O'Dea v The State of Western Australia - [2021] WASCA 61

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   O'DEA -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 61
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   12 JANUARY 2021
DATE OF FINAL
SUBMISSIONS       :   8 FEBRUARY 2021
DELIVERED          :   13 APRIL 2021
FILE NO/S:   CACR 38 of 2020
BETWEEN:   BRETT CHRISTOPHER O'DEA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEMONIS DCJ
File Number            :   IND 2100 of 2018

Catchwords:

Criminal law - Appeal against conviction - The appellant and a co-accused were jointly tried on a count which alleged that the appellant and the co-accused, with intent to maim, disfigure, disable or do some grievous bodily harm to the complainant, unlawfully did grievous bodily harm to the complainant, contrary to s 294(1) of the Criminal Code (WA) - Jury convicted the appellant - Jury unable to agree upon a verdict in respect of the co-accused - The State's case at trial alleged that the appellant and the co‑accused were jointly criminally responsible under s 7(a) of the Code - The State's case at the trial alleged, in the alternative, that the appellant or the co-accused was criminally responsible under s 7(a) and the other of them was criminally responsible under s 7(c) of the Code - The State contended that the appellant and the co‑accused had acted together in attacking the complainant - The State asserted that the appellant had caused, or at least contributed to, the grievous bodily harm suffered by the complainant - The State accepted, however, that as a result of each of the appellant and the co‑accused having inflicted a number of blows upon the complainant, it was possible that the grievous bodily harm had been caused by a combination of their acts - Whether the trial judge erred in leaving to the jury the State's case alleging joint criminal responsibility under s 7(a) - Whether the trial judge misdirected the jury in respect of the State's case based on joint criminal responsibility under s 7 (a) - Whether it was open to the jury to find the appellant guilty on the basis that he was a joint principal under s 7(a) without the co‑accused also being convicted on that basis

Legislation:

Criminal Code (WA), s 1(1), s 2, s 7(a), s 7(c), s 294(1)
Interpretation Act 1984 (WA), s 10(c)

Result:

Appellant's application for an extension of time to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr A O Karstaedt
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	NR Barber Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Couzens v The State of Western Australia [2019] WASCA 54
Daaboul v The Queen [2019] NSWCCA 191; (2019) 100 NSWLR 682
Dayananda v The State of Western Australia [2021] WASCA 11
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Lacco v The State of Western Australia [2006] WASCA 152
Lia v The State of Western Australia [2020] WASCA 216
Millar v The Queen [2003] WASCA 211
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pickett v The State of Western Australia [2020] HCA 20; (2020) 94 ALJR 629
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Fowler [2012] QCA 258; (2012) 225 A Crim R 226
R v Melling [2010] QCA 307
R v Quagliata [2019] QCA 45
R v Sherrington [2001] QCA 105
R v Webb; Ex parte Attorney‑General [1990] 2 Qd R 275
R v Wyles; Ex parte Attorney‑General [1977] Qd R 169
Warren and Ireland v The Queen [1987] WAR 314
Wells v The State of Western Australia [2017] WASCA 27
Whitby v The State of Western Australia [2019] WASCA 11

TABLE OF CONTENTS

Overview of the State's case at trial

Overview of the appellant's case at trial

The jury handout

The grounds of appeal

Ground 1: the appellant's submissions

Ground 2: the appellant's submissions

Ground 2A: the appellant's submissions

Ground 2B: the appellant's submissions

Ground 3: the appellant's submissions

Ground 1: its merits

Ground 2: its merits

Ground 2A: its merits

Ground 2B: its merits

Ground 3: its merits

Conclusion

JUDGMENT OF THE COURT:

The appellant has applied for an extension of time within which to appeal and for leave to appeal against conviction.
The appellant and his co-accused, Jacob Jefferson Webb, were tried in the District Court before Lemonis DCJ and a jury on a count which alleged that, on 20 January 2018 at Manning, the appellant and Mr Webb, with intent to maim, disfigure, disable or do some grievous bodily harm to Alimamy Koroma, unlawfully did grievous bodily harm to Mr Koroma, contrary to s 294(1) of the Criminal Code (WA) (the Code).
On 15 October 2019, the jury returned a verdict of guilty, as charged, in respect of the appellant. The jury was unable to agree upon a verdict in respect of Mr Webb. In August 2020, Mr Webb was retried. He was convicted of the alternative offence of unlawfully doing grievous bodily harm to another, contrary to s 297(1) of the Code.
On 9 December 2019, the trial judge sentenced the appellant to 6 years 3 months' imprisonment. The sentence was backdated to 13 October 2019. A parole eligibility order was made.
The last date for appealing against conviction was 30 December 2019. The appellant did not file his appeal notice until 3 March 2020. His application for an extension of time is supported by an affidavit of his lawyer, Neville Barber, sworn 3 March 2020 and an affidavit of the appellant sworn 4 November 2020. On 18 May 2020, Buss P ordered that the appellant's application for an extension of time be referred to the hearing of the appeal.
We would dismiss the appellant's application for an extension of time and refuse leave to appeal. The appeal must be dismissed. Our reasons are as follows.

Overview of the State's case at trial

An overview of the State's case at trial is as follows.

Between 2.30 am and 2.50 am on 20 January 2018, Tamara Dimer entered the Manning Bowling Club through a side door. Ms Dimer did not have permission to enter the bowling club and was not a member. Once inside, Ms Dimer entered a locker room and rummaged through several bags. She then entered the boardroom where she located a box labelled 'footy tips' and a first aid box. Ms Dimer opened the first aid box and attempted to open the footy tips box. Ms Dimer was disturbed by Mr Koroma who worked as a cleaner at the bowling club. Ms Dimer fled on foot. Mr Koroma followed her.
Ms Dimer picked up a house brick and hid in the front yard of residential premises. She then emerged and confronted Mr Koroma by holding the brick and threatening to throw it at him. Ms Dimer threw the brick to the side and continued to run along a residential street.
Ms Dimer ran towards a house at 47A Griffin Crescent, Manning. At the time, the appellant was in his bedroom with his partner, Rachel Haydon-Wood. The appellant awoke to the sound of screaming. The appellant then woke the co‑accused, Mr Webb, who was asleep on a couch in the house and told him to come outside. The appellant armed himself with a weapon similar to a hockey stick.
The appellant and Mr Webb saw Mr Koroma and Ms Dimer in the driveway of the house. The appellant and Mr Webb tackled Mr Koroma. They struck him and caused him to fall to the ground. When Mr Koroma was on the ground the appellant and Mr Webb kicked him to the body and the head. Mr Koroma sat up. The appellant kicked Mr Koroma to the face and caused him to fall down.
Ms Dimer sat nearby while the appellant and Mr Webb assaulted Mr Koroma.
When Mr Koroma was lying on the ground the appellant raised the weapon (similar to a hockey stick) and struck Mr Koroma to the head. The appellant then dropped the weapon and struck Mr Koroma at least 10 times to the face and head with a clenched fist.
Mr Webb kicked Mr Koroma to the head twice before approaching Ms Dimer who was sitting near the letterbox.
The appellant dragged Mr Koroma from the driveway onto the grass verge near the street kerb. The appellant pushed Mr Koroma down and punched him twice while Mr Koroma was laying on his back. Mr Webb held Mr Koroma on the ground. The appellant raised the weapon and threatened to strike Mr Koroma again.
Ms Dimer began to walk along the street. However, the appellant and another man, Michael Thomas, followed her. The appellant told her to return. Ms Dimer approached Mr Koroma who was being held by Mr Webb. Ms Dimer reached over Mr Koroma's body, grabbed at his torso and waist, and rummaged through his pockets. Ms Dimer then grabbed a lanyard from around Mr Koroma's neck and attempted to drag him along the road. Mr Koroma's body moved as a result of the force with which Ms Dimer pulled the lanyard.
When Mr Koroma recovered into a sitting position Mr Webb grabbed him from behind. Mr Webb dragged Mr Koroma onto a neighbouring driveway. Mr Koroma's head struck the ground.
The appellant and Mr Webb circled Mr Koroma while he was sitting on the ground. He attempted to stand. The appellant then struck Mr Koroma on the right ankle with the weapon. Mr Koroma fell to the ground in the middle of the road. Mr Koroma got up and took several steps before falling again. He eventually got up and walked away. The appellant and Mr Webb followed him along the street.
The weapon was never recovered. The State's case was that the appellant must have disposed of the weapon on the night in question.
Mr Koroma was taken to hospital. He was treated for a traumatic brain injury with subarachnoid haemorrhage, left frontoparietal extradural haematoma and contusion. He was also treated for skull and facial bone fractures including a nasal bone fracture and a displaced fracture to the left side of his jaw. Further, he was treated for a fractured right ankle. Mr Koroma required comprehensive multi‑disciplinary inpatient rehabilitation including physiotherapy, occupational therapy, speech pathology, rehabilitation nursing and medical oversight. He has residual cognitive and speech related deficits which preclude him from returning to work or driving. Mr Koroma also required ongoing therapeutic intervention. In October 2018 he was admitted to a residential rehabilitation facility for people with an acquired brain injury.
Dr Mohammed Rasouli, a neurosurgical registrar, gave evidence at the trial as a State witness. Dr Rasouli said in evidence that Mr Koroma had sustained brain haemorrhages or haematomas on the left side of his head and a smaller brain haemorrhage or haematoma on the right side. Mr Koroma had some skull fractures and some facial fractures. The injuries to Mr Koroma's head were most likely caused by blunt trauma. The haematomas on the left side and the right side were most likely caused by different traumas. It was not possible to say whether the injuries on the left side were caused by one blunt trauma or more than one. The force required to cause those injuries was most likely moderate to severe. Lesser force was required to cause the injury on the right side. The blunt force trauma could have been caused by, amongst other things, a punch to the head, slamming the head onto the ground, falling hard on a surface or being hit with an object. The injuries to the left side and the injury to the right side could have been caused by a single punch or a fall with force to the ground (ts 249 ‑ 256, 262).
The evidence at the trial included CCTV footage from the house at 47A Griffin Crescent and from an adjacent house at 48 Griffin Crescent.
The footage from 47A Griffin Crescent was taken from two separate channels or camera views, namely channel 1 and channel 4.
Exhibit 11 at the trial comprised two files from channel 4 and one file from channel 1 as follows:
(a)The first file from channel 4 shows the appellant running out of the front door of 47A Griffin Crescent with a cigarette in his mouth. He is carrying a weapon (similar to a hockey stick). The appellant is wearing a tank top and shorts. He has a bald head. The appellant is followed closely by Mr Webb, who appears to be unarmed, and by Ms Haydon-Wood, who is holding a cigarette. Ms Haydon‑Wood returns inside the house shortly afterwards.
(b)The file from channel 1 shows Ms Dimer sheltering behind or between motor vehicles. Mr Koroma is behind a motor vehicle a short distance away. The appellant moves through the front gate and then raises the weapon. The appellant moves past Ms Dimer. He brandishes the weapon above his head. He moves forward and swings the weapon twice.
(c)The second file from channel 4 shows the appellant and Mr Webb returning inside the house, about 20 minutes after they left the house. The appellant is no longer carrying the weapon.
Exhibit 10 at the trial comprises two files of CCTV footage from 48 Griffin Crescent. Both files are from the same camera.
The first file from 48 Griffin Crescent shows the following:
(a)Ms Dimer runs along Griffin Crescent with Mr Koroma in pursuit. There is a brief interaction between them at the end of the driveway to 47A Griffin Crescent. Ms Dimer then runs between two motor vehicles in the driveway. She is followed by Mr Koroma.
(b)Mr Koroma falls on his back. He hits his head on the ground as he falls. Mr Koroma then rolls around on the ground. Mr Webb crouches over Mr Koroma. Mr Koroma attempts to sit up. The appellant kicks Mr Koroma to the face.
(c)Ms Dimer sits near the letterbox at 47A Griffin Crescent, a short distance from the place where Mr Koroma is being assaulted.
(d)The appellant raises and swings the weapon but does not strike Mr Koroma with it. The appellant drops the weapon and punches Mr Koroma several times. The appellant then drags Mr Koroma across the driveway and slams his head into the ground. Mr Koroma's head bounces on the concrete. Mr Webb stands next to the appellant and Mr Koroma while this occurs.
(e)Ms Dimer walks away from the house at 47A Griffin Crescent. She is followed by the appellant and Mr Thomas. Mr Webb remains with Mr Koroma at or near the kerb of 47A Griffin Crescent. Mr Koroma is endeavouring to get up and escape. Mr Webb pushes down on Mr Koroma several times. Ms Dimer returns and leans over Mr Koroma. She appears to be rummaging through his pockets and attempting to take a lanyard from his neck.
(f)Mr Webb then drags Mr Koroma forcefully. Mr Koroma hits his head on the ground.
(g)Mr Koroma is still endeavouring to get up. The appellant then strikes Mr Koroma's ankle with the weapon. Mr Koroma falls to the ground again.
(h)Ms Dimer walks towards the garage of 47A Griffin Crescent. She then walks towards the three men and watches as Mr Koroma struggles to get up and attempts to escape. Ms Dimer points in the direction in which Mr Koroma has escaped. The appellant and Mr Webb then walk in that direction.
The second file from 48 Griffin Crescent shows Ms Dimer and a man outside the front of 47A Griffin Crescent and the arrival of the police.
The prosecutor submitted in his closing address that, while it was not possible to be certain that the appellant had caused Mr Koroma's traumatic brain injury (which constituted the grievous bodily harm), it was more likely to be the appellant than Mr Webb. It was submitted that the appellant had inflicted the majority of the blows upon Mr Koroma, including with the weapon. However, as a result of each of the appellant and Mr Webb having inflicted a number of blows upon Mr Koroma, it was possible that the grievous bodily harm had been caused by a combination of their acts (ts 408).
The State's case at trial was that the jury should be satisfied beyond reasonable doubt that the appellant had caused, or at least contributed to, the grievous bodily harm suffered by Mr Koroma, by the appellant's acts in striking Mr Koroma to the head on at least 10 occasions (ts 419). The relevant acts of the appellant included striking Mr Koroma to the head with the weapon at least once (if not twice); punching Mr Koroma to the head numerous times; slamming Mr Koroma's head into the ground with such force that his head bounced on the concrete; and kicking Mr Koroma to the face while Mr Koroma was on the ground. The relevant acts of Mr Webb included punching Mr Koroma to the head and dragging Mr Koroma forcefully across the ground (which resulted in Mr Koroma's head being struck).

Overview of the appellant's case at trial

An overview of the appellant's case at trial is as follows. The appellant did not give evidence at the trial. He did not adduce any evidence.
The State tendered, as part of its case, the appellant's electronically recorded interview with police.
The appellant's case, as put by defence counsel on his behalf, was that the appellant had an honest and reasonable belief that Mr Koroma was attacking Ms Dimer. The appellant told police in his interview that he and Mr Webb had tackled Mr Koroma to the ground and Ms Hayden‑Wood had immediately telephoned the emergency services.
As to the CCTV footage, defence counsel submitted that the footage did not capture the entirety of the circumstances which occurred outside 47A Griffin Crescent. Defence counsel argued that, although the appellant came out of the house with the weapon, the CCTV footage did not establish that he struck Mr Koroma with the weapon.
Defence counsel emphasised that the appellant had a very short period within which to react. The appellant genuinely believed he was doing the right thing and that Mr Koroma had viciously attacked Ms Dimer.
Defence counsel referred to Dr Rasouli's evidence to the effect that the traumatic brain injury suffered by Mr Koroma could have been caused by a single blow. Defence counsel submitted that the jury should have a reasonable doubt as to whether that injury occurred outside 47A Griffin Crescent. It was reasonably possible that Mr Koroma suffered the traumatic brain injury when he fell to the ground while running away. Defence counsel also pointed out that there was evidence of a physical altercation between Mr Koroma and Ms Dimer before they arrived at 47A Griffin Crescent and Mr Koroma may have suffered the traumatic brain injury during that altercation.

The jury handout

The trial judge's directions in his summing up were summarised in a jury handout given by his Honour to the members of the jury.
His Honour emphasised to the jury that the jury handout was provided to assist the jury in understanding his Honour's oral directions and was not a substitute for those directions. However, the directions of law set out in the jury handout were consistent with his Honour's oral directions.
The jury handout described two 'pathways' by which the State put its case that the jury should be satisfied beyond reasonable doubt that the appellant and Mr Webb were guilty of the charged offence.
The first pathway asserted that the appellant and Mr Webb were both criminally responsible for the charged offence under s 7(a) of the Code. The second pathway asserted, in the alternative, that the appellant or Mr Webb was criminally responsible under s 7(c) of the Code in that he aided the other in committing the charged offence.
The jury handout described the circumstances in which two accused may be criminally responsible as 'joint principals' or 'principal offenders' as follows:
Sometimes an offence can consist of numerous acts, which have been done by more than one person. Where two people are acting in concert, each of them doing one or more of the acts which together constitute the offence, then they are all guilty of that offence. Persons who are guilty in this way are sometimes referred to as joint principals.
That is the basis upon which the State says you can find criminal responsibility in respect of Mr Webb and Mr O'Dea being principal offenders. It is not enough that the various acts when put together constitute the offence. For an accused to be liable as a joint principal, he must do an act that forms part of the offence, which act is part of a series of acts committed with another person, while they are acting together.

The jury handout contained these directions in respect of the first pathway:
To be satisfied beyond reasonable doubt that the relevant accused is guilty of the offence as charged via this pathway, you must be satisfied beyond reasonable doubt of all four of the following matters:
1.Mr Koroma suffered a bodily injury that amounts to grievous bodily harm, which in this case is the suffering of the traumatic brain injury, during the incidents which occurred outside 47A Griffin Crescent;
2.Mr O'Dea and Mr Webb were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to Mr Koroma;
3.The relevant accused's acts were unlawful; and
4.In doing the relevant acts, the relevant accused intended to disable, or to cause grievous bodily harm to Mr Koroma.
If you are not satisfied beyond reasonable doubt of either one [or] both of the first or third matters, you must find the relevant accused not guilty.
If you are satisfied beyond reasonable doubt that the State has proved all of the first three matters, but you are not satisfied beyond reasonable doubt the State has proved the fourth matter of intention, then you will find the relevant accused guilty of the alternative charge of doing grievous bodily harm.
If you are satisfied beyond reasonable doubt of the first and third matters, and some or none of you are not satisfied beyond reasonable doubt of the second matter of acting in concert, then you need to go on to consider the alternative pathway of aiding. (original emphasis)
The jury handout contained these directions in respect of the second pathway:
To find the relevant accused guilty of the offence as charged via this second pathway, you need to be satisfied beyond reasonable doubt of all of the following:
1.at least one of the two accused did the act or acts that caused the traumatic brain injury to Mr Koroma;
2.both accused's acts were unlawful;
3.both accused intended to disable or do grievous bodily harm to Mr Koroma;
4.the relevant accused knew the other accused's intention was to disable or do grievous bodily harm to Mr Koroma;
5.the relevant accused knew the other accused was assaulting Mr Koroma in such a manner as to be endangering or be likely to endanger life or to cause or be likely to cause permanent injury to health;
6.the relevant accused did something with the intention of aiding or assisting in the doing of the acts done by the other accused. A person will do something with the intention of aiding or assisting in the doing of the acts which constitute the offence, if the person's acts were willed and their purpose in doing the acts was to aid or assist in the doing of the acts which constitute the offence. The State says the relevant accused aided the other accused by participating in the assault [of] Mr Koroma and providing support and encouragement to the other accused; and
7.what the relevant accused did actually aided or assisted the other accused to commit the offence. (original emphasis)
The jury handout explained what the State must prove to establish that the alleged acts of the appellant and Mr Webb were unlawful in that they were not justified by law, as follows:
For the State to prove beyond reasonable doubt that the relevant accused's acts were unlawful, the State must prove beyond reasonable doubt those acts were not justified by law by reason of the following:
1.defence of Ms Dimer;
2.prevention of an assault or likely assault of Ms Dimer;
3.overcoming force used by Mr Koroma in resisting arrest;
4.in respect of Mr O'Dea, preventing Mr Koroma escaping from arrest.
So, the State must prove beyond reasonable doubt that none of these bases justify the relevant accused's acts.

The grounds of appeal

The appellant relies upon five grounds of appeal.
Ground 1 alleges, in essence, that the trial judge erred in leaving to the jury the basis for criminal responsibility designated as the 'first pathway', and the error occasioned a miscarriage of justice. One of the particulars of ground 1 was abandoned at the hearing of the appeal. The remaining particular asserts that 'it was not open as a matter of law to leave [the first pathway] to the jury in the factual circumstances of the matter'.
Ground 2 alleges, in essence, that, further or alternatively to ground 1, his Honour misdirected the jury in respect of the first pathway, and the misdirection occasioned a miscarriage of justice. One of the particulars of ground 2 was abandoned at the hearing of the appeal. Three particulars remain. The first particular asserts that his Honour failed properly to explain or define the term 'acting in concert'; that his Honour merely told the jury that 'acting in concert' meant that the appellant and Mr Webb were acting together; and that his Honour did not direct the jury that acting in concert required that the appellant and Mr Webb had 'reached an understanding or arrangement amounting to an agreement between them to commit a crime'. The second particular asserts that his Honour failed to direct the jury that it was a requirement for criminal responsibility under the first pathway that Mr Webb's acts were unlawful. The third particular asserts that the directions under the first and second pathways were 'complex, lengthy and unclear' and were 'likely to have confused and overwhelmed the jury'.
Ground 2A alleges, in essence, that, further or alternatively to grounds 1 and 2, 'if [his Honour's] direction to the jury … was to the effect that to find [the appellant and Mr Webb] guilty on the first pathway they would need to find beyond reasonable doubt that the individual act or acts of each accused caused the grievous bodily harm to [Mr Koroma], then the verdict of guilty would be unreasonable and could not be supported'. A particular of ground 2A asserts that it was not open to the jury, on the evidence, to be satisfied beyond reasonable doubt that the appellant had done an act or acts which caused the grievous bodily harm and it was not the basis of the State's case that it could be determined which act or acts caused the grievous bodily harm.
Ground 2B alleges, in essence, that a verdict of guilty on the basis of the first pathway would be 'unsafe and unsatisfactory', and give rise to a miscarriage of justice because it was not open to the jury to find the appellant guilty on the basis that he was a joint principal under s 7(a) of the Code without Mr Webb also being convicted under that pathway.
Ground 3 alleges, in essence, that a verdict of guilty in respect of the appellant on the basis of the second pathway would be 'unsafe and unsatisfactory', and give rise to a miscarriage of justice. There are two particulars of ground 3. The first particular asserts that it was not open to the jury to find the appellant guilty on the basis of his having aided Mr Webb as the primary offender who had done the act or acts which caused the grievous bodily harm because 'the evidence did not establish which accused inflicted the injury constituting the grievous bodily harm, and it was not the State case nor the basis of the directions to the jury that this could be determined'. The second particular asserts that it was not open to the jury to find the appellant guilty on the basis of his having aided Mr Webb in doing acts in concert with the appellant because that 'would be incompatible with the jury having been unable to find [Mr Webb] guilty on the first pathway on the basis of having acted in concert' and because 'reasoning to such conclusion would be tainted by the errors in respect of the first pathway identified in [g]round 2'.
Leave to appeal on those grounds was not granted at or before the hearing of the appeal.

Ground 1: the appellant's submissions

Counsel for the appellant submitted, in relation to ground 1, that it was not open to the trial judge to leave to the jury a State case under s 7(a) of the Code, which alleges that two accused are criminally responsible as joint principals, where an element of the charged offence is the doing of grievous bodily harm and the State is unable to prove beyond reasonable doubt which act or acts or which particular accused caused or materially contributed to the grievous bodily harm (appeal ts 27).
Counsel also submitted that joint principal responsibility under s 7(a) can only arise where the act or acts done by each particular accused constitute a discrete element of the offence.
Accordingly, so it was submitted, his Honour erred in the present case by leaving to the jury the basis for criminal responsibility designated as the 'first pathway', and the error occasioned a miscarriage of justice.

Ground 2: the appellant's submissions

As to the first particular of ground 2, counsel for the appellant complained that the trial judge did not explain or define the term 'acting in concert'. His Honour merely referred to the appellant and Mr Webb 'acting together'. It was submitted that consequently the jury would have understood that each of the appellant and Mr Webb doing one or more of the acts while they were together would constitute them 'acting in concert'.
Counsel argued that two or more co-accused will not be 'acting in concert' unless they have reached an understanding or arrangement 'amounting to an agreement between them' that they will commit an offence. The existence of that agreement may be inferred from all the circumstances.
It was submitted that, if (contrary to the appellant's assertion in ground 1) the first pathway was open, his Honour was obliged to direct the jury 'as to what acting in concert entailed'. A direction to the effect that 'acting in concert' referred to the appellant and Mr Webb 'acting together' was inadequate.
Counsel argued that the jury could not find that the appellant was criminally responsible under the first pathway unless the jury was able to exclude beyond reasonable doubt the possibility that the act or acts which caused or materially contributed to the grievous bodily harm had occurred before the appellant and Mr Webb began acting in concert. The requirement that the appellant and Mr Webb had acted in concert necessitated that at the material time each of them had 'an unlawful intent'. His Honour did not give any direction to that effect.
It was submitted that the jury's failure to return a verdict of guilty of the charged offence or even of the alternative offence of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, in respect of Mr Webb supported the conclusion that the jury did not find that at the material time the appellant and Mr Webb were acting in concert according to the proper meaning of that term.
Counsel contended that, as a matter of law and on the facts of the case, if the jury had been properly directed the jury could not have found the appellant guilty on the basis that he was acting in concert with Mr Webb without also finding that Mr Webb was guilty on that basis. To be acting in concert, each of the appellant and Mr Webb was required to be acting unlawfully, and therefore neither of them could have had any available defence. If the jury was not able to find Mr Webb guilty on the basis of acting in concert with the appellant, that circumstance was incompatible with the verdict of guilty in respect of the appellant on the basis that he was acting in concert with Mr Webb.
As to the second particular of ground 2, counsel for the appellant complained that the trial judge's directions only required that the 'relevant accused's acts' were unlawful.
It was submitted that the appellant could not have been criminally responsible under the first pathway unless the acts of both the appellant and Mr Webb were unlawful.
As to the third particular of ground 2, counsel argued that the jury was likely to have been confused and overwhelmed by the complexity, length and unclear nature of the trial judge's directions in relation to the first and second pathways.

Ground 2A: the appellant's submissions

Counsel for the appellant referred to the following directions in the trial judge's summing up:
(a)To find the appellant and Mr Webb guilty under the first pathway the jury had to 'find beyond reasonable doubt that they were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to Mr Koroma' (ts 533).
(b)The State had to prove that the appellant and Mr Webb 'were acting in concert, each of them doing one or more of the acts which created a causal connection of a sufficiently substantial nature for [the jury] to conclude that [their] conduct caused the traumatic brain injury suffered by Mr Koroma' (ts 533).
(c)The jury needed to consider 'whether having regard to the [facts] which [the jury] have found, the State has proven beyond reasonable doubt that [the appellant and Mr Webb] were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to Mr Koroma' (ts 535).
(d)If the jury was 'not satisfied of this in respect of the accused whose case [the jury was] considering then [the jury] cannot find that accused guilty by using the first pathway' (ts 535).
It was contended that if the effect of those directions was that the jury could not find the appellant and Mr Webb guilty under the first pathway unless they were satisfied beyond reasonable doubt that the individual act or acts of each of the appellant and Mr Webb caused the grievous bodily harm to Mr Koroma, then the verdict of guilty returned in respect of the appellant was unreasonable and could not be supported having regard to the evidence.
According to counsel, it was not open to the jury, on the evidence, to be satisfied beyond reasonable doubt that the appellant had done an act or acts which caused or materially contributed to Mr Koroma's grievous bodily harm in that, on the State's case, it could not be determined which act or acts had caused or materially contributed to that harm.

Ground 2B: the appellant's submissions

Counsel for the appellant submitted that there was both legal and factual inconsistency in the jury's decision to convict the appellant, on the one hand, and the jury's failure to agree upon a verdict in respect of Mr Webb, on the other.
This submission was developed as follows:
(a)For the jury to have found the appellant guilty, it was necessary for the jury to be satisfied beyond reasonable doubt that both the appellant and Mr Webb were acting unlawfully and neither accused had any legal defence available to him.
(b)When considering the question of Mr Webb's guilt, the jury's failure to be satisfied that Mr Webb acted unlawfully was 'legally inconsistent and incompatible with the guilty verdict in respect of the appellant'.
(c)The appellant's contention that the acts of both the appellant and Mr Webb were required to have been unlawful for criminal responsibility under the first pathway 'does not involve any attempt to apply common law principles'. Rather it is based upon the proper construction of s 7 of the Code read with s 10(c) of the Interpretation Act1984 (WA).
(d)For criminal responsibility to arise under the first pathway where there are two alleged assailants, 'it is fundamental that it does not suffice that the two accused merely do one or more acts'. What is required is that both of the accused do one or more of the acts 'which constitute the offence'. That is an express requirement of s 7(a) of the Code read with s 10(c) of the Interpretation Act.
Counsel submitted that the State's case under s 7(a) was that the appellant and Mr Webb acted in concert and each of them did one or more acts which constituted the offence. The State did not put its case under s 7(a) on any other basis. To find either the appellant or Mr Webb guilty under the first pathway, the jury would, by necessity and as a matter of law, have had to find that each of the appellant and Mr Webb did one or more of the acts which constituted 'the offence'. If the jury only found that one of the appellant or Mr Webb did one or more of the acts that constituted 'the offence', the first pathway would not be established and the jury could not find the appellant guilty under that pathway.
According to counsel, although the jury was required to give separate consideration to the positions of the appellant and Mr Webb, as a matter of 'legal consistency and logic', it was not properly open to the jury to find the appellant guilty under the first pathway without also finding Mr Webb guilty under that pathway.
Counsel submitted, in the alternative, that if, in order to establish the appellant's criminal responsibility under the first pathway, it was not a requirement for the State to prove beyond reasonable doubt that Mr Webb's acts were unlawful, it would still be the case that it was not properly open to the jury, on the facts, to find the appellant guilty under the first pathway without also finding Mr Webb guilty under that pathway.
According to counsel, if the jury found that the appellant had used unnecessary or unreasonable force, so as to exclude the operation of the defences relied upon by him, it was 'inherently unlikely' that the jury would have been undecided as to whether Mr Webb had used unnecessary or unreasonable force, so as to exclude the operation of the three defences relied upon by him.

Ground 3: the appellant's submissions

Counsel for the appellant submitted that the second pathway involved criminal responsibility on the basis that one of the accused aided or assisted the other accused.
It was submitted that the fact that the jury was unable to return a verdict of guilty in respect of Mr Webb is incompatible with any finding by the jury that the appellant was criminally responsible as an aider under the second pathway.
Accordingly, so it was submitted, if the jury's verdict of guilty in respect of the appellant was based upon the second pathway then the verdict would be 'unsafe and unsatisfactory'.

Ground 1: its merits

Ground 1 alleges, in essence, that the trial judge erred in leaving to the jury the basis for criminal responsibility designated as the 'first pathway', and the error occasioned a miscarriage of justice.
Section 2 of the Code reads:
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
The parties to an offence are specified in s 7, s 8, s 9 and s 10 of the Code.
Section 7 provides:
7.Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence;
(d)Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
Section 10(c) of the Interpretation Act provides that, in any written law, 'words in the singular number include the plural and words in the plural number include the singular'.

Section 7 of the Code specifies four categories of parties to an offence. A person who is within one or other of the categories is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.
By s 7(a), every person who actually does the act or makes the omission which constitutes the offence is criminally liable.
Section 7(b) operates to make a person criminally liable if he or she does any act or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
Similarly, s 7(c) makes a person criminally liable if the person aids another person in committing the offence.
Further, s 7(d) makes a person criminally liable if he or she counsels or procures any other person to commit the offence.
In R v Wyles; Ex parte Attorney‑General:[1]
(a)Lucas J (Matthews J agreeing) held that the Queensland equivalent of s 7(a) applies where several persons acting pursuant to a 'common unlawful purpose' (177) or a 'common unlawful intention' (178) undertake separate acts which, in combination, comprise all of the elements of an offence; and
(b)similarly, Hoare J (Matthews J agreeing) held that the Queensland equivalent of s 7(a) applies where several persons acting 'in concert' (182) undertake separate acts which, in combination, comprise all of the elements of an offence.
[1] R v Wyles; Ex parte Attorney‑General [1977] Qd R 169.
Lucas J reasoned:
Section 7(a) deals … with persons who would formerly have been called principals in the first degree; s 7(b) and 7(c) deal with those who would have been called principals in the second degree, and s 7(d) deals with those who would have been called accessories before the fact. The section therefore attaches criminal responsibility to all the different categories of persons who would have been implicated at common law. In doing so it is hardly likely to have intended to make a drastic change in the law, so the section has no operation at all unless the person or persons described in s 7(a) himself or themselves does or do all the acts which constitute the offence, and in the case of more than one person, each participates in each of the acts.
If there is a difficulty it may in my opinion be avoided by reading s 7(a) distributively; 'All persons who actually do the act or one or more acts in the series which constitutes or constitute the offence'. This does not really involve reading any additional words into s 7(a); it is a reading which is derived from the provisions of s 32 of the Acts Interpretation Act (177).
Section 32C of the Acts Interpretation Act 1954 (Qld), as currently enacted, is relevantly identical in substance to the provisions of s 32 of that Act referred to by Lucas J. Section 32C is also relevantly identical in substance to s 10(c) of the Western Australian Interpretation Act.
Hoare J said that s 7(a), in referring to a person 'who actually does the act … ', should be construed 'in the light of the very clear law' (that is, the common law) which applied when the Queensland Code was enacted (182). His Honour elaborated:
It seems to me reasonably clear that s 2 of the Code should not be construed in a restrictive way so as to exclude persons who participated in the offence in such a way that the law at the time the Code was enacted treated them as principals because of actual participation in events which, as it were, constituted part of the events which together made up the completed offence (182).
Section 2 of the Queensland Code is identical to s 2 of the Code.
In Warren and Ireland v The Queen,[2] Warren and Ireland were convicted, after a joint trial, of an offence. Warren was convicted of causing grievous bodily harm to a police officer with intent to prevent his own lawful arrest. Ireland was convicted of causing grievous bodily harm to the same police officer with intent to cause that result. Each appellant was found guilty of causing the same grievous bodily harm although, on the evidence, it was not possible to find which of them had struck the blow or blows resulting in the grievous bodily harm. Their appeals were dismissed.
[2] Warren and Ireland v The Queen [1987] WAR 314.
Burt CJ held:
There was ample evidence to support the conclusion that the appellants did join together in assaulting the police officer … And that being so, in my opinion, each is criminally responsible for the grievous bodily harm done to the police officer and it matters not who struck the blow, if it were a single blow, which caused that grievous bodily harm. Each is directly responsible and no question of derivative responsibility arises. Each is guilty of the offence of doing grievous bodily harm. Under the Code that is so because of the application to the facts of s 7(a) and (c) (319 ‑ 320).
Kennedy J said:
It does not appear to me that the fact that it is not possible to identify the person doing the act provides any obstacle to the application of s 7 if it is established, as it was here, that, whichever of two persons did the act, the other aided him (321).
His Honour's reference to 'aided him' is, no doubt, a reference to s 7(c).
Franklyn J accepted that both s 7(a) alone, and s 7(a) in combination with s 7(c), supported the conviction of both appellants. His Honour approved the construction of s 7(a) adopted by Hoare J in Wyles, and then made these observations:
[I]t is not necessary for the application of s 7(a) that there be a principal who does 'the act' of grievous bodily harm and an accessory who aids or abets him, and … it was open to the jury to apply s 7(a) if they found, as was open to them and as in my view they clearly did find, that Ireland and Warren were acting in concert and as principals in delivering the series of blows which resulted in Police Constable Smith suffering grievous bodily harm. The words 'person who actually does the act' in s 7(a) are, on the facts of this case to be read as 'all persons who actually do the act or one or more of the acts in the series which constitutes or constitute the offence'. I find it was open to the jury applying s 7(a) of the Code to find both applicants guilty of doing grievous bodily harm to Smith.
It is also my view that it was open to the jury in coming to its decision to apply s 7(c) if it were not satisfied that the parties were acting in concert as principals in that on the evidence properly admissible against the respective applicants they could find that Warren, with the intention that the assault should render the victim unconscious, aided and abetted Ireland in the criminal enterprise of an assault on the police officer. He gave aid to that criminal enterprise by himself striking a blow and abetted by standing back whilst the assault was continued. In the carrying out of that common purpose, (the unlawful assault), the victim suffered grievous bodily harm, a result in respect of which 'the parties must abide it fully and to the end': Starke J in Brennan v The King (1936) 55 CLR 253 at 260; referring to the effect of s 7. The doing of grievous bodily harm was not foreign to the common purpose of the unlawful assault. It requires no evidence of express agreement to establish the existence and scope of a criminal common purpose; it may be deduced from all the proven circumstances: Miller v The Queen (1980) 55 ALJR 23. Consequently I find that it was open to the jury to find both applicants guilty of doing grievous bodily harm to Smith by the application of s 7(c) of the Code (328 ‑ 329). (emphasis added)
Later in his reasons, Franklyn J said in relation to s 7 that 'it is not necessary for there to be found a pre-conceived common plan or purpose, it being a matter for the jury to determine on the facts as found whether the parties were acting in concert or had the requisite common purpose' (331). His Honour added:
Section 7 commences with the words 'when an offence is committed …'. The offence committed in this case was the doing of grievous bodily harm to Smith. It was committed in the circumstances already outlined, and it was open to the jury to find as a fact that although each participant had a different specific individual intent in performing the part played by him they were nevertheless acting in concert so as to permit the application of s 7 (331).
In R v Webb; Ex parte Attorney‑General,[3] there was a reference by the Attorney-General of points of law which arose at Webb's trial. Webb had been charged under s 462(2) of the Queensland Code with attempted arson of a dwelling. The prosecution alleged that Webb and another man set fire to a towel under a dwelling. When the fire was detected the flames were reaching towards the floor. The trial judge entered a judgment of acquittal, upon the jury's verdict of not guilty, to the charge against Webb. The Attorney‑General's reference raised, relevantly, the following point of law:
If two persons are together and are acting in concert to do an act which, if done, would amount to the commission of a criminal offence and that act is done, but the evidence does not reveal which one of them actually did the act, is each of them deemed to have taken part in committing the offence (277)?
[3] R v Webb; Ex parte Attorney‑General [1990] 2 Qd R 275.
Macrossan CJ (Lee J agreeing) approved, in the course of answering that question, the views expressed by Hoare J in Wyles in relation to the Queensland equivalent of s 7(a). The Chief Justice said:
Question No 1 in the reference raises no novel point. On the assumption that the evidence was capable of sufficiently supporting the case which the Crown urged, the result would be that the trial Judge was in error and the question can be answered consistently with a number of decisions which have been pronounced in this area. In particular, in R v Wyles, ex parte Attorney-General [1977] Qd R 169 some apparent difficulties in the application of the words of s 7 of the Code were explored and resolved. It is now settled that s 7(a) can include cases where there are several persons acting in concert each doing some act so that the actions, in totality, would constitute all of the elements if the offence were committed by one person: see per Hoare J (with whom Matthews J agreed) at 182F of Wyles. The present case falls within a simpler category since, as opposed to the offence of breaking and entering considered in Wyles, only a single physical action was involved as an element of the offence, that is, the setting fire to the thing which is first-mentioned in the subsection. As the Crown presented its case it was Webb and his companion acting in concert who both attempted to light the towel under the house and one, or both, of them succeeded in this object. The relevant action then was simply the lighting of the towel in circumstances where the likely result which was intended or recklessly disregarded was the burning of the dwelling. The question in the reference asks it to be assumed that Webb and his companion were acting in concert to light the towel both having in mind the likely consequence in the senses just mentioned. The question is framed on the further assumption that one or other or both accused together actually lit the towel in these circumstances. Question No 1 which is asked in the reference can then be answered. Webb and his [companion] would have involved themselves in criminal liability and that liability is translated in terms of the wording of s 7 of the Code into a 'deemed' commission of the offence.
Answering question No 1 having in mind the terms of s 7 of the Code, it is right to say 'Yes', provided that the question is understood with this amendment: the words 'by one or other or both of them' are added after the words 'and that act is done' to exclude the possibility that the act might be done by a stranger (283). (emphasis added)
In our opinion, Macrossan CJ's amendment of question No 1, by the addition of the words 'by one or other or both of them' after the words 'and that act is done', must be understood in the context of the particular facts of Webb. Question No 1 was formulated by reference to two persons who are together and are acting in concert 'to do an act which, if done, would amount to the commission of a criminal offence'. The relevant act in Webb was a single physical action, namely setting fire to the towel. There was no doubt that the towel was lit by Webb or his companion or both of them. Question No 1 was formulated on the assumption that one or other or both accused together actually lit the towel. Earlier in the same paragraph of his reasons, Macrossan CJ said that s 7(a) can include cases where there are several persons acting in concert 'each doing some act' so that the actions, in totality, would constitute all of the elements if the offence were committed by one person (283) (emphasis added). We doubt that his Honour was making a broader or more expansive statement of legal principle in relation to s 7(a) by amending question No 1 in the manner he did. The amendment related to s 7 generally (as distinct from s 7(a) specifically) and reflected the facts and circumstances of the particular case.
Thomas J dealt with question No 1 as follows:
On the assumption that the question fairly arises, the question demands a 'Yes' answer. In many circumstances, especially when acts are done in combination, it is unnecessary to show which accused person personally performed the acts (Mohan v The Queen [1967] 2 AC 187; Warren and Ireland v The Queen [1987] WAR 314; Tripodi v The Queen (1961) 104 CLR 1; R v Wyles, ex parte Attorney-General [1977] Qd R 169). If the evidence excluded the participation of any third person, and showed that either the accused lit the fire himself or that he aided his companion to light the fire (and plainly there was at least a case of sufficient encouragement in this respect) and that in lighting the rag (or aiding his companion to light it as the case may be) the accused had the necessary wilfulness in relation to the prospect of the house being burned, the case was adequate. In other words the mere fact that the Crown could not nominate which one of the two lit the rag was not of itself a sufficient reason to stop the case.
The form in which Question 1 is asked troubles me, mainly because it seems to make the assumption that the offence has otherwise been committed. On the dubious assumption that the Crown case was capable of showing this, the answer to Question 1 should be 'Yes' (287). (emphasis added)
In R v Sherrington,[4] the two appellants were tried and convicted of manslaughter. The evidence disclosed that, prior to his death, the victim had received a savage beating from one of the appellants, S. There was also evidence that, shortly before S had ceased to beat the victim, the other appellant, K, had used a telescopic baton to strike the victim forcefully on or about the head or neck. Medical evidence was to the effect that the victim's death could have been caused by one or more than one blow of moderate force, by a kick or a punch, or a blow with some object. Each of the appellants appealed on the basis that the jury could not be satisfied beyond reasonable doubt, on the evidence, which one of the appellants struck the blow or blows which resulted in the victim's death. The appeals were dimissed.
[4] R v Sherrington [2001] QCA 105.
In Sherrington [9] ‑ [10], McPherson JA (Wilson J agreeing) analysed the decisions in Wyles and WarrenandIreland, and referred to the decision in Webb. His Honour then said:
For my part, I would prefer to avoid importing into the Code words that do not appear there. Incorporating the expression 'in concert' in [the Queensland equivalent of s 7(a)] involves a reversion to the common law, which (unless perhaps all else fails) is considered a form of heresy. In any event, as can be seen from Mohan v The Queen [1967] 2 AC 187, 194, proof of 'concert' or pre‑arranged plan, or that the accused were acting in pursuance of such a concert or plan, is not a requisite of the criminal responsibility of aiders and abettors at common law [11].
However, McPherson JA added:
In my respectful view, [the Queensland equivalent of s 7(a)] applies in a case like this if both (or all) of the participants, inflict a blow or blows that combine to cause or contribute to the resulting death. Like Kennedy J in Warren and Ireland v The Queen, I see no need in law to identify a particular principal offender or actual perpetrator when [the Queensland equivalent of s 7] deems all those in paras (a) to (d) as having taken part in the offence. See also R v Webb [1990] 2 Qd R 275, 287. But it is necessary to resort to one or other of those paragraphs of [the Queensland equivalent of s 7] in order to establish criminal responsibility under the Code [11].
His Honour said that, on the facts and in the circumstances of Sherrington, 'it was and is … necessary for the Crown, in order to sustain the convictions of manslaughter, to rely on [the Queensland equivalent of s 7(c) of the Code]' [12]. His Honour concluded that each of the appellants assisted or aided the other, within the meaning of the Queensland equivalent of s 7(c), and each was under the Queensland equivalent of s 7 therefore deemed to be guilty of the offence which he had taken part in committing [16].
In Lacco v The State of Western Australia,[5] Buss P observed that s 7(a) of the Code 'includes cases where there are several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person' [54].
[5] Lacco v The State of Western Australia [2006] WASCA 152.
In R v Melling[6] the appellants were convicted after a trial of grievous bodily harm with intent. The prosecution ran its case at the trial solely on the basis that both of the appellants had done grievous bodily harm and both had the intention at the relevant time to do grievous bodily harm [23]. There was no direct evidence as to when or by which of the appellants the grievous bodily harm was inflicted. The prosecution had not sought to put its case on an alternative basis to the effect that one of the appellants was responsible for the actions of the other. Consequently, neither of the appellants could be convicted unless the jury was satisfied beyond reasonable doubt that the appellant under consideration had caused the grievous bodily harm with the requisite intention.
[6] R v Melling [2010] QCA 307.
Holmes JA (McMurdo P & Applegarth J agreeing) held in Melling that, in order for the prosecution to establish criminal liability on the part of both appellants under the Queensland equivalent of s 7(a), it was necessary to prove that each of them did an act which caused injuries amounting to grievous bodily harm, as well as the requisite intent [25]. Her Honour found that there was no basis in the evidence for the jury to be satisfied as to which of the two appellants had inflicted the victim's skull fracture, which no doubt constituted grievous bodily harm [25]. Her Honour said that although the evidence justified a prosecution case against the appellants pursuant to a combination of the Queensland equivalents of s 7(a) and s 7(c), the evidence did not support verdicts of guilty on the prosecution case at trial, which was run on the basis that each of the appellants was criminally responsible under the Queensland equivalent of s 7(a) by reason of each of them having committed an act constituting the offence:
It was not essential that the Crown establish which of the two was the principal actor and which the aider. In other words, both could properly have been convicted on the same evidence on a Crown case advanced pursuant to a combination of [the Queensland equivalent of s 7(a) and s 7(c)]. But although both s 7 and s 8 were referred to in the indictment, that was not the basis on which the prosecutor sought the conviction, nor was it the subject of direction. The evidence was not such as to permit guilty verdicts on a case that each man was criminally responsible as having committed the act constituting the offence.
The jury may well, in fact, have reasoned to a finding of guilt on a view of criminal responsibility along the lines of [the Queensland equivalent of s 7(c)], but it is impossible to say that they did, as opposed to reasoning, in the absence of appropriate direction, to a flawed conclusion that both appellants were guilty as primary offenders [28] ‑ [29]. (footnotes omitted)
See also R v Fowler.[7]
[7] R v Fowler [2012] QCA 258; (2012) 225 A Crim R 226 [40] (Fraser JA; de Jersey CJ & Mullins J agreeing).

In R v Graham,[8] Fraser JA (Chesterman JA & Jones J agreeing) made these observations in relation to Wyles and Sherrington:
In R v Wyles; Ex parte Attorney‑General ([1977] Qd R 169), the Court of Criminal Appeal held that s 7(a) (the predecessor of the present s 7(1)(a)) applied where several persons acting pursuant to a 'common unlawful purpose' or 'common unlawful intention' ([1977] Qd R 169 at 177 and 178 per Lucas J), or 'in concert' ([1977] Qd R 169 at 182 per Hoare J, in a passage approved by Macrossan CJ (Lee J agreeing) in R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275 at 283), undertook separate acts which, taken together, constituted all of the elements of the offence. In R v Sherrington & Kuchler ([2001] QCA 105), McPherson JA described the reference to 'in concert' in the context of s 7 as a 'form of heresy', but this is not the occasion to pursue any such conceptual difficulty or to discuss the possibility that such a case is instead comprehended within s 8 (the possible difficulty about the application of s 8 in such a case, discussed by McPherson ACJ in R v Jervis [1993] 1 Qd R 643 at 649, appears to have been resolved: see R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at 437 [135] per Kiefel J), which the prosecutor did not invoke [39].
[8] R v Graham [2011] QCA 187.
In L v The State of Western Australia,[9] Martin CJ, Mazza JA and Mitchell J observed:
Section 7(a) of the Criminal Code identifies the criminal liability of '[e]very person who actually does the act or makes the omission which constitutes the offence'. For reasons explained by Franklyn J in Warren and Ireland v The Queen ([1987] WAR 314, 327 ‑ 329), the reference to every person who actually does 'the act' includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that manner, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person (Lacco v The State of Western Australia [2006] WASCA 152 [8], [54]; R v Wyles; Ex parte Attorney General [1977] Qd R 169, 182). It is unnecessary in this case to determine whether multiple persons who each perform acts which in aggregate constitute an offence must be acting 'in concert' before s 7(a) will apply (as to which see R v Sherrington [2001] QCA 105 [11]) [32]. (emphasis added)
[9] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545.
Later in their reasons in L, their Honours said in relation to s 7 of the Code and the participation by an accused in a 'joint criminal enterprise':
The language of s 7(a) of the Criminal Code is clear. It only attaches criminal liability to a person who 'actually does the act or makes the omission'. A person will only be taken to have committed an offence under s 7(a) if he or she has done an act (or one or more of a series of acts) or made an omission (or one or more of a series of omissions) which constitutes the offence. Otherwise deliberate assistance or encouragement of the kind referred to in s 7(b) - s 7(d) is required [53]. (emphasis added)
Their Honours went on, immediately, to say:
Participation in a joint criminal enterprise will not render an accused criminally liable under s 7 of the Criminal Code unless he or she either:
1.does at least one act or makes at least one omission which, alone or in combination with the acts or omissions of another person (at least where they are acting in concert), constitutes the offence; or
2.deliberately aids another person to commit the offence, or does or omits to do any act for that purpose; or
3.deliberately counsels or procures another person to commit the offence [53]. (emphasis added)
In that passage, point 1 refers to s 7(a), point 2 to s 7(b) or s 7(c) and point 3 to s 7(d).
In Whitby v The State of Western Australia,[10] Hall J suggested that the concept of 'acting in concert', when used in relation to s 7(a) of the Code, explains 'how liability may attach where the offence is constituted by more than one act or omission done or omitted to be done by more than one person' [189]. His Honour said:
A person is liable under s 7(a) if he or she does the act that constitutes the offence or, together with others, does one or more acts in a series of acts that constitutes the offence. Where the prosecution alleges that the accused committed one (or more) acts that, together with the acts of others, constitutes an offence, it will be necessary to show a connection between the acts that form the series. It is not enough that the various acts of a number of people constitute an offence when accumulated. For an accused to be liable as a joint principal, he or she must do an act or make an omission that forms part of the offence and the act or omission must be part of a series of acts or omissions committed with others whilst acting together. Accordingly, to prove a case alleging that an accused was a joint principal the State must establish:
(1)That the accused did an act or made an omission;
(2)That the act or omission formed part of a series of acts or omissions that in aggregate constituted an offence; and
(3)That when the act was done, or the omission made, the accused was acting together with the co-offenders who did the other acts or made the other omissions that formed the series [190].
[10] Whitby v The State of Western Australia [2019] WASCA 11.
In R v Quagliata,[11] Bond J (Sofronoff P & Henry J agreeing) referred, with apparent approval, to the passage at [32] in L which we have reproduced at [107] above.
[11] R v Quagliata [2019] QCA 45 [17].
Our examination of the authorities in this State reveals that criminal responsibility under s 7(a) of the Code, which is imposed on '[e]very person who actually does the act or makes the omission which constitutes the offence', extends to cases where there are several persons 'acting in concert', each doing an act or acts or making an omission or omissions which, in aggregate, would constitute all of the elements of the charged offence if the offence were committed by one person.
The notion of several persons 'acting in concert', for the purposes of s 7(a) of the Code, reflects the text of s 7(a), read with s 10(c) of the Interpretation Act, in the context of joint criminal responsibility for the whole of the acts or omissions which constitute the relevant offence.
The concept of several persons 'acting in concert', for the purposes of joint criminal responsibility under s 7(a) of the Code, connotes that the persons are acting in combination or are collaborating with each other or have joined forces. The State's burden of proving that several persons were 'acting in concert', for the purposes of s 7(a), may be discharged by direct evidence or circumstantial evidence, including by inference from the facts and circumstances in which the acts were done or the omissions were made. However, several persons will not be 'acting in concert' if each person is acting independently of the other or others and the act or acts done or the omission or omissions made by each person are merely coincident.
We consider that the weight of intermediate appellate authority in Queensland supports the propositions which we have stated at [112] ‑ [114] above.
Although McPherson JA (Wilson J agreeing) observed in Sherrington that he preferred to avoid incorporating the expression 'in concert' in the Queensland equivalent of s 7(a), his Honour accepted that the Queensland equivalent of s 7(a) applies in a case like Sherrington 'if both (or all) of the participants, inflict a blow or blows that combine to cause or contribute to the resulting death' [11]. In Melling, the prosecution ran its case at trial on a very narrow basis. In particular, the prosecution ran its case solely on the basis that both of the appellants had done grievous bodily harm and both had the intention at the relevant time to do grievous bodily harm. The prosecution did not seek to put its case on an alternative basis to the effect that one of the appellants was responsible for the actions of the other. As a result, neither of the appellants could be convicted unless the jury was satisfied beyond reasonable doubt that the appellant under consideration had caused the grievous bodily harm with the requisite intention.
In the present case, we are satisfied that the trial judge did not err, and no miscarriage of justice was occasioned, by his Honour leaving to the jury the basis for criminal responsibility designated as the 'first pathway'.
A trial judge is not precluded from leaving to the jury a State case under s 7(a) of the Code which alleges that two accused are criminally responsible as joint principals, where an element of the charged offence is the doing of grievous bodily harm and the State is unable to prove beyond reasonable doubt which particular act or acts of which particular accused caused or materially contributed to the grievous bodily harm.
As we have explained, s 7(a) of the Code can apply to cases where several persons 'act in concert' (in the sense we have explained at [112] ‑ [114] above), each doing some act or acts so that the actions, in totality, would constitute all of the elements of the charged offence if the offence were committed by one person. That principle in relation to joint criminal responsibility under s 7(a) includes a case where two accused are charged with unlawfully doing grievous bodily harm (whether with or without intent) and the State's case is that the two accused were 'acting in concert' (in the sense we have explained) even though, on the evidence, it is not possible to establish which of them did the particular act or acts that resulted in the grievous bodily harm.
Further, there is no foundation in the text of s 7(a) of the Code, read with s 10(c) of the Interpretation Act, or in the authorities in this State or in Queensland for the proposition that joint criminal responsibility under s 7(a) can only arise where the particular act or acts done by each particular accused constitute a discrete element of the charged offence.
For example, in Warren and Ireland, the two accused were found guilty of causing the same grievous bodily harm even though, on the evidence, it was not possible to find which of them struck the particular blow or blows that resulted in the grievous bodily harm suffered by the victim. However, each of the accused had inflicted various, identifiable acts of violence upon the victim, which formed part of a series of acts done by the two accused. Those series of acts, in totality, were alleged by the prosecution to have caused the victim's grievous bodily harm. The convictions of both of the accused were upheld on appeal.
In the present case, having regard to the manner in which the State permissibly ran its case at trial, joint criminal responsibility under s 7(a) of the Code could arise even though the particular act or acts done by each of the appellant and Mr Webb did not constitute a discrete element of the charged offence.
Ground 1 is without merit.

Ground 2: its merits

Ground 2 alleges, in essence, that the trial judge misdirected the jury in respect of the first pathway, and the misdirection occasioned a miscarriage of justice. The appellant relies upon three points in support of ground 2. First, his Honour failed properly to explain or define the term 'acting in concert'. Secondly, his Honour failed to direct the jury that it was a requirement for criminal responsibility under the first pathway that Mr Webb's acts were unlawful. Thirdly, the directions under the first and second pathways were 'complex, lengthy and unclear' and were 'likely to have confused and overwhelmed the jury'.
As to the appellant's first point in support of ground 2, the State's case at the trial under the first pathway was, relevantly, that the appellant and Mr Webb were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to Mr Koroma.
The appellant's case at the trial was that, relevantly, the appellant had an honest and reasonable belief that Mr Koroma was committing an offence against Ms Dimer. The appellant told the police in his electronically recorded interview that he and Mr Webb tackled Mr Koroma because they believed he was attacking Ms Dimer. The appellant's defence counsel submitted in her closing address that the appellant and Mr Webb restrained or tried to restrain Mr Koroma because they believed he had committed a serious offence (ts 468 ‑ 469). Defence counsel also submitted that the appellant and Mr Webb believed that the force they used at the time was reasonable in the circumstances as they believed them to be (ts 461 ‑ 462, 467 ‑ 469). Defence counsel referred to the appellant's body language and expression of concern about Mr Koroma's welfare during the appellant's interview with the police, and argued that those reactions were not consistent with a concerted effort by the appellant and Mr Webb to exact some type of punishment on Mr Koroma and to injure him badly (ts 471 ‑ 472).
His Honour gave the jury a separate consideration direction in orthodox terms in relation to each of the appellant and Mr Webb. In particular, his Honour said:
It's important from the outset to stress that you'll need to consider the case against each of [the appellant] and Mr Webb individually. Separate verdicts in respect of each accused … are required. It does not follow that because you conclude that one accused is not guilty or guilty that the verdict for the other accused must be the same (ts 524).
The trial judge instructed the jury in the jury handout that, relevantly, '[t]o be satisfied beyond reasonable doubt that the relevant accused [whose case you are considering] is guilty of the offence as charged via [the first] pathway, you must be satisfied beyond reasonable doubt' that:
[the appellant] and Mr Webb were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to Mr Koroma.
The jury handout also included these instructions:
It is not enough that the various acts [of the appellant and Mr Webb] when put together constitute the offence. For an accused to be liable as a joint principal, he must do an act that forms part of the offence, which act is part of a series of acts committed with another person, while they are acting together.
His Honour reiterated those instructions in his summing up, as follows:
Where two people are acting in concert, each of them doing one or more of the acts which, together, constitute the offence, then they're all guilty of that offence. Persons who are guilty in this way are sometimes referred to as, 'Joint principals'.
That is the basis upon which the State says you can find criminal responsibility, in respect of Mr Webb and [the appellant] being principal offenders. It's not enough that the various acts, when put together, constitute the offence. For an accused to be liable as a joint principal, he must do an act that formed part of the offence, which act is a part of a series of acts committed with another person, while they were acting together (ts 531).
Later in his summing up, the trial judge said:
The State has to prove that Mr Webb and [the appellant] were acting in concert, each of them doing one or more of the acts which created a causal connection of a sufficiently substantial nature for you to conclude that conduct caused the traumatic brain injury suffered by Mr Koroma (ts 533).
Shortly afterwards, his Honour reiterated:
[You] need to consider whether having regard to the [facts] which you have found, the State has proven beyond reasonable doubt that Mr Webb and [the appellant] were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to Mr Koroma (ts 535).
The trial judge instructed the jury in the jury handout, and reiterated in his summing up, that for the State 'to prove beyond reasonable doubt that the relevant accused's acts were unlawful, the State must prove beyond reasonable doubt those acts were not justified by law by reason of the following':
(a)defence of Ms Dimer;
(b)prevention of an assault or likely assault of Ms Dimer;
(c)overcoming force used by Mr Koroma in resisting arrest; and
(d)in respect of the appellant, preventing Mr Koroma escaping from arrest.
His Honour emphasised that the State must 'prove beyond reasonable doubt that none of [those] bases justify the relevant accused's acts'.
The appellant's experienced defence counsel did not request his Honour to give the jury a redirection or another direction in relation to the term 'acting in concert'.
We are satisfied, having regard to the facts and circumstances of the present case, including the State's case at the trial and the appellant's case at the trial, that the trial judge adequately explained to the jury the concept of 'acting in concert', insofar as that concept has an acquired or accepted meaning in the context of s 7(a) of the Code when read with s 10(a) of the Interpretation Act, as we have explained at [112] ‑ [114] above.
His Honour's instructions to the jury, on more than one occasion, that:
(a)it was not enough that the various acts of the appellant and Mr Webb, when put together, constituted the charged offence; and
(b)for the appellant or Mr Webb to be criminally responsible as a joint principal, he must have done an act that formed part of the charged offence, which act was part of a series of acts committed with the other of them, while the appellant and Mr Webb were acting together,
were, in the circumstances, an adequate direction to the jury about the concept of 'acting in concert' as we have explained it.
In our opinion, there is no reasonable possibility that the jury would have failed to understand that under the first pathway it was necessary for the State to prove beyond reasonable doubt, relevantly, that in doing any relevant act or acts in relation to Mr Koroma the appellant or Mr Webb, as the case may be, was acting in combination or was collaborating with the other of them or that the appellant and Mr Webb had joined forces.
The first point relied upon by the appellant in support of ground 2 is without merit.
As to the appellant's second point in support of ground 2, the trial judge instructed the jury in the jury handout and reiterated in his summing up that, to be satisfied beyond reasonable doubt that 'the relevant accused is guilty of the offence as charged via [the first] pathway', the jury must be satisfied beyond reasonable doubt of four matters including, relevantly, that '[t]he relevant accused's acts were unlawful'.
Chapter V of the Code is headed 'Criminal responsibility' and comprises s 22 to s 36. Those provisions set out the circumstances in which a person is not criminally responsible for an act or omission. Chapter V includes provisions dealing with unwilled acts (s 23A), accident (s 23B), mistake of fact (s 24), emergency (s 25), insanity (s 27), immature age (s 29) and duress (s 32). By s 36, the provisions of ch V apply to all persons charged with any offence against the statute law of Western Australia.
The words 'a person is not criminally responsible' or words to that effect appear in numerous provisions in ch V, including s 23A, s 23B, s 24, s 25, s 27, s 29 and s 32.
Section 1(1) of the Code provides that, in the Code, unless the context otherwise indicates, the term 'criminally responsible' means 'liable to punishment as for an offence' and the term 'criminal responsibility' means 'liability to punishment as for an offence'.
In R v Barlow,[12] Brennan CJ, Dawson and Toohey JJ observed that the provisions of the Queensland equivalent of ch V of the Code apply where an act has been committed for which the offender would be liable to punishment, depending on the circumstances.
[12] R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 9 ‑ 10.

More recently, in Pickett v The State of Western Australia,[13] Kiefel CJ, Bell, Keane and Gordon JJ referred to those observations of Brennan CJ, Dawson and Toohey JJ in Barlow and said that, consistently with those observations, an offence within the meaning of s 7 of the Code may be committed 'even though the person who did the act or made the omission that constituted the offence is not criminally responsible for the offence by reason of the application of [c]h V of the Code'.
[13] Pickett v The State of Western Australia [2020] HCA 20; (2020) 94 ALJR 629 [58].
Kiefel CJ, Bell, Keane and Gordon then elaborated [59]:
(a)The personal circumstances referred to in the provisions of ch V of the Code are immaterial to whether 'an act has been done, and so whether an offence has been "committed" for the purposes of ' s 7.
(b)Rather, the provisions of ch V operate 'upon the hypothesis that liability to punishment as for an offence would otherwise be established under the provisions of the Code or other statutes'.
(c)The possible application of the provisions of ch V 'to one participant in the doing of an act that constitutes an offence' is not an obstacle to the operation of s 7 in relation to others.
(d)The overarching application of ch V means that 'while the commission of an offence is a necessary condition of criminal responsibility, the commission of an offence is not always sufficient of itself to establish liability for punishment'.
Kiefel CJ, Bell, Keane and Gordon JJ concluded in Pickett [66] that s 7, in referring to 'an offence', refers to the act or omission which constitutes the offence. Their Honours then said that, in its operation, 's 7 deems each category of person referred to in paras (a) to (d) to be a person who may be charged with the offence constituted by the act or omission' [66]. Their Honours said, further, that:
It is the doing of the act or the making of the omission by the actor that is attributed to another person or other persons, not the criminal responsibility of the actor. [Section 7] of the Code render[s] a person other than the actor liable to criminal punishment for those acts or omissions, subject to the personal circumstances of that other person having regard to the other provisions of the Code. The circumstance that one of those persons may have an immunity from criminal responsibility by reason of his or her personal circumstances addressed in [c]h V of the Code does not prevent the operation of [s 7] against the other persons [66]. (footnote omitted)
We are satisfied, on the basis of Barlow and Pickett, that the application of ch V of the Code or any other source of statutory excuse from criminal responsibility to Mr Webb was not an obstacle to the operation of s 7(a) of the Code in relation to the appellant. Section 7 is not concerned with the criminal responsibility of any person who is a party to an offence. As Kiefel CJ, Bell, Keane and Gordon JJ explained in Pickett [66], it is the doing of the act or the making of the omission by the actor that is attributed to another person or persons, not the criminal responsibility of the actor.
In the present case, if the jury was satisfied beyond reasonable doubt, in accordance with the first pathway, that:
(a)Mr Koroma suffered traumatic brain injury during the incidents which occurred outside 47A Griffin Crescent;
(b)the appellant and Mr Webb were relevantly 'acting in concert', each of them doing one or more of the acts which caused Mr Koroma's traumatic brain injury;
(c)the appellant's acts were unlawful; and
(d)in doing the relevant acts, the appellant intended to disable or to cause grievous bodily harm to Mr Koroma,
the jury was entitled and obliged to convict the appellant of the charged offence, even if the jury was not satisfied beyond reasonable doubt that Mr Webb's acts were unlawful.
The second point relied upon by the appellant in support of ground 2 is without merit.
As to the appellant's third point in support of ground 2, we have read and considered the trial judge's summing up and the jury's handout.
Both the summing up and the jury handout were lengthy and dealt with a number of issues. However, the length of his Honour's directions and comments in his summing up and the length of the jury handout reflected the circumstances that two accused were being tried together; the charged offence had multiple elements; the State relied upon two alternative pathways to guilt; each of the accused raised a number of defences; one of the defences applied to the appellant but not to Mr Webb; the State's submissions in relation to the facts and circumstances of the appellant's role in the alleged offending were different from its submissions in relation to the facts and circumstances of Mr Webb's role; and there were differences between defence counsel for the appellant's submissions as to the appellant's involvement in the incidents involving Mr Koroma and Ms Dimer and defence counsel for Mr Webb's submissions as to the facts and circumstances of Mr Webb's involvement in the incidents.
It is of relevance that neither the prosecutor nor defence counsel, who were absorbed in the atmosphere of the trial, made any complaint to or raised any concern with his Honour about the length, complexity or clarity of his Honour's summing up or the jury handout.
We are satisfied that there is no reasonable possibility that the jury might have been confused or overwhelmed by the length or complexity of his Honour's directions in relation to the two pathways. His Honour's directions were not, in any material respect, unclear.
The third point relied upon by the appellant in support of ground 2 is without merit.
Ground 2 fails.

Ground 2A: its merits

Ground 2A alleges, in essence, that if the effect of the trial judge's directions to the jury was that the jury could not find the appellant and Mr Webb guilty under the first pathway unless the jury was satisfied beyond reasonable doubt that the individual act or acts of each of the appellant and Mr Webb caused the grievous bodily harm to Mr Koroma, then the verdict of guilty in respect of the appellant was unreasonable and could not be supported having regard to the evidence. The appellant asserted that it was not open to the jury, on the evidence, to be satisfied beyond reasonable doubt that the appellant had done an act or acts which caused the grievous bodily harm and it was not the basis of the State's case that it could be determined which act or acts caused the grievous bodily harm.
In our opinion, his Honour did not direct the jury, in effect, that the jury could not find the appellant and Mr Webb guilty under the first pathway unless the jury was satisfied beyond reasonable doubt that the individual act or acts of each of the appellant and Mr Webb caused the grievous bodily harm to Mr Koroma.
As we have explained in the course of considering ground 1, criminal responsibility under s 7(a) of the Code extends to cases where there are several persons 'acting in concert', each doing an act or acts or making an omission or omissions which, in aggregate, would constitute all of the elements of the charged offence if the offence were committed by one person.
In the present case, the State's case at trial under the first pathway was, relevantly, that the appellant and Mr Webb were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to Mr Koroma.
It was not necessary, having regard to the propositions to which we have referred at [158] above and the manner in which the State permissibly put its case at trial under the first pathway, for the State to prove beyond reasonable doubt that the individual act or acts of each of the appellant and Mr Webb caused Mr Koroma's grievous bodily harm.
The present case is analogous to Warren and Ireland. See [121] above.
Also, as we have explained in the course of considering ground 2, the jury could convict the appellant of the charged offence under the first pathway without being satisfied beyond reasonable doubt that Mr Webb's acts, in the context of the appellant and Mr Webb 'acting in concert', were unlawful.
The appellant could lawfully be convicted as a joint principal under s 7(a) of the Code without Mr Webb also being convicted under that provision.
Ground 2A is without merit.

Ground 2B: its merits

Ground 2B alleges, in essence, that the verdict of guilty in respect of the appellant on the basis of the first pathway would be 'unsafe and unsatisfactory' and give rise to a miscarriage of justice because it was not open to the jury to find the appellant guilty on the basis that he was a joint principal under s 7(a) of the Code without Mr Webb also being convicted under that pathway.
The appellant asserted that there was both legal and factual inconsistency in the jury's decision to convict the appellant, on the one hand, and the jury's failure to agree upon a verdict in respect of Mr Webb, on the other.
It is unnecessary, in resolving ground 2B, to decide whether it is possible for inconsistent verdicts to arise where a jury returns a verdict of guilty on one count, but is unable to reach a verdict on another count. See, however, the differing views expressed in Millar v The Queen[14] and Daaboul v The Queen.[15]
[14] Millar v The Queen [2003] WASCA 211 [45] (McKechnie J; Anderson J agreeing).
[15] Daaboul v The Queen [2019] NSWCCA 191; (2019) 100 NSWLR 682 [235] ‑ [247] (Bathurst CJ), [313] ‑ [322] (Hamill J).
A legal or technical inconsistency exists where a jury's verdicts cannot, in law, stand together. A factual inconsistency arises where, although the verdicts can in law stand together, the verdicts cannot be reconciled having regard to the evidence at the trial, in the context of the issues at the trial and the trial judge's directions of law. See Osland v The Queen.[16]
[16] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [113] ‑ [121] (McHugh J).
In the present case, we are satisfied that there was no legal or technical inconsistency in the jury's decision to convict the appellant, on the one hand, and the jury's failure to agree upon a verdict in respect of Mr Webb, on the other. As we have explained, in the course of considering ground 2, it was not essential, before the jury could find the appellant guilty of the charged offence under the first pathway, for the jury to be satisfied beyond reasonable doubt that both the appellant and Mr Webb had acted unlawfully and that neither of them had any legal defence available to him. Also, as we have explained in the course of considering ground 2A, it was not essential in relation to the first pathway for the State to prove beyond reasonable doubt that the individual act or acts of each of the appellant and Mr Webb caused Mr Koroma's grievous bodily harm. The appellant could lawfully be convicted as a joint principal under s 7(a) of the Code without Mr Webb also being convicted under that pathway.
Recently, in Lia v The State of Western Australia,[17] this court made the following observations concerning the test to be applied where it is alleged that a jury's verdicts are factually inconsistent:
The legal principles with respect to inconsistent verdicts were explained in the joint judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen ([1996] HCA 35; (1996) 190 CLR 348, 365 ‑ 368). The relevant test is one of logic and reasonableness. Their Honours approved the statement made in the judgment of Devlin J in R v Stone (Unreported, EWCA Crim, 13 December 1965):
[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
Their Honours stated that if there is a proper way by which an appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. On appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
[17] Lia v The State of Western Australia [2020] WASCA 216 [74] ‑ [65] (Quinlan CJ, Buss P & Mazza JA).
So, where an appellant who has been convicted alleges that the jury's verdicts are factually inconsistent, the appellate court must consider the evidence, the issues at the trial and the trial judge's directions to the jury in deciding whether the jury's verdict of guilty on one count is relevantly inconsistent with the jury's failure to agree upon a verdict on another count and the inconsistency points to an unsatisfactory or unsafe conviction.
In the present case, we are of the opinion, after considering the evidence, the issues at the trial (including the defences relied upon by Mr Webb) and the trial judge's directions in relation to the first pathway, that the jury's verdict of guilty in respect of the appellant can be reconciled with the jury's failure to reach a verdict in respect of Mr Webb.
The evidence at the trial, including the CCTV footage, established that the appellant and Mr Webb had different roles in relation to the attack upon Mr Koroma. The appellant struck a far greater proportion of the blows inflicted on Mr Koroma than Mr Webb. It was open to the jury to be satisfied beyond reasonable doubt that the appellant had used unnecessary and unreasonable force in the acts he did in relation to Mr Koroma.
By contrast, it was not illogical or unreasonable for some members of the jury to have been undecided as to whether Mr Webb had used unnecessary or unreasonable force in the acts he did in relation to Mr Koroma. It was open, objectively, for some members of the jury to take the view that Mr Webb's acts in relation to Mr Koroma were significantly less, both in force and number, than those of the appellant. In the circumstances, it is not illogical or unreasonable that some members of the jury were not satisfied beyond reasonable doubt that the State had negatived all of the defences relied upon by Mr Webb.
Further, the jury's verdict of guilty in respect of the appellant and the jury's failure to reach a verdict in respect of Mr Webb is capable of explanation on the basis that some members of the jury may have taken a merciful view as to Mr Webb's involvement in the incidents. The evidence demonstrated that the appellant was the leader, as between himself and Mr Webb, in their interactions with Mr Koroma. The appellant ran out of the front door of 47A Griffin Crescent carrying a weapon (similar to a hockey stick) followed by Mr Webb who appeared to be unarmed. The appellant then struck a far greater proportion of the blows inflicted on Mr Koroma than Mr Webb.
We are satisfied that the jury's decision to convict the appellant and the jury's failure to agree upon a verdict in respect of Mr Webb was not relevantly inconsistent. The jury's verdict of guilty is neither unreasonable nor unsupported by the evidence.
Ground 2B is without merit.

Ground 3: its merits

Ground 3 alleges, in essence, that a verdict of guilty in respect of the appellant on the basis of the second pathway would be 'unsafe and unsatisfactory', and give rise to a miscarriage of justice. It was asserted that the jury's failure to agree upon a verdict in respect of Mr Webb was incompatible with any finding by the jury that the appellant was criminally responsible as an aider under the second pathway. Consequently, if the jury's verdict of guilty in respect of the appellant was based upon the second pathway then the verdict would be 'unsafe and unsatisfactory'; that is, unreasonable, and must be set aside.
This court has summarised on numerous occasions the law relating to a ground of appeal which alleges that the verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, within s 30(3)(a) of the Criminal Appeals Act 2004 (WA). See, for example, Wells v The State of Western Australia,[18] Couzens v The State of Western Australia[19] and Dayananda v The State of Western Australia.[20]
[18] Wells v The State of Western Australia [2017] WASCA 27 [13].
[19] Couzens v The State of Western Australia [2019] WASCA 54 [46] ‑ [54].
[20] Dayananda v The State of Western Australia [2021] WASCA 11 [43] ‑ [53].
In the present case, the trial judge instructed the jury in the jury handout that, to find the appellant guilty of the charged offence 'via [the] second pathway', the jury had to be satisfied beyond reasonable doubt of seven matters, namely:
(a)at least one of the appellant and Mr Webb did the act or acts that caused Mr Koroma's traumatic brain injury;
(b)the acts of both the appellant and Mr Webb were unlawful;
(c)both the appellant and Mr Webb intended to disable or do grievous bodily harm to Mr Koroma;
(d)the appellant knew that Mr Webb's intention was to disable or do grievous bodily harm to Mr Koroma;
(e)the appellant knew that Mr Webb was assaulting Mr Koroma in such a manner as to be endangering or be likely to endanger life or to cause or be likely to cause permanent injury to health;
(f)the appellant did something with the intention of aiding or assisting in the doing of the acts done by Mr Webb; and
(g)what the appellant did actually aided or assisted Mr Webb to commit the offence.
His Honour reiterated those instructions in his summing up.
So, the jury could not be satisfied beyond reasonable doubt that the appellant was guilty on the basis of the second pathway unless, relevantly, the jury was satisfied beyond reasonable doubt that:
(a)the acts of Mr Webb in relation to Mr Koroma were unlawful;
(b)Mr Webb intended to disable or do grievous bodily harm to Mr Koroma;
(c)Mr Webb was assaulting Mr Koroma in such a manner as to be endangering or to be likely to endanger life or to cause or be likely to cause permanent injury to health; and
(d)the appellant did something which actually aided or assisted Mr Webb to commit the offence.
If the jury had been satisfied beyond reasonable doubt of each of the matters referred to at [182] above in relation to Mr Webb, the jury would necessarily have concluded that Mr Webb was criminally responsible for the charged offence, either jointly with the appellant under s 7(a) or solely under s 7(a).
It is apparent, from the jury's failure to agree upon a verdict in respect of Mr Webb, that the jury was not satisfied beyond reasonable doubt that Mr Webb was criminally responsible for the charged offence, either jointly with the appellant under s 7(a) or solely under s 7(a).
It follows that, in the circumstances, the jury could not have convicted the appellant of the charged offence on the basis of the second pathway. The jury must have convicted him on the basis of the first pathway. As we have indicated, in the course of considering the other grounds, it was open to the jury to return a verdict of guilty in respect of the appellant on the basis of the first pathway.
Ground 3 rests upon a false premise, namely that the verdict of guilty in respect of the appellant was based upon the second pathway.

Conclusion

The appeal is unmeritorious. In the circumstances, it would be pointless to grant the appellant an extension of time within which to appeal. We would dismiss his application for an extension of time. Leave to appeal should be refused. The appeal must be dismissed.

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
13 APRIL 2021