Pearce v The State of Western Australia

[2014] WASCA 156

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PEARCE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 156

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   5 & 6 JUNE 2014

DELIVERED          :   28 AUGUST 2014

FILE NO/S:   CACR 188 of 2012

BETWEEN:   RODERICK PHILLIP PEARCE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JENKINS J

File No  :INS 164 of 2011

Catchwords:

Criminal law - Murder - Leave to appeal against conviction - Evidence - Admissibility of video record of interview - Whether admissions involuntary or unfair - Unsafe and unsatisfactory verdict - Turns on own facts

Criminal law - Criminal procedure - Conduct of trial counsel - Miscarriage of justice - Turns on own facts

Criminal law - Evidence - Applications to adduce additional evidence - Distinction between fresh and new evidence - Admissibility of new evidence - Miscarriage of justice - Turns on own facts

Criminal law - Evidence - Identification evidence - Whether direction to jury required on reliability of voice recognition evidence - Turns on own facts

Legislation:

Criminal Investigation Act 2006 (WA), s 138

Result:

Leave to appeal on grounds 1, 2, 3 and 5 refused
Leave to appeal on ground 4 granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms L B Black & Mr A J Robson

Respondent:     Mr J C Whalley & Mr L M Fox

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Allmark v The City of Stirling [2013] WASCA 122

Beamish v The Queen [2005] WASCA 62

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

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593

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

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

Mackenzie v The Queen [2004] WASCA 146

McDermott v The King [1948] HCA 23; (1948) 76 CLR 501

McMahon v The State of Western Australia [2010] WASCA 143

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

Pham v The State of Western Australia [2013] WASCA 47

R v Apostilides [1984] HCA 38; (1984) 154 CLR 563

R v Birks (1990) 19 NSWLR 677

R v Lee [1950] HCA 25; (1950) 82 CLR 133

R v Swaffield [1998] HCA 1; (1998) 192 CLR 159

R v Williams (1992) 8 WAR 265

Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10

WP v The State of Western Australia [2011] WASCA 198

1. McLURE P:  This is an application for leave to appeal against conviction.  The appellant (also known as Dick Bennell) was convicted after trial of the murder of Shannon Morris Chubby (the deceased).

2. The deceased was killed in the course of a drunken brawl between two rival groups in the early hours of the morning of 6 February 2011.  The appellant participated in the brawl.

3. Many members of the immediate and extended Pearce family had travelled to Carnarvon from their homes in other parts of the State to attend the funeral of Shannon Pearce, who had been unlawfully killed.  She was the daughter of Karene Bellotti (also known as Gubby) and her former partner, Trevor Pearce, the appellant's uncle.  The appellant, his wife and children travelled by car from Mullewa to Carnarvon on 5 February 2011.  The appellant travelled in convoy with two buses taking people to Carnarvon for the funeral.  The appellant and his family and others attending the funeral had accommodation at the Koorda Club in Carnarvon.

4. After the funeral, which was held in the afternoon of 5 February 2011, the appellant and others returned to the Koorda Club and started drinking alcohol.  Most of the witnesses who gave evidence at trial, including the appellant, were seriously affected by alcohol at the time of the brawl on the following morning.

5. At some stage the appellant and others went from the Koorda Club to Ms K Bellotti's house at 3 Craig Street, Carnarvon.  The group at 3 Craig Street (the Pearce group) included William John Pearce (the appellant's uncle), Rickeesha Pearce (another daughter of Ms K Bellotti and Trevor Pearce), Sonja Bennell (the appellant's sister), Vincent Clarke (the appellant's cousin), Garry Roberts (the partner of one of the appellant's sisters), Delores Roberts (Garry's mother) and Dwight Parker (the partner of Krystal Mallard, the appellant's niece).

6. The group of which the deceased was a member (the Chubby group) included Helen Chubby (the deceased's mother), Dennison Chubby (the deceased's brother) and Gareth Noble (the deceased's cousin).  The Chubby group were at Melissa Boona's house at 6B Stroud Street, Carnarvon.

7. In the early hours of 6 February 2011 the deceased, in company with his brother Dennison Chubby and others, had a fight with Dwight (Buddy) Parker.  Vincent Clarke intervened in the fight in the course of which his fingers were cut with a machete.  Clarke returned to 3 Craig Street and was taken to hospital.

8. Following this fight, members of the Pearce group engaged in a running brawl with members of the Chubby group from around the intersection of Craig Street and Killicoat Street to 6B Stroud Street, Carnarvon.  Craig Street and Stroud Street terminate on the right and left side of Killicoat Street respectively.  The rival groups were throwing bottles and rocks at each other.

9. In the course of a fight involving the appellant and the deceased and others on or near a ramp leading to the front door of the house at 6B Stroud Street, the deceased was fatally wounded.  He received a total of eight wounds:  wound 1 was a fatal wound to the heart, wound 2 was a small wound to the left side of the deceased's face, wound 3 was to the left ear, wound 4 was above the left ear, wound 5 was to the back, wound 6 was to the left wrist, wounds 7 and 8 were to the palm and back of the deceased's hand.  After receiving these wounds, the deceased got to his feet and went into the house.  He died shortly thereafter.

10. The fatal wound, a 10 to 15 cm penetrating wound that went through the deceased's heart, was caused by a sharp object such as a knife because the rib cage bone was cleanly divided.  No‑one saw who inflicted the wound that killed the deceased. 

11. Many of the people involved in the brawl were armed.  After the brawl four knives, a red‑handled machete, two empty beer bottles, a windmill vane, a windmill stand and multiple pieces of broken glass were littered around the front yard of the house at 6B Stroud Street.

12. A black‑handled knife with a bent tip and the blood and DNA of the deceased in an indentation on the handle was found by police in grass next to a worn dirt path on a vacant block at the corner of Hammond and Richardson Streets, Carnarvon.  This knife was tendered in evidence as exhibit 7 (the bent tip knife).

13. Another knife which tested positive for blood and had the DNA of the deceased on it was found inside 6B Stroud Street.

14. The appellant was seen returning by foot from Stroud Street to Craig Street.  He was shirtless with blood on his chest.  A policeman who witnessed the appellant's return said he was shouting, 'I'm a Pearce, I'm a Pearce, I'm a Pearce'.

15. The Pearce group, fearing retaliation from the Chubby group, regrouped at the Koorda Club and some then travelled to the Gateway Motel where they were attacked.  The appellant was injured in the attack and admitted to Carnarvon Hospital.  He discharged himself in the afternoon of 6 February 2011 and on the same day travelled to Geraldton.  He was admitted to Geraldton Hospital on the evening of 6 February 2011. 

16. The appellant participated in a video‑recorded interview with police (VROI) at Geraldton Hospital from 1.36 pm on 7 February 2011.  The interview was conducted by Detective Sergeant Tom Doyle with assistance from Detective Senior Sergeant Graham Doran.  The appellant made admissions during the course of the VROI.

The grounds of appeal

1. There are five grounds of appeal.  The appellant contends that:

   (1)there was a miscarriage of justice caused by the admission into evidence of the VROI;

   (2)there was a miscarriage of justice caused by defence counsel failing to cross‑examine prosecution witnesses on key issues and failing to address the jury on those issues;

   (3)there was a miscarriage of justice in that evidence not called at trial and additional evidence obtained after trial would have led the jury to have a reasonable doubt concerning the prosecution case;

   (4)the trial judge erred by not directing the jury on the voice recognition evidence and other weaknesses in the evidence of William John Pearce;

   (5)the verdict was unreasonable and not supported by the evidence.

2. The gravamen of the grounds of appeal is in effect that negligent acts and omissions of the appellant's trial counsel resulted in miscarriages of justice.  The appellant's new legal advisers would, it seems, have conducted the defence case at trial differently. 

3. Before dealing with the grounds, I propose to state the relevant legal principles relating to attacks on the competence of trial counsel and new and fresh evidence.

Competence of trial counsel

1. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client.  It is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions or involved errors of judgment or even negligence:  TKWJ v The Queen (2002) 212 CLR 124 [74]; R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).

2. The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden:  TKWJ [74] (McHugh J). This issue was discussed in McMahon v The State of Western Australia [2010] WASCA 143 as follows:

   In this context, miscarriage of justice has two aspects, process and outcome.  If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome:  TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

   In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial.  In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues.  First, did counsel's conduct result in a material irregularity in the trial.  Secondly, is there a significant possibility that the irregularity affected the outcome:  TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).

   The test of whether there is a material irregularity is objective:  TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J) [25] ‑ [27].

3. The principles relating to new and fresh evidence are dealt with below.  As Gleeson CJ noted in Birks:

   Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.  The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).

4. An apparently rational decision made by the accused's counsel in the course of trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused:  TKWJ [16].

5. An appellate court does not examine whether a decision taken by the appellant's counsel at trial was in fact taken for legitimate forensic reasons.  Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis.  That is, could there be any reasonable explanation for the decision, a test that is objective:  TKWJ [17]; WP v The State of Western Australia [2011] WASCA 198 [23] ‑ [24].

Fresh and new evidence

1. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, have been discovered:  Beamish v The Queen [2005] WASCA 62 [9].

2. Where an accused has been convicted, an appellate court will not allow an appeal on the basis of new evidence unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted:  Lawless v The Queen (1979) 142 CLR 659, 675 ‑ 676; DPJB v The State of Western Australia [2010] WASCA 12 [66]; Pham v The State of Western Australia [2013] WASCA 47 [28].

3. 'Fresh' evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered:  Beamish [9].

4. Where an accused has been convicted, an appellate court will not allow an appeal on the basis of fresh evidence unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused:  Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399, 402; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273; Beamish [14].

5. There is no support in the authorities in this State for the appellant's contention that the distinction between new and fresh evidence in an appeal against conviction is of reduced significance.  The principles identified above have been consistently applied in this jurisdiction.

6. In considering whether new or fresh evidence is capable of giving rise to a miscarriage of justice, the court must be satisfied that the evidence has cogency and plausibility in the sense that a reasonable jury could accept it as true:  Lawless (676 ‑ 677); Allmark v The City of Stirling [2013] WASCA 122 [34].

Ground 1 - admissibility of VROI

1. The appellant was represented at his trial by an experienced criminal trial lawyer.  An edited version of the VROI (the edited VROI) was admitted into evidence without objection.  The edits were done with the appellant's consent (trial transcript (tt) 602).  The appellant's trial counsel made a considered forensic judgment that objection would be futile.  I have viewed the unedited VROI.  He was correct.

2. The appellant contends that the VROI was inadmissible on the grounds of involuntariness or alternatively unfairness.  There is no reliance on the public policy discretion in this case. 

3. An admission against interest is not admissible in evidence unless it is made voluntarily.  The onus is on the State to prove voluntariness on the balance of probabilities. 

4. An admission is voluntary if it is made in the exercise of a free choice to speak or remain silent and not because the will of the accused has been overborne:  R v Lee (1950) 82 CLR 133, 149.

5. The rationale for the exclusionary rule is the potential unreliability of the admission and the common law privilege against self‑incrimination.  However, when considering whether an admission is voluntary the court does not attempt to determine the actual reliability of the admission. Rather, it assesses the nature and effect of any inducement or pressure to make the admission in order to determine whether it was made because the will of the accused was overborne by the conduct of a person or persons in authority:  R v Swaffield (1998) 192 CLR 159 [13].

6. An accused's will may be overborne as a result of conduct that includes the promise of advantage, threat of harm, duress, intimidation, persistent importunity or sustained or undue insistence or pressure:  R v Lee (144).  Whether an accused's will is overborne is to be determined by reference to his or her personal circumstances including age, background and psychological condition:  Swaffield (169 ‑ 170).

7. Further, the court has a discretion to exclude a voluntary admission on the ground of unfairness.  The onus is on the appellant to establish unfairness.  The nature and effect of the conduct of persons in authority central to the question of whether an admission is voluntary is also relevant in the exercise of the unfairness discretion:  McDermott v The King (1948) 76 CLR 501, 513. That is, the unfairness which enlivens the discretion must arise from the circumstances under which the admissions were made. The purpose of the discretion is to safeguard a person from the unfairness of using his admissions in evidence against him at trial.

8. The effect of the improper conduct on the reliability of the admission is also a relevant factor in the exercise of the discretion.  However, a voluntary and reliable confession may be excluded if, but for the misconduct, the confession might not have been made or made in the same form:  Swaffield [53] ‑ [54].

9. Recognition of the right to silence and fairness to a suspect requires that police should issue a caution and not whittle down the effect of the caution by pressuring or cajoling the suspect into speaking once he has clearly indicated his wish to remain silent:  Van der Meer v The Queen (1988) 82 ALR 10, 19.

10. The question whether a confession or admission is voluntary (or unfair) is a matter of law and is determined by the judge on a voir dire in the absence of the jury.  An accused will often give evidence on that issue in the voir dire:  Mackenzie v The Queen [2004] WASCA 146 [75].

11. If the judge determines that the confession is admissible, it remains open to an accused to challenge its truth or weight on the same grounds relied on in the voir dire:  Sinclair v The King (1946) 73 CLR 316, 326.

12. The trial judge must be satisfied as to the voluntariness of a confession even if an accused does not raise the matter.  However, if there is nothing to suggest that a confession is not voluntary, the presumption is that it is voluntary:  R v Williams (1992) 8 WAR 265, 271. In this case the prosecution adduced expert medical evidence at trial on the issue of voluntariness. The appellant did not. However, he seeks to do so in the appeal.

13. Unsurprisingly, the matters relied on by the appellant to establish both involuntariness and unfairness overlap.  They are first, the context in which the admissions were obtained, including the nature and effect of the appellant's injuries for which he was being treated in hospital, his limited recall said to arise in part from his state of drunkenness at the time of the incident and his inability to differentiate between what he was told and what he actually remembered.  Second, the allegedly improper cross‑examination style of the questioning by police.  Third, the appellant claims the police provided an improper inducement for the appellant to speak.

14. In relation to the unfairness discretion, the appellant relies on the above matters as well as the alleged equivocal nature of the appellant's admissions and the inclusion of hearsay statements in the edited VROI.

1. I will start with an overview of the content of the VROI before dealing with the matters relied on to establish inadmissibility.

Overview

1. The VROI can be divided into four stages.  In the first stage (VROI (vt) 2 ‑ 20) the appellant is repeatedly informed of the nature and effect of his rights (vt 3 ‑ 9), questioned on matters relating to his capacity and fitness to be interviewed and asked open questions about events leading up to his arrival at Gubby's house at 3 Craig Street.  His recall is good. 

2. In the second stage (vt 21 ‑ 52) the appellant is asked open questions focussing on and from the commencement of the aggravation between the rival groups.  The appellant refers to his limited recall as a result of his intoxicated state.  However, he is able to and does differentiate between matters within his personal knowledge and information he has received from others.  At pages 31 to 42 the appellant speaks primarily of matters that he actually recalls.

3. When the appellant repeated that he could not recall the specifics of the fight in which the deceased suffered the fatal injury, he was asked what he had been told by others about the fight in which the fatal wound was inflicted.  He said he had been told nothing about that (vt 52).  The appellant was then asked why people would tell him what happened before and after the fight which caused the deceased's death but nothing about the fight itself.  This leads immediately into the questions at pages 53 ‑ 55 (the third stage) on which the appellant primarily relies for his claim of improper inducement and persistent pressure.  The text of the third stage is set out in Annexure A to these reasons.

4. During the final stage (vt 56 ‑ 60) the appellant makes admissions.  Detective Doyle tells the appellant again that he wants him to speak of what he knows not what he has been told and reiterates the appellant's right to remain silent. 

5. The appellant responds that all he could remember was that 'he' (based on the broader context that is a reference to the deceased) hit Vincent Clarke who put his hands up and got his fingers severed and that as Vincent fell down the deceased went to hit him across the head with the machete.  The appellant says he punched the deceased, went berserk and just blanked out.  The appellant thought the deceased was going to kill Vincent.  The appellant is then asked:

   Q.  Okay were you armed at the time?  And think about it, I've spoken to witnesses now we don't necessarily believe every witness but we speak to people and we're asking you.  Those witnesses believe other things and say other things, tell me what happened a man died he didn't die from a punch in the head (56).

6. After a pause, the following response and exchange occurred:

   A.  I couldn't even tell you if I stabbed him once or twice.

   Q.  Okay what were you using to stab him with.

   A.  I don't know if I picked up the weapon he had or whether I had one myself.

   Q.  Okay what do you believe you hit him with?

   A.  With what he had.

   Q.  The machete.

   A.  I think so.

   Q.  You think so or you know so?  I mean this is something---

   A.  No I think, um, like I said my mind is fuzzy and I'm coming to terms with all the shit that happened as well.

   … 

   A.  You know and I feel real fucked up about what happened, I don't know because I forcefully made myself forget it or whether I can't really remember properly because I lost my temper but all I know is that like I said someone told me I was trying to protect my brother.

   … 

   Q.  See Roderick, now you're going back into the what someone told you and then what you think you might have done.

   … 

   A.  No I'm telling you I think I did do it but I don't know ‑ like I said I don't know if I stabbed him once or twice (57).

7. The questions then returned to what the deceased was carrying and the appellant described it as a 'blade' and that all he had seen was 'a silver flash' (vt 58).  After again being reminded of his right to remain silent, the following exchange occurred:

   Q.  Do you feel like you're responsible for his death?

   A.  Not entirely, no.

   Q.  Why's that?

   A  Because my heart just doesn't seem to ‑ even my heart tells me that whether it's because he attacked my brother and tried to kill my brother in front of me or whether I don't believe I done the fatal injuries or not I don't know.  Because like I said a whole group of people attacking you know I don't know whether someone else stabbed him or not or whether only I did.

   Q.  Who else was attacking him then at the time?

   A.  I don't know you was telling me a big group of people had set upon him.

   Q.  Yeah well that's what ‑ well you're there you're actually remembering what happened, you've told me that you remember the flash of the thing and your brother getting his hand cut, so these are things that you now remember, you've told me.  Now you said that---

   A.  Well the more you talk to me the more ‑ like I tell you I get flashbacks and the more you talk me the more memories are getting dragged up (59).

8. The interview ended shortly thereafter when the appellant said that it might be better if he talked to his legal representative, finally adding:

   Yeah because like I said my heart feels like I never done something so terrible like that, but I got things that I might not know whether people put that in my mind or whether it really happened or what, but I'm trying to sort myself out too (60).

9. The appellant then confirmed that he had answered questions of his own freewill, had not been threatened, had not been promised anything to speak, and during the interview was aware of both his right to remain silent and his right to seek or have legal representation (vt 61 ‑ 62).

Medical state

1. The appellant's medical state is part of the context upon which the appellant relies to demonstrate his vulnerability at the time of the interview. 

2. Dr Fiebelkorn examined the appellant at 10.00 am on 7 February 2011 at Geraldton Hospital.  In his report, read into evidence by consent at trial, Dr Fiebelkorn noted that the appellant:  had a left maxillary (facial) fracture and was on intravenous antibiotics for that injury; was alert and orientated; had not been prescribed narcotics while an in‑patient and there was no evidence of narcotic use; had a dressing over his left forehead, where there was a sutured laceration and mild suborbital bruising; there was no issue with the appellant's vision or hearing; the appellant had full range of movement in his neck and limbs and full mobility in his left shoulder; was given paracetamol in order to manage left shoulder and left calf pain and was not treated with any opiates.

3. At the beginning of the VROI, the appellant was questioned about his medical state.  He confirmed that he had a couple of panadol and that his pain had subsided.  When asked how rested he was, he replied 'about 65%, 70%' and that he did still feel tired and drowsy.  However he declined an express invitation to have a sleep before the interview continued (vt 6).  The appellant also confirmed that he had not consumed alcohol in the previous 24 hours.  The appellant's interview friend, Jillian Smith, who was a nurse at the hospital, confirmed that the appellant had been given only two panadol and was, by reference to his score on a diagnostic test scale, neurologically okay (vt 7).

4. In the appeal, the appellant seeks leave to adduce into evidence an affidavit dated 22 August 2013 sworn by Dr Gallacher, the appellant's treating doctor at Carnarvon Hospital, which annexes his report dated 15 August 2013.  The report is based upon contemporaneous notes relating to the appellant's treatment at Carnarvon Hospital on 6 February 2011, Dr Gallacher having no independent recollection of the events.

5. Dr Gallacher's report states that the appellant:  had a deep 7 cm laceration to the left side of his forehead, a left zygomatic fracture (cheek bone) and fracture of the anterior and lateral wall of the left maxillary sinus (hollow area behind cheek bone); appeared to have impaired consciousness on arrival at 7.19 am but by 7.30 am was fully oriented and able to obey simple commands; appeared drowsy but alert and oriented at 8.00 am; at 4.00 pm when he decided to leave Carnarvon Hospital he was fully alert and able to obey simple commands and his eyes were spontaneously open; the only pain killer he was given was paracetamol and none of the treatment or medications would have caused drowsiness.  Dr Gallacher contacted the duty doctor at Geraldton Hospital, apprised him of the situation and faxed to him the appellant's medical notes.

6. Dr Gallacher's evidence is new, not fresh, and adds nothing of significance to the evidence adduced at trial as to the appellant's condition, medical or otherwise.

7. The claim that the appellant was 'vulnerable' by reason of his injuries and/or medical treatment is not supported by the medical evidence or by his conduct or performance in the VROI.  In that interview the appellant is alert, articulate, reflective and wholly engaged in the process.  It is clear that he fully comprehended the caution, his entitlements and the substance and purpose of the questions he was asked.  Moreover, on a number of occasions he corrected questions that either misstated the facts or misstated his answers to earlier questions (vt 22, 38, 46, 49, 50).

8. The appellant gave evidence at his trial that from the commencement of the VROI he was in a lot of pain, was feeling really drunk although he was not, did not have complete control of himself, was under extreme duress and that he passed out a few times during the interview (tt 596 ‑ 597, 624 ‑ 625).  If he had given that evidence on a voir dire, it would have been positively rejected as wildly inconsistent with the objective evidence.

Drunkenness/recollection

1. The appellant also seeks leave to adduce additional evidence in the form of an extract from the journal of a police officer (Detective Milward) to establish that police who visited the appellant at Carnarvon Hospital were told by the appellant of his limited recall of the incident because of his heavy intoxication.  The statement made by the appellant to police in Carnarvon is consistent with what he told police in the VROI and adds nothing.

2. The appellant was not under the influence of alcohol or any other mind altering substance at the time of the VROI.  However, the weight of the evidence at trial was that the appellant was heavily intoxicated at the time of the running brawl which led to the death of the deceased at around 3.30 am on 6 February 2011.  The appellant claims that at the time of the VROI he had limited recall as a result of his drunken state in the early hours of 6 February 2011 and that he was incapable of separating his actual recollection of events from what he was told by others had occurred. 

3. It is the case that the appellant made repeated references to having a fuzzy memory or words to that effect (vt 32, 36 ‑ 41).  However, in the VROI he was able to recall many matters relating to the events on the night in question.  He also gave evidence on oath at trial of his actual recollection of the detail of the events in question, including his fight with the deceased.  Further, as noted above, the appellant clearly understood the distinction between direct knowledge and hearsay, as reflected in the way he answered the police questions from the outset.

4. These matters do not support the appellant's claim that he was 'vulnerable' in any relevant sense at the time of the VROI.

Inducement/Pressure

1. The appellant claims that the implication in the questioning in the third stage was that it was in his interests to explain his conduct as self‑defence or accident and that this was 'an inducement in the form of inducing fear of prejudice if the alleged conduct was not explained'.

2. The appellant had already said during the second stage of the VROI that he had feared for his life (vt 32, 33, 35) and that Vincent Clarke was hit with a knife or a machete in his presence (vt 39).  There is no objective foundation for a claim that the police questions implied that it would be in the appellant's best interests to explain or construct a scenario to take advantage of the defence of accident or self‑defence.  I am unable to identify any relevant inducement, express or implied. 

3. Further, there is no evidence from the appellant that he understood the alleged implication or inducement to arise or that it had any relevant effect.  His evidence at trial was that he engaged in a fight with someone who came at him with a weapon in an area adjacent to the ramp at 6B Stroud Street (tt 600, 606). 

4. The claim of persistent, overbearing pressure in the third stage must also fail.  The atmospherics of the VROI, including the tone of and pauses in and between the questions and answers, are not conveyed by the transcript.  Further, a number of 'questions' involve reading from the statements of other witnesses with a request for a comment.

5. Importantly, the questions are asked in a measured, calm, conversational and respectful manner.  The appellant is given opportunities to pause and reflect on his answers.  The appellant's admissions do not reflect simple acquiescence in or repetition of what the appellant was told by the interviewers.  In addition, the questions are interspersed with repeated reminders of the appellant's right to silence.  There is no arguable foundation for a claim that the appellant did otherwise than speak in the exercise of his free will. 

6. Moreover, the police officers did not cross the line so as to render the questioning unfair.  Both the appellant and his interview friend were told that if they thought the police were being unfair to the appellant, they should bring it to their (the police officers') attention (vt 7, 8).  Neither did so.

Legal representation

1. Prior to and at the commencement of the VROI, the appellant was informed of his entitlement to request a lawyer (vt 3).  The appellant was advised repeatedly during the interview of his right to remain silent and on the last occasion when he was so reminded he said 'maybe I think it might be better if I just … talk to a legal rep first' (vt 60).  Questioning on matters of substance then ceased.

2. After confirming that he was aware of the right to seek or have legal representation, the following exchange occurred:

   Q.  During this interview were you aware that you could call ALS whenever you want like I said?

   A.  When we had the interview my mind was in the interview not on thinking about things like that.

   Q.  Yeah, now you had the ‑ you knew that you could remain silent?

   A.  Yeah but I know ‑ yeah but I know I had that option like at the back of my mind.

   JILLIAN SMITH:  He did ask actually but they said it wasn't required (62).

3. The appellant is then recorded as saying that 'one of the officers said if ALS [Aboriginal Legal Service] comes here and sits in an interview then they won't be able to represent me'.

4. Detective Doran said that he had asked the Hospital Aboriginal Liaison person, Natasha Garlett, to let ALS know that the police were interviewing the appellant (vt 62).

5. The appellant then agreed that police had offered him the right to use a telephone to call a lawyer at all points during the interview (vt 63).

6. It is unclear from the VROI who gave the advice concerning ALS and the role played by Natasha Garlett.  However, the appellant gave evidence at his trial that police officers said to him that if he had an ALS lawyer present at the interview, ALS could not represent him if the matter went to court (the statement).  He said he took that to also mean he would not be able to get funding off ALS so he would be left without legal representation (tt 596).   It was not put to Detective Doyle that he or Detective Doran had made the statement or that it was misleading.  Detective Doyle said that Detective Doran had made contact with ALS prior to the interview (tt 566).

7. The evidence establishes that the appellant was given his rights under s 138 of the Criminal Investigation Act 2006 (WA). If the appellant's allegation of unfairness had been made at the appropriate time, the confusion surrounding the involvement of ALS would have been appropriately clarified. The appellant bears the onus of establishing that the VROI was unfair. He has failed to establish that anything said or done by the police officers undermined his entitlement to a reasonable opportunity to communicate or attempt to communicate with a legal practitioner.

Hearsay

1. The appellant also complains of hearsay statements included in the edited VROI.  The question to which objection is taken (vt 43) is lengthy and puts to the appellant information obtained from other people to the effect that:  he (the appellant) was armed with a weapon; he used it on the deceased; he returned to 3 Craig Street where he told people that he had stabbed someone; he went out the back of 3 Craig Street to wash blood off his body; and Dwight Parker saw the appellant wash himself and then leave 3 Craig Street armed with a pole.

2. There is no merit in the appellant's complaint.  First, the appellant's trial counsel was involved in the edits made to the VROI.  Second, most but not all of the questions at pages 53 ‑ 55 of the VROI were initially excluded from the VROI but some containing similar material to the question at page 43 were subsequently included at trial at the appellant's request (tt 639 ‑ 646).  At that stage the trial judge gave a clear direction that what the police say by way of questioning cannot be used by the jury to prove the truth of what the question asserts (tt 646).  She repeated the direction in her summing up (tt 736).  Third, prosecution witnesses at trial gave admissible evidence that is broadly consistent with the propositions put in the question to which objection is taken.  Fourth, to the extent there is any disconnect between the propositions in the question and the evidence at trial, that is because not all prosecution witnesses came up to proof.  There was no unfairness to the appellant.

3. Complaint is also made about a slip in an associated question.  The question objected to ended with the proposition that 'Dwight Parker was there and saw you washing yourself and then he saw you leave armed with a pole'.  The questioning continued:

   A.  With what?

   Q.  With a pole, a weapon.  A pole, a machete, a knife you said you were armed.  Now what do you recall about that?

   A.  I don't.

   Q.  Is it possible or is it a lie, are people setting you up?

4. The slip is in the statement that the appellant said he was armed.  However it is clear from the context that the question related to what Dwight Parker had said.

Conclusion on ground 1

1. I would refuse the appellant's application to adduce additional evidence relating to the admissibility of the VROI.  It is incapable of affecting the outcome.  The decision of the appellant's trial counsel not to object to the admissibility of the edited VROI was a matter within the scope of proper forensic judgment.  In any event, objection should have been unsuccessful.  I would refuse leave to appeal on ground 1.

State and defence cases

1. For the purpose of grounds 2 and 3, it is necessary to have an understanding of the State and the defence cases.  I propose to rely on the accurate and helpful summary of the State and defence cases and some of the evidence in the trial judge's summing up.

2. The trial judge is careful throughout the summing up to formulate the State case against the appellant without identifying the type of weapon which inflicted the fatal wound.  The issue was identified as being whether the appellant, knowing that he was holding a weapon, deliberately stabbed the deceased thereby causing his death (tt 728 ‑ 729).   This reflects the State case.  It is clear from the prosecutor's opening (tt 34) and closing (tt 658, 660, 671) that the State case was that the bent tip knife may (not was or must) be the murder weapon. 

3. The trial judge separates and identifies the direct evidence from the circumstantial evidence relied on by the State.  On the State case the direct evidence was first, the appellant's admission to police in the VROI and second, an admission made by the appellant to Terri Boddington at the Koorda Club which was in terms 'I think I killed the man, I think I killed the man.  I don't know'.  The State's position was that on each occasion the appellant had admitted that he stabbed the deceased but he did not know whether the deceased had died from those wounds (tt 723).  The appellant's evidence at trial was that he saw the deceased heading up the ramp after the fight in which he (the appellant) was involved at Stroud Street (tt 588 ‑ 589).

1. The trial judge directed the jury that they could only use the alleged admissions to police and Ms Boddington as direct evidence if they were satisfied beyond reasonable doubt that when the appellant said those things, he was saying that he stabbed the deceased and inflicted the fatal wound.

2. The trial judge identified the defence case in relation to the VROI as being that the jury could not be satisfied beyond reasonable doubt that the appellant admitted stabbing the deceased because it could not be satisfied that the appellant was speaking from his own memory as distinct from retelling things he had been told by others; the appellant was injured, tired and confused when he took part in the interview; the interview was tainted by Detective Doyle's wrong theory about the appellant's involvement in the offence; and the interview was unfair (tt 736).

3. The trial judge summarised the evidence of the forensic pathologist, Dr Gerard Cadden, as follows:

   [Dr Cadden] said that the wound track had an estimated depth of 10 to [15] centimetres.  He said the weapon probably had to be at least 10 centimetres in length.  He said that the width of the object that caused the fatal wound can be a lot narrower than the 105.8 millimetres that is measured on the skin surface of wound number 1.

   He said the weapon had to be a sharp implement that can divide tissue and cause a clean division of the rib cage bone.  He said the ribcage bone that was divided was smoothly, cleanly cut … He said an implement with a surface that would cleanly cut a rib bone was required.  He said that a knife fell within that category.  He said he would rule out a star picket … He said that the red‑handled knife, which is the machete, had the potential to be a type of knife which could cause … the fatal wound.

   … [H]e said a lump of wood couldn't cause the injury. … [H]e would not support a pole causing that injury, because the implement that caused the injury had to be able to sharply divide a relatively tough body structure, such as a rib and cleanly do it.

   In respect to the knife found on the mattress inside 6B Stroud Street … he said he could not exclude that in the way that he excluded a piece of wood, but there were no features that he saw that would have him favour that knife.

   In respect to the knife found at the corner of Richardson and Hammond Street … (exhibit 7), I don't know that he actually expressed an opinion about whether that could cause ‑ that particular knife could cause it … But he did say that the spine could have caused the tip of the knife to bend and that that would not have been seen on post‑mortem examination (tt 741).

4. Dr Cadden said he did not know where the fatal wound terminated and had not examined the deceased's spine at post‑mortem (tt 456, 459).  Further, he had only seen photographs of the weapons referred to in his  evidence.

5. Mr Ross Hedley, a forensic scientist, gave undisputed evidence about DNA.  The deceased's DNA was found on the appellant's clothing (trousers and socks), on Sonja Bennell's top and on a star picket (referred to at trial as a 'standard').

6. The trial judge referred to the nature of circumstantial evidence and the rules relating to the drawing of inferences, making it clear that those rules applied not only to each element of the offence, but also to every fact which is essential to the jury's conclusion of guilt (tt 725).

7. The State relied on other statements made by the appellant to third parties, not as direct evidence of guilt, but as part of the circumstantial evidence.  This applied to the evidence of Charles Hudson and Dolores Roberts referred to below.

8. The circumstantial evidence, the total weight of which was relied on by the State to establish beyond reasonable doubt that the appellant deliberately stabbed the deceased and fatally wounded him, was identified by the trial judge as follows.  First, the appellant's admission that he was at Stroud Street and fighting with a man the jury could conclude was the deceased. 

9. Second, the evidence of Garry Roberts that he saw the appellant arguing and fighting with the deceased, at the second house around the corner in Stroud Street at the base of the ramp.  The trial judge noted for completeness that Mr Roberts said that the appellant had a pole in his hands not a knife or any kind of sharp‑bladed instrument.  The State also relied on the evidence of Garry Roberts  and Sonja Bennell who said the appellant was in a fight at 6B Stroud Street and that things were getting so out of hand that they pulled the appellant away from the fight. 

10. Third, when the appellant left Stroud Street two police witnesses saw blood on his chest.  Constable Smith said the appellant was shouting 'I'm a Pearce.  I'm a Pearce.  I'm a Pearce'.  The State also relied on the evidence of other witnesses that the appellant had blood on him when he left Stroud Street and returned to Craig Street.  Those witnesses included Bianca Thorn and Rexie Bellotti (both of whom were part of the extended Pearce group).

11. Fourth, Charles Hudson's evidence that he heard the appellant say as he went into 3 Craig Street, that 'One fella got hit on the neck, under the ribs and in the guts'.  Mr Hudson said that:

    [T]he accused was pointing to Colin [Boddington] like, with his fist.  He was like, hit here - hit here and hit here.

12. And Mr Hudson said:

    To me he was saying 'I hit him here.  I hit him there and I hit him there.'

13. Fifth, Dolores Roberts said that when the appellant went into the house at 3 Craig Street he had blood on his hands and said, 'I got him', or 'I got someone'.

14. The State's contention was that the appellant's comments to Ms Roberts and Mr Hudson were only consistent with the appellant being the person who had the major altercation with the deceased at Stroud Street; if the appellant had been present when someone else stabbed the deceased, he would have returned to 3 Craig Street talking about that and what someone else had done not about what he had done.

15. The next matter relied on by the State as circumstantial evidence related to the bent tip knife.  The trial judge said to the jury:

    The State also ask you to take into account that [the appellant] was in the bus when the knife was located on the floor of the bus and that it was then thrown out the window.  Of course, you would only take that into account if you were of the view that that was the knife that was used in the fatal attack (tt 744).  (emphasis added)

16. This is the only reference to the evidence of the appellant's uncle, William John Pearce.  His evidence was relied on by the State only as circumstantial evidence forming part of the strands in a cable, not a link in a chain.

17. The State also relied on what the appellant said to Terri Boddington and to police in the VROI as part of the circumstantial evidence.  Finally, the State case was that the DNA in the blood stains on the appellant's clothing was only consistent with him being very close to the deceased when the fatal wound was inflicted and that was not consistent with the appellant simply having a fist fight with the deceased.  This refers to the evidence of Senior Constable McCance, a blood pattern expert.  He also gave evidence that Sonja Bennell's top and a star picket, both found at 7D Craig Street, had blood stains that suggested they were in proximity to the deceased when he was stabbed or as he made his way into the house afterwards.

18. The appellant gave evidence at trial that he only had a star picket with him at Stroud Street which he dropped or which was knocked out of his hand following which he had a fist fight with a man at Stroud Street.  The appellant said that after he was knocked over in the fist fight, he stood up and left Stroud Street. 

19. As to the VROI, his position was that when being interviewed by police he could not remember what had happened in the early hours of 6 February 2011 which was consistent with him having been badly assaulted which, together with the amount of alcohol he had drunk on the night in question, created confusion and affected his memory.  Further, the admissions were unreliable because it was police who told him that he had stabbed the deceased and in his injured and confused state he was starting to think that must have been so.

20. The defence pointed out that no witness had identified the appellant stabbing the deceased or had seen him with a knife in his hand or heard him confess to stabbing the deceased.  The deceased's blood could have got on him, as it did on Sonja Bennell, because he was in close proximity to the deceased.  The trial judge continued:

    [The appellant] asks you to take into account that his, that is [the appellant's] DNA, was not on any of the knives or the machete.  And he asks you to take into account that the murder weapon, has in fact, not been located - has not been specifically identified in any event (tt 746 ‑ 747).

21. The defence contended that the evidence of Charles Hudson and Dolores Roberts was just as consistent with the appellant being involved in a fist fight rather than any more serious altercation with the deceased.  Terri Boddington was cast as an alcoholic and an unreliable witness. 

22. In broad terms, the defence case was that the incident took place in the midst of general mayhem and chaos and occurred very quickly, in the dark, with numbers of people involved in the fight with the deceased and, to top it off, the witnesses were so intoxicated as to be unreliable.  Having regard to these circumstances, the jury could not be satisfied beyond reasonable doubt that the appellant, rather than any of the other people present, stabbed the deceased.

Ground 2 - alternative case theories

1. The defence case was explained in opening at the appellant's trial (tt 36 ‑ 43).  The opening was on all fours with the way the defence case was conducted and closed.  The defence opened on the basis that the fatal attack on the deceased was preceded by an incident in which Dwight Parker was struck with a blunt instrument to the head and Vincent Clarke's hand was badly cut with a machete wielded by the deceased and that both men were effectively out of action because they were severely injured (tt 40 ‑ 41).  Defence counsel also acknowledged in closing that Dwight Parker was not at Stroud Street during the fatal attack (tt 701). 

2. At trial there was no evidence from anyone, or any suggestion, that William John Pearce was at 6B Stroud Street or involved in any way in the fight which resulted in the deceased's death. 

3. The appellant's current legal advisers now claim that the defence should have run 'alternative' case theories that Dwight Parker or William John Pearce, did or may have killed the deceased with a knife.  These case theories are in fact wholly inconsistent with the defence case theory at trial that the circumstances were such that it was impossible to be satisfied beyond reasonable doubt as to the killer or the murder weapon. 

4. The appellant has the very difficult task of establishing that the defence case theory at trial was outside the scope of any reasonable forensic judgment (ie that there was a material irregularity) or that any additional evidence would plainly affect the outcome, applying the test for the admission of new evidence.

Dwight Parker

1. Dwight Parker's unchallenged evidence at trial was that after the first fight with the deceased he returned to 3 Craig Street and slept and did not go to Stroud Street (tt 179).  That evidence is consistent with the evidence of Marcella Hudson (tt 364), Bryan McKenzie (tt 196) and that of the appellant (tt 578 ‑ 579).

2. Mr Parker's evidence is also consistent with a witness statement taken from his partner, Krystal Mallard, who was not called to give evidence at trial.  She said they both returned to Gubby's house after the first fight and her partner collapsed in the rear yard after complaining that his head hurt.

3. Helen Chubby, the deceased's mother, gave evidence that she saw around 12 to 15 people around the deceased when he was being attacked at 6B Stroud Street, one of whom was Dwight Parker (tt 66).

4. Louise Dodd, the partner of Dennison Chubby, gave evidence about Dwight Parker's involvement in the first fight and said 'then he came ‑ I think they came back with a mob … of mens or boys' (tt 140).  Gareth Noble also gave evidence that after the first fight Dwight Parker 'went back and got a mob' (tt 84).  The evidence of Dodd and Noble is equivocal.

5. The additional evidence relied on to support the alternative case theory as to Dwight Parker's responsibility for the death of the deceased comes from the witness statements of Raelene Sheckler and her sister Ammie Roberts.  The girls were aged 16 and 19 respectively at the time and both were heavily intoxicated.  They are part of the extended Chubby family and were present at 6B Stroud Street at the time of the attack that resulted in the death of the deceased.  Ms Sheckler said in her witness statement that she witnessed the first fight involving 'Buddy Parker', which was also witnessed by the Pearce group, and that after the fight the Pearce group followed the Chubby group to 6B Stroud Street.  She was inside the house and witnessed the attack on the deceased through a broken front window; about six people surrounded the deceased, one of whom was 'definitely Buddy Parker'; one of the men in the group pushed a standard (a star picket) in a downward stabbing motion into her uncle's chest and at the same time 'Buddy Parker hit a [broken] Jim Beam bottle over my uncle's chest'.

6. Prior to trial the State informed the appellant's trial counsel of matters revealed in the proofing of witnesses that were different or in addition to their witness statements.  Ms Sheckler now said that she did not see Dwight Parker and did not see any of the faces of the men involved in the attack.  She gave evidence at trial that she did not recognise any of the people attacking the deceased (tt 207). 

7. The first witness statement signed by Ammie Roberts did not mention the presence of Dwight Parker and states that she did not see any of the faces of the people involved in the incident.  In a subsequent witness statement she said she definitely saw Dwight Parker 'out the front standing back from where the rest of the boys were over [the deceased]'.  In her evidence at trial she said there were about 10 or 11 people on the deceased but did not identify Dwight Parker as being one of that group or otherwise present at 6B Stroud Street (tt 220).

8. Ms Sheckler's evidence relating to the use of a Jim Beam bottle to wound the deceased is not corroborated by the medical evidence.  She did not persist in that statement when being proofed for trial and did not give evidence to that effect.  We are left to guess what the witness would have said about the statement if asked in cross‑examination.  In all likelihood it would be a prior inconsistent statement relevant only to credit. 

9. If the alternative case theory concerning Dwight Parker had been litigated at trial other witnesses would have been required to give evidence for the State, including Ms Mallard.  Further, Mr Parker and other 'Pearce group' witnesses who gave evidence at trial would have to be cross‑examined in accordance with the alternative case theory.  We are also left to guess as to their response.

10. The Dwight Parker alternative case theory is not reasonably supported by the evidence.  Moreover, the material on which the appellant now seeks to rely is new evidence.  It falls a long way short of establishing that the appellant is innocent or raising such a doubt as to satisfy me that the appellant should not have been convicted.

William John Pearce

1. William John (WJ) Pearce is the uncle of both the appellant and Vincent Clarke.  He gave evidence to the following effect.  He was present at 3 Craig Street after his niece's funeral on 5 February 2011.  He saw Vincent Clarke at 3 Craig Street with his hand bleeding.  He asked him what had happened and he was told.  Afterwards he went outside and saw a big mob of people on Craig Street walking towards Killicoat Street.  He dialled 000 to tell the police that there was some fighting going on around the corner somewhere.  He then walked to the corner of Craig and Killicoat Streets.  He saw Nathan Jennings and Emma Koyu there.  He did not move from that location except to return to 3 Craig Street. 

2. Mr WJ Pearce said he left Craig Street that morning in a 10 to 12‑seater bus driven by his brother, Greg Pearce.  He said other people on the bus included his brother Trevor Pearce, Wayne Hill, Krystal Mallard, Dwight Parker, Nicky Narrier and the appellant.  The appellant was sitting down at the back of the bus.  Mr WJ Pearce found a knife on the bus, asked who it belonged to, and when nobody answered he threw it out the window.  He thought the point of the knife was broken or bent.  He was not sure; he was pretty drunk.  He was asked the following:

   Do you remember, roughly, where you were when you ‑ whereabouts on the road the bus was when you threw it ‑ the knife out the window?‑‑‑We just turned off Hubble Street onto Richardson Street.  On the corner of Richardson Street and Hammond Street there's a vacant block.  As we turned off Hubble onto Richardson I threw it out the window (tt 382).

3. In cross‑examination the witness was asked what time he got on the bus and his answer was 'by sundown I lost track of all time' (tt 383).  It was put to Mr WJ Pearce that the appellant was never on the bus to which he responded 'he was on the bus.  I saw him'.  The cross‑examination continued:

   Isn't it the case, as perhaps you've said previously, you only heard, or what you believe you heard his voice, so you ‑ you heard his voice and therefore you think he was on the bus?‑‑‑Yes.  Well, he was there, I know he was there.

   Well, you just ‑ you're saying you know?‑‑‑Cos I ‑ yeah, he was talking and I heard his voice.

   Did you see---?---I know  his voice.  I grew up with him all his life.

   Well, there's ‑ all right.  So you're saying he was talking and therefore you know he was there, is that what you just said?---Yes.  Yes.

   But I again ask you, I mean the fact of the matter is, I would suggest, you never saw him.  Would you agree with that, or not?‑‑‑No, I didn't see him (tt 383).

4. He confirmed that he did not know how the knife came to be on the bus (tt 384).

5. Mr WJ Pearce was interviewed by police on 29 August 2011.  A transcript of the interview was provided to the defence prior to trial.  When he first said in that interview that he jumped on a bus at 3 Craig Street that took him and others to the Koorda Club, he did not mention the presence of the appellant on the bus.  The witness was then informed that police had charged the appellant with murder.  When asked whether he had seen the appellant, Mr WJ Pearce said:

   I think he might've jumped in the second bus or the fourth bus, I don't know, he wasn't on the bus with us when we, when we went to ‑ back to Morgan Town (15).

6. Mr WJ Pearce was asked whether on the night in question he handled any knives whatsoever to which he responded:

   A.  When I got into the bus there was a knife.

   … 

   A.  I'm not sure what sort of knife it was.

   Q.  Yeah, tell me about that knife.

   A.  A black handled knife, ah, looked like a carving knife.  Um, it was on the floor of the bus and I picked it up.  When I looked at it the point was curled back around, it was blunt.  The point was curled on it.

   … 

   A. I just put it back on the floor.

   Q.  Do you know what happened to that knife?

   A.  No, I don't (18).

7. The interview continued:

   Q.  We've tested a knife that we found, um, in ‑ up town and its got, um, your DNA on it.

   A.  All right.

   Q.  Um, but its also got the deceased's DNA on it … so we're talking to you here today to see if you can sort of clear up as to how that, that could've happened.

   A.  Well that knife that I saw on the floor ‑ bus floor ‑ on the floor of the bus,---

   … 

   A.  ---I seen it there and I just looked at it and I asked where this come from and pretty much Trevor ‑ it might've been Trevor … does it belong to you fellas or what?  I reckon no so I just threw it out the window (18 ‑ 19).

1. He was then asked where the bus was when he threw the knife out the window and the witness answered:

   A.  On Hubble Street.

   Q.  Mm hm.  What part of Hubble Street?

   A.  Down the end where it meets up with Richardson (19 ‑ 20).

2. The witness was asked who was in the bus.  He said Greg Pearce (who he thought was driving), Trevor Pearce, and he thought Wayne Hill.  Asked who else, the witness said:

   A.  I think Roderick was, Roderick was on the bus before I climbed in.  Roderick, he was there.

   Q.   … tell me where he was sitting?

   A.  I think he might've been sitting down the back or he, ah, he was sitting behind me somewhere.  I don't know how far down the back of the bus.

   Q.  Mm hm.

   A.  I don't know, I could hear his voice.  I don't know, that's probably the first time I spoke to Roderick in about seven years (20 ‑ 21).

3. He also thought Dwight Parker was on the bus.  In the police interview Mr WJ Pearce does not indicate that Nicky Narrier or Krystal Mallard were on the bus.  What is most compelling about the interview is the close correlation between Mr WJ Pearce's description of the knife and where he threw it and the location where police discovered it.

4. It is apparent from the cross‑examination of Mr WJ Pearce at the appellant's trial that defence counsel was aware of the content of his police interview.  It is also apparent that defence counsel proceeded with great caution to avoid provoking an unexpected response.  The defence did not challenge the witness' explanation of the circumstances in which his DNA came to be on the bent tip knife.  The only challenge was to the proposition that the appellant was on the bus.

5. Nathan Jennings gave evidence.  He had been to the Pearce funeral and returned to his place at 15 Killicoat Street and started drinking with two girls.  At some point he went outside when he heard people yelling.  He saw two blokes fighting and then all of a sudden a big group of people came along.  The fight between the two blokes came to an end and after that, another big group of people were in Stroud Street and in the distance he saw a man with a machete.  No‑one asked Mr Jennings whether he was at any stage joined by Mr WJ Pearce.

6. The appellant contends that the location of the bent tip knife is inconsistent with it having been thrown off a bus because it was 10 m in from the road, relying on the evidence of Constable Andrew Hall and exhibit 5, being four photographs of the knife where it was found.  Exhibit 5 and the evidence of Constable Hall do not support the contention that the bent tip knife was found 10 m from a road or some other distance inconsistent with it having been thrown from the bus.  Photograph 1 only shows Hammond Street in the background and does not depict the intersection with Richardson Street.  In photograph 2, the proximity of the knife to Richardson Street is not depicted and photograph 3 and 4 do not depict either street.  Constable Hall described the worn path in the dirt where the knife was found as being a 'few metres' from the road (tt 421).  It is apparent from Mr Hall's evidence (at tt 421 ‑ 422) that the knife was closer to Richardson Street than it was to Hammond Street. The questioning suggests that the knife was 10 m or 11 m 'perpendicular to either Richardson or Hammond Street' (tt 422).

7. The appellant's alternative case theory that Mr WJ Pearce did or may have killed the deceased was not advanced at trial and is not reasonably supported by the evidence.  None of the eye witnesses to the attack that resulted in the deceased's death, including Sonja Bennell and Garry Roberts, both of whom gave detailed evidence of the attack on the deceased, made any mention of Mr WJ Pearce being present.  Nor did the appellant.  Further, Mr WJ Pearce, Mr Jennings and the eye witnesses who gave evidence at trial would have to be cross‑examined in accordance with this case theory.

8. This alternative case theory depends on the bent tip knife being the murder weapon.  Having regard to the evidence as a whole, I cannot understand why it would be to the appellant's forensic advantage to advance that proposition.

9. In any event, there would be very significant forensic risks for the appellant to attempt to single out other individuals within his extended family as the potential murderer.  The risks are evident from a comparison between the witness statements of a number of witnesses from the extended Pearce group and their evidence at trial.  Included in the witness statements but omitted before or when giving evidence (either in detail or at all) are the following:

Sonja Bennell	She saw the appellant make a 'punching motion onto the front side of this fella' (PB31 [38] ‑ [45]).
Delores Roberts	The appellant was not wearing a shirt, had blood all over his chest (PB322 [19]); the appellant said 'I finished him' and 'I stabbed him' (PB323 [21] ‑ [22]).
Rickeesha Pearce	The appellant stood out the front of her mother's place (Gubby's) and was holding what looked like a knife that 'looked big' (PB247 [71] -­ [72]); I heard Roderick say 'I stabbed him' (PB249 [95]).
Karene Bellotti	The appellant returned with blood all over his chest and said 'I just stabbed him in the throat' (PB7 ‑ 8 [20] ‑ [27]).
Charles Hudson	He heard the appellant say to Colin Boddington 'I killed the cunt'.  He also described the blows re‑enacted upon Boddington as 'stabbing actions' (PB 148 ‑ 149 [36] ‑ [39]).

1. A witness statement of Nicolette Pearce, the appellant's aunt, contains even more damaging evidence against the appellant.  Police were unable to serve this witness with a subpoena to attend the appellant's trial.

2. Having regard to the highly damaging material in the witness statements of those who gave evidence, great caution when cross‑examining is objectively reasonable, if not essential.

3. The defence case theory at trial was an objectively reasonable forensic choice.  On the other hand, I am not satisfied that the alternative case theories propounded in this appeal can be said to be within the scope of a legitimate forensic judgment.  In any event, the new material in relation to Mr WJ Pearce falls a long way short of establishing that the appellant is innocent or raising a doubt so as to satisfy me that he should not have been convicted.

4. I would refuse leave to appeal on ground 2.

Ground 3 - evidence not called/new evidence

1. This ground relates to 'unused' evidence recorded in the witness statements of Wayne Hill, Krystal Mallard, Trevor Pearce, Kristine Lee Jones, Maitlind Hedlam, June Pearce, Bobbie‑Lee Pearce and Darren Cook.  These people were not called by the prosecution. 

2. The additional evidence obtained for the appeal is from Gregory Pearce, June Pearce, Nicole Pearce and the appellant.  The focus of all this evidence is Mr WJ Pearce's evidence that he and the appellant travelled by bus from Craig Street to the Koorda Club.

3. Wayne Hill's statement is to the effect that he did not go to Gubby's but stayed at the Koorda Club.

4. Krystal Mallard said that she and Dwight Parker could hear fighting so they broke through Gubby's rear back fence and walked to Rickeesha Pearce's house and that a car pulled up and all the children were placed in the car.  She said they then went to the Koorda Club but not how they got there.

5. Trevor Pearce said in his witness statement that he was at Gubby's when an ambulance arrived to take Vincent Clarke to hospital and that when the Chubby group started to walk towards Gubby's house throwing bricks and bottles he and his partner and children went through the back fence at Craig Street and walked to his daughter Rickeesha Pearce's house.  A car was sent to pick them up from his daughter's house and they were dropped off at the Koorda Club.  Another '4 x 4' pulled up and said that the mob was on their way to the Koorda Club.

6. Kristine Lee Jones said in her witness statement that she saw the appellant, who was shirtless, run inside Gubby's house with blood on him.  She waited near the driveway of 3 Craig Street to walk home with someone.  She lived in Geraldton but was staying in Carey Street Carnarvon for the funeral.  She said she started to walk by herself towards Rickeesha Pearce's on Carnarvon Road and noticed the appellant come up behind her and he walked along with her to Rickeesha's.  She said she got to Rickeesha's place and then got dropped off at the start of Carey Street which is back past Craig/Killicoat/Stroud Streets (see exhibit 6). 

7. Maitland Hedlam said in his witness statement that he stayed at the Koorda Club and did not go to Gubby's.  At about 4.30 am he was woken by loud voices and a couple of minutes later someone came bashing on the door of his caravan looking for the keys to the 12‑seater bus he had driven from Geraldton to Carnarvon.  He handed the keys to someone he could not recall.  He went to see what the commotion was about and was told to drive the bus to the Carnarvon Speedway which is what he did.

8. In her witness statement, Bobbie‑Lee Pearce said she provided a 'taxi' service from about 11.30 pm from the Koorda Club to Gubby's place; she did about five or six trips.  She also did about four or five trips from Gubby's place to the Koorda Club after the violence had broken out.

9. The appellant does not refer to the unchallenged evidence given at trial by the appellant's grandfather, William Francis (WF) Pearce who had come from Geraldton for the funeral and was staying, together with Krystal Mallard and Dwight Parker, at Rickeesha Pearce's house in Carnarvon Road.  After the funeral, he went to the Woolshed for a wake, then the Koorda Club and at 9.00 pm returned to Rickeesha's house.  At about 3.00 am on 6 February 2011 a group of people came into the house and told him to get up because there was a mob going to do 'a run through' the house.  He was bundled up and taken in a four‑wheel drive back to the Koorda Club.  He saw the appellant at the Koorda Club and noted that he was 'charged up and yelling stuff' and that 'he can be an aggressive man when he's been drinking' (tt 410).  He spoke to his daughter (the appellant's mother) June Pearce and said it was best to get all the children out of the Koorda Club.  She agreed and one of the buses took the children and some of the adults away from the Koorda Club (tt 410).  The implication in the grandfather's evidence is that the appellant was already at the Koorda Club when he arrived.  There is no suggestion that the appellant was or had been at Rickeesha Pearce's house before the witness departed.

10. June Pearce said in her witness statement that she remained at the Koorda Club and did not go to Gubby's house on the night in question.  She said she woke at 5.30 am on 6 February 2011 at which time the appellant was at the Koorda Club. 

11. The final witness statement was from Darren Cook whose partner was Marcella Hudson who gave evidence at trial.  Her statement was read in by consent.  She said that after the appellant returned to 3 Craig Street with blood on him she heard the sound of the back fence at 3 Craig Street being kicked down.  Thinking it was a 'run through' she ran out the front and turned right into Craig Street towards Hubble Street where she saw Darren Cook's work bus which she jumped into (tt 365).  The people on this bus did not correspond with the people on the bus referred to by W J Pearce.  Darren Cook says in his statement that the bus he drove was a white Toyota with 11 seats.  In the early hours of 6 February 2011 he was informed of the fighting at Craig Street so he drove the bus to and parked it on the corner of Hubble Street and Pincombe Street just in view of Gubby's house where there was a large group of Aboriginal people shouting and carrying on.  He picked up Harold Dickerson, who had a cut leg, and took him to hospital then drove back to 3 Craig Street and picked up Marcella Hudson and two other women.

12. The additional evidence is the subject of affidavits from Gregory Pearce (the appellant's uncle), June Pearce, Nicole Pearce (the appellant's wife) and the appellant.

13. Gregory Pearce swore an affidavit dated 22 March 2013 (exhibit 1 in the appeal).  His evidence is that there was a bus belonging to the Yamatji Land and Sea Council at the Koorda Club.  Lesley Anne Jones drove him and other members of the family in that bus from the Koorda Club to the funeral on 5 February 2011 and after the funeral, to Rickeesha Pearce's place for a couple of hours and then back to the Koorda Club.  Lesley Jones left with the keys to that bus.  The bus remained at the Koorda Club until after 5.00 am the next morning when he and other members of the extended Pearce family left on the bus for Geraldton. 

14. Greg Pearce did not make a statement to police about the incident.  In cross‑examination he said he had regular contact, directly or indirectly, with the appellant and knew of his impending trial.  He also said that:  he went to sleep between 11 and 12.00 pm on 5 February 2011 and slept until 5.00 am the following morning; he did not get up during the night; he did not have the keys to any bus; and he knew the bus had not moved because he had slept outdoors alongside the bus all night.

15. Greg Pearce's evidence that he slept outside is not consistent with the unchallenged evidence at trial of his then partner, Terri Boddington, that they had a bed in the office of the Koorda Club (tt 391).  She also said that she and her partner remained at the Koorda Club and eventually went to sleep on the night of the funeral and were woken up at about 3.00 am or 4.00 am by the appellant shouting that he thought he might have killed a man.  June Pearce and a couple of other people were present when he said it (tt 389 ‑ 390). 

16. June Pearce swore an affidavit dated 10 April 2013 (exhibit 2 in the appeal).  She said she organised two 12‑seater buses to assist relatives to attend the funeral in Carnarvon on 5 February 2011.  The buses were used to take the extended family to and from the funeral.  She said the two buses did not leave the premises of the Koorda Club until 6.30 am or 7.30 am the next morning.  In cross‑examination she said that Greg Pearce had slept outside because it was hot.  June Pearce went to bed before midnight and awoke at around 5.30 am ‑ 5.45 am the following morning.  She said she knew that the buses did not move while she was asleep because she put Greg Pearce to bed right at the back of the bus and he was still asleep there when she got up.  She said he was 'paralytic drunk' when she put him to bed.

17. Nicole Pearce, known by some as Nicky Narrier, swore an affidavit dated 22 April 2013 (exhibit 3 in the appeal).  After the funeral she returned to the Koorda Club, staying there until she went to sleep around 9.00 pm or 10.00 pm.  She did not leave the Club until 6.00 am or 7.00 am the next morning.  She was in Perth for the appellant's trial.

18. The appellant swore two affidavits, one dated 6 May 2013 and the other dated 4 April 2014 (exhibits 4 and 5 in the appeal respectively).  The State objected to the affidavits on the ground of lack of relevance, the appellant being bound by defence counsel's conduct of his trial.  The affidavits were admitted on a provisional basis to enable cross‑examination to proceed.  In his first affidavit the appellant states that:  he did not receive any witness statement from Mr WJ Pearce; his trial counsel told him that there was one witness who said 'I was on a bus' and that 'a knife was thrown off the bus'; he instructed defence counsel to contest the admissibility of the VROI; he was provided with the statement of Raelene Sheckler prior to trial but did not notice its contents; his right hand was very swollen following a fist fight and that he would have been unable to hold a knife. 

19. In the appellant's second affidavit he states that: he thought his trial counsel would call June Pearce, Taurina McDonald and Blade Tullock; if he had been given a copy of the witness statement of Mr WJ Pearce he would have asked his lawyer to call the people said to have been on the bus; his lawyer told him the day before he gave evidence that he would take the stand; and he thought it was counsel's choice as to whether or not he gave evidence. 

20. In cross‑examination, the appellant confirmed that he was provided with witness statements and other materials by his lawyers but that he did not go through everything carefully.  He did not read Raelene Sheckler's statement.  The appellant said he did not ask his counsel the name of the witness who said he was on a bus and that a knife was thrown off the bus because he knew it was not true.  He said in cross‑examination that he told his counsel that 'it was all lies' (at 165).

21. Although Mr WJ Pearce gave evidence at the appellant's trial around 11.00 am on 26 April, the appellant did not tell his counsel to call as defence witnesses the people said to be on the bus because he thought it was too late by then and he was in shock from what his uncle was alleging.  Having admitted speaking to trial counsel on the following Monday (before he gave evidence the next day) the appellant explained that he failed to raise the matter with his counsel because he had ceased to trust him at that point.

22. As to the appellant's claim that he was unable to hold a knife in his right hand, it was pointed out to him in cross‑examination that in his evidence at trial he said he was left‑handed.  The appellant said that was correct when he was fighting and when he batted in cricket but that he bowled with his right hand and wrote with his right hand.  However, at trial he said he wrote with his left hand (tt 608).

Analysis

1. The appellant contends that the State breached its obligation to call those persons who had given witness statements (the uncalled witnesses).

2. The law is not in dispute.  A decision of a prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice:  R v Apostilides (1984) 154 CLR 563. If a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown, the central question is not whether the decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory (Apostilides (577 ‑ 578)).

3. At the commencement of the trial the prosecutor listed the names of the witnesses to be called by the State.  Defence counsel responded in the negative when asked by the trial judge whether there were any names he wanted added to the list (tt 19).  Defence counsel confirmed in evidence in the appeal that he had met with the prosecutor prior to trial to discuss which witnesses were required to be called to give evidence. 

4. In this appeal, the appellant has elevated the evidence of Mr WJ Pearce to a level of significance that bears no relation to its status at trial.  The only aspect of his evidence challenged by the defence at trial was the statement that the appellant was on the bus.  The defence accepted that the witness went by bus from Craig Street to the Koorda Club, in the course of which he threw the bent tip knife out of the bus window.  Whether or not the appellant was on the bus was of marginal significance to the defence case as it was conducted at trial.  It could only be relevant if the jury accepted that the bent tip knife was used in the fatal attack.  The State case at its highest was that it may have been the murder weapon.  The evidence of the uncalled witnesses was not essential to the unfolding of the State case and the failure to call it does not render the verdict unsafe or unsatisfactory.  There was no breach of duty by the prosecutor. 

5. The evidence of the uncalled witnesses may also fall for consideration as 'new' evidence together with the additional evidence of Gregory Pearce, June Pearce, Nicole Pearce and the appellant.

6. The appellant advances an entirely unmeritorious submission that the evidence of Greg Pearce is fresh not new evidence because it was not available at trial and could not have been discovered with reasonable diligence.  The appellant and Greg Pearce both lived at Kardarloo Farm near Mullewa until the appellant's arrest for this offence.  Greg Pearce's partner gave evidence at the appellant's trial.  Greg Pearce put the matter beyond doubt in cross‑examination in the appeal, saying he was in regular contact with the appellant before he went to prison and was in contact with him, through the appellant's mother, after he went to prison.  His evidence is new.

1. Greg Pearce's evidence, and the evidence of the appellant's mother, that he slept close to the Yamatji bus is not cogent or plausible, particularly when regard is had to the unchallenged evidence at trial of his partner, Terri Boddington, as to where they slept.  On a broader level, I am not satisfied that the evidence of Greg and June Pearce is untainted by a desire to advance the interests of the appellant.

2. What is clear from the evidence as a whole is that people at the Koorda Club must have been aware that it was necessary to collect the large number of Pearce group members from 3 Craig Street and Rickeesha Pearce's house as a matter of some urgency once word had spread of reprisal 'run throughs' or attacks from the Chubby group after the deceased was stabbed. 

3. Although Rickeesha's house in Carnarvon Road was in walking distance from 3 Craig Street, it is clear that vehicular transport was necessary from both locations to the Koorda Club.  There is no evidence of the road route to get from 3 Craig Street to Rickeesha Pearce's house and then on to the Koorda Club.  There is no evidence from the person said to have the keys of the Yamatji bus.  There are clear gaps in the evidence as to how the evacuation occurred.  The appellant was unable to shed light on his mode of transport to the Koorda Club (or as he thought, the Gateway Motel) (tt 591).

4. Further, I would uphold the respondent's submission that the appellant's additional evidence is irrelevant and thus inadmissible.  His evidence goes solely to the question whether there was a miscarriage of justice by reason of the conduct of defence counsel at trial. That is an objective test.  Even if the test was subjective, the evidence does not establish any miscarriage of justice, applying the high threshold test applicable to new evidence in an appeal against conviction.  In any event, I am not positively satisfied on the balance of probabilities of the central parts of the appellant's evidence relating to his dealing with defence counsel. 

5. The totality of the unused evidence and the additional evidence on which the appellant relies does not establish that he is innocent or raise such a doubt that I am satisfied he should not have been convicted.

6. I would refuse leave to appeal on ground 3.

Ground 4 - voice identification

1. The appellant contends the trial judge ought to have directed the jury that, in considering the reliability of Mr WJ Pearce's voice recognition evidence, the following factors had to be considered:  how well the witness knew the voice of the appellant, the circumstances of the identification; the reliability of the evidence, including the potential self‑interest of the witness; and his intoxication and the possibility of mistake.

2. The allegation of 'potential self‑interest' of the witness is linked with the appellant's rejected claim that the defence should have run an alternative case theory implicating Mr WJ Pearce in the killing of the deceased and can be ignored. 

3. This ground of appeal is also linked with the appellant's rejected claim that the State case was that the bent tip knife was the murder weapon. Mr WJ Pearce's evidence fell to be considered as a strand in the circumstantial case against the appellant.  In the unlikely event that, contrary to the State and defence cases, the jury accepted that the bent tip knife was the murder weapon that makes the appellant's presence on the bus relevant.  However, it is of little probative weight when none of the many eye witnesses from the time the appellant left 6B Stroud Street gave evidence that he was, or may have been, carrying a knife.  If he was not carrying a knife at that stage the question of who had it and how it got onto the bus can only involve improper speculation.

4. Although Mr WJ Pearce's evidence constituted positive recognition of the appellant, his evidence as a whole does not represent a significant part of the proof of guilt of the appellant.  As to which, see Festa v The Queen (2001) 208 CLR 593 [54] ‑ [57]. Moreover, the warning in the terms suggested by the appellant may have the counterproductive effect of elevating the significance of the bent tip knife.

5. In any event, it would have been clear to the jury that the appellant's counsel was challenging the reliability of Mr WJ Pearce's evidence as to the presence of the appellant on the bus on the basis of his intoxication, the very late hour and his accepted mistake that he had 'seen' the appellant.

6. In all the circumstances, a 'recognition' warning was not required.  That was clearly the assessment of the appellant's trial counsel who did not seek a redirection.  I would grant leave on ground 4 but dismiss the ground.

Ground 5 - unsafe and unsatisfactory verdict

1. At the hearing of the appeal the appellant's counsel conceded that if ground 1 is unsuccessful and the VROI was properly admitted in evidence, there was sufficient evidence in law and in fact for the jury to convict the appellant.  The concession is correctly made.  I would refuse leave to appeal on ground 5.

Conclusion

1. I would grant leave to appeal on ground 4, refuse leave on grounds 1, 2, 3 and 5 and dismiss the appeal.

1. BUSS JA:  I agree with the orders proposed by McLure P.  I also agree with her Honour's reasons.  I have some brief observations in relation to ground 5.

2. I am satisfied, after examining the trial record and weighing the evidence, that it was reasonably open to the jury to reject the appellant's evidence and to be satisfied beyond reasonable doubt as to his guilt.  A jury, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant.  The jury had the very significant advantage of seeing and hearing the witnesses give their evidence.  The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt.  The verdict of guilty was not unreasonable.  It was supported by evidence that the jury was entitled to accept.  After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his conviction.

3. MAZZA JA:  I agree with McLure P.

ANNEXURE A

Q.  Is it because you were involved in the death of Shannon?

A.  No, I don't think I was.

Q.  You know you were, I've got Roderick saying that you assaulted Shannon?

A.  Who?

Q.  Roderick, sorry Gary [Roberts] [indistinct].  Now I've also got a statement here from Dolores [Roberts] saying you came in and actually said you'd stabbed him.  You've got a statement here from Corrine Bollotti saying she heard you say that you stabbed him.  You've got Dwight Parker saying that you said that you drew first blood and saw you armed with a weapon.  You've got Bianca [Thorn] saying that you said that you stabbed him.  So there's all these people saying that you stabbed him  so why don't we just talk in truth here.  Not about this ‑ this is what I was told I want to see ‑ is something were you feeling threatened yourself?  Were you in fear of your own life?  Did you do something that you normally wouldn't do, that's what I'm asking you.  You and I are both men, you know we know there's a bit of bullshit going between us now.  Let's talk in truths.  What happened?  Why were you involved in that?

A.  [indistinct]

Q.  What happened?  You know that I'm not stupid and I know you're not stupid.  You know that you remember, you know that you regret things that happened that day.  You're not a bad person I know that.  You're just a person that became involved in a set of circumstances I believe that escalated out of control and everyone got too excited and bad things happened.  Tell me what happened?  You don't have to, if you want to tell the truth, tell the truth, this other story that you've given me is not plausible.  I've got members of your own family, people that you trust, telling me that you're covered in blood, telling me that you said that you drew first blood, telling me that you stabbed him, so - - -

A.  All I can say and I don't recall it but if they said it happened - - -

Q.  You do recall it and that's what I'm saying let's get past all this rubbish, if you want to talk talk, but if you don't want to talk don't talk, but these people are saying that you were there and that you were involved in this man's death.  I think you were and I think you know you are.  And I just want to know what happened?  Is it something that just spiralled out of control?  Did you mean to kill him?  Was it an accident?  Did you just mean to hurt him?  I don't know that's why I'm asking these questions.  I want to know your side of the story.  What happened that day?  It was a sad day and it will be a sad for the rest of your life, it will be a sad day for the rest of the group's life.  I want to know what happened?  Do you regret it?  Do you wish you weren't there?  What happened?

A.  Exactly well if I did do it of course I'd regret it.

Q.  Well now you're still talking in riddles.  You're not a dummy mate, I'm not a dummy you want to talk you talk, if don't want to talk well then you just run with what you're saying that you can't remember this and can't remember that but these people remember and I can guarantee you mate you know your car rego you can remember that as well.

DETECTIVE SENIOR SERGEANT GRAHAM DORAN:  Who do you remember having a fight with after ‑ when you were at Gubby's place or down the street near Gubby's place?  Roderick?

A.  Well you just said I offered that Shannon out for a fight so I gather it must have been him.

Q.  Well it's just what you can remember if you're saying you can't remember - - -

A.  Well I can't.

Q. - - - I don't want to [indistinct] out and you know it appears that you're very influenced by what people are saying.

A.  Exactly.

Q.  I mean you're saying that oh this person told me this and this person told me that, I want ‑ that's what Detective Doyle wants we just want what you remember and we want the truth about what you remember, you know alot of people are telling you stuff and you're going oh did it did it did it, um, we just want to know what you remember, alright, we're not trying to put words in your mouth.  Other people were there that were at the funeral, they would have been drinking for the same amount of time as you but they can remember a fair bit.  Um, you can't remember a great deal.  So that's all we're trying to ask is what do you remember, not about what all these other people said to you of how it happened and all this kind of stuff, you know we'll speak to them and we'll get their story, but we want to know what you remember.  And Roderick I believe you remember a lot.

A.  I don't remember as much as you think I might remember.

Q.  Well I think you remember a lot more than what you're telling me.  I think you were involved in Shannon's death.  I didn't speak to these people, I spoke to other people.  We had the scenes analysed, we've got a pretty good thing in our mind about what happened that day and why it happened, we're just asking you, you either want to tell us or you don't or you're just basically tell me that you can't remember anything and I think that's a lie myself.  So then I think mate I've worked in the bush for years, I know what it's like to live in those towns, I know that it's hard and it's going to be hard ‑ it's hard for you to even come to terms with it I reckon that you were involved in someone's death. I believe you were involved in that death.  I'm just asking you the question were you involved in the death.  That's only what I believe, what I believe means nothing that will get edited out of this tape, I'm asking you do you want to tell us what happened?  You've got the right to remain silent, you've got the right to do whatever you want, you know your rights, do you want to tell us what happened that day or do you want to just go from there?  Have a think in your heart.  Now do you want to speak from the heart, just remember you've got rights, but it's your choice.

A.  The only thing that I can tell you is what I'm saying is I was protecting my young brother after he got hit with a machete.

Q.  Okay so what happened?

A.  I used light [like] force with light [like] force hey.

Q.  Well using force like you said, light force to light force explain to me what happened.  What you remember, not what Joe Blo told you.  What you remember and I know you remember these things that is my belief, tell me what you remember, if you want to, you've got rights you can remain silent, you can do whatever you want.

A.  Like I'm still coming to terms with everything of that as well.