 of the Criminal Law Amendment (Homicide) Act 2008 (WA).

9. The new s 32 was inserted by Parliament in response to the Law Reform Commission of Western Australia's, Review of the Law of Homicide, Final Report (2007).  In ch 4 of the Final Report the Commission reviewed the then existing defence of duress in s 31 of the Code and recommended that:

   (a)s 31(3) be repealed (recommendation 24);

   (b)s 31(4) be repealed (recommendation 27);

   (c)s 32(1) provide that a person is not criminally responsible for an act or omission if he or she does the act or makes the omission under duress (recommendation 27);

   (d)s 32(2) provide that a person does an act or makes an omission under duress if he or she reasonably believes that:

   (i)a threat has been made that will be carried out unless the offence is committed;

   (ii)there is no reasonable way to make the threat ineffective; and

   (iii)the act or omission is a reasonable response to the threat (recommendation 27);

   (e)s 32(3) provide that s 32(1) and s 32(2) do not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out an act or omission of the same kind actually carried out or for the purpose of carrying out unlawful conduct in circumstances where it is likely that such threats would be made (recommendation 27).

1. The new s 32 as enacted by Parliament did not precisely reproduce the Commission's recommendation. In particular, the Commission recommended that s 32(2) provide, relevantly, that a person 'does an act or makes an omission under duress if he or she reasonably believes that … the act or omission is a reasonable response to the threat' whereas s 32(2)(b), as enacted, provides that a person 'does an act or makes an omission under duress if … the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be'.

2. Duress, as a general defence which the State must negative where the accused has satisfied the evidential burden, is difficult to rationalise or explain by reference to any coherent principle of criminal jurisprudence.  See R v Howe [1987] AC 417, 436 (Lord Bridge of Harwich). The accused has chosen, in response to a threat, to inflict harm on or sacrifice an innocent person to preserve his or her own life or well‑being. As a matter of public policy, it is essential to limit the scope of duress as a general defence by an objective criterion formulated in terms of reasonableness. See R v Graham [1982] 1 WLR 294, 300 (Lord Lane CJ giving the judgment of the Court of Appeal of England and Wales (Criminal Division)).

3. In Howe, Lord Hailsham of Marylebone LC affirmed, in the course of deciding that it was not a defence at common law to a charge of murder that the accused had acted under duress in order to protect his own life or that of his family, that:

   [W]hile there can never be a direct correspondence between law and morality, an attempt to divorce the two entirely is and has always proved to be, doomed to failure, and, in the present case, the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility (430).

4. The new s 32 as enacted by Parliament represents Parliament's endeavour to state the law of duress for Western Australia by reference to concepts which will accommodate the fundamental public policy considerations adverted to in Howe and Graham.

5. In Lau v The State of Western Australia [2017] WASCA 16, I made a number of observations (Mazza & Mitchell JJA agreeing) concerning the proper construction of s 32 of the Code as currently enacted. The observations were not, of course, exhaustive. For example, it was unnecessary in Lau to analyse in depth the proper construction of s 32(2)(b).

6. By s 32(1), a person is not criminally responsible for an act done, or an omission made, under duress as specified in s 32(2).

7. Section 32(2) states in effect that a person does an act or makes an omission under duress if the conditions set out in s 32(2) apply and are satisfied. There are in essence five conditions.

8. First, the person must believe that a threat has been made: s 32(2)(a)(i).

9. Secondly, the person must believe that the threat will be carried out unless an offence is committed: s 32(2)(a)(ii).

10. Thirdly, the person must believe that doing the act or making the omission is necessary to prevent the threat from being carried out: s 32(2)(a)(iii).

11. Fourthly, the act or omission must be a reasonable response to the threat in the circumstances as the person believes them to be: s 32(2)(b).

12. Fifthly, there must be reasonable grounds for the beliefs stated in the first, second, third and fourth conditions: s 32(2)(c).

13. Each belief referred to in the first, second, third and fourth conditions is the person's subjective belief.  So, the person must have a subjective belief:  that a threat has been made (the first condition); that the threat will be carried out unless an offence is committed (the second condition); that doing the act or making the omission is necessary to prevent the threat from being carried out (the third condition); and as to the circumstances (the fourth condition).

14. As to the fourth condition, the act or omission by the person must be a reasonable response (that is, an objectively reasonable response) to the threat in the circumstances as the person subjectively believes them to be.

15. As to the fifth condition, there must be reasonable grounds (that is, objectively reasonable grounds) for the person's subjective beliefs in relation to each of the first, second, third and fourth conditions.

16. The 'act' or the 'omission' referred to in s 32(1) and the chapeau of s 32(2), which the person allegedly did or made under duress, must be an element of the charged offence. This follows from the nature and content of s 32(1), which operates, in effect, to excuse a person from criminal responsibility for an act done, or an omission made, under duress if the conditions set out in s 32(2) apply and are satisfied. If the relevant act or omission was not a criminal act or omission, for the purposes of the charged offence, s 32 would be otiose.

17. An 'act' which constitutes or is an element of an offence refers to some 'physical action, apart from its consequences'.  See Kaporonovski (231); Pickering v The Queen [2017] HCA 17; (2017) 91 ALJR 590 [39] (Gageler, Gordon & Edelman JJ).

18. The term 'threat' referred to in s 32(2)(a), s 32(2)(b) and s 32(3) is not defined for the purposes of those provisions. The term is defined in s 332(4) and s 338 of the Code, but neither of those definitions applies to s 32. The term 'threat' in s 32 bears its ordinary and natural meaning. A 'threat', for the purposes of s 32, includes an express or implied statement of an intention to kill or injure another, or to cause loss or damage to another or his or her property. This explanation of the content of 'threat' in s 32 is not an exhaustive account. The broad ambit of the term 'threat' in s 32 is circumscribed in its application by the requirement in s 32(2)(b) that the relevant act or omission be a 'reasonable response' to the 'threat' in 'the circumstances' as the person believes them to be, and the requirement in s 32(2)(c) read with s 32(2)(a) and s 32(2)(b) that there be 'reasonable grounds' for the person's 'beliefs'.

19. Section 32(2)(a)(ii) requires that the person do the act or make the omission in the belief that the threat will be carried out unless 'an offence' is committed. Section 32(2)(a)(ii) must be read with the definition of 'offence' in s 2. When that is done, it is apparent that s 32(2)(a)(ii) requires that the person do the act or make the omission, within s 32(1) and the chapeau of s 32(2), in the belief that the threat will be carried out unless an act or omission, within the definition of 'offence' in s 2, which renders the person doing the act or making the omission liable to punishment, is committed. The requisite belief must relate to the whole of the subject matter of s 32(2)(a)(ii). The act or omission, within the definition of 'offence' in s 2, must necessarily be a criminal act or omission because the definition requires that the doing of the act or the making of the omission will render the person concerned liable to punishment. However, the focus of s 32 is on 'an act' done or 'an omission' made, within s 32(1) and the chapeau of s 32(2), as distinct from 'an offence' committed. The act done or the omission made by the person, within s 32(1) and the chapeau of s 32(2), is not necessarily co‑extensive with the acts or the omissions which constitute the 'offence' referred to in s 32(2)(a)(ii). It is not essential that the 'offence' referred to in s 32(2)(a)(ii) be identical to the charged offence. Section 32 distinguishes between an act or omission, on the one hand, and an offence, on the other. Section 32(1) excuses a person from criminal responsibility for 'an act' done, or 'an omission' made, under duress within s 32(2). Section 32(1) does not excuse a person from criminal responsibility for 'an offence' committed, even though that may be the effect, in a particular case, of the person being excused from criminal responsibility for an act done, or an omission made, under duress within s 32(2).

20. By s 32(2)(a)(iii), the doing of the act or the making of the omission must be 'necessary' to prevent the threat from being carried out. The word 'necessary' is susceptible of various meanings. Its meaning in a statute must be determined by reference to the context in which it is used. In s 32(2)(a)(iii), the word 'necessary' connotes that the doing of the act or the making of the omission by the person is essential (and not merely useful, convenient or expedient) to prevent the threat from being carried out.

21. Section 32(2)(b) incorporates two concepts. First, the concept of the person's belief as to 'the circumstances'. Secondly, the concept of whether the act or omission is a 'reasonable response' to a threat which satisfies s 32(2)(a). The composite requirement embodied in s 32(2)(b) from these concepts is that the person's act or omission is a 'reasonable response' by the person to the threat in 'the circumstances' as the person believes them to be. The expression 'reasonable response' connotes an objectively reasonable response and the expression 'as the person believes' connotes as the person subjectively believes. By s 32(2)(b), therefore, the person's act or omission must be, objectively, a reasonable response by the person in the circumstances as the person, subjectively, believes them to be. See, in the context of the analogous provision with respect to self‑defence in s 248(4)(b) of the Code, Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [88] ‑ [90] (Buss JA, Martin CJ agreeing generally); Egitmen v The State of Western Australia [2016] WASCA 214 [69] ‑ [71] (Buss P, Mazza JA agreeing).

22. The text of s 32(2)(b) does not restrict or confine the concept of a 'reasonable response' to a threat which satisfies s 32(2)(a), apart from stipulating that the act or omission must be a reasonable response 'to the threat in the circumstances as the person believes them to be'. The text of s 32(2)(b), in the context of the text of s 32 as a whole and the apparent policy underpinning s 32, provides no justification for construing the expression 'reasonable response' in s 32(2)(b) narrowly or other than in accordance with its ordinary and natural meaning. In particular, there is no justification for restricting or confining the concept of a 'reasonable response' in s 32(2)(b) to an inquiry about whether the act or omission in response to the threat, in the circumstances as the person believes them to be, was proportionate to the threat. The expression 'reasonable response' in s 32(2)(b) has a broader connotation. It is not synonymous with the expression 'proportionate response'.

23. It is not apparent from the text of s 32(2), in the context of the text of s 32 as a whole and the apparent policy underpinning s 32, that a fact or circumstance cannot be relevant both to s 32(2)(b) and s 32(2)(c). I consider that a fact or circumstance may be relevant to whether the act or omission is a 'reasonable response' within s 32(2)(b) and, also, to whether there are 'reasonable grounds' within s 32(2)(c) for the beliefs specified in s 32(2)(a) and s 32(2)(b).

24. The determination of the objective 'reasonableness' of the act or omission as a response to the threat, in 'the circumstances' as the person subjectively believes them to be, within s 32(2)(b), involves an evaluation of the nature and quality of the act or omission, in the context of:

    (a)the nature and quality of the threat, including its magnitude;

    (b)the severity of the consequences if the person does the act or makes the omission;

    (c)the existence of any available alternative courses of action, of which the person is subjectively aware, apart from doing the act or making the omission; and

    (d)the character of 'the circumstances' as the person subjectively believes them to be. 

25. The evaluation of the objective 'reasonableness' of the act or omission must be undertaken by reference to a hypothetical reasonable person of ordinary firmness of mind and will and of the same age as the person.  The notion of a hypothetical reasonable person of ordinary firmness of mind and will is well recognised in this area of the law.  See, for example, R v Hurley [1967] VR 526, 542 ‑ 543 (Smith J); R v Abusafiah (1991) 24 NSWLR 531, 538 ‑ 545 (Hunt J, Gleeson CJ & Mahoney JA agreeing); de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [218] ‑ [219] (Miller AJA); Quartermaine v The State of Western Australia [2008] WASCA 22; (2008) 36 WAR 384 [43] (Beech AJA, Pullin & Miller JJA agreeing). The abstract formula of the hypothetical reasonable person of ordinary firmness of mind and will is an appropriate standard by which to measure the objective 'reasonableness' of the act or omission in question for the purposes of s 32(2)(b). It is plain that the notion of reasonableness, on the one hand, and substance abuse impairment, on the other, are contradictory. See Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [44] (McLure JA, Roberts‑Smith & Buss JJA agreeing). Otherwise, it is unnecessary, in the present case, to consider whether any of the person's personal characteristics, apart from age, are to be attributed to the hypothetical reasonable person. See, however, the comments of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 327 ‑ 332, in the context of the defence of provocation under s 160 of the Criminal Code (Tas).

26. It is well accepted that people who are under threat should take reasonable opportunities to render those threats ineffective, by reporting their circumstances to police or other appropriate authorities and seeking their protection, rather than commit serious criminal offences.  See Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325 [112] (Roberts‑Smith JA), [153] ‑ [156] (McLure JA). See also Ajayi v The Queen [2012] WASCA 126; (2012) 263 FLR 465 [51] ‑ [54] (Buss JA, McLure P & Mazza JA agreeing); Lau [158].

27. In Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95, French CJ, Heydon, Crennan, Kiefel and Bell JJ said, in the context of s 31(1)(d) of the Queensland Code:

    The applicant's belief that police protection may not be 100 per cent safe provided no basis for a reasoned conclusion that it was not. It may explain the applicant's preference for complying with the unlawful demands. However, an unparticularised concern that police protection may not be a guarantee of safety cannot without more supply reasonable grounds for a belief that there is no option other than to break the law in order to escape the execution of a threat.

    The Court of Appeal was correct to hold that no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that there were not reasonable grounds for the applicant's belief within s 31(1)(d)(ii) [40] ‑ [41].  (emphasis added)

28. Ultimately, the determination as to whether the act or the omission of the person was a reasonable response is a value judgment.

29. By s 32(3), neither s 32(1) nor s 32(2) applies if the threat is made by or on behalf of a person 'with whom the person under duress is voluntarily associating' for the purpose of:

    (a)doing an act or making an omission of the kind in fact done or made by the person under duress; or

    (b)prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.

30. Section 32(3) replicates the essence of the provision recommended by the Law Reform Commission. The Commission noted that the proposed limitation embodied in s 32(3)(a) followed the Model Criminal Code published by the Model Criminal Code Officers Committee that was established in 1991 by the Standing Committee of Attorneys General (199 fn 177). The Commission also noted its conclusion that the defence of duress should not be available where the accused is voluntarily associating with the person making the threat for the purpose of carrying out unlawful conduct and in circumstances where it is likely that such a threat would be made (199 fn 177). Hence the recommendation for the inclusion of s 32(3)(b). The Commission gave this example of the intended operation of s 32(3)(b):

    For example, an accused who is voluntarily part of an organised crime group which is involved in illegal drug activities should not be entitled to rely on the defence of duress as a defence to murder if a member of that group threatened the accused unless he or she killed a competitor (199 fn 177).

31. The accused has an evidential burden in relation to the defence of duress, as specified in s 32(2).

32. If the accused satisfies the evidential burden, the legal burden is on the State to negative the defence:

    (a)by excluding at least one of the conditions in s 32(2) beyond reasonable doubt; or

    (b)by proving beyond reasonable doubt that s 32(1) and s 32(2) do not apply by virtue of s 32(3).

    See Taiapa [5].

Appeal against conviction:  ground 1:  its merits

1. I am satisfied that the appellant did not discharge the evidential burden in relation to all of the elements of the defence of duress and, consequently, the trial judge's decision not to leave the defence was correct.  My reasons are as follows.

2. The relevant act, within s 32(1) and the chapeau of s 32(2), which the appellant, on the State's case, did, was to accompany and guide the deceased to Scene 1 on the pretext that they would collect stolen chainsaws and in the knowledge that Mr Mansfield was at Scene 1, armed with a loaded rifle, and had said he intended to shoot and kill the deceased.

3. In my opinion, the appellant discharged the evidential burden in relation to the first condition in s 32(2)(a)(i) in that he asserted in his electronically recorded interviews with police that on 26 October 2013 Mr Mansfield had made a threat. The content of the threat was, relevantly and in effect, that if the appellant did not accompany and guide the deceased to Scene 1 for the purpose of enabling Mr Mansfield to shoot and kill the deceased, Mr Mansfield would kill the appellant and the appellant's mother and sister. On a fair reading of the electronically recorded interviews as a whole, taken at their highest in the appellant's favour, there was evidence that the appellant believed, at the material time, that 'a threat had been made', within s 32(2)(a)(i).

4. In my opinion, the appellant discharged the evidential burden in relation to the second condition in s 32(2)(a)(ii). On a fair reading of the electronically recorded interviews as a whole, taken at their highest in the appellant's favour, it was open to the jury to infer that the appellant believed, at the material time, that Mr Mansfield's threat would be carried out unless an offence (namely, doing an act for the purpose of enabling or aiding Mr Mansfield to commit the offence of murdering the deceased) was committed.

5. In my opinion, the appellant discharged the evidential burden in relation to the third condition in s 32(2)(a)(iii). On a fair reading of the electronically recorded interviews as a whole, taken at their highest in the appellant's favour, it was open to the jury to infer that the appellant believed, at the material time, that accompanying and guiding the deceased to Scene 1 on the pretext that they would collect stolen chainsaws and in the knowledge that Mr Mansfield was at Scene 1, armed with a loaded rifle, and had said he intended to shoot and kill the deceased, was 'necessary', within s 32(2)(a)(iii), to prevent Mr Mansfield's threat from being carried out.

6. However, I am satisfied that the appellant did not discharge the evidential burden in relation to that part of the fourth condition in s 32(2)(b) which refers to the relevant act being a 'reasonable response' to the threat in 'the circumstances' as the person believes them to be (emphasis added).  That is, there was no basis in the evidence, either directly or by inference, for the contention that the relevant act by the appellant was a 'reasonable response' to Mr Mansfield's threat in 'the circumstances' as the appellant believed them to be (emphasis added).

1. The minimum term of 23 years imposed on the appellant in the present case is broadly consistent with the minimum terms imposed in other reasonably comparable cases.

2. In my opinion, the murder committed by the appellant was a very serious example of offending of that kind.  Although he did not shoot the deceased, the appellant joined with Mr Mansfield in a plan to kill him.  The killing was unprovoked.  The appellant played a crucial role in the events which culminated in the murder.  Later, the appellant participated in destroying evidence and disposing of the deceased's body.  The appellant facilitated the murder by inviting the deceased to attend the appellant's house.  The appellant then induced the deceased, by a false pretence, to accompany him to an isolated location in the knowledge that Mr Mansfield was waiting with a loaded rifle, the deceased was highly vulnerable and Mr Mansfield intended to shoot and kill the deceased.

3. The appellant was, of course, entitled to proceed to trial.  However, he was unable to claim the mitigation that a plea of guilty would have brought.  Further, the appellant has not demonstrated any remorse. 

4. The principal mitigating factor was the appellant's youth. 

5. Ordinarily, an offender's youth is a significant mitigating factor.  This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult).  A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person.  Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult.  However, youth must be weighed against the facts and circumstances of the offence which has been committed.  A very lengthy custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the objective seriousness of the offending, the need to protect the public or a section of it and the need for personal and general deterrence.  See Ainsworth v D (a

child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing); Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115 [71] (Buss JA, Pullin JA agreeing); The State of Western Australia v Bropho [2013] WASCA 44 [45] (Buss JA, McLure P & Mazza JA agreeing).

1. In the present case, the objective seriousness of the appellant's offending, including the circumstances in which the deceased was murdered, combined with the importance of personal and general deterrence, reduced to a very substantial extent the mitigating effect of the appellant's youth.

2. I am satisfied, after taking into account and evaluating all relevant facts and circumstances (including the trial judge's unchallenged findings of fact), and all relevant principles relating to the imposition of a minimum non‑parole period and the factors (including the reasonably comparable cases) which his Honour was bound to take into account in fixing a minimum non‑parole period, that the minimum term of 23 years was within the range open to his Honour on a proper exercise of his discretion.  The length of the minimum non‑parole period was not unreasonable or plainly unjust.  In all the circumstances, the interests of justice did not require or permit the imposition of a lesser minimum non‑parole period.  Error in the exercise of his Honour's discretion should not be inferred from the sentencing outcome.

3. The ground of appeal fails.  It did not have a reasonable prospect of success.  Leave to appeal should therefore be refused.

Appeal against sentence:  conclusion

1. The appeal against sentence must be dismissed.

2. MAZZA JA:  I have had the advantage of reading the reasons of both Buss P and Mitchell JA.  I agree that the appeals must be dismissed.  With respect to the appeal against conviction, I agree with the reasons of both Buss P and Mitchell JA.  With respect to the appeal against sentence, I agree with the reasons of Buss P.

   MITCHELL JA: 

Summary

1. The appellant and his alleged co-offender Ben Mansfield were convicted after trial of murdering the deceased, Michael Pruiti.  The date

of the alleged offence was 26 October 2013.  At trial it was uncontentious, as between the State and the appellant, that the appellant had invited the deceased to his mother's semi-rural Pickering Brook Road property, and directed him to an isolated bush location where he was shot in the head.  The location where the deceased was shot (referred to in the evidence as 'Scene 1') was about 4 km from the Pickering Brook Road property.  It was reached by travelling down Carinyah Road (which passed by the rear of the Pickering Brook Road property) to its intersection with Westons Road, and then turning left onto Westons Road.[1]

[1] Exhibit 11.

1. The appellant was convicted after trial and sentenced to life imprisonment with a non-parole period of 23 years.  He now appeals against his conviction and sentence.  As to conviction, he contends that the trial judge erred in refusing to:

   1.leave the defence of duress to the jury;

   2.allow cross-examination of a police witness as to the steps which police could have taken to protect the appellant and his family; and

   3.direct the jury that the appellant must have intended to aid the commission of the offence before he could be convicted as an aider.

2. As to sentence, the appellant contends that the non-parole period of 23 years was manifestly excessive.

3. For the following reasons, none of the grounds of appeal are established and the appeals must be dismissed.

Ground of appeal 1: direction as to duress.

1. Ground 1 contends that the trial judge made a wrong decision on a question of law by erroneously concluding that, on the basis of the evidence adduced at trial taken at its highest, duress should not be left to the jury.

The appellant's evidentiary onus and the State's burden of proof

1. Although provisions of this kind are often referred to as giving rise to 'defences' it is established that, if there is some evidence capable of raising the defence, the legal or persuasive burden is on the State to exclude the proposition that the accused was acting under duress.  The appellant bore the evidentiary onus of adducing, or pointing to prosecution evidence, on which a jury acting reasonably might fail to be satisfied beyond reasonable doubt that he was not acting under duress.[2]

   [2] See Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [5].

2. If the appellant satisfied the evidential onus in relation to duress then, in the context of this case, the burden would be on the State to negate the defence by excluding at least one of the following elements beyond reasonable doubt:

   1.The appellant believed that a threat (to kill him, his mother and sister) had been made (s 32(2)(a)(i));

   2.The appellant believed that the threat would be carried out unless an offence (the murder of the deceased) was committed (s 32(2)(a)(ii));

   3.The appellant believed that doing the act (of driving the deceased to Scene 1 under a false pretext) was necessary to prevent the threat (to kill the appellant, his mother and sister) from being carried out (s 32(2)(a)(iii));

   4.The act was a reasonable response to the threat in the circumstances as the appellant believed them to be (s 32(2)(b)); and

   5.There were reasonable grounds for the beliefs referred to above (s 32(2)(c)).

3. In relation to each element, the question for the trial judge was whether there was evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the element had been negatived.[3] 

   [3] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36].

4. This appeal can be resolved by reference to the fourth element of the defence, identified above, provided for in s 32(2)(b) of the Code.

Circumstances as the appellant believed them to be

1. Section 32(2)(b) of the Code directs attention to whether the act is a reasonable response in the circumstances as the person believes them to be. The operation of that provision does not depend on whether or not the accused person believes the response to be reasonable. That is in contrast to provisions such as s 10.2 of the Criminal Code 1995 (Cth), where the equivalent element is whether the accused reasonably believes that the conduct is a reasonable response to the threat.[4]

   [4] As to the operation of s 10.2 of the Commonwealth Code, compare R v Oblach (2005) 65 NSWLR 75; Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325; Kia v The Queen [2011] WASCA 104; Ajayi v The Queen [2012] WASCA 126; (2012) A Crim R 148, and Mirzazadeh v The Queen [2016] NSWCCA 65; (2016) 312 FLR 1. In relation to the operation of the similarly worded s 9AG of the Crimes Act 1958 (Vic) see Director of Public Prosecutions (Vic) v Parker (A Pseudonym) [2016] VSCA 101.

2. In addressing the element in s 32(2)(b), it is necessary to identify the circumstances as the appellant may have believed them to be. The reasonableness of the appellant's response must be assessed in light of those circumstances. In determining whether the defence is to be left to a jury, the evidence must be taken at its highest in favour of the appellant, recognising the ultimate burden of proof which the State bore to negative the element beyond reasonable doubt. It is enough that the evidence supports a reasonable possibility that the appellant believed that the circumstances were such as to make his response reasonable. The identified circumstances must therefore be those most favourable to the defence of duress which the evidence at trial, taken at its highest, supports as being the subject of a belief by the appellant.

3. The appellant participated in a recorded interview with police when he was arrested on 18 December 2013.  He gave inconsistent accounts as to his involvement in the death of the deceased, one of which was relied on to support the appellant's duress defence at trial.  Taken at its highest in favour of the appellant, evidence of his statements made at the recorded interview support the reasonable possibility that the appellant believed that the following circumstances existed when the alleged offence was committed.

4. On the morning of 26 October 2013, the appellant, his friend Tessa Smillie and Mr Mansfield drove from a house where they had been drinking to the Pickering Brook Road property.  On the way, they stopped at Mr Mansfield's father's house, from which Mr Mansfield collected a long wooden box.  The appellant and Mr Mansfield were sitting in a shed at the rear of the Pickering Brook Road property.  Mr Mansfield had told Ms Smillie to go into the house.  The appellant's mother was also in the house, but his sister was not at home. 

5. Mr Mansfield was drunk and on methamphetamine.  The appellant had previously seen Mr Mansfield behave aggressively (although not homicidally) when affected by methamphetamine.

6. Mr Mansfield took the rifle out of the box, and the appellant saw that it was a semi-automatic rifle with a 'scope' and a 'ten clip' magazine.  There were also about 40 bullets of unknown calibre in the box.  While holding the rifle, Mr Mansfield told the appellant that the appellant was going to lure the deceased to the property and that Mr Mansfield was going to kill the deceased. 

7. The appellant protested that he didn't want that to happen, and said that he had a mum and sister and was only 19 years old.  Mr Mansfield told the appellant that he did not have a choice.  Mr Mansfield said that he would kill the appellant, his mother and his sister if the appellant did not participate.  Mr Mansfield told the appellant he was to bring the deceased out to the Pickering Brook Road property.  Mr Mansfield said that he was going to drive Ms Smillie's car down a bush track, and that the appellant would bring the deceased down there.  The appellant had never seen Mr Mansfield, who he regarded as scary and evil, so serious in his life.  The appellant thought that Mr Mansfield was going to shoot him if he did not call the deceased.  The appellant did not have the opportunity to tell his mum what was happening or call police, because Mr Mansfield was watching him 'like a hawk'.

8. At Mr Mansfield's instruction, the appellant then went into the house to tell Ms Smillie that the deceased was going to be killed and to ask for the deceased's phone number.  As he was talking to Ms Smillie, the appellant heard a loud bang from the rear of the property.  He told his mother, who also heard the bang, that the sound was from a rifle range.  The appellant went out to find Mr Mansfield, who said that he wanted to see how loud the gun was.  Mr Mansfield picked up a spent cartridge. 

9. At this time, about 11.36 am, the deceased coincidentally called the appellant, who invited the deceased to the Pickering Brook Road property for a 'session'.  The deceased said that he would be there 'in five'.  The appellant told Mr Mansfield that the deceased was coming, and sent two text messages to the deceased at Mr Mansfield's insistence.  The deceased called the appellant about an hour later to say he was running late.  Between the calls the appellant sat with Mr Mansfield, mostly in silence, at the shed.  Mr Mansfield told the appellant that he was to drive down Carinyah Road until he saw Ms Smillie's car parked on the right.  Mr Mansfield told the appellant to say there were chainsaws stashed in the bush in order to get the deceased to go to the remote location.  Mr Mansfield was holding the rifle while at the Pickering Brook Road property.

10. The deceased arrived at the Pickering Brook Road property about 5 minutes after the second telephone call.  Mr Mansfield left with the rifle in Ms Smillie's car when the appellant could hear the deceased's car (which had a noisy broken muffler and was about a kilometre away) approaching.  When the deceased's car arrived at the Pickering Brook Road property, the appellant got into the front seat and told the deceased that he had some chainsaws stashed in the bush that he wanted to get rid of.  The appellant then directed the deceased to Scene 1, along a narrow dirt track.  The deceased got out of the car and walked towards Ms Smillie's car.  The appellant walked away from the cars towards the bush.  The appellant heard the deceased and Mr Mansfield speak briefly, and then heard the shot which killed the deceased.

11. The appellant's account went on to describe events concerning the disposal of the deceased's body and further threats made by Mr Mansfield, which are not relevant to assessing the reasonableness of the appellant's conduct at or prior to the time the deceased was killed.

12. The police asked the appellant why, when Mr Mansfield was in the bush, he did not grab his mother and Ms Smillie and drive away with the deceased.  The appellant said that he was 'absolutely fucking terrified' and did not want to take the risk of losing his sister and mother.  The appellant said that he was in shock, had not slept for two days, had taken methamphetamine that night and 'was a bit scattered'.

Trial judge's approach

1. The trial judge observed:[5]

   Now, there is certainly evidence fit for the jury to consider that Mr Marchesano believed a threat had been made, that Mr Marchesano believed the threat would be carried out unless an offence was committed, and that Mr Marchesano believed that doing the act was necessary to prevent the threat from being carried out, and that there were reasonable grounds for those beliefs.

   [5] Trial ts 1281.

2. The trial judge then referred to the decision of this court in Smith v The State of Western Australia,[6] including the view of McLure P that the former provision for a defence of duress:[7]

   must be construed against the background of the strong policy considerations in that area of the law.  They were identified by Gleeson CJ in Rogers v The Queen (1996) 86 A Crim R 542 and King CJ in R v Brown (1986) 43 SASR 33, both of which were approved by the High Court in Taiapa v The Queen [2009] HCA 53 [31] - [32], [36]. King CJ said in R v Brown:

   'The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police.  That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation.  If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation (40).'

   [6] Smith v The State of Western Australia [2010] WASCA 205 (2010) 204 A Crim R 280.

   [7] Smith [17]

3. The trial judge said that the policy considerations identified in Smith also need to be considered when dealing with the objective requirement in the current s 32 of the Code.  His Honour observed that the objective matters are to be judged by the standard of a reasonable person of the same age, background and functions of the appellant, and familiar with all the circumstances that were known to him at the relevant time.[8]

   [8] Trial ts 1282.

4. The trial judge reached his conclusion in the following terms:[9]

   Now, what he knew was that Mr Mansfield had a firearm, that Mr Mansfield had said he was going to shoot Mr Pruiti.

   …

   Now, even allowing for the youth and immaturity of Mr Marchesano, I cannot see that it was a reasonable response to the threat, in the circumstances as he believed them to be, to take Mr Pruiti to a location where there was a very significant chance that Mr Mansfield would do what he said he was going to do, and which he in fact did; that is, on Mr Marchesano's case, shoot Mr Pruiti.

   The alternative was obvious. Mr Marchesano could have taken Mr Pruiti and Mr Marchesano's mother to police.  He could have telephoned police.  He could have contacted police in either of those ways while Mr Mansfield was not present.

   In my view, taking Mr Marchesano's case at its highest, it cannot be said that the act of accompanying Mr Pruiti to that location was a reasonable response to a threat in the circumstances as he believed them to be and I rule that duress is not to be left to the jury.

   [9] Trial ts 1282 ‑ 1283.

5. In directing the jury the trial judge, after referring to what the State had to prove, said:[10]

   You will note that nowhere, have I referred to the issue of threats being made to Mr Marchesano.  As a matter of law, any threats made to Mr Marchesano would not provide a defence to the charge or to any of the alternatives.  As I have explained to you, I am the judge of the law.  I have ruled, as a matter of law, the law concerning duress does not provide a defence in this case.

Opportunity to seek assistance and reasonableness of the response

[10] Trial ts 1452.

1. The trial judge considered the availability of alternatives in addressing the reasonableness of the appellant's response in the relevant circumstances. The appellant submits that the availability of alternatives is not relevant to the issue raised by s 32(2)(b), which the appellant submits is concerned with whether the act is proportionate to the threat.

2. I do not accept that the court is confined to questions of proportionality when considering whether a response is reasonable in the relevant circumstances. I see no warrant for reading down the broad language of s 32(2)(b) in that manner. If Parliament had objectively intended to confine consideration under s 32(2)(b) to questions of proportionality, then it would have used the term 'proportionate' rather than 'reasonable'.

3. The question of available alternatives will also be relevant in considering whether an accused believed, on reasonable grounds, that the act was necessary to prevent the threat from being carried out.  Necessary, in that context, means essential (and not merely useful, convenient or expedient) to prevent the threat from being carried out.[11]  If there are alternative means of preventing the threat from being carried out, such as seeking the protection of police, the act of the accused will not be necessary for that purpose. 

   [11] Lau v The State of Western Australia [2017] WASCA 16 [118] (par (d)).

1. However, the significance of alternative means when considering whether there were reasonable grounds for believing that the act was necessary to prevent the threat from being carried out does not make alternative means irrelevant to considering the reasonableness of the response.  The reasonableness of the response is to be assessed against all of the circumstances as the appellant believed them to be.  An act which is proportionate to the threat (in the sense that the act and threat both involve the application of lethal force) may not be reasonable if there are other lawful means of preventing the threat from being carried out.  As with the similarly worded s 248(4) of the Code dealing with self-defence,[12] the different limbs of s 32(2) of the Code do not deal with entirely discrete topics.

   [12] See Liyanage v The State of Western Australia [2017] WASCA 112 [77], [241]; Egitmen v The State of Western Australia [2016] WASCA 214 [286] ‑ [287].

2. The trial judge said that the jury may have accepted that the appellant had reasonable grounds for believing that taking the deceased to Scene 1 was necessary to prevent Mr Mansfield's threat being carried out.  There may be a degree of inconsistency between that finding and the trial judge's finding that the appellant's response could not be viewed as reasonable in the relevant circumstances because of available alternatives.  If alternative means of preventing Mr Mansfield from carrying out his threat made the act unreasonable, then there may be no reasonable grounds for believing that the act of driving the deceased to Scene 1 was necessary to prevent the threat from being carried out. 

3. However, the appellant's appeal cannot succeed on the basis of this inconsistency.  The question is ultimately whether this court considers that there was evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the defence of duress had been negatived.  This ground of appeal must be dismissed if this court is of the view that a reasonable jury could not regard the appellant's response as reasonable in the circumstances described above.

The role of the judge and jury in evaluating reasonableness

1. In Taiapa,[13] in the context of considering whether a belief in a duress case was reasonable, the High Court adopted the following passage of Professor Glanville Williams as explaining the respective functions of the judge and jury in assessing questions of reasonableness:[14]

   Burdens are in respect of facts; questions of law are decided by the judge, without any question of burden.  But some questions, such as the question of reasonableness, are in an intermediate position. They are value‑judgments marking the boundary between criminal and non‑criminal conduct, and therefore are really decisions on law; yet they are made by the jury, except that there must be evidence that, in the view of the trial judge, would justify the jury in finding that there has been reasonableness or unreasonableness or whatever.

   [13] Taiapa [30].

   [14] Glanville Williams, Textbook of Criminal Law, 2^nd edition (1983), page 49.

2. In the present case the question is whether the evidence of the circumstances described above (which the appellant may have believed to exist) could justify the jury in finding that the appellant's response was reasonable.  That is, could a reasonable jury, properly instructed, regard the appellant's response of luring the deceased to his death as reasonable in those circumstances?

3. In determining what a reasonable jury could regard as a reasonable response to a threat, it is relevant to consider the policies of the law which have traditionally confined the availability of the defence of duress.  I agree with the trial judge that the policy considerations, identified in Smith, which informed the construction of the former provisions dealing with the offence of duress are also relevant to s 32 of the Code.  As was noted in Lau:[15]

   It is well accepted that people who are under threat should take reasonable opportunities to render those threats ineffective, by reporting their circumstances to police or other appropriate authorities and seeking their protection, rather than commit serious criminal offences. (citations omitted)

   [15] Lau [158].

4. That policy is reflected in the approach of the High Court in Taiapa, in considering whether there were reasonable grounds for the accused's belief that he had no option but to break the law in order to escape the execution of a threat.  That question was asked for the purposes of the duress provision of the Queensland Criminal Code, expressed in different terms to those used in s 32 of the Code.  The court referred to cases in which that policy was identified, and adopted an observation of Gleeson CJ (made in considering the defence of necessity) that reasonableness is not designed to allow people to choose for themselves whether to obey the law.[16]  The court held that the offender's unparticularised concern that police protection may not be a guarantee of safety could not without more supply reasonable grounds for the accused's belief that he had no option but to break the law in order to escape the execution of a threat.[17]

   [16] Taiapa [37] ‑ [38], citing R v Rogers (1996) 86 A Crim R 542, 547.

   [17] Taiapa [40].

5. The decision in Taiapa does not supply the answer in the present case.  The legislation being considered was in different terms, and the offender had 'ample opportunity' to report the threat to police.[18]  Whatever else may be said of the appellant's opportunity to report the threat to police in the present case, it could not be described as 'ample'.  Further, the act sought to be justified in Taiapa involved the transportation of methamphetamine rather than the intentional killing of a person who offered no threat to anyone.  However, the approach taken in Taiapa illustrates the way in which legal policy can inform the court's assessment of what a reasonable jury could regard as reasonable.  It suggests a more stringent approach to the defence of duress than that taken for some other defences with significantly different subjective and objective elements, such as provocation.[19]

Duress and the offence of murder

[18] Taiapa [21], [40].

[19] See Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272 [28], [39].

1. Further, in a case where the act said to have been performed under duress involves the killing of a person who offers no threat to anyone, it is also necessary to take into account the law's policy of protecting the sanctity of human life.

2. Duress is not a defence to murder at common law, at least for the person who actually killed the victim,[20] and was not a defence to murder under the former Code provisions which did not apply to acts:[21]

   which would constitute an offence punishable with strict security life imprisonment, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has, by entering into an unlawful association or conspiracy, rendered himself liable to have such threats made to him.

   [20] R v Howe [1987] 1 AC 417; Parker [24] and cases there cited.

   [21] Former s 31(4) of the Code.

3. The current form of s 32 of the Code, which was introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA), removed this limitation in the availability of duress as a defence. Section 32 applies on its terms to potentially excuse any offence, from unlawful parking to murder. However, it clearly does not apply in the same way to acts constituting those offences. That is because the assessment of whether the act was a reasonable response to a threat must take account of the nature and the seriousness of the conduct which the defence of duress is relied upon to excuse.

4. The purpose in expanding the defence of duress to all offences was not to allow the recipients of threats to kill with impunity.  In recommending a provision on which s 32 of the Code is based, the Law Reform Commission of Western Australia observed:[22]

   However, it must be emphasised that extending the defence of duress to murder does not mean that every time a person kills under duress he or she will be relieved of criminal responsibility.  The recommended new defence of duress is not easy to make out.  In practical terms, it is unlikely that the defence would ever be successfully raised in a murder trial.  Bearing in mind both rationales for the defence - the avoidance of greater harm and the terrible predicament faced by a person acting under duress - the Commission believes that it is necessary that the criminal law provides for the possibility that in extreme circumstances an accused should not be held criminally responsible for killing under duress.

   In a footnote to this passage, the Commission referred to an observation that the objective test of reasonableness for duress would ensure the defence applies only to extreme situations, and prevent it from being raised too readily.  The 2008 Amendment Act substantially adopted the Commission's recommendations.

   [22] Law Reform Commission of Western Australia Project 97 – A Review of the Law of Homicide (2007) ch 4 page 198.

5. R v Hudson is a controversial decision in relation to duress.[23]  In that case, two teenage girls lied in their evidence at a trial after receiving threats of injury if they testified against the accused.  One of the men who had threatened the girls was present in the public gallery of the court when they gave their evidence.  The Court of Appeal of England and Wales held that the trial judge should have left the common law defence of duress on the charge of perjury, notwithstanding that there was an obvious opportunity to seek police protection while in court. 

   [23] R v Hudson [1971] 2 QB 202.

6. The decision in Hudson has been criticised academically and by the House of Lords.[24]  However it was referred to in Taiapa for the proposition that the failure of an accused to take advantage of an opportunity to report the threat to police does not necessarily defeat the defence of duress.[25]  Acceptance of that proposition might leave some room for debate as to whether the teenage girls might have had a defence to their perjury under s 32 of the Code, had it been applicable.  However, if they shot a witness in court, rather than lied under oath, there could be no doubt that the act was not a reasonable response to the threat in circumstances where protection could be sought in court.  This hypothetical example illustrates the significance of the nature and consequences of the act said to be performed under duress in assessing the reasonableness of the response to a threat.

Disposition

[24] R v Z [2005] UKHL 22; [2005] 2 AC 467 [26] ‑ [27].

[25] Taiapa [32], [35].

1. In the present case, duress was excluded if the appellant's act was not a reasonable response to the threat in the circumstances as believed them to be.  For present purposes, those are the circumstances described above.  The act in question was the act of luring the deceased to Scene 1 on the pretext of collecting chainsaws so that Mr Mansfield could kill him.  The possession of a scoped rifle and ammunition placed Mr Mansfield in the position to readily carry out the plan to execute the deceased.  The reasonableness of that response must be assessed on the basis that the appellant was participating in the intentional killing of the deceased by leading him to his death. 

2. I note that some answers in the appellant's interview suggested that he did not believe Mr Mansfield's statements that he was going to kill the deceased.  Such a belief would be inconsistent with a belief that Mr Mansfield was going to kill the appellant, his mother and sister if the appellant did not take the deceased to Scene 1.  Statements about those two beliefs cannot be combined as they are mutually inconsistent.  It is wholly unbelievable that the appellant would believe the appellant's threats but not his statements of intention to kill the deceased. 

3. At the time the appellant began luring the deceased to his death, Mr Mansfield had left the Pickering Brook Road property.  His departure presented the appellant with the opportunity to urgently evacuate everyone from the Pickering Brook Road property and seek police protection.  The appellant's sister was not at the property and so was not under immediate threat.  The appellant had access to a phone and at least one car, and Mr Mansfield was not in sight.

4. Here, I have referred to a reasonable opportunity both to escape and to seek police protection, recognising that simply calling the police and staying at the property may not have been an option.  That is because it might be anticipated that Mr Mansfield would appreciate something was amiss and return to the property before police arrived.

5. In assessing the reasonableness of the appellant's response, account must be taken of the short time (probably only around a minute) between Mr Mansfield's departure from the Pickering Brook Road property and the arrival of the deceased.  The appellant was a young man in an unexpected and extremely stressful situation with only a matter of minutes in which to make a decision.  In assessing the reasonableness of the response, account must be taken of the stressful nature of the events and the amount of time the reasonable person in the appellant's position would have to consider his or her options.  I am prepared to assume, in the appellant's favour, that his age was a relevant factor in assessing the reasonableness of the appellant's response.  However, Mr Mansfield's departure meant that the opportunity for escape was obvious at the time the appellant's act of leading the deceased to his death was performed.

6. The appellant accepted that his use of methamphetamine and its effects could not be taken into account in determining the reasonableness of his response.[26]

   [26] Appeal ts 14.

7. It must also be acknowledged that escaping and seeking police protection was not without risk to the appellant.  On his account, the appellant did not know exactly where Mr Mansfield was after he left the Pickering Brook Road property.  While Mr Mansfield referred to Carinyah Road, the appellant must have understood the reference to include Scene 1 on Westons Road, because that is the location to which the appellant directed the deceased.  But on the appellant's account, he had not been told the precise point at which Mr Mansfield would be waiting.  Mr Mansfield had a scoped semi-automatic rifle with ammunition, and so would be in a position to shoot a person from a distance. 

8. However, on the appellant's account, so far as it supports duress, he was leading the deceased to his almost certain death at the hands of Mr Mansfield.  Participating in the killing of the deceased in that manner cannot be regarded as a reasonable response in circumstances where evacuating and seeking police protection was a realistic, obvious and available option.  That conclusion is not changed by the circumstance that the alternative option was not free of risk, or was presented only shortly prior to when the appellant was called upon to perform the offending act.   Participating in the plan to murder the deceased could not be regarded as a reasonable response to Mr Mansfield's threat in the face of any reasonable opportunity to escape, with the others under threat, and seek police protection, even if taking that opportunity involved some risk. 

9. In my view, the evidence, taken at its highest in favour of the appellant, could not lead a reasonable jury, properly instructed, to have a reasonable doubt about whether luring the deceased to Scene 1 so Mr Mansfield could kill him was a reasonable response to the threat in the circumstances as the appellant believed them to be.  The evidence, taken at its highest in favour of the appellant, established a reasonable possibility that the appellant believed the circumstances to be as summarised above.  However, no reasonable jury properly instructed could conclude that participating in the intentional killing of the deceased was a reasonable response to the threat in those circumstances.

10. The trial judge was correct to conclude that no jury, acting reasonably could fail to be satisfied beyond reasonable doubt that the appellant's response was not a reasonable response in the circumstances as he believed them to be.  His Honour's decision not to leave duress to the jury was therefore correct.  I would dismiss ground 1.

Ground of appeal 2: cross-examination of police officers

1. Ground 2 contends, in effect, that the trial judge erred in ruling that defence counsel could not ask a police officer about the measures which police could take to guarantee the safety of the appellant and his family.  In my view, there is no merit in this ground.  The questions posed by s 32 of the Code turn on the appellant's belief and whether the appellant had reasonable grounds for his beliefs.  The reference to reasonable grounds for a belief is to grounds which would induce the relevant belief in a reasonable person.[27]  In the context of s 32, this must be a reasonable person in the position of the accused.  The questions posed to the police officer concerned a subject not known to the appellant.  Nor was knowledge of that subject matter attributable to a reasonable person in the appellant's position.  The police officer's answers to a question about that subject matter were therefore irrelevant.  The evidence was properly excluded by the trial judge.  I would refuse leave to appeal on ground 2. 

   [27] George v Rockett (1990) 170 CLR 104, 112.

Ground of appeal 3: direction about aiding

1. I agree with Buss P that ground 3 should be dismissed, for the reasons his Honour gives. 

2. In my view, the position in this case is analogous to that in Taylor v The State of Western Australia.[28]  In that case I recognised that a person cannot be an aider through an act which unwittingly assists the principal offender.[29]  I also recognised that, in some circumstances, a miscarriage of justice may arise from a failure to direct that a person does not aid the commission of an offence of which he or she is aware without intentionally providing actual assistance.[30]  However, a trial judge's direction must be considered as a whole with any written jury aid and in light of the submissions and evidence advanced at trial.[31] 

   [28] Taylor v The State of Western Australia [2016] WASCA 210.

   [29] Taylor [316], citing L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [37]; Ritchie v The State of Western Australia [2016] WASCA 134 [84] and cases there cited.

   [30] Taylor [323].

   [31] Taylor [328] ‑ [331].

3. In the present case, for the reasons Buss P has explained, the trial judge's direction did not suggest that the jury might convict the appellant as an aider on the basis that he unwittingly assisted in the murder of the deceased.  In the context of the evidence and contentious issues in the appellant's trial the direction identified the real issue raised by the evidence, and could not have led the jury to convict the appellant on the basis that he unwittingly assisted in the deceased's murder. 

Appeal against sentence

1. I agree with Buss P, for the reasons which his Honour gives, that leave to appeal on the sole ground of appeal in the sentence appeal should be refused.

Orders

1. In my view, the following orders should be made in the appeal.

Appeal against conviction (CACR 16 of 2016)

1.Leave to appeal is refused on ground 2.

2.The appeal is dismissed.

Appeal against sentence (CACR 17 of 2016):

1.Leave to appeal on the sole ground of appeal is refused.

2.The appeal is dismissed.