Panicciari v The State of Western Australia - [2021] WASCA 102

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PANICCIARI -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 102
CORAM:   QUINLAN CJ
MAZZA JA
MITCHELL JA

HEARD:   10 FEBRUARY 2021
DELIVERED          :   11 JUNE 2021
FILE NO/S:   CACR 64 of 2020
BETWEEN:   MATTHEW JOHN PANICCIARI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   DAVIS DCJ
File Number            :   IND 405 of 2019

Catchwords:

Criminal law – Appellant convicted of aggravated burglary and assault occasioning bodily harm – Alternative possible pathways to guilt in relation to charge of assault occasioning bodily harm – Trial judge directed the jury that unanimity was required as to pathway upon which they could reach a guilty verdict – Whether direction gave rise to miscarriage of justice – Written jury aid provided by trial judge – Whether jury aid excessively complex and confusing – Whether jury aid gave rise to miscarriage of justice

Legislation:

Criminal Code (WA), s 248, s 317, s 401
Sentencing Act 1995 (WA), s 11

Result:

Leave to appeal on grounds 1 and 2 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S B Watters & S Nigam
Respondent	:	K C Cook

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Gandy v The State of Western Australia [2017] WASCA 93
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41
Wharton v The Queen [No 2] [2017] WASCA 164
Wong v The State of Western Australia [2011] WASCA 56

Table of Contents

Introduction

State case at trial

Defence case at trial

Directions to the jury

Were pathways necessary at all?

Ground 1

Ground 2

Conclusion

Schedule

JUDGMENT OF THE COURT:

Introduction

The appellant was charged on indictment with one count of aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA), and one count of assault occasioning bodily harm, contrary to s 317 of the Criminal Code (WA). An element of each charge was that the appellant had unlawfully assaulted the complainant.
The State case was that, on 12 May 2018, the appellant and his co‑accused, Lucia Frances Brown, forced their way into the unit occupied by the complainant, without his consent, and violently assaulted him. The defence case was that the appellant and Ms Brown were invited into the unit and that the complainant was the instigator of the violence. Any assault by the appellant was, on the defence case, in self‑defence and therefore not unlawful.
On 23 January 2020, following a trial before Davis DCJ and a jury, the appellant was convicted of both counts on the indictment.
On 9 April 2020, the appellant was sentenced to 2 years 6 months' imprisonment for the aggravated burglary. Pursuant to s 11 of the Sentencing Act 1995 (WA), no further penalty was imposed in relation to the assault occasioning bodily harm.
The appellant now appeals against both convictions.
There are two grounds of appeal, namely that:
(a)the learned trial judge erred 'in directing the jury that they could only reach a verdict on the basis of three possible factual scenarios' (ground 1); and
(b)the learned trial judge erred 'by providing the jury with a jury aid designed to assist them in the consideration of the evidence and verdicts, which was excessively complex and likely to confuse them, thereby resulting in a miscarriage of justice' (ground 2).
The grounds of appeal are related. As will become apparent, the alleged 'complexity' of the jury aid challenged by ground 2 was in many ways a function of the alternative pathways (or scenarios) left to the jury as part of the State case, challenged by ground 1. The pathways related to the element, in each charge, that the appellant had unlawfully assaulted the complainant.
In that regard, as the appellant accepted at the hearing of the appeal,[1] the pathways (or scenarios) left to the jury reflected the case as it had been run by the parties at trial. There was no challenge, in the appeal, to the proposition that it was open to the jury, properly instructed, to find the appellant guilty of unlawful assault based on the three scenarios, subject to the defences that might apply to each of them.
[1] Appeal ts 3.
As we will come to later, in light of the evidence at trial, the State case could, and in our view should, have been presented in far more simple terms, with only one scenario consistent with guilt being left to the jury for its consideration. Nevertheless, that was not how the parties conducted the case at trial. In light of the manner in which the case was conducted, it was not only correct, but necessary, for the learned trial judge to direct the jury that they could only convict the appellant on the basis of one (or more) of the alternative pathways. For this reason, ground 1 must fail.
Similarly, given that it was necessary for the alternative pathways to be left to the jury, no miscarriage of justice arises from the learned trial judge having provided the jury with the jury aid. It was not suggested that the jury aid itself contained any error and, as the appellant confirmed at the hearing of the appeal, there was no challenge to the learned trial judge's oral directions.[2] Ground 2 must also fail.
[2] Appeal ts 17.
We would refuse leave to appeal in relation to both grounds and dismiss the appeal.

State case at trial

The indictment charged the appellant, and Ms Brown, in the following terms:
(1)On 12 May 2018 at Midland Lucia Frances Brown and Matthew John Panicciari, while in the place of [the complainant] without his consent, committed the offence of assault
And that Lucia Frances Brown and Matthew John Panicciari were in company with each other
And that Lucia Frances Brown and Matthew John Panicciari did bodily harm to [the complainant]
And that immediately before the commission of the offence Lucia Frances Brown and Matthew John Panicciari knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On 12 May 2018 at Midland Lucia Frances Brown and Matthew John Panicciari unlawfully assaulted [the complainant] and thereby did him bodily harm
And that Lucia Frances Brown and Matthew John Panicciari were in a family relationship with [the complainant].
In simple terms, the State case was that, in company with Ms Brown, the appellant entered the complainant's unit without his consent and assaulted him.
As is apparent, both counts on the indictment alleged that the appellant 'assaulted' the complainant. The State case was opened on the basis that the 'assault' referred to in each charge was the 'same assault which we allege happened inside the house'.[3]
[3] Trial ts 42.
It was clear from the opening that the State case was that the appellant, and Ms Brown, struck the complainant on a number of occasions. In opening the case, however, the prosecutor did not distinguish between different blows (or punches) but referred to one 'assault':[4]
These two people pushed their way inside the unit. [The complainant] will tell you that at no point did he give them consent. He didn't invite them in; it was simply a matter of opening the door and in they came. They pushed their way in. What happened then is the accused man and Ms Brown proceeded to assault [the complainant].
They punched him a number of times, and that happened in the area just inside the front door. This is the front door in the photo, this is the tiled area there, there's some carpet, but that's the location where the assault primarily took place. The assault went for a few minutes, and then Ms Brown and the accused man left.
[4] Trial ts 42.
The State called the complainant as a witness.
The complainant gave evidence that Ms Brown was his ex‑girlfriend. He also knew the appellant as a former co‑worker of Ms Brown.
On 12 May 2018 at approximately 9.00 pm, the complainant was asleep in his room when his housemate, Scott Wellman, woke him up.[5] The complainant said that Mr Wellman told him that he had heard a loud bang on the outside of the complainant's bedroom window.[6] The complainant then heard a loud bang on the front door about 30 seconds later.[7] The complainant went to the front door and when he opened it he saw the appellant and Ms Brown.[8]
[5] Trial ts 64.
[6] Trial ts 64.
[7] Trial ts 64.
[8] Trial ts 65.
The complainant said that as soon as he opened the door, both the appellant and Ms Brown began yelling at him 'Where's our money?', to which the complainant responded 'Get fucked, I don't owe you anything'.[9] After they had exchanged words, the complainant said that the appellant began punching him.
[9] Trial ts 65.
The complainant said that the appellant punched him in the face two or three times, while the appellant and Ms Brown were still outside, before entering the unit, forcing the complainant backwards.[10] Once in the unit, the appellant continued to punch the complainant in the face. The complainant said he was punched by the appellant in the face approximately 10 to 15 times.[11]
[10] Trial ts 66 - 67.
[11] Trial ts 67 - 68.
The complainant said that the appellant stopped punching him momentarily when the appellant turned his attention to Ms Brown speaking to Mr Wellman.[12]
[12] Trial ts 68 - 69.
At this point the complainant said he then tried to pull his phone out of his pocket to call the police, but the appellant saw him do so and snatched the phone out of his hand.[13] The complainant said that he wrestled the phone off the appellant, who began punching him again.[14]
[13] Trial ts 69.
[14] Trail ts 69 - 70.
The complainant went down to his knee, holding the phone to his chest, while the appellant continued to punch him. At this point, the complainant said he was punched in the back of his head and shoulders.[15] He did not see who punched him when he was kneeling.[16]
[15] Trial ts 70.
[16] Trial ts 71.
The complainant said that at one point he grabbed the appellant's leg to stop him from running away,[17] and eventually let go and stood up. He said that Ms Brown then started yelling at him, 'egging me on to strike her'.[18] The complainant said he put his forearm out to distance himself from Ms Brown, and that his forearm touched Ms Brown at about stomach level.[19] The complainant said that the appellant began to punch him in the face a few more times.[20]
[17] Trial ts 71.
[18] Trial ts 72.
[19] Trial ts 72.
[20] Trial ts 72.
The complainant described feeling his nose 'caved in' and feeling blood run off his face constantly during the incident.[21] He estimated that he was punched approximately 40 times in total.[22]
[21] Trial ts 72 - 73.
[22] Trial ts 79.
Ms Brown looked at the complainant's face and then ran out the front door. The appellant followed Ms Brown a few moments later.[23] The complainant said that at some point during the incident, he saw Ms Brown carrying a baseball bat that belonged to Mr Wellman.
[23] Trial ts 73.
The complainant maintained this version of events in cross‑examination.
Mr Wellman also gave evidence, which was consistent with the account given by the complainant.
With the appellant's consent, the State read into evidence a statement from a doctor who examined the complainant on 12 May 2018. The injuries described by the doctor included swelling over the forehead and temple, bilateral black eyes, an open fracture of the proximal nose, abrasions to the neck and chest and bruising to both upper arms.

Defence case at trial

The appellant did not give evidence at trial. He did, however, participate in a video record of interview on 18 May 2018, which was adduced into evidence as part of the State case.
According to the appellant, he and Ms Brown knocked on the complainant's door and the complainant opened the door about halfway. Once the door was open, the appellant said to the complainant 'look, we're just here to, to talk and try and reason things out'.[24] According to the appellant, the complainant said 'okay, come in', and when the appellant walked in, the complainant punched him in the throat and shoved him backwards.[25]
[24] BAB 10.
[25] BAB 10.
The appellant said that the complainant then immediately 'went after' Ms Brown and was verbally harassing her. He said that after this, Mr Wellman came in from the kitchen area holding a baseball bat and struck the appellant to the right side of his head with the bat.[26] The appellant said that Mr Wellman took a second swing, but the appellant blocked it with his arm.
[26] BAB 10.
The appellant said that he pushed Mr Wellman, who dropped the bat.[27] By this time, the appellant said, the complainant and Ms Brown were wrestling on the floor and the complainant had a 'pretty firm grip on her' around her waist and leg[28] and that he 'left quite a few bruises and a scratch as well'.[29] The appellant said that he tried to get the complainant off Ms Brown and, in doing so, his keys fell out of his pocket.[30] When he dropped his keys, the appellant said, he saw a phone on the ground and thought either his phone had fallen out of his pocket, or that it was Ms Brown's phone, so he tried to grab it.[31] He said that the complainant also tried to grab the phone, letting go of Ms Brown.[32]
[27] BAB 10 - 11.
[28] BAB 11.
[29] BAB 11.
[30] BAB 11.
[31] BAB 11.
[32] BAB 11.
According to the appellant, both he and the complainant struggled over the phone for a bit before he realised it was the complainant's phone and let go of it.[33]
[33] BAB 12.
The appellant said that Mr Wellman reappeared and tried to close the front door.[34] He said that he held onto the door to stop it from closing and told Ms Brown to get out of there.[35] Ms Brown left through the front door and the appellant followed.
[34] BAB 12.
[35] BAB 12.
The appellant said that he did not strike either the complainant or Mr Wellman, and that, even if he did, it was in self‑defence.[36] He explained that Ms Brown took the baseball bat because Mr Wellman tried to pick it back up after he dropped it, and Ms Brown grabbed it off him so it would not be used by Mr Wellman again.[37]
[36] BAB 13.
[37] BAB 13.
As can be gleaned from the above, the appellant's account of the events differed significantly from that of the complainant.

Directions to the jury

At the close of the State case, the learned trial judge sought to clarify with the prosecutor the State case in relation to the element, which arose in relation to both charges, that the appellant did bodily harm to the complainant. Her Honour enquired as to which of the injuries the subject of the evidence were relied upon by the State as the 'bodily harm'.
The prosecutor initially took the position that the bodily harm was the totality of the injuries suffered by the complainant, consistent with the State's position that the assault consisted of 'multiple blows but charged as one act'.[38] Counsel for the appellant took issue with the notion that the State could rely upon all of the injuries. He said:[39]
Once they've identified the injuries that are capable of inference of bodily harm, like the fractured nose, if that is what they rely upon, certainly they must – the jury must be unanimous in determining that it was caused by the accused because that's how the State have opened. …
And that's how I proceeded, that he caused – so first of all they've got to be satisfied that there was an injury constituting bodily harm or injuries. I'm not saying it's necessarily restricted to one. But then they must be satisfied beyond reasonable doubt that it was this accused that caused that bodily harm. And that's relevant to both counts.
[38] Trial ts 260.
[39] Trial ts 261 - 262.
It was in this context that reference was first made to a 'pathway' direction, as reflected in the following exchange:[40]
DAVIS DCJ: … And even if there's only two or three, I think I still need to give a jury direction that they've really got to arrive by the same pathway to the verdict, if it's a verdict of guilty.
[COUNSEL FOR THE STATE]: Yes, I'll do that - - -
DAVIS DCJ: So they can't all – so six of them couldn't say, 'Well, we're satisfied his nose was broken', and six of them couldn't say, 'We were satisfied that there was bodily harm because he was hit in the eye', they'd all have to agree it's at least one of those.
[COUNSEL FOR THE STATE]: Yes.
[COUNSEL FOR THE APPELLANT]: And that the accused was causative.
DAVIS DCJ: Yes, yes.
[40] Trial ts 263.
The learned trial judge and counsel went on to identify various issues going to the potential defences, depending upon how the State case was left to the jury.
The next day the learned trial judge indicated to counsel that in her assessment there were three possible assaults that it would be open to the jury to find had occurred. Her Honour identified those three possible assaults as:
(a)by the appellant punching the complainant to the face at, and just inside, the front door;[41]
(b)during the struggle over the mobile phone;[42] and
(c)during the struggle between the complainant and Ms Brown.[43]
[41] See [20] above.
[42] See [22] & [34] above.
[43] See [24] & [33] above.
The learned trial judge observed that there may be different defences available depending upon which scenario was found by the jury. Her Honour continued:[44]
So it seems to me that I need to direct the jury about that and that they would all have to be unanimous on at least one of those scenarios. Firstly, that that scenario happened, secondly that there was bodily harm and thirdly that that harm was caused by the accused.
[44] Trial ts 271 - 272.
The prosecutor, while maintaining the State's principal position that there was one continuous 'assault', did not demur from the approach articulated by the learned trial judge. He said that, should a 'pathways' approach be taken, the State would close on that basis.[45]
[45] Trial ts 272.
In that regard, counsel for the appellant submitted to her Honour: 'I'm the one with you', and that 'different defences apply to the different injuries'.[46] There then followed an extensive exchange as to the defences that might be applicable to the various scenarios.
[46] Trial ts 273.
Following counsels' addresses to the jury, the learned trial judge provided counsel with a draft written jury aid that identified the three scenarios of assault. Following further exchanges as to the contents of the jury aid, both the prosecutor and counsel for the appellant confirmed that they had no issues with the final form of the jury aid.[47]
[47] Trial ts 333.
The jury aid is reproduced in the Schedule to these reasons.
Relevantly, in relation to the three scenarios identified by her Honour, the jury aid included the following instructions:
(a)'[w]hether one or more of these scenarios occurred is for you to determine on all of the evidence';
(b)'before you can reach a verdict of guilty you must be unanimous in your agreement both as to the fact that [the appellant] assaulted [the complainant] during a particular scenario and that [the appellant] caused bodily harm to [the complainant] in that scenario';
(c)'[i]t is not permissible for you to arrive at a verdict of guilty on different facts. You all have to agree upon the facts, and arrive at your verdict by the same route or pathway'; and
(d)'if you are satisfied beyond reasonable doubt and all agree for any scenario that [the appellant] assaulted [the complainant] and, for the second circumstance of aggravation and count 2, that [the appellant] caused the injury or injuries you find were suffered by [the complainant] and which constitute bodily harm, you will then have to consider the issue of unlawfulness'.
These instructions were mirrored in the learned trial judge's oral directions to the jury, including the requirement that the jury be unanimous as to the 'same route or pathway'.[48]
[48] Trial ts 348 - 349.

It is these instructions, in particular, that the appellant challenges by ground 1.
Before addressing each ground it is desirable to make some preliminary remarks in relation to the case, as it was left to the jury.

Were pathways necessary at all?

As we noted earlier, the appellant did not challenge the proposition that it was open to the jury, properly instructed, to find the appellant guilty of unlawful assault based on one of the three scenarios, subject to the defences that might apply to each of them. Consequently, the appellant did not suggest that the separate pathways to conviction could not be left to the jury. Rather, the appellant's case, on ground 1, was that the jury should not have been confined to those pathways.
As will also be apparent from the above summary, it was the appellant's trial counsel who submitted that there should be a direction identifying different pathways and a direction that the jury must be unanimous as to which pathway, if any, they found to be established beyond reasonable doubt. While counsel's focus, in this regard, was primarily concerned with whether the jury could be satisfied that the appellant had caused the complainant bodily harm, it is also clear that the different pathways raised potentially different defences. As counsel put it, 'different defences apply to different injuries'.
As a matter of forensic judgment, defence counsel's approach, in this regard, may be quite understandable. Defence counsel might legitimately consider that identification of various pathways towards conviction, and in particular the different defences that might apply to them, is in the accused's favour, particularly given the need for the jury to be unanimous as to the issues arising in relation to each pathway. Complexity, in this context, might legitimately be regarded as improving an accused's prospects of an overall acquittal.
Nevertheless, the fact that there might be different pathways to a finding of guilt available on the totality of the evidence does not necessarily require that they must all be left to the jury for its consideration. On the contrary the State, who brings the charge against the accused, may confine its case to one, and only one, pathway.
That could, and in our view should, have been the approach taken in the present case. The State case was, on the better view, a simple one. Namely, that the appellant, with Ms Brown, entered the complainant's unit, without his consent, and the appellant, almost immediately and without provocation, punched the complainant repeatedly in the face. Those punches, on the State case, caused bodily injury to the complainant's face, including a broken nose.
Save for the identification of the injury said to constitute the bodily harm, the case as we have just described it, largely corresponds to what the learned trial judge identified as Scenario 1. Proof of that case depended upon the jury being satisfied, beyond reasonable doubt, as to the credibility and reliability of the complainant's evidence. In the event that the jury were so satisfied, as the jury aid and the oral directions made clear, the jury would not have been required to consider the defence of either self‑defence or accident. On the other hand, if the jury were not so satisfied, and were left with a reasonable doubt as to the credibility or reliability of the complainant's evidence, the proper verdict (on that scenario) was one of acquittal.
In those circumstances, the present case could have been left to the jury, in essence, on the basis that it needed to be satisfied beyond reasonable doubt that the State had proved Scenario 1, identifying which particular injury or injuries were the bodily injury alleged to be caused by the blows to the complainant's face. That is, the State could have 'nailed its colours to the mast' so as to stand or fall on the jury's acceptance of the complainant's account of the events.[49]
[49] As counsel for the State properly accepted at the hearing of the appeal (Appeal ts 21 - 22).
Such an approach would not only have had the benefit of simplicity; it would also have served to properly reflect the real criminality alleged by the State. And, notwithstanding the legitimate forensic judgment referred to at [54] above, to so confine the State case could work no unfairness to the accused.
Nevertheless, as the case was not conducted on this basis, whether the learned trial judge's directions reveal a wrong decision on a question of law, or give rise to a miscarriage of justice, is to be assessed in light of the case as it was conducted, namely that it was open to the jury, properly instructed, to find the appellant guilty of unlawful assault based on one of the three scenarios.

Ground 1

As stated above, ground 1 alleged that the learned trial judge erred 'in directing the jury that they could only reach a verdict on the basis of three possible factual scenarios'.
The first observation to make about the formulation of this ground is that it omits a significant feature of the directions given by the learned trial judge. Her Honour's directions were not, as the ground suggests, to the effect that 'jury … could only reach a verdict on the basis of three possible factual scenarios'. Rather, the effect of the directions was that the jury could only reach a verdict of guilty, in relation to the allegation of assault, if they were satisfied as to one of the 'three possible factual scenarios'.[50]
[50] See [48] - [49] above.
The difference between these two formulations is significant, as it emphasises that the 'pathways' direction in this case (namely confining the jury's task to the three scenarios) was one that worked in favour of the accused. It made clear that the jury could only return a verdict of guilty on the basis of one (or more) of the scenarios and that the jury must be unanimously agreed that the particular scenario or scenarios had been established beyond reasonable doubt.
That the 'pathways' direction in the present case worked in the appellant's favour is borne out by the authorities relied upon by the appellant. Those were cases in which an appellant, convicted after trial, sought to appeal the conviction on the basis that the jury ought to have been directed that, in the particular circumstances of each case, it was necessary for the jury to be unanimous as to the particular pathway leading to a finding of guilt.
In Gandy v The State of Western Australia, for example, the Court said:[51]
It was held in Mouritz v The State of Western Australia and later in Michaels v The State of Western Australia, that where the alternative legal formulations of liability rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict: it is not necessary that all members of the jury arrive at the same verdict by the same pathway.
However, where the alternative legal formulations of liability rest on materially different factual foundations or involve materially different issues or consequences, a trial judge is required to direct the jury that, in order to convict the accused of the offence charged, the jury must be unanimous as to the pathway to guilt. In these reasons, we will refer to this direction as a 'separate pathways direction'.
[51] Gandy v The State of Western Australia [2017] WASCA 93 (Gandy) [72] - [73] (Martin CJ, Mazza & Mitchell JJA) (references omitted).
In Gandy the Court concluded that a 'separate pathways direction' was not required because the alternative pathways to guilt depended upon substantially the same facts and did not involve 'materially different issues or consequences'.[52] That is, the jury did not have to be agreed as to the particular pathway to conviction in order to reach a unanimous decision as to the guilt of the appellant in that case.
[52] Gandy [89] (Martin CJ, Mazza & Mitchell JJA).
Similarly in Wharton v The Queen [No 2], Buss P and Mazza JA said:[53]
Cases that require a separate pathways direction are comparatively rare and arise when it emerges at some stage in the course of the trial or as a result of a question asked by a jury that there was a risk of a disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved. It has never been the law that individual jurors must agree on every matter before reaching a verdict. Nor has it been held that the concept of the unanimous verdict requires each juror to be satisfied that the prosecution has established its case in one particular way.
Where there are alternative legal formulations of liability which rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict; it is not necessary that all members of the jury arrive at the same verdict by the same pathway.
[53] Wharton v The Queen [No 2] [2017] WASCA 164 [82] - [83] (Buss P & Mazza JA) (references omitted).
In the present case, of course, it was accepted at trial (and on appeal) that there were 'alternative legal formulations of liability' potentially arising from the evidence. Moreover, as is clear from the different defences that potentially arose (depending upon which factual foundation or scenario was accepted), materially different issues or consequences arose in relation to those scenarios. For that reason, the learned trial judge was, as a matter of fairness to the accused, required to instruct the jury that they must agree as to the particular pathway leading to guilt before they could convict the appellant.
That direction was not only not in error. It was necessary.
The appellant, in his submissions in support of this ground, laid particular emphasis on the freedom of the jury to organise their individual processes of reasoning, or their discussions as a group, in whatever manner they regard as convenient.[54] To similar effect the appellant referred to the jury's prerogative to accept or reject the evidence as to the differing accounts of the events on 12 May 2018, in whole or in part.
[54] Stanton v The Queen[2003] HCA 29; (2003) 198 ALR 41 [35] (Gleeson CJ, McHugh & Hayne JJ); Wong v The State of Western Australia [2011] WASCA 56 [44] - [45] (Mazza JA, McLure P & Buss P agreeing).
That submission, however, fails to properly distinguish between the issues that the jury are required to decide and how the jury are to determine those issues. The jury are, of course, entirely free to determine what evidence they accept and what evidence they reject and how they organise their deliberations (although a trial judge may suggest an approach to deliberations). The jury does not, however, define the issues that they must decide. Once it was accepted that there were three 'alternative legal formulations of liability' potentially arising from materially different facts, it was necessary that the jury be directed to confine itself to consideration of those pathways.
Finally, in this context, the appellant relied upon the Court's observation in Gandy to the effect that the appellant's contention in that case would, if accepted, 'lead to undue complication in criminal cases, and injustice'.[55]
[55] Gandy [90] (Martin CJ, Mazza & Mitchell JJA).
Two points may be made in relation to that reference.
First, it is clear that the injustice referred to by the Court in this passage is the injustice arising from an acquittal in circumstances in which every juror is convinced of the accused's guilt but not agreed on which of two substantially similar pathways (that is, not involving materially different facts) to follow. It does not relate to the position, here, where the separate pathways direction was given in relation to materially different factual scenarios.
Secondly, in relation to complexity, as we have discussed above, there certainly was room in the present case for the State case to be left to the jury in far more simple terms. The complexity in this case, however, did not arise from the 'separate pathways direction' given by the learned trial judge. If anything, the complexity arose from the manner in which the parties, and in particular the appellant, conducted the case at trial. As we have already observed, the parties' acceptance of the availability of the different pathways was not the subject of the appeal.
Ground 1 has no reasonable prospect of success. We would refuse leave to appeal on that ground.

Ground 2

Ground 2, which contends that the jury aid was 'excessively complex and likely to confuse' the jury, thereby resulting in a miscarriage of justice, must fail for similar reasons. Indeed, while counsel for the appellant contended that the success of ground 2 was not dependent upon the success of ground 1, he nevertheless accepted that at the heart of the complaint in relation to ground 2 was the three scenarios that were left to the jury.[56]
[56] Appeal ts 19.
It will be apparent from what we have said above that there is good reason to suggest that the trial of this matter could, and should, have been conducted more simply. Nevertheless, in light of the manner in which the case was conducted, in our view it was inevitable that the directions to the jury, particularly in relation to self‑defence would be 'complex'. That complexity arose from the very terms of s 248 of the Criminal Code, and the need to relate the various aspects of self‑defence to the particular evidence in the trial.
The use of a written jury aid in those circumstances was likely to assist the jury in identifying the relevant issues for their determination. It was, ultimately, a matter for the trial judge to strike the necessary balance between providing too much written material and providing a document that provided the necessary assistance.[57] Unless it can be said of the jury aid that the balance struck by the learned trial judge was inappropriate or plainly unreasonable, no miscarriage of justice can arise.
[57] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [229] (Martin CJ, Mazza & Mitchell JJA). See also Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [245] ‑ [251] (Buss P, Mazza & Mitchell JJA).
In that regard, the appellant did not suggest that any aspect of the jury aid incorrectly stated the law to be applied or inaccurately identified an issue for the jury's consideration. Nor was there any suggestion that the jury aid was inconsistent with the learned trial judge's oral directions. The appellant's appeal counsel indicated that the appellant did not challenge the oral directions, and in effect accepted that he could not have complained if the jury had been provided with a transcript of the judge's oral directions.[58]
[58] Appeal ts 17.
In those circumstances, while the jury aid was certainly lengthy, it could not properly be described as 'excessively' complex or 'confusing'. In light of the issues as they emerged in the trial before the learned trial judge, we are not persuaded that the balance struck by her Honour was inappropriate or plainly unreasonable.
Ground 2 has no merit. We would refuse leave to appeal.

Conclusion

Leave should be refused in relation to both grounds of appeal.
The appeal should be dismissed.

Schedule

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
11 JUNE 2021