Noormets v The State of Western Australia

[2021] WASCA 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   NOORMETS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 195

CORAM:   BUSS P

MITCHELL JA

BEECH JA

HEARD:   27 AUGUST 2021

DELIVERED          :   22 NOVEMBER 2021

FILE NO/S:   CACR 83 of 2020

BETWEEN:   LUKE EDWARD NOORMETS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SWEENEY DCJ

File Number            :   IND 1851 of 2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of doing an act, with intent to harm, as a result of which bodily harm was caused to the complainant, contrary to s 304(2)(a) of the Criminal Code (WA) - The State alleged that the relevant act was the appellant dousing the complainant's jeans with petrol and igniting the jeans - The State alleged that the relevant bodily harm was first and second degree burns to the complainant's legs, especially behind his left knee - Whether the jury's verdict of guilty was unreasonable and not supported by the evidence - Whether new evidence established that the complainant's jeans could not have been ignited and consequently that it was impossible for the appellant to have done the alleged act which caused the alleged bodily harm

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 39, s 40(1)(e)
Criminal Code (WA), s 304(2)(a)

Result:

Appellant's applications for leave to adduce additional evidence in the appeal granted
Respondent's application for leave to adduce additional evidence in the appeal granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr M Gumbleton
Respondent	:	Mr B M Murray

Solicitors:

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

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

BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101

Beamish v The Queen [2005] WASCA 62

CDJ v VAJ (No. 2) [1998] HCA 67; (1998) 197 CLR 172

Clarke v The State of Western Australia [2018] WASCA 14

Cramphorn v Bailey [2014] WASCA 60

DPJB v The State of Western Australia [2010] WASCA 12

East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147

Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698

Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138

Huggins v The State of Western Australia [2018] WASCA 61

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

R v Dick [1966] Qd R 301

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

R v Michaux [1984] 2 Qd R 159

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

Rinaldi v The State of Western Australia [2007] WASCA 53

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Taylor v The Queen (1978) 45 FLR 343

WMT v The State of Western Australia [2021] WASCA 104

Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

Table of Contents

BUSS P

The State's case at trial

The appellant's case at trial

The appellant's applications for leave to adduce additional evidence in the appeal

The State's application for leave to adduce additional evidence in the appeal

No cross‑examination of the authors of the reports the subject of the applications or of the appellant

Ground 1

Ground 1:  the appellant's submissions

Ground 1:  the State's submissions

Ground 1:  its merits

Ground 2:  the appellant's submissions

Ground 2:  the State's submissions

Ground 2:  its merits

Conclusion

MITCHELL JA...................................................................................................................... 35

BEECH JA.............................................................................................................................. 39

BUSS P:

1. This is an appeal against conviction.

1. The appellant was charged on indictment with three counts.

2. Count 1 alleged that, on or about 12 June 2017, at Bayswater, the appellant, Steven Wayne Taylor and Jessica Lee Atkinson unlawfully detained Jack Ryan Tonta, contrary to s 333 of the Criminal Code (WA) (the Code).

3. Count 2 alleged that, on the same date and at the same place as count 1, the appellant, Mr Taylor and Ms Atkinson unlawfully assaulted Mr Tonta, and thereby did him bodily harm, contrary to s 317(1)(b) of the Code.

4. Count 3 alleged that, on the same date and at the same place as count 1, the appellant, Mr Taylor and Ms Atkinson, with intent to harm Mr Tonta, did an act as a result of which bodily harm was caused to Mr Tonta, contrary to s 304(2)(a) of the Code. The State alleged that the relevant act, for the purposes of count 3, was the appellant dousing Mr Tonta's jeans with petrol and igniting the jeans. The State alleged that the relevant bodily harm, for the purposes of count 3, was first and second degree burns to Mr Tonta's legs, especially behind his left knee.

5. The appellant pleaded not guilty to each count.

6. On 12 August 2019, after a trial in the District Court before Sweeney DCJ and a jury, the appellant was convicted as charged on all counts.

7. On 20 September 2019, the trial judge sentenced the appellant to 3 years' immediate imprisonment on count 1; 2 years 6 months' immediate imprisonment on count 2; and 4 years' immediate imprisonment on count 3.  The sentence for count 3 was ordered to be served cumulatively upon the sentence for count 1.  The sentence for count 2 was ordered to be served concurrently.  The total effective sentence was therefore 7 years' imprisonment.  The total effective sentence was backdated to 13 June 2017.  A parole eligibility order was made.

8. The appellant has appealed against his conviction on count 3.  He has not appealed against his convictions on counts 1 and 2.

9. The appellant requires an extension of time within which to appeal.  His appeal notice was filed on 17 June 2020, being 250 days out of time.  The application for an extension of time was referred to the hearing of the appeal.

10. The appellant relies upon two grounds of appeal. 

11. Ground 1 alleges that the jury's verdict in relation to count 3 is unreasonable and not supported by the evidence. 

12. The particulars of ground 1 assert, in effect:

    (a)The evidence at the trial could not have satisfied a jury beyond reasonable doubt that Mr Tonta had been set alight thereby causing bodily harm.

    (b)There was no forensic examination of Mr Tonta's denim jeans to confirm that the jeans had been damaged by fire.

    (c)Photographs of the jeans tendered by the State at the trial did not indicate that the jeans had been ignited.

    (d)The State's expert medical witness, Dr Lip Yong Choo, did not state that Mr Tonta's injuries had been caused by his jeans having been ignited.

13. Ground 2, as amended at the hearing of the appeal, alleges that there has been a miscarriage of justice because new evidence establishes that the appellant could not have committed the act necessary for a properly instructed jury to convict on count 3.

14. The particulars of ground 2, as amended at the hearing of the appeal, allege, in effect:

    (a)There is new evidence, namely expert reports from James Munday, that is of such cogency that Mr Tonta's jeans could not have been ignited.

    (b)If Mr Tonta's jeans could not have been ignited, it was impossible for the appellant to have done the alleged act which caused the alleged bodily harm.

15. The application for leave to appeal was referred to the hearing of the appeal.

16. I would dismiss the application for an extension of time.  It would be futile to grant an extension because neither of the grounds of appeal has been established.  Leave to appeal on ground 1 should be refused.  Although I would grant leave to appeal on ground 2, the ground has not been made out.  The appeal must be dismissed.

The State's case at trial

1. The State's case at trial was, in summary, as follows:

   (a)The appellant arranged to meet Mr Tonta in Ashfield.

   (b)Mr Tonta met the appellant on the evening of 12 June 2017.

   (c)At the meeting the appellant struck Mr Tonta on the head with a torch, causing bleeding and blurred vision.

   (d)The appellant forced Mr Tonta into the boot of a car.

   (e)The appellant drove Mr Tonta to a factory in Bayswater.

   (f)The appellant struck Mr Tonta multiple times on the head with the torch, while demanding money.

   (g)The appellant tied Mr Tonta's hands and feet together with cable ties.

   (h)The appellant doused Mr Tonta's denim jeans in petrol and set him alight for a short period (according to Mr Tonta for about 30 seconds), thereby causing burns to his legs (being count 3).

   (i)The appellant used a fire extinguisher to extinguish the fire.

   (j)The appellant placed a towel over Mr Tonta's mouth and 'waterboarded' him.

   (k)The appellant left Mr Tonta in the boot of the car overnight.

   (l)On 13 June 2017, at about 9.30 am, Mr Tonta escaped.  He was captured on CCTV footage leaving the factory.

   (m)Mr Tonta sought assistance from a passerby (Ronald Smith) and was given assistance by another person (Anthony Merton).

   (n)Police were called.  Constable Travis McDiarmid and Constable Matthew McKay attended at Mr Merton's business premises and spoke to Mr Tonta.  Mr Tonta pulled down his jeans and showed Constable McDiarmid the backs of his legs.  Constable McDiarmid saw a large burn on the back of Mr Tonta's left knee and a smaller burn on the back of his right knee.  After Mr Tonta had removed his jeans, Constable McDiarmid took photographs of the jeans.  The jeans were then cut off at the knees to prevent the clothing from rubbing against Mr Tonta's burns.  Mr Tonta put on the cut off jeans.  Constable McDiarmid and Constable McKay took him to hospital.  He was treated overnight in hospital.

   (o)Count 3 was allegedly supported by the photographs of the burns to Mr Tonta's legs, especially behind his left knee.

   (p)Photographs of the jeans depicted a black mark on the back of the jeans above the left knee.

2. The State did not tender the jeans as an exhibit.  The jeans were not tested for the presence of accelerant, fire damage or chemicals consistent with a fire having been extinguished.  The State merely tendered the photographs of the jeans as an exhibit.

3. Police located a fire extinguisher in the factory in Bayswater.  However, the fire extinguisher was not analysed forensically.  There was no evidence of chemicals from the fire extinguisher having been deposited on the jeans.

4. Mr Tonta gave evidence that the appellant's ignition of the petrol caused the black mark on the back of his jeans above the left knee (ts 143).  Otherwise, there was no evidence as to the cause of the black mark.  The burns suffered by Mr Tonta were not confined to the area of his skin behind the black mark.

5. Dr Fiona Baxter, a forensic scientist at PathWest, gave evidence about the jeans.  She said that the person at PathWest who examined the jeans in the laboratory (being someone other than Dr Baxter) noted that the jeans had 'a very strong petrol odour' (ts 384).

6. Police located a towel in the factory in Bayswater (ts 384 ‑ 385).

7. Dr Baxter gave evidence that the person at PathWest who examined the towel in the laboratory (being someone other than Dr Baxter) noted that the towel was very dirty and had 'a very strong odour of petrol/oil' (ts 385).

8. Dr Choo, a medical practitioner but not a burns specialist, gave evidence that on 13 June 2017 she treated Mr Tonta at the hospital.  Dr Choo said that Mr Tonta had a mixture of first and second degree burns on both inner thighs and the back of both knees (ts 353).  According to Dr Choo, it was very likely, from the appearance of the burns, that they had been suffered within the previous 24 to 48 hours (ts 354).

The appellant's case at trial

1. The appellant gave evidence at the trial in his own defence.

2. The appellant's case was, in summary, as follows:

   (a)The appellant met Mr Tonta in Ashfield to purchase drugs.

   (b)The appellant did not strike Mr Tonta on the head at the meeting.

   (c)Mr Tonta agreed to hide in the boot of the car.

   (d)The appellant drove Mr Tonta to a factory in Bayswater.

   (e)The appellant struck Mr Tonta with a small metal pole after Mr Tonta had moved aggressively towards the co-accused, Ms Atkinson, and called her a slut.

   (f)Mr Tonta tied his own hands and feet together with cable ties, after the appellant had threatened him with a piece of wood.

   (g)The appellant never doused Mr Tonta in petrol and never set him alight (being the allegations in count 3).

   (h)The appellant never used a fire extinguisher.

   (i)The appellant never placed a towel over Mr Tonta's mouth.

   (j)The appellant cut the cable ties from Mr Tonta before the appellant left the factory.  Mr Tonta was asleep in the car.

3. So, the appellant's account of events was to the effect that, while there was some violence towards Mr Tonta on the evening of 12 June 2017 and in the early hours of 13 June 2017, the violence occurred in completely different circumstances from those described by Mr Tonta.  On the appellant's evidence, Mr Tonta was not unlawfully detained and he was not forced into the boot of a car.  Mr Tonta was not assaulted in the boot of a car.  He was not doused in petrol or set alight.  He was not waterboarded.

4. At the trial, the appellant attacked Mr Tonta's credibility.  The appellant adduced evidence of Mr Tonta's prior convictions for armed robbery and offences of dishonesty and of Mr Tonta's prior inconsistent statements.  Mr Tonta admitted that he had manufactured and sold methylamphetamine.  Previously, he had been burnt while manufacturing methylamphetamine.  Mr Tonta was of bad character.  He had lied to the police and the jury about the circumstances of the alleged offending and about his involvement in drug dealing.

5. A crucial fact in issue in relation to count 3 was whether the appellant had set Mr Tonta alight, after dousing him in petrol.

6. The appellant contended that the photographs of Mr Tonta's jeans did not reveal any fire damage.  The appellant also contended that the totality of the evidence did not support a finding that the jeans had been damaged by fire as alleged by Mr Tonta.

7. The appellant attacked the absence of any forensic testing of the jeans.  He asserted that, in the absence of any forensic testing, the offence charged in count 3 could not be proven.  It was impossible for the burns suffered by Mr Tonta to have been caused while Mr Tonta was wearing the jeans.

8. The appellant raised an alternative theory as to how Mr Tonta could have suffered the burns.  The appellant adduced evidence that Mr Tonta was an illicit drug manufacturer.  The appellant contended that Mr Tonta could have suffered the burns while manufacturing methylamphetamine.

The appellant's applications for leave to adduce additional evidence in the appeal

1. The appellant has made two applications for leave to adduce additional evidence in the appeal.

2. First, there is the appellant's application filed on 15 February 2021 in respect of a report dated 3 December 2020 of Mr Munday.

3. Secondly, there is the appellant's application filed on 16 August 2021 in respect of a supplementary report dated 12 August 2021 of Mr Munday and an affidavit of the appellant sworn on 13 July 2021.

4. Mr Munday's qualifications include:

   (a)Membership of the Institute of Fire Engineers since 1985.

   (b)A diploma in fire investigation from the Forensic Science Society in 1996.

   (c)A certified fire investigator with the International Association of Arson Investigators.

   (d)Since 2007 a fellow in the discipline of fire and explosion investigation with the Chartered Society of Forensic Scientists.

5. Mr Munday's employment history includes:

   (a)Since 2010 a senior associate with Fire Investigation Global LLC (London).

   (b)Between 2017 and 2020 a director and senior investigator with Fire Forensics Pty Ltd.

   (c)Since 2020 a senior investigator (part time) with Fire Forensics Pty Ltd.

6. Mr Munday obtained training and experience with the Metropolitan Police Forensic Science Laboratory.  Between 1979 and 1998 he worked in the Fire Investigation Unit within the Metropolitan Police Forensic Science Laboratory.  He specialised in the investigation of fires, dispersed phase explosions and other combustion-related phenomena, including carbon monoxide poisoning and thermal injury.

7. Mr Munday has extensive knowledge of and experience in the following:

   (a)fire and explosion scene examination;

   (b)fatal and serious injury incidents;

   (c)interpretation of thermal injury distribution;

   (d)gas and vapour explosions;

   (e)electrical systems and causes of fire;

   (f)self-heating and spontaneous combustion;

   (g)assessment and interpretation of documentary and photographic evidence;

   (h)road vehicle, heavy industrial vehicle and other transport fires;

   (i)process and equipment failures;

   (j)laboratory testing and analysis of all types of fire-related evidence; and

   (k)computer modelling and visualisation techniques.

8. On 13 November 2020, the appellant's solicitors retained Mr Munday to examine the jeans which Mr Tonta had been wearing when the offending occurred to determine whether or not the jeans were burnt or had been subjected to any kind of 'ignition event'.

9. In his report dated 3 December 2020, Mr Munday said:

   (a)He had examined Mr Tonta's jeans under the supervision of a police officer.

   (b)Upon inspecting the jeans, he noted that there was 'no noticeable odour of petrol or other ignitable liquid'.  Further examination, including under magnification, revealed:

   There was no indication of gross burning or scorching to the surface of the fabric and no heat damage was apparent.  Magnification showed no areas of singeing, browning or other colour changes to the white or off-white fibres in the weave, no melting or softening of synthetic stitching fibres and no other damage associated with exposure to fire, flame or heat.

   (c)Based on his examination, there was 'no physical or scientific evidence to indicate that the jeans had been exposed to fire, flame or strong heating'.

   (d)There was no indication of 'flamewash', which he would have expected to see if petrol had been placed on or around the cloth and ignited.

   (e)There was no physical or other scientific evidence to support the proposition that petrol had been placed on the jeans and ignited.

   (f)There was strong evidence to support the alternative proposition that even if petrol was present on or around the jeans, then ignition did not occur.

10. In his report dated 12 August 2021, Mr Munday said:

    (a)After preparing his report dated 3 December 2020 he had been requested by the appellant's solicitors to advise whether it was possible that petrol had been applied to Mr Tonta's jeans and the petrol had been set alight but then extinguished very quickly so that no damage had been caused to the jeans.

    (b)He carried out a number of experiments involving the application and ignition of petrol to denim jeans in a variety of configurations.

    (c)He could not locate jeans with a 'matching composition' to Mr Tonta's jeans.  He purchased three pairs of jeans from a budget retailer.  These jeans were identical and were labelled as 80% cotton, 18% polyester and 2% elastane.  This was 'likely a higher proportion of polyester in the yarn weave than that present' in Mr Tonta's jeans.  As with Mr Tonta's jeans, 'the construction yarn was synthetic, but its exact fibre type was not determined'.

    (d)Based on the tests he conducted, 'it is possible that a very small amount of petrol, approximately 5 ml or less, placed on the surface of the jeans, ignited and extinguished within a few seconds could have left no detectable heat damage on the fabric'.  However, 'such a small event would not produce sufficiently high levels of heat flux and temperature to affect skin inside the clothing'.

    (e)The experiments he conducted showed that 'even a brief dry chemical powder extinguisher discharge resulted in significant amounts of residual particles adhering to and embedded within the fabric surface'.  However, no such material was 'visible on' Mr Tonta's jeans.  It was 'improbable that [Mr Tonta's jeans] were exposed to such a discharge, unless they had been subsequently washed'.

    (f)The experiments indicated that 'heat flux and temperature levels sufficient to cause skin burns could be achieved beneath the fabric when a relatively small quantity of petrol (10 ml) was burnt for less than 30 seconds'.  However, in each of those instances, there was 'observable thermal damage to the fabric'.

    (g)The physical evidence arising from his experiments was not consistent with Mr Tonta's account of the incident.

1. In his affidavit sworn on 13 July 2021, the appellant states, relevantly, that on numerous occasions before the trial he requested that his lawyers, including his defence counsel, arrange for the jeans worn by Mr Tonta to be forensically tested for accelerant, fire damage or chemicals consistent with a fire having been extinguished.  Despite his requests, the jeans were not forensically tested before the trial.

The State's application for leave to adduce additional evidence in the appeal

1. The State has made an application for leave to adduce additional evidence in the appeal.

2. The State's application was filed on 13 April 2021 in respect of a report dated 16 February 2021 of Robert Dunsmore, a report dated 16 February 2021 of Dr Kari Pitts and a report dated 12 May 2020 of Detective Sergeant Christiaan De Bruin.

3. Mr Dunsmore is a chemist and research officer in the physical evidence section of the forensic science laboratory at ChemCentre.

4. Dr Pitts is a senior chemist and mineralogist in the physical evidence section of the forensic science laboratory at ChemCentre.

5. Detective Sergeant De Bruin is a member of the Arson Squad of the Western Australian police force.

6. In his report dated 16 February 2021, Mr Dunsmore said:

   [Mr Tonta's jeans were] packaged in clip-seal plastic bags within paper bags.  Clip-seal plastic bags and paper bags are not appropriate containers for the storage of items to be analysed for ignitable liquid residues as these containers do not retain ignitable liquids effectively, allowing the vapour of ignitable liquids to escape.

7. In her report dated 16 February 2021, Dr Pitts said:

   (a)She had examined Mr Tonta's jeans.

   (b)The jeans and belt worn by Mr Tonta showed 'no evidence of significant thermal damage on the outer surfaces, including the yarns and stitching threads'.

8. In his report dated 12 May 2020, Detective Sergeant De Bruin noted that he had received instructions from the office of the Director of Public Prosecutions to prepare a report relating to 'alleged burn injuries sustained to the rear leg of [Mr Tonta]' on 13 June 2017.  Detective Sergeant De Bruin added that the main point of conjecture was 'the apparent lack of fire damage sustained to the jeans … when they were [allegedly] doused in petrol and ignited'.

9. Detective Sergeant De Bruin stated in his report:

   2.1Petrol has flash point of -43 degrees and has proven to be an excellent form of ignitable liquid accelerant.

   2.2As with all forms of ignitable liquid accelerant only the vapours actually combust.  The liquid itself produces the ignitable vapours but it in itself does not combust.

   2.3A small quantity of petrol poured into a vessel and ignited will initially produce a flame combusting just above the surface of the liquid.

   2.4If petrol is poured onto an object it would combust/burn in a similar manner.  The initial combustion would be vapours above the surface it was poured onto.  After a short while the actual material would combust presuming this material was constructed of a flammable substance.

   2.5The exact timing of the actual material the petrol was poured onto beginning to combust after initial ignition would be totally dependent on the amount of petrol introduced to the material and the flammable properties of the material.

   2.6If a quantity of petrol was poured onto a surface and then ignited the initial flame would not immediately combust the material it had been poured onto, only the vapours would initially combust.  An example of this would be if a finger was dipped into petrol and ignited the skin would not automatically blister and burn.  Certainly, after a very short period of time the material the petrol was poured onto would be raised to its ignition temperature and would then begin to combust, but not immediately after initial ignition.

   2.7In the scenario where the petrol was poured onto denim jeans, ignited and immediately extinguished it would not be unreasonable for there to be no evidence of combustion detectable on the material as only the petrol vapours would have had a chance to combust after initial ignition.

   2.8This opinion is based on the hypothesis that only a small amount of petrol was poured onto the material, ignited and immediately extinguished.

   2.9The denim material would certainly quickly rise in temperature once ignited.  Continued ignition and extinguishment in the same area would cause the material to continually rise in temperature and would eventually be heated to its ignition temperature and commence combustion.

   …

   3.1The use of 'Cryovac' bags are the recommended receptable for the collection of ignitable liquid accelerant samples.  Once secured in the cryovac bag the ignitable liquid accelerant could be stored in this manner for extended periods of time without fear of dissipation or evaporation.

   3.2In this particular matter the jeans in question were not packaged or stored in this manner but placed in a paper bag as per normal clothing sample protocols.  When later examined the jeans still produced evidence of petrol contamination.

10. In an email dated 30 March 2021 from Detective Sergeant De Bruin to Mr B M Murray (which was attached to an affidavit of Mr Murray sworn on 13 April 2021 in support of the State's application for leave to adduce additional evidence in the appeal), Detective Sergeant De Bruin made these points:

    ·In the scenario where petrol was poured onto denim jeans, ignited and immediately extinguished it would not be unreasonable for there to be no evidence of combustion detectable on the material as only the petrol vapours would have combusted on the initial ignition.

    ·The denim material would certainly quickly rise in temperature once ignited and continued ignition and extinguishment in the same area would cause the material to continually rise in temperature.

No cross‑examination of the authors of the reports the subject of the applications or of the appellant

1. Prior to the hearing of the appeal, counsel for the appellant and counsel for the State informed the court that none of the authors of the reports the subject of the applications for leave to adduce additional evidence in the appeal was required for cross‑examination.

2. Counsel for the State did not require the appellant for cross‑examination in relation to his affidavit sworn on 13 July 2021.

Ground 1

1. Ground 1 alleges that the jury's verdict in relation to count 3 is unreasonable and not supported by the evidence.

Ground 1:  the appellant's submissions

1. Counsel for the appellant submitted that, on the whole of the evidence at trial, it was not open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 3.  The evidence was inadequate to establish the appellant's guilt, even allowing for the advantages enjoyed by the jury.  There is a significant possibility that an innocent person has been convicted.

2. It was acknowledged that the jury had rejected the appellant's evidence.  However, the jury, having rejected the appellant's evidence and put it to one side, were required to consider all of the other evidence before proceeding to convict the appellant on count 3.

3. Counsel submitted that the evidence at the trial established that it was impossible for Mr Tonta to have suffered the first and second degree burns to his thighs and the back of his knees while he was wearing the jeans.  It was clear that the jeans had not been damaged by fire.  There was no evidence as to the nature of the black mark, let alone any evidence that the black mark was damage to the jeans caused by fire.  Apart from the black mark, there was no evidence of any other damage to the jeans consistent with the burns sustained by Mr Tonta to his thighs and behind his right knee.  There was no evidence that Mr Tonta's skin had become attached to the jeans or that denim from the jeans had adhered to his burns.  There was no evidence that chemicals from the fire extinguisher had been deposited on the jeans.  Mr Tonta's burns must have been suffered before the incident the subject of count 3.

4. According to counsel, there is no rational way in which the verdict of guilty on count 3 can be sustained.  The jury had to reject Mr Tonta's evidence because it was impossible for him to have sustained the alleged bodily harm (namely the burns) while wearing the jeans.

Ground 1:  the State's submissions

1. Counsel for the State submitted that at the trial the appellant argued that he should be acquitted because of the absence of any forensic testing of the jeans; their undamaged condition; and matters which the appellant asserted undermined Mr Tonta's credibility.  The trial judge reminded the jury of the appellant's arguments when summarising the appellant's case in her Honour's summing up (ts 751, 754, 762 ‑ 763).

2. It was submitted that the jury had the benefit of hearing and seeing Mr Tonta give evidence, including his extensive cross‑examination by defence counsel for each of the appellant, Mr Taylor and Ms Atkinson.

3. Although Mr Tonta said that he was alight for 30 seconds before the appellant used the fire extinguisher, counsel for the State submitted that the jury were entitled to approach that aspect of Mr Tonta's evidence in a common sense manner, rather than treating it as a literal statement of the time he was alight. 

4. It was submitted that the burns suffered by Mr Tonta would have been painful, but they were not extensive.  It was not suggested at the trial that there were any circumstances in which Mr Tonta may have received the burns after the commencement of his alleged unlawful detention in the boot of the car.  It was submitted that the jury were entitled to reject the proposition that Mr Tonta received the burns in circumstances unconnected with the appellant, on the basis that the proposition was implausible.  The jury were entitled to accept Mr Tonta's evidence that the appellant was directly responsible for inflicting the burns.

5. Counsel submitted that it was possible for Mr Tonta to have suffered the burns while he was wearing the jeans.  This court should not conclude that there is a reasonable doubt about the appellant's guilt on count 3 or that there is a reasonable possibility that an innocent man has been convicted.

Ground 1:  its merits

1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.  See M v The Queen;[1] Zaburoni v The Queen;[2] GAX v The Queen.[3]

   [1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).

   [2] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

   [3] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

2. An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.  See M (492 ‑ 493); SKA v The Queen.[4]

   [4] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).  See SKA [22], [24].

4. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.  See Morris v The Queen.[5]

   [5] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].

5. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations':  M (493); R v Nguyen;[6] SKA [13].

   [6] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

6. In Pell v The Queen,[7] the High Court made these observations about the assessment of the credibility of a witness by the jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

   [T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community.  Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box.  The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses.  Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.  (footnote omitted)

   [7] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

7. The High Court in Pell [39] also made these observations, in the context of the evidence of a complainant in a child sex case, about the function of the appellate court in determining a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.  (footnote omitted)

8. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty:  M (494 ‑  495).  See also R v Hillier;[8] Fitzgerald v The Queen;[9] R vBaden‑Clay.[10]

   [8] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).

   [9] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

   [10] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

9. The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step.  Trial by the appellate court is not to be substituted for trial by the tribunal of fact.  See Baden‑Clay [65] ‑ [66].

10. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.  See SKA [22] ‑ [24]; BCM v The Queen;[11] GAX [25].

    [11] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

11. The nature and extent of the appellate court's task, in a particular case, will be informed by:

    (a)the elements of the offence;

    (b)the accused's defence;

    (c)the issues in contest at the trial;

    (d)the manner in which the trial was conducted;

    (e)the way in which the case was ultimately left to the tribunal of fact;

    (f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

    (g)the particulars of the ground of appeal.

12. This court must proceed on the assumption that the jury assessed the evidence of Mr Tonta in relation to the elements of count 3 as credible and reliable.  However, this court must examine the trial record to see whether, notwithstanding that assessment, this court is satisfied that the jury, acting rationally, should nevertheless have entertained a reasonable doubt as to proof of the appellant's guilt in relation to count 3.

13. The additional evidence sought to be adduced in the appeal is not relevant to ground 1.

14. The evidence (apart from the appellant's evidence) concerning count 3 was to this effect:

    (a)Mr Tonta gave evidence that when he was in the boot of the car the appellant had poured fuel over his legs from a black jerry can (ts 122).  Mr Tonta said that he smelt unleaded petrol (ts 123).  After the petrol had been poured on his legs, the co-accused, Ms Atkinson, said 'light him up' (ts 123).  The appellant then ignited the fuel, with a lighter, behind Mr Tonta's left knee (ts 123).

    (b)Mr Tonta said that the fire was alight for 30 seconds (ts 123).  After that period, the fire was put out (ts 124).  The appellant put out the fire by using a small red fire extinguisher that emitted a powder (ts 124).  After the fire was put out the appellant pulled Mr Tonta's head out of the boot and placed a towel around his head (ts 125).  Someone then poured water over him (ts 125 ‑ 126).  Mr Tonta said that after he was locked in the boot again he was still able to smell fuel (ts 126).

    (c)Mr Tonta confirmed that he was wearing jeans when set alight (ts 123).  After being shown a photograph of the jeans, Mr Tonta confirmed that there was a black mark on the rear of the left knee of the jeans (ts 143).

    (d)Mr Tonta was admitted to hospital and treated for a couple of days (ts 131).  After being shown photographs of the rear of his left knee, Mr Tonta confirmed that the injuries to his skin were caused by his having been set on fire (ts 148).  Mr Tonta said that the fire had melted his skin and had caused his skin to stick to the jeans (ts 148).

    (e)Mr Tonta was asked in cross‑examination about the black mark.  He was asked whether it was possible that the black mark was grease.  Mr Tonta responded, 'if you were to get … the pants out of wherever they are in police property, I'm sure you can have a smell and look at it and you'll know that it's not grease and that it's … burnt' (ts 189). 

    (f)The witnesses who assisted Mr Tonta noticed the burns to his legs.  Mr Merton, who was at a nearby factory, noticed that Mr Tonta had burns to the back of his legs after Mr Tonta's jeans were removed (ts 270).  Mr Smith, who was a passerby, also noticed the burns (ts 343).

    (g)The police officers who saw that Mr Tonta had burns to the back of his legs cut the jeans into shorts so the burns did not stick to the jeans (ts 362, 369).  The jeans were seized by the police (ts 363, 369).

    (h)Police sent the jeans to PathWest for examination (ts 383).  Dr Baxter gave evidence in relation to the examination of the jeans.  The person who examined the jeans noted that they smelt very strongly of petrol (ts 384).

    (i)Police sent a towel located in the factory in Bayswater to PathWest for examination (ts 384 ‑ 385).  Dr Baxter gave evidence in relation to the examination of the towel.  The person who examined the towel noted that it smelt very strongly of petrol/oil (ts 385).

    (j)Dr Baxter gave evidence about the appearance of blood on the jeans.  The jeans had blood on the front of them.  The blood type was consistent with that of Mr Tonta (ts 383).  No evidence was given in relation to the black mark.

    (k)Dr Choo gave evidence as to the burns suffered by Mr Tonta.  She noted that there were first and second degree burns to Mr Tonta's legs (ts 353).  In particular, Dr Choo noted that there were burns on the inside of the thighs on both legs and behind the knees (ts 353).  The injuries were more wide spread than the skin behind the black mark.  Although Dr Choo could not identify how the burns had occurred, she was of the opinion that they had occurred within 24 or 48 hours of presentation (ts 354).

1. At the trial, the State and the appellant ran their cases in relation to count 3 without adducing any expert evidence as to whether or in what circumstances the legs of a person who is wearing jeans may be burnt by applying petrol to the jeans and igniting vapour from the petrol without any apparent damage to the jeans.

2. In my opinion, the jury were entitled to accept Mr Tonta's evidence and to be satisfied beyond reasonable doubt that:

   (a)the appellant applied petrol to Mr Tonta's jeans;

   (b)the appellant ignited vapour from the petrol; and

   (c)the ignited vapour caused the first and second degree burns to Mr Tonta's legs.

3. Mr Tonta's evidence of those facts was supported by other evidence.  In particular:

   (a)Dr Baxter's evidence that the person at PathWest who examined Mr Tonta's jeans in the laboratory noted that the jeans had 'a very strong petrol odour' (ts 384).

   (b)Dr Choo's evidence that it was very likely, from the appearance of the burns on Mr Tonta's legs, that they had been suffered within the previous 24 to 48 hours (ts 354).

4. The appellant's alternative scenario at trial that Mr Tonta may have suffered the burns while he was manufacturing methylamphetamine did not have any support in the evidence.  Although Mr Tonta had previously manufactured methylamphetamine and had previously been burnt in the course of manufacturing the drug, there was no evidence that Mr Tonta had been manufacturing methylamphetamine within 24 to 48 hours before being treated by Dr Choo and no evidence that he had sought or obtained medical treatment for the burns before the police drove him to the hospital on 13 June 2017.  Further, the alternative scenario requires the acceptance of the highly dubious proposition that, before his interaction with the appellant, Mr Taylor and Ms Atkinson on 12 June 2017, Mr Tonta was suffering from significantly painful and uncomfortable burns to his legs but, nevertheless, covered the burns by putting on jeans which happened to smell very strongly of petrol.

5. The jury was entitled to take the view that Mr Tonta's evidence that the fire was alight for 30 seconds was inaccurate and that he had been alight for a significantly shorter period, without having a reasonable doubt as to the honesty or reliability of Mr Tonta's evidence in relation to the core facts; namely, that the appellant had doused him in petrol, had set him alight and, as a result, he had suffered the first and second degree burns.  Common sense and life experience teaches that estimates of time made under circumstances of extreme stress may well be inaccurate.

6. Counsel for the appellant's submissions assumed that Mr Tonta could only have suffered the burns as a result of the appellant's alleged actions and in the alleged circumstances, as recounted by Mr Tonta in his evidence, if the jeans Mr Tonta had been wearing were damaged by fire.

7. I am satisfied, having regard to the trial record, that the assumption on which counsel for the appellant's submissions are based is unsound. In particular, it is unsound, having regard to the evidence referred to at [80] above and the matters referred to at [81], [84] and [85] above, to assert that if there was no apparent damage to Mr Tonta's jeans, then Mr Tonta could not have been burnt as a result of the appellant's alleged actions and in the alleged circumstances, as recounted by Mr Tonta in his evidence.

8. A jury, acting reasonably, was not precluded by the state of the evidence from convicting the appellant on count 3.  In particular, a jury, acting reasonably, was not precluded by the absence of a forensic examination of Mr Tonta's jeans, the photographs of the jeans not indicating that the jeans had been ignited or Dr Choo not stating that Mr Tonta's injuries had been caused by his jeans having been ignited, from convicting the appellant on count 3.

9. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on count 3.  The verdict of guilty was not unreasonable.  It was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw.  After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on count 3 or as to the correctness of his conviction on that count.  It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand.

10. Ground 1 is without merit.

Ground 2:  the appellant's submissions

1. Counsel for the appellant emphasised that Mr Munday, after inspecting and carrying out experiments, concluded that:

   (a)there was no evidence to support the proposition that petrol had been placed on the jeans worn by Mr Tonta and then ignited; and

   (b)alternatively, even if there was petrol present on the jeans, there was no evidence that ignition had occurred.

2. It was submitted that Mr Munday's evidence is credible.

3. Counsel argued that Mr Munday's evidence established that it was impossible for the appellant to have ignited Mr Tonta's jeans.  It followed, so it was submitted, that it was impossible for Mr Tonta to have suffered the burns as a result of any action by the appellant.  If the appellant could not have ignited Mr Tonta's jeans, the appellant could not have caused the bodily harm (namely the burns) suffered by Mr Tonta.

4. Counsel contended that Mr Munday's evidence established that the appellant is innocent on count 3.  Alternatively, his evidence raised such a doubt that this court should be satisfied that the appellant should not have been convicted on count 3.

Ground 2:  the State's submissions

1. Counsel for the State submitted that at the trial each of the appellant, Mr Taylor and Ms Atkinson was represented by competent and experienced counsel, none of whom sought to have Mr Tonta's jeans forensically examined.

2. Counsel emphasised that, ordinarily, an accused is bound by the manner in which defence counsel conducts the trial.

3. In the present case, it was open to the appellant to engage an expert, before the trial, to carry out a forensic examination of Mr Tonta's jeans or to request the State, before the trial, to undertake that assessment.

4. At the trial, defence counsel for the appellant argued during his closing address that the State had not forensically examined Mr Tonta's jeans; that the photographs of the jeans did not show any damage by fire; that the absence of apparent damage by fire was inconsistent with Mr Tonta's evidence that he had been doused in petrol and set alight; that this inconsistency seriously undermined Mr Tonta's credibility generally; and that in the circumstances the appellant should be acquitted.

5. At the trial, defence counsel for the appellant also argued during his closing address that Dr Baxter's evidence that the person at PathWest who had examined Mr Tonta's jeans noted that the jeans smelt very strongly of petrol was inconsistent with the failure of other witnesses at the trial (relevantly, Mr Merton, Mr Smith and the police officers who drove Mr Tonta to hospital) to mention in their evidence any smell of petrol on Mr Tonta's jeans.

6. It was open to the appellant's defence counsel to have tendered Mr Tonta's jeans at the trial. However, if the appellant's defence counsel had done so, the tender could have blunted the arguments of defence counsel which I have set out at [98] ‑ [99] above.

7. Counsel for the State submitted that, at the trial, defence counsel for the appellant chose to argue his case from the vantage point of certainty, namely that there was no apparent damage to Mr Tonta's jeans, rather than risk the possibility of discovering evidence which may have significantly or totally undermined his arguments.  That was a rational forensic decision which is binding upon the appellant.

8. Counsel contended that all of the proposed additional evidence sought to be adduced by the appellant and the State in the appeal had to be viewed against the framework of the evidence that was adduced at the trial; in particular, the evidence of Mr Tonta, Dr Baxter and Dr Choo.

9. Counsel for the State informed the court that he was not seeking to advance, as a scenario which explained the circumstances in which Mr Tonta suffered the burns, that Mr Tonta had been the victim of 'multiple ignitions and extinguishments of the flame' (appeal ts 91). Counsel conceded, frankly, that there was no evidence that a scenario of that kind had occurred. Counsel accepted that, in these circumstances, Detective Sergeant De Bruin's scenario in the bullet points of his email dated 30 March 2021, which I have reproduced at [54] above, was not in point because that scenario involving multiple ignitions and extinguishments of flame did not occur in the present case.

10. Counsel for the State accepted that the additional evidence sought to be adduced in the appeal indicated that the ignition of vapour from petrol could heat the fabric of jeans, but the evidence at the trial and the additional evidence did not explain the mechanism by which any ignited vapour from petrol could have caused the burns suffered by Mr Tonta.

11. Counsel submitted that Mr Munday's conclusion, based on the experiments he had conducted, that Mr Tonta's account of how he suffered the burns could not be correct had to be evaluated having regard to other facts established by evidence at the trial.  When that was done the appellant's contention, based on Mr Munday's evidence, that it was impossible for Mr Tonta to have suffered the burns as a result of any action by the appellant should be rejected.

12. It was submitted that:

    (a)the facts established by the evidence at the trial; and

    (b)the additional evidence sought to be adduced in the appeal,

    did not establish that the appellant is innocent of the offence charged in count 3 or raise such a doubt that this court should be satisfied that the appellant should not have been convicted on count 3.

Ground 2:  its merits

1. In Clarke v The State of Western Australia,[12] I summarised (Mazza JA agreeing) the principles governing the admission on appeal of additional evidence not adduced at the trial.  That summary was reproduced by this court in Huggins v The State of Western Australia.[13]  I will repeat the relevant part of what I wrote in that case.

   [12] Clarke v The State of Western Australia [2018] WASCA 14 [231] ‑ [246].

   [13] Huggins v The State of Western Australia [2018] WASCA 61 [384] ‑ [397] (Buss P, Mazza & Beech JJA).

2. Part 4 of the Criminal Appeals Act 2004 (WA) is headed 'Provisions applicable to any appeal' and comprises s 36 to s 45.

3. Section 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.

4. Section 40(1) provides, relevantly:

   For the purposes of dealing with an appeal, an appeal court may do any or all of the following ‑ 

   (a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

   (b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

   …

   (d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

   (e)admit any other evidence.

5. The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power.[14] The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).

   [14] See, generally, CDJ v VAJ(No. 2)[1998] HCA 67; (1998) 197 CLR 172 [108].

6. At common law, there is a well-established distinction between fresh evidence, on the one hand, and new evidence, on the other.  Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial.  New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.[15] 

   [15] Beamish v The Queen [2005] WASCA 62 [9].

7. The courts have traditionally treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence.

8. Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[16] 

   [16] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676; DPJB v The State of Western Australia [2010] WASCA 12 [66].

9. Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant.[17]  The fresh evidence must be relevant.  It must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent).[18]  

   [17] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399, 402; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 301 - 302.

   [18] Lawless (676 - 677); Gallagher (397, 401 - 403, 410); Mickelberg (302).

10. Ordinarily, there will be no miscarriage of justice at a criminal trial unless:

    (a)in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and

    (b)in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.

11. Although it is highly unlikely that Parliament intended that s 40(1)(e) should be construed as obliterating the distinction developed in the common law courts between the admission of fresh evidence and the admission of new evidence on appeal, the power in s 40(1)(e) is broader than the principles applicable in common law proceedings.[19]  

    [19] See, generally, CDJ [108], [111].

12. As I have indicated, an appellant's prospects of establishing that a miscarriage of justice, within s 30(3)(c), has occurred will be relevant in determining whether the court should exercise its power to admit additional evidence (whether new or fresh) in the appeal pursuant to s 40(1)(e).

13. In Rinaldi v The State of Western Australia,[20] Steytler P (Wheeler & Pullin JJA agreeing) said, in relation to s 40(1)(a), (b), (d) and (e):

    While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction':  CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

    [20] Rinaldi v The State of Western Australia [2007] WASCA 53.

14. As Steytler P explained in Rinaldi, although the common law principles concerning new and fresh evidence are not necessarily determinative of the manner in which the discretion conferred by s 40(1)(e) will be exercised, those principles will, ordinarily, be weighty, and it will be a rare case in which an exercise of the statutory discretion produces an outcome different from that produced by the application of the common law principles. Steytler P's observations in Rinaldi have been referred to with approval in numerous decisions of this court.[21]  

    [21] See, for example, DPJB [64]; Cramphorn v Bailey [2014] WASCA 60 [61].

15. In the present case, I am satisfied that the appellant's conviction at trial of the offence charged in count 3 did not involve or occasion a miscarriage of justice.

16. First, I am of the opinion that the appellant's lawyers, including his defence counsel, made a rational forensic decision before the trial not to carry out a forensic examination of Mr Tonta's jeans and not to request the State to undertake that assessment.

17. As I have mentioned, during his closing address at the trial, defence counsel emphasised that the State had not forensically examined Mr Tonta's jeans; the photographs of the jeans did not indicate that the jeans had been damaged by fire; the absence of apparent damage by fire was inconsistent with Mr Tonta's account that he had been doused in petrol and set alight; this inconsistency seriously undermined Mr Tonta's credibility generally; and in those circumstances the appellant should be acquitted.

18. If the appellant's lawyers had engaged an expert, before the trial, to forensically examine Mr Tonta's jeans or if his lawyers had requested the State, before the trial, to arrange for that examination to be made, there was a real risk (on the information then known) that the examination may have produced results that were adverse to the appellant's case.  In particular, there was a real risk (on the information then known) that the forensic examination may have diminished substantially or even foreclosed defence counsel's argument during his closing address in relation to the jeans.

19. The rational forensic decision by the appellant's lawyer not to carry out or request the carrying out of a forensic examination of Mr Tonta's jeans is binding on the appellant.  See Nudd v The Queen;[22] WMT v The State of Western Australia.[23]

    [22] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9].

    [23] WMT v The State of Western Australia [2021] WASCA 104 [64] - [65].

1. Secondly, I am not persuaded, having regard to the evidence led at the trial and the additional evidence sought to be adduced in the appeal (notably, Mr Munday's evidence), that:

   (a)it was impossible for the appellant to have done the alleged act which caused the alleged bodily harm; or

   (b)the appellant is innocent or there is a reasonable doubt as to whether he was guilty of the offence charged in count 3.

2. It is true that Mr Munday's examination of Mr Tonta's jeans under the supervision of a police officer revealed 'no indication of gross burning or scorching to the surface of the fabric', no apparent heat damage and no other damage associated with exposure to fire, flame or heat.

3. It is also true that the experiments conducted by Mr Munday indicated that:

   (a)it is possible that a very small amount of petrol, approximately 5 ml or less, placed on the surface of denim jeans, ignited and extinguished within a few seconds could result in no detectable heat damage to the fabric of the jeans, but 'such a small event would not produce sufficiently high levels of heat flux and temperature to affect skin inside the clothing'; and

   (b)heat flux and temperature levels sufficient to cause skin burns could be achieved beneath the fabric of jeans when a relatively small quantity of petrol (10 ml) was burnt for less than 30 seconds, but in that case there was 'observable thermal damage to the fabric'.

4. I accept Mr Munday's evidence based on the experiments he conducted as to the circumstances in which he noted heat or thermal damage to the fabric of the jeans he used in his experiments.  I do not, however, accept his evidence as to the temperature at which skin inside denim jeans would be affected by the application of fire, flame or heat to or in the vicinity of the external surface of the jeans.  Mr Munday was not qualified to give expert evidence on that issue.

5. Mr Munday's evidence that when he inspected Mr Tonta's jeans there was 'no noticeable odour of petrol or other ignitable liquid' is of no significance because of the interval between the date of the offending and the date of Mr Munday's inspection and because the jeans were not stored in a cryovac bag.

6. Mr Munday's evidence that when he examined Mr Tonta's jeans no chemical powder extinguisher discharge was 'visible on' the jeans is not of importance having regard to the interval between the date of the offending and the date of Mr Munday's inspection, the absence of forensic testing of the jeans for that purpose and the failure to store the jeans in cryovac bag.

7. Detective Sergeant De Bruin said in his report that where petrol is poured onto denim jeans, ignited and immediately extinguished it would not be unreasonable for there to be no evidence of combustion detectable on the material because only the petrol vapours would have had a chance to combust after initial ignition.  However, that opinion was based on the hypothesis that only a small amount of petrol was poured onto the jeans, ignited and immediately extinguished.

8. The additional evidence sought to be adduced in the appeal establishes that:

   (a)when petrol is ignited it is vapour from the petrol (as distinct from the petrol liquid) which combusts; and

   (b)if petrol liquid is poured onto the surface of denim jeans and the petrol vapours are ignited the fabric of the jeans will rise quickly in temperature.

9. Although Mr Munday's experiments indicated various circumstances in which the fabric of denim jeans will or will not be damaged when a particular quantity of petrol is poured onto jeans and the petrol vapours are ignited, his experiments did not precisely replicate the circumstances in which Mr Tonta allegedly suffered his burns.

10. More significantly, neither Mr Munday nor any of the other experts who gave evidence in the appeal expressed a view (and none was qualified to express a view) as to the maximum temperature which the fabric of jeans might reach, without showing apparent fire damage, if the fabric is exposed to ignited petrol vapours.

11. Also, the additional evidence says nothing about whether and, if so, in what circumstances the fabric of jeans, which has been heated by exposure to ignited petrol vapours, would be likely to cause first or second degree burns to a person wearing the jeans.  No doubt, evidence of that kind would be within the expertise of a medical practitioner with a specialist qualification in the diagnosis and treatment of burns.  No such evidence was led at the trial or sought to be adduced in the appeal. 

12. Neither the evidence at the trial nor the additional evidence explains the mechanism by which any ignited petrol vapours could have caused Mr Tonta's burns.

13. It is necessary for this court, in deciding whether a miscarriage of justice has occurred having regard to the additional evidence sought to be adduced in the appeal, to consider the additional evidence together with the evidence led at the trial.

14. As I have mentioned in the context of ground 1, I am of the opinion that the jury were entitled to accept Mr Tonta's evidence and to be satisfied beyond reasonable doubt that the appellant applied petrol to Mr Tonta's jeans; the appellant ignited vapour from the petrol; and the ignited vapour caused the first and second degree burns to Mr Tonta's legs. Mr Tonta's evidence of those facts was supported by Dr Baxter's evidence and Dr Choo's evidence, to which I have referred at [83] above.

15. Also, as I have mentioned in the context of ground 1:

    (a)The appellant's alternative scenario at trial that Mr Tonta may have suffered the burns while he was manufacturing methylamphetamine did not have any support in the evidence.  Although Mr Tonta had previously manufactured methylamphetamine and had previously been burnt in the course of manufacturing the drug, there was no evidence that Mr Tonta had been manufacturing methylamphetamine within 24 to 48 hours before being treated by Dr Choo and no evidence that he had sought to obtain medical treatment for the burns before the police drove him to the hospital on 13 June 2017.

    (b)The alternative scenario requires the acceptance of the highly dubious proposition that, before his interaction with the appellant, Mr Taylor and Ms Atkinson on 12 June 2017, Mr Tonta was suffering from significantly painful and uncomfortable burns to his legs but, nevertheless, covered the burns by putting on jeans which happened to smell very strongly of petrol.

    (c)The jury was entitled to take the view that Mr Tonta's evidence that the fire was alight for 30 seconds was inaccurate and that he had been alight for a significantly shorter period, without having a reasonable doubt as to the honesty or reliability of Mr Tonta's evidence in relation to the core facts.

    (d)Common sense and life experience teaches that estimates of time made under circumstances of extreme stress may well be inaccurate.  

1. The alternative scenario at trial that Mr Tonta may have suffered the burns while he was manufacturing methylamphetamine is not a reasonable possibility having regard to the additional evidence sought to be adduced in the appeal and the evidence led at the trial.

2. Ground 2 has not been made out.

Conclusion

1. I would grant the appellant and the State leave to adduce additional evidence in the appeal in accordance with their applications. 

2. The application for an extension of time within which to appeal should be dismissed.  Leave to appeal on ground 1 should be refused and leave to appeal on ground 2 should be granted.  However, neither ground has been established.  The appeal must be dismissed.

MITCHELL JA:

1. I have had the considerable advantage of reading the draft reasons of Buss P and Beech JA in this appeal.  The evidence and applicable principles are described in their Honours' reasons.  I agree that ground 1 is not established for the reasons explained by Buss P.

2. I have found ground 2 more difficult to determine.

3. The evidence adduced at trial established, beyond reasonable doubt, that:

   1.On the evening of 12 June 2017, the appellant assaulted Mr Tonta, forced him into the boot of a car and drove him to the Bayswater factory where Mr Tonta was assaulted, bound with cable ties and detained.

   2.Mr Tonta escaped from the factory at about 9.30 am on 13 June 2017.

   3.At the time of escaping, Mr Tonta was wearing jeans, under which were a mixture of first and second degree burns on Mr Tonta's thighs and the back of both knees. 

   4.The jeans worn by Mr Tonta emitted a very strong petrol odour.

5.The burn injuries were likely to have been suffered within 24 ‑ 48 hours prior to the time when Mr Tonta was examined by Dr Choo later on 13 June 2017.

1. Mr Tonta's evidence was that the burns were sustained at the factory when the appellant poured unleaded petrol from a black jerry can all over his legs, and lit the petrol by applying a Bic lighter to the back of Mr Tonta's left knee.  The fire was extinguished using a powder fire extinguisher.  Mr Tonta said that he was wearing the jeans at this time.[24]

   [24] Trial ts 122 - 124.

2. Mr Tonta's evidence was the only account of the commission of count 3 on the indictment.  The prosecution case on count 3 depended upon the jury being satisfied beyond reasonable doubt that, in its essential aspects, Mr Tonta's evidence as to the circumstances in which he sustained the burns was honest, accurate and reliable.

3. In referring to the essential aspects of Mr Tonta's evidence, I exclude his evidence that he was alight for '30 seconds, maybe'.[25]  Clearly, any fire could not have burned for that long.  However, a person subject to a traumatic experience of the kind described by Mr Tonta would be likely to have a distorted sense of time and may well find that one second seems like thirty. 

   [25] Trial ts 123.

4. The effect of the additional evidence adduced in the appeal is that the jeans worn by Mr Tonta showed no signs of thermal damage.

5. As a matter of common sense and experience, I would expect that an ignition of vapour from petrol on jeans Mr Tonta was wearing that caused the widespread and significant burn injuries to Mr Tonta's legs would result in detectable thermal damage to the jeans.  That expectation is confirmed by the evidence of Mr Munday and Detective Sergeant De Bruin.  While I agree that their evidence does not establish that it is impossible for vapour from petrol poured onto the jeans to have ignited and caused burns to Mr Tonta's legs without thermal damage to the jeans, it indicates that is unlikely to have occurred in this case.  The only possible mechanisms for that to have occurred suggested by Mr Munday and Detective Sergeant De Bruin (the transient ignition of a very small amount of petrol described by Mr Munday or the repeated ignition and extinguishment described by Detective Sergeant De Bruin) are inconsistent with Mr Tonta's evidence. 

6. The combined effect of the evidence adduced at trial and on appeal is that there is no available explanation of how, contrary to my intuition, Mr Tonta could have sustained such widespread and significant burn injuries to his legs from the ignition of vapour from petrol poured onto jeans he was wearing without any thermal damage to the jeans.

7. Mr Tonta's evidence was the only evidence of the appellant committing count 3.  The question in this case is whether, in light of the additional evidence, a jury could be satisfied beyond reasonable doubt that, in its essential aspects, Mr Tonta's account of the manner in which he received the burn injuries was honest, accurate and reliable.  That additional evidence indicates that the burn injuries sustained by Mr Tonta were unlikely to have occurred in the manner he described without some thermal damage to the jeans.  However, the evidence does not establish that it is impossible for the burns to have occurred in the manner described by Mr Tonta's account. 

8. The unlikelihood of the burn injuries having occurred in the manner Mr Tonta described, by some mechanism which on the current evidence is unexplained, presents a significant impediment to a jury being satisfied, beyond reasonable doubt, as to the honesty, accuracy and reliability of his account.  However, in my view the evidence taken as a whole is capable of excluding a reasonable possibility that Mr Tonta sustained the burns by some other means. 

9. It is not just that the evidence does not reveal any alternative means by which Mr Tonta could have sustained the burns.  Any alternative scenario consistent with the appellant's innocence must involve Mr Tonta sustaining the burn injuries when he was not wearing the jeans on either 11 July 2017 or 12 July 2017, and then putting the jeans on over his otherwise uncovered burns at some time before he was taken to the Bayswater factory by the appellant.  It is inherently implausible that Mr Tonta would put jeans over such significant and uncovered burn injuries.  The resulting pain and discomfort that would cause is illustrated by the difficulty in Mr Tonta's movements shown on CCTV after his escape from the Bayswater factory.  It is also illustrated by his need to remove the jeans and the legs of the jeans being cut in half in order for Mr Tonta to be clothed prior to his transfer to hospital.  It is even more implausible that Mr Tonta would have placed jeans doused in petrol on his burnt legs. 

10. If the petrol was not on the jeans when Mr Tonta was taken to the Bayswater factory, then the only explanation open on the evidence would be that the appellant must have poured the petrol on Mr Tonta's jeans at the factory.  It is a highly implausible coincidence that the appellant would pour petrol onto Mr Tonta's jeans, without igniting the petrol, in the course of assaulting and detaining him, when those jeans just happened to be covering Mr Tonta's very recently burnt legs.  There is no suggestion in the evidence that the appellant was aware that Mr Tonta was suffering from burn injuries when he detained him, so as to give him some reason to pour petrol on the jeans.  To the contrary, the appellant denied being aware of Mr Tonta suffering any burn injuries.[26]

    [26] Trial ts 470, 488 - 489.

11. I have had significant reservations arising from the evidence as to the absence of any thermal damage to Mr Tonta's jeans.  In the end, it is the implausibility of any alternative hypothesis consistent with the appellant's innocence which has convinced me that the only reasonable possibility left open by the additional evidence and the evidence adduced at trial, considered as a whole, is that, despite the absence of thermal damage to the jeans, the burns must have been sustained in the manner Mr Tonta described.

12. Therefore, in my view the additional evidence (which is properly classified as new evidence rather than fresh evidence), considered together with the evidence led at trial, does not raise such a doubt about the appellant's guilt that he should not have been convicted of count 3.  There is no miscarriage of justice arising from the absence of the additional evidence at trial.  I agree with Buss P and Beech JA that ground 2 is not established and the appeal must be dismissed.  I agree with the orders proposed by Buss P.

BEECH JA:

1. I agree with Buss P that both grounds of appeal fail.  As to ground 1, I agree with his Honour's reasons.  In my view, ground 2 fails for the reasons given by Buss P and for the following additional reasons which are, I think, by way of elaboration rather than qualification.

2. The appellant properly accepted that the additional evidence on which he relied was new rather than fresh evidence.[27]  Consequently, applying the principles outlined by Buss P at [109] - [120], the essential question is whether, on the whole of the evidence, including the additional evidence, the appellant has demonstrated that he is innocent or that the court should have a reasonable doubt, so that he should not have been convicted.

   [27] Appeal ts 51.

3. The appellant relies upon the expert opinion of Mr Munday, emphasising that his evidence was neither challenged by cross‑examination nor contradicted by other evidence.

4. The court is not obliged to uncritically adopt the opinion of an expert, even if it is unchallenged.  The court is entitled to have regard tothe expertise of the expert, the questions involved in the opinion, and the reasoning underpinning the opinion.  The court is also entitled to weigh the opinion against other evidence in the case.

5. The position is illustrated by cases concerning the approach to be taken to uncontradicted medical evidence of lack of a relevant mental capacity in evaluating a defence of insanity.  Many such cases were discussed by Steytler P in Hone v The State of Western Australia.[28]  In Hone, the court concluded that the trial judge erred in rejecting unchallenged medical opinion that the appellant's mental impairment deprived him of the capacity to know that he ought not to do the acts of killing his mother and half‑sister.  The court considered there was no evidence or circumstance that could displace or cast doubt upon the expert evidence given by the psychiatrist as to the appellant's mental capacity.

   [28] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138.

6. Steytler P discussed a number of cases recognising circumstances where a jury is entitled not to accept unchallenged expert opinion.  The jury is entitled to examine the nature, quality and weight of medical evidence.[29]  The jury is also entitled to evaluate and weigh an expert opinion, even if uncontradicted, with evidence as to the facts of the case with which the jury is concerned.  Other evidence of facts and circumstances may displace or throw doubt on the expert evidence.[30]

   [29] Taylor v The Queen (1978) 45 FLR 343, 363; R v Michaux [1984] 2 Qd R 159, 164; Hone [4] ‑ [6].

   [30] Taylor (364); R v Dick [1966] Qd R 301, 305 - 306; Michaux (164); Hone [4] ‑ [6].

7. In a civil case, an inference of causation may be drawn, notwithstanding the absence of an expert witness expressing an opinion that the damage was caused by the relevant breach, if the materials as a whole justify an inference of probable causation.[31]  Further, in circumstances where aetiology is uncertain, or subject to significant scientific dispute, courts are not thereby disabled from making decisions as to causation on the balance of probabilities.[32]  Similar reasoning applies in a criminal case, subject always to the fundamental requirement of proof beyond reasonable doubt.  In some cases, expert opinion as to the absence of any likely causal link may require a reasonable doubt, but whether it does depends upon an evaluation of the whole of the evidence.

   [31] East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147 [273]; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 [83].

   [32] East Metropolitan Health v Ellis [274]; Seltsam [94].

8. In East Metropolitan Health Service v Ellis, this court rejected a submission that a plaintiff is required to prove by expert evidence the mechanism by which a breach, or its immediate consequence, caused the damage claimed by the plaintiff, in circumstances where there was expert evidence suggesting a lack of association.[33]  Rather, the question of causation was to be evaluated having regard to the whole of the evidence.  In my view, the position is analogous in the present case, notwithstanding that it involves a charge of a criminal offence.  Even in circumstances where, as here, an accused leads evidence suggesting a lack of association between the acts of the accused described by a complainant and the injuries he (the complainant) suffered, there is no requirement that the prosecution must lead expert evidence to prove the mechanism by which those acts could cause such injuries.  Thus, the fact that there is no expert evidence to explain the manner in which a person wearing jeans may receive first and second degree burns without any perceptible damage to the jeans does not of itself establish the appellant's innocence or the existence of a reasonable doubt requiring a verdict of acquittal. 

   [33] East Metropolitan Health v Ellis [268] - [271].

1. The opinions expressed by Mr Munday in his second report are based substantially upon the experiments he conducted.  In my view there are significant limitations on the experiments.  In addition to the points made by Buss P, the nature of the process of experimentation tends to make the conduct of one or more particular experiments an insecure foundation for an assertion - as a universal negative proposition - of impossibility, which is what the appellant's case on appeal involves.

2. The appellant's central submission, that Mr Munday's reports establish that given the absence of damage to the jeans it was impossible for the complainant to have received the burns he suffered while wearing the jeans, overstates the effect of those reports.  As Buss P points out, Mr Munday's reports did not contain evidence, and certainly not clear and cogent evidence, of what circumstances (including as to temperature and duration of exposure to fire) are necessary to produce burn injuries of the kind suffered by the complainant.  In any event, such evidence is plainly not within Mr Munday's expertise.  At its highest, Mr Munday's evidence expresses an opinion as to the unlikelihood (namely, that it was 'highly improbable'[34]) ‑ not impossibility ‑ of the complainant having suffered his burns in the manner recounted by the complainant.  The weight of that evidence is to be evaluated having regard to (i) the scope of his expertise, (ii) the limited reasoning in support of the opinion, beyond the experiments he did, and (iii) the combined effect of all of the evidence at the trial and on appeal.

   [34] Mr Munday's report of 12 August 2021 [8.2].

3. As Buss P has explained, the circumstances provide strong support for the complainant's account of how he received the burns.  It is not in doubt that he received the burns, and that he suffered them in the 24 ‑ 48 hours before he went to hospital.  Nor is or was it in doubt that there was petrol on the jeans that the complainant was wearing.[35]

   [35] Appeal ts 73.

4. The alternative hypothesis, said to be consistent with the appellant's innocence, is that (i) he suffered the burns at some time in the 32 hours or so leading up to the time when he was kidnapped by the appellant and his co‑offenders, and (ii) he then put the jeans on, over his now burnt legs.

5. As to [171](i), there is no evidence whatsoever of the occurrence of any event before the appellant was kidnapped that was capable of causing these burns.  The only hypothesis floated at trial was that the appellant burnt himself while cooking methylamphetamine.  There is no evidence that tends to suggest that the appellant was engaged in manufacturing methylamphetamine during the relevant period.  Much less is there any evidence to explain why that process might have caused burns to the back of the complainant's legs. 

6. As to [171](ii), the evidence at trial demonstrates that the complainant experienced substantial pain and discomfort from the burns.  After the complainant took off his jeans, the police officers cut off the bottom half of his jeans so that he could put them back on and wear them to hospital without them rubbing against his burns.[36]  It is implausible that he would have put the jeans on after suffering extensive burn injuries to his legs.

   [36] ts 263 ‑ 363, 369.

7. Thus, when viewed in isolation, each of limbs (i) and (ii) of the appellant's alternative hypothesis lacks plausibility, as well as lacking any evidentiary support.  The appellant's alternative hypothesis involves both limbs having occurred, with the compounding improbabilities entailed by that.    

8. Moreover, on the appellant's competing hypothesis, the presence of the petrol on the jeans which the complainant put on must be seen as nothing more than a coincidence.  This too is implausible.  On this hypothesis, the only reasonable explanation for the presence of the petrol is that the appellant poured it on the complainant's jeans, as it could not be thought that the complainant would have put on jeans already soaked in petrol or that he would have poured petrol over his jeans and already burnt legs while wearing them.  It would be a striking coincidence for the appellant to have poured petrol on the complainant's jeans without setting them alight, in circumstances where the complainant had suffered burns to his legs.  For the appellant to have done so would also have been an act without apparent purpose.

9. For these reasons, to the extent that any alternative hypothesis consistent with innocence as to how the complainant's injuries were suffered is identified by the appellant, such alternative hypothesis is fanciful.

10. Contrary to the appellant's submission, the absence of a plausible competing hypothesis is significant for the evaluation of Mr Munday's opinion in the context of the case as a whole.  The appellant submits that any implausibility of this alternative scenario does not answer the appellant's assertion of the impossibility of the complainant having been burnt in the manner he described.[37]  As explained above, Mr Munday's evidence does not establish impossibility.  Whether, notwithstanding Mr Munday's evidence, it was proved beyond reasonable doubt that the complainant's injuries were suffered substantially[38] in the manner described by the complainant is to be evaluated having regard to the whole of the evidence.  Given the limitations of Mr Munday's evidence and given the absence of any even remotely plausible hypothesis consistent with innocence to explain the injuries undoubtedly suffered by the complainant, I am comfortably satisfied that it was so proved.  The appellant has not demonstrated that he is innocent or that there is such a reasonable doubt as to his guilt that he should not have been convicted.

    [37] Appeal ts 74.

    [38] Subject to it being open to the jury to find that the fire was alight for a significantly shorter period than the complainant's estimate, as to which see [85] of Buss P's reasons.

11. For the reasons in [167] above, the admitted absence of expert evidence to explain the mechanism by which a person wearing jeans could suffer burns caused by a petrol vapour fire without damage to the jeans does not undermine this conclusion.

12. For these reasons and the reasons given by Buss P, ground 2 is not made out.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TW

Associate to the Honourable President Buss

22 NOVEMBER 2021