Poland v The State of Western Australia - [2015] WASCA 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   POLAND -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 136
CORAM:   MARTIN CJ
BUSS JA
MAZZA JA

HEARD:   15 OCTOBER 2014
DELIVERED          :   30 JUNE 2015
FILE NO/S:   CACR 204 of 2013
CACR 205 of 2013
CACR 213 of 2013

BETWEEN: ALLAN RONALD JAMES POLAND
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

CACR 204 of 2013
Criminal law - Aggravated burglary of a dwelling - Aggravated grievous bodily harm - Aggravated sexual penetration without consent - Application for leave to appeal against conviction - Whether out of court statements were admissible as evidence of their truth - Whether verdicts unsafe or unsatisfactory

CACR 205 of 2013

CACR 213 of 2013

Criminal law - Aggravated burglary of a dwelling - Aggravated grievous bodily harm - Aggravated sexual penetration without consent - Total effective sentence 16 years 4 months' imprisonment - State application for leave to appeal against sentence - Whether individual sentences for aggravated grievous bodily harm and aggravated sexual penetration without consent were manifestly inadequate - Whether total effective sentenced breached the first limb of the totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 31, s 41(4)(b)
Evidence Act 1906 (WA), s 21, s 22, s 79B, s 79C
Evidence Act 1995 (Cth), s 66
Restraining Orders Act 1997 (WA), s 63A
Sentencing Act 1995 (WA), s 9AA

Result:

CACR 204 of 2013
Leave to appeal granted
Appeal dismissed

CACR 205 of 2013
Leave to appeal refused
Appeal dismissed

CACR 213 of 2013
Leave to appeal granted on grounds 1, 2 and 3

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S M Whybrow & Ms M R Barone
Respondent	:	Mr B Fiannaca SC & Ms A C Longden

Solicitors:

Appellant	:	Barone Criminal Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Armstrong v The State of Western Australia [2012] WASCA 42; (2012) 220 A Crim R 274
Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632
Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1
Barbaro v The Queen [2014] HCA 2; (2014) 236 A Crim R 116
Beamish v The Queen [2005] WASCA 62
Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 282
Cavill v The State of Western Australia [2008] WASCA 108
Chan v The Queen (1989) 38 A Crim R 337
Cooper v The State of Western Australia [2009] WASCA 37
GHK v The State of Western Australia [2014] WASCA 19
Giglia v The State of Western Australia [2010] WASCA 9
Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207
House v The King (1936) 55 CLR 499
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Kelly v The State of Western Australia [2013] WASCA 114
Lesay v The State of Western Australia [2011] WASCA 154
LFG v The State of Western Australia [2015] WASCA 88
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mack v The State of Western Australia [2014] WASCA 207
Myers v Director of Public Prosecutions [1965] AC 1001 (HL)
Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558
Pollock v The State of Western Australia [2009] WASCA 121
R v Andrews [1987] AC 281 (HL)
R v Benz [1989] HCA 64; (1989) 168 CLR 110
R v Duong [2011] SASCFC 100; (2011) 110 SASR 296
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Subramaniam v Public Prosecutor [1956] 1 WLR 965 (PC)
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
THG v The State of Western Australia [2012] WASCA 139
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

TABLE OF CONTENTS

Introduction

The indictment

The fundamental issue at trial - did Mr Poland act alone?

The grounds of appeal against conviction

The evidence

The crime scene and its vicinity

Events of 14 and 15 October 2011

Evidence of S

Evidence of First Class Constable Anthony Douglas Wooler

Evidence of J

Evidence of W

Evidence of O

Witnesses in the vicinity

Evidence of Chad Raymond Brenton

Evidence of Kenneth Thompson

Witnesses who located stolen property

Evidence of Graham Michael Mason

Evidence of Gary Robert Pearson

Evidence of Paul Kenneth Convery

Police witnesses

Evidence of Constable Kate Louise Mann

Evidence of First Class Constable Denis Troy Parker

Evidence of Sergeant Kevin Paul Ward

Evidence of Detective Senior Constable Timothy Moran

Evidence of Detective Senior Constable Ian Landreth Berry

Medical witnesses

Evidence of Dr Alison Louise Mackay

Evidence of Dr Timothy Laing Paterson

Evidence of Dr Maire Cailin Kelly

Alibi witnesses

Evidence of Loretta Faye Zoe Trott

Evidence of Aaron James Calyun (Rule)

Evidence of Bevan Neil Parfitt

Evidence of Alan Trevor Shane Parfitt

Evidence of Melissa Rose Parfitt

Evidence of Nicole Kathleen Panaia

Evidence of Melanie Jayne Craggs

Evidence of Gaye Elizabeth Bromfield

Forensic evidence

Fingerprint evidence

Evidence of Penny Lorraine Cooper

Evidence of Sergeant Brett James McCance

The investigation

Evidence of Detective Senior Constable Nicholas Matt Perich

Mr Poland's video record of interview

The closing addresses

The State's case

The defence case

Defence application with respect to count 3

Ground 2 - were the verdicts unreasonable?

Mr Poland's submissions

Analysis - ground 2

Ground 1 - admissibility of the out of court statements made by S

Mr Poland's submissions

The State's submissions

The rule against hearsay

Were the statements admissible by reason of the doctrine of res gestae?

Was the evidence admissible as a (new) exception to the hearsay rule?

Was S's statement in the hospital notes admissible under s 79C of the Evidence Act?

The application of the proviso if the s 79C point had been made out

Conclusion and orders - conviction appeal

The appeals against sentence

The sentencing remarks

Mr Poland's personal circumstances

The reports

Mitigating factors

The sentences

General principles applicable to appeals against sentence

Analysis of Mr Poland's appeal against sentence

Analysis of the State's appeal against sentence

Conclusion and orders - sentence appeals

MARTIN CJ: Mr Poland should be granted leave to appeal against his conviction, but that appeal should be dismissed, for the reasons given by Mazza JA with which I agree. Mr Poland's application for leave to appeal against sentence should be refused, and the appeal dismissed, also for the reasons given by Mazza JA, with which I agree. The application by the State for leave to appeal against sentence should be granted in respect of grounds 1, 2 and 3, but that appeal should be dismissed for the reasons given by Mazza JA, with which I agree.
BUSS JA: I agree with Mazza JA.
MAZZA JA: Before this court are Mr Poland's applications for leave to appeal against conviction (CACR 204 of 2013) and sentence (CACR 205 of 2013), and the State's application for leave to appeal against sentence (CACR 213 of 2013).

Introduction

Late on 14 October 2011, or in the early hours of 15 October 2011, Mr Poland (and, he would say, others) forced entry into a home unit situated at 258B Grand Promenade, Dianella. Alone in the unit at that time was S, who was 89 years of age. S lived elsewhere, but on that particular night, the usual occupants of the unit - his daughter, W, and son-in-law, J - went out to dinner and he (S) looked after their sick dog.
Areas in the unit were ransacked. Items of property were stolen and S was assaulted. As a consequence of being assaulted, S suffered various injuries to his lower back, bottom, rib cage, face, arms and head, all of which constituted bodily harm. S also sustained grievous bodily harm; in particular, a closed head injury, a fracture to the left eye socket through the left orbital ridge, and a rupture to the left eyeball which resulted in him losing sight in that eye. Further, S was sexually penetrated by an unknown object that caused a rupture to his rectum. The ongoing adverse effects of what happened to S have been severe.

The indictment

Mr Poland was charged in the District Court on indictment as follows:
(1)On or about 14 October 2011 at Dianella [Mr Poland], while in the place of [W] without her consent, stole various items of property belonging to [W] and [S]
And that [Mr Poland] did bodily harm to [S]
And that immediately before the commission of the offence [Mr Poland] knew or ought to have known that there was another person in the place.
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place [Mr Poland] unlawfully did grievous bodily harm to [S]
And that [S] was of or over the age of 60 years.
(3)On the same date and at the same place [Mr Poland] sexually penetrated [S] without his consent, by penetrating his anus with an unknown object
And that [Mr Poland] did bodily harm to [S].
And that [S] was of or over the age of 60 years.
On arraignment at his trial, Mr Poland entered a plea of guilty to the allegation of burglary and to the circumstances of aggravation (count 1), save for the circumstance of aggravation that he did bodily harm to S. To that allegation, he pleaded not guilty (ts 105 - 106). No issue has been taken in this appeal to this procedure: see Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207. Mr Poland pleaded not guilty to count 2 (aggravated grievous bodily harm) and count 3 (aggravated sexual penetration without consent) (ts 106).
On 25 June 2013, Mr Poland was found guilty by the jury as charged.
On 11 October 2013, Mr Poland was sentenced to a total effective sentence of 16 years 4 months' immediate imprisonment, backdated to commence on 15 October 2011. He was made eligible for parole. Pursuant to s 63A of the Restraining Orders Act 1997 (WA), Sweeney DCJ made a lifetime violence restraining order to protect S.
The structure of the total effective sentence imposed is as follows:

Offences charged
Count No	Date of offence	Description of offence	Enactment	Final outcome
Count 1	On or about 14 October 2011	Aggravated burglary of a dwelling	Criminal Code (WA), s 401(2)(a)	2 years 4 months' imprisonment - cumulative
Count 2	On or about 14 October 2011	Aggravated grievous bodily harm	Criminal Code (WA), s 297(3), s 221(1)(d)	7 years' imprisonment - head sentence
Count 3	On or about 14 October 2011	Aggravated sexual penetration without consent	Criminal Code (WA), s 326	7 years' imprisonment - cumulative
Total effective sentence		16 years 4 months' imprisonment with parole eligibility

The fundamental issue at trial - did Mr Poland act alone?

At trial, there was no dispute that:
(a)the unit at 258B Grand Promenade, Dianella, had been burgled and items of property had been stolen;
(b)S was assaulted and suffered both bodily harm and grievous bodily harm; and
(c)S had been sexually penetrated as alleged without his consent.
The State's case was that Mr Poland was the sole offender. Alternatively, in relation to counts 1 and 2, Mr Poland was a party to a joint criminal enterprise and thus, was criminally responsible. In relation to count 3, the State conceded that, if it failed to prove beyond reasonable doubt that Mr Poland was the sole offender, Mr Poland must be found not guilty (ts 98).
The defence case was that Mr Poland did not act alone. Although Mr Poland was in the place of 258B Grand Promenade, Dianella, without consent and stole various items of property, he did not inflict bodily harm or grievous bodily harm upon, nor did he sexually penetrate, S. It was submitted on behalf of Mr Poland that his co-offender, or co-offenders, were criminally responsible for the disputed circumstance of aggravation in count 1, and for counts 2 and 3.
It was common ground at trial that a fundamental factual issue for the jury to determine was whether the State had proved beyond reasonable doubt that Mr Poland had acted alone.

The grounds of appeal against conviction

I will deal with Mr Poland's appeal against conviction first.
The proposed grounds of appeal are:
1.The learned trial judge erred in ruling that the statements made by [S] as to the number of offenders was inadmissible as evidence of the truth of those statements.
2.The verdict of guilty to the contested circumstance of aggravated [sic] on count 1 and the verdicts of guilty on counts 2 and 3 were unsafe and unsatisfactory.
The question of leave to appeal was referred to the hearing of the appeal.

The evidence

It is convenient at this point to summarise the salient evidence. Necessarily, this will be lengthy.

The crime scene and its vicinity

Grand Promenade is a major road which runs in a south-east to north-west direction from Railway Parade, Inglewood, to Morley Drive, Yokine. 258B Grand Promenade, where the offences were allegedly committed, is located in the suburb of Dianella. Unit 1, 288 Grand Promenade, Dianella - where Mr Poland was residing at the relevant time - is a short distance from unit 258B. Between the two addresses are Randall and Moore Streets. Grand Promenade intersects with Walter Road West south-east of both units (exhibit 7). On the south-west corner of that intersection is a Gull service station.
258B Grand Promenade, Dianella, stands at the rear of a duplex development. Access to the unit off Grand Promenade is via a driveway which runs alongside 258A Grand Promenade, Dianella. The unit itself includes a lounge area and a living room. The unit has three bedrooms which may be approached from a hallway that leads from the living room (exhibits 5, 12). Unit 1, 288 Grand Promenade, Dianella, is a small, one-bedroom unit where, according to one State witness (Aaron James Calyun (also known as Rule)), people slept wherever they could find a spot (ts 837).

Events of 14 and 15 October 2011

Evidence of S

In examination-in-chief, S testified that, at '10 minutes to 10' on the evening of 14 October 2011, there was a knock at the door of the unit at 258B Grand Promenade, Dianella. He said he went to the door and asked 'Who are you?' He said that a male 'muttered something' and then 'kicked the door in'. He said that the man entered the unit, came close to him and said 'I want your jewellery and your money.' S said that, beyond this point, he had no recollection of what occurred. The next thing S remembered was waking up in the intensive care unit at Sir Charles Gairdner Hospital (ts 231 - 233).
S described the lighting at the front door as 'very dim'. He also said that, when the knock came, he took off his glasses (ts 234 - 235).
At no point in examination-in-chief did S mention any person other than the man who forced his way into the unit and demanded jewellery and money.
In cross-examination, S testified that the man at the front door could have said 'We want your fucking money', although he did not actually recall that statement being made (ts 237).
Defence counsel showed S a portion of his deposition made on 15 February 2012 in which he stated that the man came into the unit and said 'We want your fucking money and fucking jewellery'. S then agreed that the man had used the words 'we want' at the time he made the demand (ts 239).
S was then asked whether he saw 'another man standing behind the man who came inside?' S responded 'I think I did. I did see another man', but went on to say that he (S) 'was utterly engrossed with this first fellow' (ts 240).
It was put to S that there were up to four people at the door, to which S said that he was 'not sure', but that it was his recollection that there were two people (ts 242).
As to the number of people who entered the unit, S confirmed that the man who kicked the door in also came into the unit. However, S did not see, or at least he was unable to confirm, that anyone else came into the unit (ts 242 - 243).
Defence counsel asked S if he recalled telling other people, including J, a police officer and a doctor at Sir Charles Gairdner Hospital, that there were four people in the unit. S had no such recollection (ts 244).
In re-examination, the prosecutor asked S how he knew that there were other people at the door. S testified that he 'felt' that 'somebody has [sic] come in with the first (indistinct)'. However, S said that, while he felt 'like someone was there', he did not see anybody else (ts 245).

Evidence of First Class Constable Anthony Douglas Wooler

First Class Constable Wooler and Constable Ryan James Byrne were conducting general duties together late in the night on 14 October 2011 and into the early hours of 15 October 2011. At 12.32 am on 15 October 2011, First Class Constable Wooler said that he received a message to attend at 258B Grand Promenade, Dianella. As they drove past Moore Street, First Class Constable Wooler saw an Aboriginal male standing on the corner just before their destination. Upon entering the unit, First Class Constable Wooler noticed belongings on the floor. He was directed to S, who was slumped on a settee. It was immediately apparent that he was badly injured (ts 157 - 158). First Class Constable Wooler testified that his impression was that S was 'barely conscious' (ts 162).
In cross-examination, First Class Constable Wooler said that he had a conversation with S. Without objection from the prosecutor, First Class Constable Wooler referred to his deposition in order to correctly relay what was said. First Class Constable Wooler testified that, when he asked S 'Who did this to you?', S replied 'Four of them', whom he (S) described as 'coloureds' (ts 257).
First Class Constable Wooler followed the ambulance which took S to hospital. There, First Class Constable Wooler said he had a further conversation with S during which First Class Constable Wooler again asked 'How many were there?' S replied 'Four', one of whom, he said, was wearing yellow (ts 258).
First Class Constable Wooler said that, when he spoke to S at the hospital, 'He [S] was out of it' (ts 261).

Evidence of J

J testified that he and W were driven home from dinner by O, arriving there between approximately 12.15 am and 12.30 am on 15 October 2011 (ts 267 - 268). When the vehicle pulled into the driveway, J said that there was 'a chap standing outside' who 'looked like he was thumbing a lift' (ts 270 - 271). J said that, as the vehicle got closer to his unit, both he and W saw that the front door was open.
J described how, when they entered the unit, he saw papers on the hallway floor. He said that they found S slumped against the wall, lying face up (ts 273). J described S as 'a terrible mess' (ts 273). He said that he put S on the settee and shouted instructions for the police and an ambulance to be called. J said that S had blood all over his face, including his eyes (ts 274 - 275).
In cross-examination, J said he asked S, at about the time he called for an ambulance, 'How many?' to which S mumbled 'Four' (ts 343).

Evidence of W

W testified in examination-in-chief that, as the vehicle in which she and J were being driven pulled into their driveway, she saw a man on the verge, describing him as about 160 cm to 170 cm tall with a dark grey jacket, dark jeans or pants and a 'scraggly beard or a goatee'. W thought he was Aboriginal (ts 287). She said that this man was moving his arm around and looked like he had money. W said it appeared the man was trying to flag down a taxi or a car.
When W entered the unit, she saw S slumped on the floor in the living area. She described him as 'bloodied and bruised' and she noticed that his trousers were down to his hip area (ts 288). W testified as to numerous items which had been stolen from her unit, but were later recovered by police at various locations in the vicinity of the property (ts 291 - 315). Among these items was a ring which was taken from her dressing table in the master bedroom. W identified the ring as one later found by police (HRE 13).

In cross-examination, W accepted a proposition put to her by defence counsel that things may have been taken from the unit which she had not noticed were missing (ts 331). W said she was present when J asked S the question 'How many?' She confirmed that S said 'Four' (ts 321).
In re-examination, W said that, of the items W believed were stolen, the only one not found or recovered was the spare key to her Subaru vehicle (ts 337).

Evidence of O

O drove J and W home in the early hours of 15 October 2011. O testified that, as he approached their unit at 258B Grand Promenade, Dianella, he saw a man standing on a crossover outside the unit. He said the man was 'just standing there' when he drove past him, but, as O entered the driveway, the man followed them (ts 358 - 360).
O testified that, after J and W got out of the vehicle, he approached the man and told him to go. He recalled the man had a $10 note in his hand and requested that O call him a cab (ts 361).
O then went inside the unit, where he saw S lying on the floor. J asked him to ring 000, which he did. After calling 000, O said that he went outside again and reapproached the man he had spoken to earlier. O said that he, again, told the man to go (ts 364).
A short while later, O noticed some cards and jewellery near Grand Promenade, in close proximity to the unit. By this time, the police had arrived. He looked west, up Grand Promenade, and saw a police van approximately 250 m up the road and a person leaning up against a fence wall. O walked up to the person and recognised him as the man he had seen earlier in the driveway.
O subsequently participated in a digiboard identification procedure which was recorded on a DVD (exhibit 28). O identified Mr Poland from the digiboard as the man he had seen in the vicinity of 258B Grand Promenade, Dianella. The accuracy of this identification was not challenged.

Witnesses in the vicinity

Evidence of Chad Raymond Brenton

Mr Brenton testified that he lived at 256A Grand Promenade, Dianella. He said that, at roughly 12.10 am on 15 October 2011, he heard noises which he described as 'two loud banging noises' coming from the direction of the unit at 258B Grand Promenade, Dianella. He said that he went outside to investigate. Apart from hearing his next-door-neighbour's dog, Mr Brenton did not hear anything else (ts 393).

Evidence of Kenneth Thompson

Mr Thompson testified that he lived at 269 Grand Promenade, Dianella. At about 10.45 pm on 14 October 2011, he heard a 'commotion' outside his house. He said that three males were leaning against a brick wall between 268 and 270 Grand Promenade, Dianella; two were Aboriginal and the other was white. Mr Thompson described how he saw two cars parked near them. He said that he went back into his house, but came outside again a few minutes later. By then, the 'white chap' and one of the vehicles had gone. Later, the two Aboriginal men drove off. In cross-examination, Mr Thompson said that the car with the two Aboriginal men pulled away at about 11.20 pm (ts 414).

Witnesses who located stolen property

Evidence of Graham Michael Mason

Mr Mason testified that on 15 October 2011, he found jewellery and money tucked underneath different bushes in his garden and in various places on his driveway at 270B Grand Promenade, Dianella, as well as under the fence of 270A Grand Promenade, Dianella (ts 416 - 417). The following day, he found more property underneath a hedge or bush on his property (exhibit 31). This property was collected by the police, and included W's ring stolen from her dressing table (HRE 13).
Mr Mason testified in cross-examination that, after being woken by his dog in the early hours of 15 October 2011, he went outside and, at the front of the unit, he saw police and a man whom he described as skinny, walking backwards and forwards, shouting 'I haven't done anything' (ts 423 - 426).

Evidence of Gary Robert Pearson

On 17 October 2011, Mr Pearson was working as a bricklayer on a building site situated at 15 Randall Street, Dianella. In front of a rubbish pile, he found a wallet. He looked inside the wallet and found an RAC card in the name of S. He put the wallet back in front of the pile. Later, the police attended at the building site, but by that time the wallet had already gone (ts 630).

Evidence of Paul Kenneth Convery

Like Mr Pearson, Mr Convery was working as a bricklayer on the building site at 15 Randall Street, Dianella. On 17 October 2011, he found a pen case on a concrete slab. The pen case was later identified as being the one in which S's pen had been kept.

Police witnesses

Evidence of Constable Kate Louise Mann

At approximately 10.30 pm on 14 October 2011, Constable Mann and Constable John Lenard Dickson were called to attend a disturbance in Nollamara. They went to the scene and spoke to two males who identified themselves as Ashley Parfitt and Mr Poland. Constable Mann said the two men were 'quite heavily' intoxicated and that they offered them a lift home (ts 540). The two men were taken in the rear of a police vehicle and, at approximately 10.45 pm to 10.50 pm, they were dropped off at a bus stop approximately 200 m north-east of a service station on the corner of Walter Road (West) and Grand Promenade, Dianella (ts 540 - 541).

Evidence of First Class Constable Denis Troy Parker

First Class Constable Parker attended at 258B Grand Promenade, Dianella, at about 12.40 am on 15 October 2011. He noticed some jewellery on the footpath outside the letterbox of the unit. He followed a trail of jewellery which led away from the unit in a northerly direction towards Alexander Drive. As he walked, he noticed a man coming out of a set of units at 268 Grand Promenade, Dianella (ts 448). The man identified himself to First Class Constable Parker as Allan Poland. First Class Constable Parker described Mr Poland as 'very cooperative'. He described Mr Poland as wearing a black Puma hoodie, a black pair of jeans and a pair of Nike shoes (ts 449). Mr Poland handed First Class Constable Parker his wallet and removed items that he had in his pockets. First Class Constable Parker noticed that one of the items that Mr Poland removed was a single earring, which Mr Poland said was a present for his girlfriend, as well as a pen (ts 449).
The earring was later identified by W as belonging to her (ts 304 - 305; exhibit 18). W also identified the pen which was engraved with S's name as the one which had been given to S when he retired from Swanbourne Hospital. W explained that the pen had been kept in its box in a drawer in the third bedroom of her unit (ts 310 - 312; exhibits 22 and 23).
First Class Constable Parker described how, a short time later, a man identifying himself as Mr Poland's brother, Colin Poland, came down Grand Promenade from the direction of Alexander Drive (that is, from the direction of unit 1, 288 Grand Promenade, Dianella) in an aggressive manner, shouting 'Why do you have my brother, let him go, he hasn't done anything' (ts 451). Colin Poland was wearing only shorts and was without a shirt.
At 1.15 am on 15 October 2011, First Class Constable Parker arrested Mr Poland and his brother, and they were conveyed to Mirrabooka police station (ts 452).
First Class Constable Parker asked Mr Poland what he was doing in the area. Mr Poland told him that he was visiting a friend who lived in the block of units nearby (ts 450).

Evidence of Sergeant Kevin Paul Ward

Sergeant Ward testified that, after Mr Poland and his brother were arrested, they were taken to Mirrabooka police station in separate vehicles (ts 464). At the lockup, Sergeant Ward observed that Mr Poland's knuckles were red and raised, and that there were a couple of marks or abrasions on his fingers (ts 465). Mr Poland explained that he 'got those earlier in the day' (ts 465).
Sergeant Ward said that, at about 3.30 am on 15 October 2011, he went to unit 1, 288 Grand Promenade, Dianella, where he met Jason Keith Bromfield and Melanie Jayne Craggs (ts 467). Mr Bromfield was arrested. His significance will become apparent shortly. Sergeant Ward agreed that Mr Bromfield was agitated and upset about being arrested (ts 470).

Evidence of Detective Senior Constable Timothy Moran

Detective Senior Constable Moran seized and photographed clothing and jewellery from Mr Poland and clothing items taken from his brother. He was present during a forensic examination of Mr Poland and his brother. He was also present when Mr Bromfield's clothing was seized and photographed.
Later, Detective Senior Constable Moran attended at unit 1, 288 Grand Promenade, Dianella, to execute a search warrant. During the search, he located an earring in a garden bed outside that unit (ts 494 ‑ 496; exhibit 42A - D).
Detective Senior Constable Moran testified that he was the corroborating officer in a video-recorded interview between Detective McDonagh and Mr Poland, which commenced at 1.28 pm on 15 October 2011 (ts 491; exhibit 40). I will refer to the content of this interview later in these reasons.
Detective Senior Constable Moran testified that, on 20 October 2011, he attended at the Burswood Casino, where he retrieved CCTV footage which had been taken between 10.30 pm on 14 October 2011 to 1.00 am on 15 October 2011 (ts 496). An extract of that footage was played and tendered in evidence (ts 497; exhibit 43). This footage captures the presence at the casino of Ashley Parfitt.

Evidence of Detective Senior Constable Ian Landreth Berry

Detective Senior Constable Berry took photographs of S at Sir Charles Gairdner Hospital (ts 521 - 524; exhibit 44A to G). They show the severe nature of S’s injuries, particularly his facial injuries.
On 26 October 2011, he attended at the Gull service station on the corner of Walter Road (West) and Grand Promenade in Dianella, where he seized CCTV footage which had been taken between 11.30 pm and 11.40 pm on 14 October 2011. He later prepared a compilation of that footage which was shown to the jury and tendered in evidence (ts 525 ‑ 526; exhibit 45). The footage shows a person making a transaction (Colin Poland). The tax invoice for that transaction was tendered in evidence (ts 527; exhibit 46). It records the transaction (which was for food, drinks and cigarettes) as occurring at 23:34:36 on 14 October 2011. In cross-examination, Detective Senior Constable Berry said that he had not been able to identify all of the persons in the CCTV footage, and that he did not seek to identify Mr Poland as one of those persons (ts 530).

Medical witnesses

Evidence of Dr Alison Louise Mackay

Dr Mackay gave evidence via video link from London. Without objection from defence counsel, she was permitted to refer to clinical notes which she said had not been written by her, but were made at her direction (ts 430).
Dr Mackay testified that she was the doctor who initially treated S upon his admission at Sir Charles Gairdner Hospital at 1.59 am on 15 October 2011. S remained in her care until approximately 6.00 am or 7.00 am.
Dr Mackay said that, when S was admitted to hospital, he was orientated as to time, place and person, and that he was 'always orientated while he was in the emergency department' (ts 442 - 443).
Dr Mackay described the many injuries sustained by S. Among the injuries she described were subarachnoid bleeding within the ventricles of the brain; a rupture of the left eyeball and a fracture through the left orbital ridge; flail fractures to four of the ribs on the left side, and a perforated rectum (ts 431 - 436).
Dr Mackay said S told her (correctly) that he was taking the blood thinning medication, Warfarin (ts 437).
In cross-examination, defence counsel put to Dr Mackay (ts 438) that:
[S] also told you that in relation to the intruders who entered his house that he remembered multiple people entering the house?
to which Dr Mackay replied:
That's what I have in my notes, yes.

Evidence of Dr Timothy Laing Paterson

Dr Paterson is a consultant intensive care physician. He was a senior registrar in the intensive care unit at Sir Charles Gairdner Hospital at the time of S's treatment (ts 508). Dr Paterson gave further evidence of the injuries sustained by S. It is unnecessary to repeat that evidence. It is sufficient to observe that Dr Paterson's evidence was essentially consistent with that of Dr Mackay.
S was admitted to the intensive care unit of Sir Charles Gairdner Hospital on 15 October 2011 and remained there until 1 or 2 November 2011 (ts 513).
Dr Paterson testified that, without medical intervention, S would have died from:
(a) bleeding to the brain;
(b) asphyxia as a result of the flail rib section; or
(c) the tear to his rectum due to faecal matter leaking into the body cavity.
Dr Paterson said that S had to be placed in an induced coma and ventilated.
In cross-examination, Dr Paterson said that the Glasgow Coma Scale is an objective marker of how awake someone is. He testified that, when S first presented at the hospital, his Glasgow Coma Scale score was 15, being the highest score that can be given under that scale. Dr Paterson explained that, at that level, a person's eyes open spontaneously, the person is able to follow commands with their limbs, touch their nose and their sentences make sense (ts 516). At about 6.00 am (on 15 October 2011), and prior to S going into surgery, his Glasgow Coma Score dropped to 13 (ts 517). Dr Paterson confirmed that S's eyes were swollen shut (ts 519).

Evidence of Dr Maire Cailin Kelly

Dr Kelly is a medical doctor employed at the Sexual Assault Resource Centre in Perth. She is experienced in interpreting injuries sustained by men and women who have allegedly been sexually assaulted. Dr Kelly was provided with extensive documentation with respect to S's injuries. She testified as to the nature of those injuries and S's treatment. She provided expert opinion in relation to some of the injuries suffered by S. Her report was written in February 2012 (ts 607).
Dr Kelly noted that the rupture to S's rectum occurred 7 cm from the anal opening. In her opinion, at that depth, the penetration was not caused by a finger, penis or fist. Rather, the penetration was with an object. In her opinion, the object would be roughly cylindrical, considerably longer than 7 cm and rigid or firm enough to be manipulated by hand (ts 606 ‑ 607). In cross-examination, Dr Kelly confirmed that a Glasgow Coma Scale score of 15 means that a person is fully orientated, conscious, alert and responsive (ts 612 - 613).

Alibi witnesses

Evidence of Loretta Faye Zoe Trott

On the evening of 14 October 2011, Ms Trott flew from Kalgoorlie to Perth, arriving at approximately 8.30 pm (ts 575). She then checked in at the Ambassador Hotel in Perth. She was driven by Mr Calyun from there to a one-bedroom unit in Dianella (unit 1, 288 Grand Promenade, Dianella), arriving there between 10.00 pm and 11.00 pm (ts 576). Inside the bedroom was an 'Aboriginal guy' who was in his 40s or 50s (Colin Poland), together with a woman (Ms Craggs). Ms Trott testified that she watched a movie at the unit. While there, two Aboriginal males and an Aboriginal female came to the unit and stayed there for approximately 20 to 30 minutes. A little while after they left, Ms Trott and Mr Calyun drove a 'tall, skinny [man]' to the Burswood Casino on their way back to the Ambassador Hotel (ts 580).

Evidence of Aaron James Calyun (Rule)

Mr Calyun testified that, in October 2011, he was staying at unit 1, 288 Grand Promenade, Dianella 'on and off'. He said that, around 14 October 2011, he, Mr Bromfield, Mr Poland, Colin Poland (whom he knew as 'Trudge'), his nephew Conway Schultz and his cousin Christopher Harris were at the unit. According to Mr Calyun, people slept in 'all different places' and they, on occasion, 'switched spots' (ts 838). Mr Calyun said that he, Mr Schultz, Mr Harris and another nephew, Kevin Smith, drove Mr Bromfield to his (Mr Bromfield's) cousin's party in Beechboro at around 5.00 pm or 6.00 pm that day (ts 840). Mr Calyun said that, after he dropped Mr Bromfield off, he and the three other men returned to the unit. Later, Mr Calyun said he drove the three men towards Thornlie. He said that Mr Smith jumped out of the car near the Burswood Casino and then he dropped Mr Harris and Mr Schultz at the Thornlie train station. After that, he drove to the Ambassador Hotel and picked up Ms Trott.
Mr Calyun said that he and Ms Trott then drove back to unit 1, 288 Grand Promenade, Dianella. When they arrived, Colin Poland and Ms Craggs were there. According to Mr Calyun, Colin Poland and Ms Craggs remained in the main bedroom while he and Ms Trott watched a movie.
Mr Calyun said that, about half an hour after he got to the unit, Ashley Parfitt arrived (ts 843). Mr Calyun said that he thought that Ashley Parfitt's sisters and cousins were outside. According to him, they did not come into the unit.
Mr Calyun said that, in response to an argument between Colin Poland and Ashley Parfitt, he (Mr Calyun) and Ms Trott left the unit with Ashley Parfitt. Mr Calyun testified that he dropped Ashley Parfitt at the Burswood Casino (ts 844). He said that, when he left the unit, Colin Poland and his 'lady friend' were still there.
Mr Calyun was shown CCTV footage taken at the Burswood Casino which, he confirmed, showed his vehicle pulling up at the Burswood Casino and a man, who he identified as Ashley Parfitt, coming up an escalator (exhibit 63). One of the still images comprising exhibit 63 shows that the image was taken at 12.24 am on 15 October 2011.
Mr Calyun was shown three photographs taken at the Gull service station at 11.32 pm on 14 October 2011 (exhibit 65). He identified the person shown in those photographs as Colin Poland.
In cross-examination, Mr Calyun agreed that it was possible that Ashley Parfitt left the unit after he and Ms Trott arrived there. He did not think that Colin Poland left the unit (ts 851).

Evidence of Bevan Neil Parfitt

Bevan Parfitt is Ashley Parfitt's cousin. On the evening of 14 October 2011, Bevan Parfitt was visiting his sister, Melissa Rose Parfitt, at her house in Camillo. Ashley Parfitt spoke to Bevan Parfitt by mobile telephone and invited him, Melissa Parfitt and another cousin, Alan Trevor Shane Parfitt, out. An arrangement was made to meet near a BP service station in Morley, but when they arrived there, Ashley Parfitt was not to be seen (ts 553). Bevan Parfitt then telephoned Ashley Parfitt, who directed him to a house '20 minutes down the road' (ts 554). The house to which they were directed was unit 1, 288 Grand Promenade, Dianella (ts 564; exhibit 48). When they arrived there, Ashley Parfitt was waiting in the driveway. Melissa Parfitt went inside the unit with Ashley Parfitt. Bevan Parfitt went into the unit some minutes later. Bevan Parfitt saw 'one guy and one girl' on a sofa (ts 555). He said that someone else, a man, kept walking in and out of a bedroom. Bevan Parfitt described this person as short, balding, dark-skinned and in his late 30s.
After a while, Ashley Parfitt asked Bevan Parfitt and Melissa Parfitt to go and look for Mr Poland. They did so by car. Bevan Parfitt described the route he took in looking for Mr Poland (exhibit 47). Mr Poland was unable to be found. Bevan Parfitt then drove back to unit 1, 288 Grand Promenade, Dianella, but did not go into the unit (ts 557 ‑ 558). Eventually, Bevan Parfitt returned to Melissa Parfitt's house.

Evidence of Alan Trevor Shane Parfitt

Alan Parfitt is Ashley Parfitt's cousin. In October 2011, he was living with another cousin, Melissa Parfitt. Alan Parfitt's testimony was consistent, in large measure, with that given by Bevan Parfitt. Alan Parfitt testified that he, Melissa Parfitt and Bevan Parfitt got to the service station where they were supposed to meet Ashley Parfitt at perhaps '10.30 [pm] or quarter to 11' on 14 October 2011 (ts 661). He estimated he was at the unit (unit 1, 288 Grand Promenade, Dianella) for 'an hour or 45 minutes'. Alan Parfitt said that he and the others left the unit at which they had met Ashley Parfitt sometime between 11.15 pm and 11.30 pm (ts 665). He testified that Ashley Parfitt asked to be dropped off at the casino (Burswood Casino). Alan Parfitt said that he was 'pretty sure' he dropped him there (ts 665 - 666).

Evidence of Melissa Rose Parfitt

Melissa Parfitt's evidence is largely consistent with the evidence given by Bevan Parfitt and Alan Parfitt. She said she spoke to Ashley Parfitt by mobile telephone at about 9.30 pm (ts 699). She said that one of the people at the unit (unit 1, 288 Grand Promenade, Dianella) where they met up with Ashley Parfitt was Colin Poland. She also said that, while at the unit, Ashley Parfitt wanted to find 'where Allan Poland was'. As a result, she, Bevan Parfitt, Alan Parfitt and Ashley Parfitt went for a ride 'around the block' to 'go and see where Allan Poland was'. Their quest was unsuccessful and they drove back to the unit (ts 703 - 705). She said Ashley Parfitt stayed at the unit. Melissa Parfitt testified that she saw Colin Poland again as she was being driven home. She said that he was standing between the unit 'and the next street' and was carrying a green plastic shopping bag (ts 706 - 709). In cross-examination she agreed that, at the time, she thought Colin Poland was 'acting quite weird' (ts 709).

Evidence of Nicole Kathleen Panaia

Ms Panaia testified that she knows Mr Poland through her husband. She said that she classified Mr Poland as family. Ms Panaia said that, on the night of 14 October 2011, she and her cousin picked Mr Poland up at the Dianella Shopping Centre. With him was Ashley Parfitt. They returned to Ms Panaia's house at 15 Lowther Terrace, Nollamara, between 6.30 pm and 7.00 pm. Mr Poland and Ashley Parfitt remained at Ms Panaia's house until about 11.30 pm. While the two men were there, they (and others) consumed a considerable quantity of alcohol. She described all of the adults there as 'very drunk' (ts 670). In examination-in-chief, Ms Panaia said that the two men left her house at about 11.30 pm. However, in cross-examination, she agreed that they left at about 10.30 pm (ts 674).
Ms Panaia testified that, after Mr Poland left her home, Mr Ashley Taylor (also known as Gidgup) 'turned up' (ts 671). Ms Panaia was aware that Mr Taylor and Mr Poland were friends (ts 674). She telephoned Mr Poland and gave the telephone to Mr Taylor. After this, Ms Panaia said she dropped Mr Taylor on Main Street, Osborne Park. She then went to a friend's house and then to the casino (Burswood Casino). There, she saw Ashley Parfitt at about 2.30 am.
In cross-examination, she agreed that, when Mr Poland and Ashley Parfitt left the house, Mr Poland was very intoxicated, but Ashley Parfitt was not as drunk.
She also agreed that the place where she had picked Mr Poland up was not the Dianella Shopping Centre, but rather, the Gull service station in Dianella (ts 677).

Evidence of Melanie Jayne Craggs

Ms Craggs was present at unit 1, 288 Grand Promenade, Dianella, when the police attended at those premises on 15 October 2011.
She testified that, on the afternoon of 14 October 2011, Colin Poland invited her to the unit. Ms Craggs said that, when she got there, Mr Poland, Mr Calyun, Ashley Parfitt and Mr Bromfield were already there.
She testified that, apart from Colin Poland, all of the others were getting ready to go to a party. Ms Craggs said that all of 'the boys', apart from Colin Poland, went out. She testified that she and Colin Poland smoked some cones of cannabis, watched television and talked.
Ms Craggs testified that, at some point, Ashley Parfitt came back to the unit with two girls. After they left the unit, Colin Poland went to a service station to get her some food (ts 1232 - 1234). Although not sure of when this occurred, Ms Craggs thought it was an hour, maybe two hours, after Ashley Parfitt and the two girls had come to the unit. She said that Colin Poland returned 20 or 30 minutes later with a sausage roll, a drink and some chocolate or lollies. After Ms Craggs and Colin Poland ate the food, they watched television, talked and slept for a while. They then had a shower, during which they had sex (ts 1235). Ms Craggs recalled that it was close to midnight at this point. She said that she was surprised at how late it was. Ms Craggs said that, at about midnight, Colin Poland went off to look for his brother. Ten or 20 minutes later, she went outside and saw a commotion up the road. Later, she found out that Colin Poland had been arrested.
In cross-examination, Ms Craggs was asked about Mr Taylor. She said that 'a couple of days' before 14 October 2011, Mr Taylor drove her to unit 1, 288 Grand Promenade, Dianella (ts 1238). On the morning of 14 October 2011, she said Mr Taylor and another person took her to Midland (ts 1239). Ms Craggs testified that she was 'a very, very bad speed addict at the time' and that she had not slept for four days (ts 1242 ‑ 1243, ts 1247 ‑ 1248). She said that, on the evening of 14 October 2011, she did not drink alcohol and had not used speed for a couple of days (ts 1248).

Evidence of Gaye Elizabeth Bromfield

Ms Bromfield is the mother of Mr Bromfield. She testified that, on the night of 14 October 2011, she attended her niece's 18th birthday party at the Bennett Springs Tavern in Beechboro (ts 634). She testified that Mr Bromfield arrived there 'a couple of minutes' after 7.30 pm or 7.35 pm. Ms Bromfield said that she left the party when 'we got kicked out of the pub' at about 12.30 am on 15 October 2011. She said that Mr Bromfield was at the tavern 'all the time' (ts 636). Ms Bromfield and others, including Mr Bromfield, then walked back to her nearby house. She said that, at about 2.00 am or 2.30 am, Mr Bromfield left the house to walk a girl named Clare to her sister's house.
Ms Bromfield was shown some CCTV footage taken at the Bennett Springs Tavern (exhibit 50). She recognised Mr Bromfield and others in the footage.
In cross-examination, Ms Bromfield said that Mr Poland had been Mr Bromfield's best mate 'for ages' (ts 641).
In re-examination, she said there was no significant period of time that evening when Mr Bromfield was not within her sight (ts 647).

Forensic evidence

Fingerprint evidence

The fingerprint evidence adduced at Mr Poland's trial was, in substance, uncontroversial. The principal fingerprint analyst was Sergeant Adam James McCulloch. He testified that various fingerprints taken from the crime scene - both inside and outside the unit at 258B Grand Promenade, Dianella - were analysed and compared with fingerprints taken from Mr Poland, Colin Poland, Mr Calyun, Ashley Parfitt, Mr Bromfield, Ms Craggs, J and W and those contained in the National Automated Fingerprint Identification System (NAFIS) database.[1] Unsurprisingly, a number of fingerprints found on and in the unit at 258B Grand Promenade, Dianella, were identified as belonging to J and W. Some fingerprints were unidentifiable in the sense that they did not match the people whose prints had been taken for comparison or the NAFIS database. Mr Poland’s left palm print was matched to a wine box situated in the dining room at the crime scene (ts 717, 824).

Evidence of Penny Lorraine Cooper

[1] The NAFIS database includes fingerprints taken from arrested persons. There are over 4 1/2 million individuals on the database nationally. Western Australia makes up about 460,000 of those individuals (ts 808 ‑ 809).

Ms Cooper is a forensic scientist at PathWest. She testified as to the DNA analysis of various items seized by the police at the crime scene from persons said to be connected with the offences, including S and Mr Poland.
The clothing worn by Mr Poland - being his jeans, Puma jumper, underpants and shoes - were forensically examined. The areas from which forensic samples were taken are shown in exhibits 73, 74, 75 and 76. 17 samples taken from Mr Poland's jeans and 15 samples taken from his Puma jumper were tested for DNA. The entire surfaces were not tested for DNA. Forensic samples taken from Mr Poland's body were also analysed for DNA.
Ms Cooper testified that:
(a)Mr Poland could not be excluded as a minor contributor to two samples taken from S's pants (the major contributor being S).
(b)Five stains found on Mr Poland's jeans matched S's DNA profile.
(c)Two stains found on Mr Poland's left shoe matched S's DNA profile.
(d)A bloodstain on Mr Poland's right shoe matched S's DNA profile.
(e)No sample taken from Mr Poland's underpants or body revealed anything consistent with S's DNA profile.
(f)Four stains found on Mr Poland's Puma jumper matched S's DNA profile.
(g)Mr Poland's DNA profile was found inside 258B Grand Promenade, Dianella, and on a stain taken from a vacuum cleaner box seized from outside the unit.
(h)Two stains found on a dumbbell at the crime scene gave profiles which matched S.
(i)The ring found by Mr Mason at 270A Grand Promenade, Dianella (HRE 13), was analysed and a partial DNA profile was recovered which matched Mr Bromfield. In this regard, Ms Cooper testified that DNA can be placed on an object from a secondary transfer (ts 997 - 998).
(j)Of the items which were tested for DNA, and on which profiles were recovered, none matched the DNA profiles of Colin Poland, Mr Bromfield (apart from the ring), Ashley Parfitt or Mr Calyun. No DNA comparison was made with respect to Mr Taylor. With respect to Colin Poland, an analysis of his board shorts was taken. On the back of this item, Ms Cooper found a bloodstain which matched Mr Poland's DNA profile. Ms Cooper testified that she was unable to determine whether the bloodstains had been diluted or transferred (ts 1160).
Tables setting out DNA results which matched S and Mr Poland were tendered in evidence via this witness (exhibits 88, 93).

Evidence of Sergeant Brett James McCance

Sergeant McCance is a bloodstain pattern analyst.
Sergeant McCance testified as to a number of bloodstains found at the crime scene and on the clothing seized from Mr Poland at the time of his arrest. As to the latter, he found that transferred, projected and passive bloodstains were located on Mr Poland's Puma jumper (ts 1150 - 1155). Sergeant McCance explained that the two possible mechanisms by which blood may be projected are by impact or expiration. Although he could not give an exact distance, Sergeant McCance said the Puma jumper had to be 'proximate' to the source (ts 1153 - 1154). Transferred and projected stains were located on Mr Poland's jeans (ts 1156 - 1158). Transferred bloodstains were found on each shoe seized from Mr Poland (ts 1158 ‑ 1160).
Sergeant McCance testified that, from examining the scene and the bloodstains:
(a)The majority of the bleeding injuries to S occurred in the lounge room.
(b)S was seated on a three-seater couch for a period of time following his bleeding injury.
(c)At least three areas of impact occurred.
(d)At least one application of force occurred when S was at or near ground level.
(e)A further impact occurred when S was 40 cm to 45 cm above ground level or below.
(f)There were transfer patterns on the carpet in the walk-in robe in one of the bedrooms.

The investigation

Evidence of Detective Senior Constable Nicholas Matt Perich

Detective Senior Constable Perich was the officer responsible for overseeing the investigation into the alleged offences.
He said that police communications received a 000 call at 12.58 am on 15 October 2011 (ts 900).
Detective Senior Constable Perich testified as to inquiries he made to ascertain the walking distances between different locations along Grand Promenade, Dianella. He undertook these inquiries by walking the distances himself and conducting Google Maps searches. Relevantly, he said that:
(a)258 and 288 Grand Promenade, Dianella, are 300 m apart and would take about three minutes to three minutes 40 seconds to walk (ts 1066 - 1070; exhibit 95A);
(b)the distance between 258 Grand Promenade, Dianella, and the Gull service station is 350 m, which would take about four minutes to four minutes 40 seconds to walk (ts 1067 - 1069; exhibit 95B); and
(c)the distance between 288 Grand Promenade, Dianella, and the Gull service station is 650 m, which would take about eight minutes to eight minutes five seconds to walk (ts 1067 ‑ 1069; exhibit 95C).
Detective Senior Constable Perich viewed the CCTV footage taken between 11.30 pm and 11.40 pm at the Gull service station. He identified Colin Poland (ts 1074), but did not observe Mr Calyun, Mr Bromfield, Ashley Parfitt or Mr Poland (ts 1090).
With respect to the investigation, Detective Senior Constable Perich said:
(a)not all evidence collected during the investigation was analysed for DNA (ts 1078 - 1079);
(b)he did not request Ms Cooper to conduct DNA analysis of the areas inside Mr Poland's jeans and Puma jumper pockets (ts 1079);
(c)Mr Taylor was not investigated as a potential suspect because there was no information to suggest that he was at 288 Grand Promenade, Dianella, on the night of 14 October 2011 (ts 1088);
(d)Colin Poland's jumper was not seized until about two weeks after the events in question;
(e)Ashley Parfitt was not interviewed by police until 22 October 2011;
(f)Mr Bromfield was not taken into custody until 3.20 am on 15 October 2011; and
(g)Mr Poland's mobile telephone records from the night of 14 October 2011 were not investigated because, according to information provided to the police, the mobile telephone belonging to Mr Poland was not in his possession at the relevant time.

Mr Poland's video record of interview

As was his right, Mr Poland elected not to give or adduce evidence in his defence. As I mentioned earlier, Mr Poland participated in a video record of interview on 15 October 2011. The State adduced a recording of this interview as part of its case. The interview commenced at 1.28 pm and was completed at 2.30 pm.
Mr Poland said that he usually resided in the town of Denham, but was, on 14 October 2011, living at unit 1, 288 Grand Promenade, Dianella. He described the premises as 'Jason Bronfield's [sic: Bromfield's] house' (VROI ts 2).
As to the events on 14 October 2011, Mr Poland said that he:
(a)smoked 'about 12, 15 cones [of cannabis] all day' (VROI ts 7);
(b)drank 'about half a carton of Carlton Dry' beer with Mr Bromfield and 'Ashley Parfoot' [sic: Parfitt] (VROI ts 9);
(c)went in the afternoon to the Gull service station where he bought a 'choc milk and some smokes' (VROI ts 8);
(d)went to 'Nicole Pania's' [sic: Panaia] in the evening, with 'Ashley Parfitt' where they '[drank] piss, talked shit and then went home' (VROI ts 10, 21);
(e)caught the number 99 bus back to unit 1, 288 Grand Promenade, Dianella, together with Ashley Parfitt (VROI ts 21); and
(f)had 'a few beers and a few cones' (VROI ts 15) and then went for a walk down the road towards the Gull service station where the police 'grabbed' him (VROI ts 15 - 16).
Mr Poland was asked about his brother, Colin Poland. He said that Colin Poland was at unit 1, 288 Grand Promenade, Dianella, on 14 October 2011. Mr Poland said that a female friend of his brother came to the unit in the afternoon. He said that he thought that his brother and the girl were at the unit before he went for a walk.
Mr Poland said that he was wearing jeans, a T-shirt, a Puma jumper and a hat on 14 October 2011 (VROI ts 12). He said that he had worn those clothes all day and that he was wearing them when he was apprehended by the police.
Mr Poland denied going to or being in the driveway at 258B Grand Promenade, Dianella. He denied entering the unit. It was put to him that he and three other people had attended at the unit, forced entry, ransacked it, physically assaulted and then sexually assaulted S. Mr Poland denied all of these things, describing what had been put to him as 'fucking sickening' (VROI ts 27).
Mr Poland was asked about a gold pen that had been found by police in his pocket. When asked from whom he received the pen, Mr Poland responded that 'it [the pen] was at home' (VROI ts 30). He then said that he had found it 'down the road near the service station yesterday morning' (VROI ts 31). Mr Poland said that the pen that he had found had no engraving on it (VROI ts 34 - 35). When it was put to him that the pen found in Mr Poland's property had S's name engraved on it, he was unable to explain how the pen ended up in his pocket (VROI ts 35 - 36).
Mr Poland agreed that he had injuries on his hands. He said that he had 'stubbed' his finger 'two days ago' (VROI ts 37).
It was not disputed that some of what Mr Poland had said in the interview - in particular, his denial that he entered the unit at 258B Grand Promenade, Dianella, and ransacked it - was untruthful.

The closing addresses

The State's case

The starting point for the State was that Mr Poland admitted that he was in the unit on the night in question. Even in the absence of this admission, the forensic evidence, coupled with the fact that S's pen was found in Mr Poland's pocket, overwhelmingly proved Mr Poland's presence.
The State submitted that S's evidence, upon close analysis, was that he only dealt with one man; that is, the man who kicked in the front door. S's perception of more than one offender was affected by the traumatic nature of the event and the injuries he received. The statements he made to others about the number of offenders were thus unreliable as to their accuracy.
The State submitted that S's Glasgow Coma Score of 15 upon his presentation at Sir Charles Gairdner Hospital was not the proper measure of whether S's perceptions were accurate.
The State submitted that there was no evidence which cast doubt upon its case that Mr Poland acted alone, because:
(a)The unit showed no sign of two, or three, or four, burglars all trashing the unit and grabbing what they could carry, before running off with it.
(b)The existence of things 'stashed in various places' near the unit at 258B Grand Promenade, Dianella, is inconsistent with there being multiple burglars as multiple burglars would have taken stolen items with them rather than trying to hide them close to the scene of the crime.
(c)While Mr Poland may have consumed alcohol on the night in question, he behaved in a cunning, cool way. He approached O and asked him to call a cab. Mr Poland cooperated with First Class Constable Parker and falsely accounted for his presence in the vicinity of the unit, with the excuse that he had been visiting friends in the units at 268 Grand Promenade, Dianella. He casually told lies to the police in his interview.
(d)There was no forensic evidence implicating anyone apart from Mr Poland in the offences.
(e)The evidence of J and W established that the only item of property missing in the end was W's Subaru spare key. If there were four burglars involved, the State rhetorically asked 'What is it the other three actually took?'
The State, in effect, submitted that it was fanciful to think that the alleged other offenders took off without a trace, leaving Mr Poland to be apprehended.
The State addressed the question of why the wallet and the pen box were found at the building site down Randall Street. The State submitted that either Mr Poland went down Randall Street, or he dumped the wallet and the pen box closer to the crime scene and someone else picked them up and dumped them at the building site. Irrespective of how those items came to be at the building site in Randall Street, it is clear that Mr Poland had S's pen in his property.
As to the object that was used to penetrate S, it is not known what that object was. As Dr Kelly had not provided her opinion to the police about the nature of the object until February 2012, it was a matter that may have escaped the attention of the investigating officers, particularly when the general dimensions of the object are consistent with many items.

The State submitted that:
(a)if Mr Poland had committed the offences with others, he would have done so with people known to him;
(b)the movements of those staying at unit 1, 288 Grand Promenade, Dianella, on 14 October 2011 were accounted for;
(c)it could not reasonably be said that Colin Poland was a co-offender; and
(d)on the night in question, Colin Poland was in the company of Ms Craggs and, apart from a brief period where he had gone to the Gull service station to get something to eat (which was confirmed by the CCTV footage captured there), he was in her company at all relevant times.
The State placed considerable store on the blood pattern analysis of Mr Poland's clothing. Not only was S's blood 'all over' his clothing; there were also projected bloodstains on Mr Poland's Puma jumper and jeans. The bloodstains on the jeans were either cast off an object or something moving through the air. However, the bloodstains on Mr Poland's Puma jumper were projected via expiration or impact. According to the State, the bloodstains on his Puma jumper showed that Mr Poland was close enough to S that he must have been, in fact, front on to S, and that blood was transferred to Mr Poland either as a result of a weapon or fist impacting S, or S coughing or breathing blood onto Mr Poland.
The State submitted that an inference could be drawn that Mr Poland injured his hand during the assault upon S, although the State's case did not depend upon the jury drawing that particular inference.
Whatever caused his bleeding, it is clear from the forensic evidence that Mr Poland was bleeding from some source. This is because his blood was found in the master bedroom, the walk-in robe and the hallway cupboards. He must also have been in the bedroom where S's gold pen was kept.
The State's case was that the burglary took time, probably quite a long time, in order for Mr Poland to ransack the unit. The State's case was that Mr Poland was able to take his time because he had disabled S.
The State submitted that Mr Poland lied to the police in his video record of interview when he denied having anything to do with the offences which had been committed on the night in question. The State argued that the jury should not give any credibility to Mr Poland's assertion to the police that he found what had occurred to S repulsive. The State submitted that the jury should reject any suggestion that Mr Poland got the bloodstains on him because he was leaning over S out of concern for his welfare. If he had any such concern, he would not have left S there without calling for medical assistance.

The defence case

It was submitted on behalf of Mr Poland that S's evidence itself gave rise to a reasonable doubt that Mr Poland acted alone. The defence pointed to S's statements on the night of the offence to J, First Class Constable Wooler and at the hospital, which, the defence said, cast doubt upon the reliability of S’s testimony that he only dealt with one offender. Counsel also pointed to S's evidence that he recalled seeing two people at the door, and that the man he spoke to said 'We want your fucking jewellery and money'.
It was submitted on behalf of Mr Poland that his behaviour on the night in question was inconsistent with a person who had just callously and viciously assaulted an elderly man, then anally penetrating him. It was suggested that the presence of S's blood on Mr Poland's clothing was explained by Mr Poland leaning over S out of concern for him.
Counsel for Mr Poland submitted that it was clear Mr Poland had ransacked the unit, given that his blood was found in the bedroom, walk-in robe and the hallway. However, the source of this blood was not a cut to the hand, but, rather, a spontaneous nose bleed. It was said that a small cut or abrasion to the hand could not have caused the amount of blood which had been left in the locations just mentioned. Moreover, the injury to the hand was not caused by Mr Poland assaulting S.
Defence counsel suggested that Mr Poland's interest was in stealing property. Defence counsel further suggested that, in light of the vicious nature of the attacks upon S, the person who attacked S was not really interested in committing a burglary involving the theft of property at all.
It was submitted on behalf of Mr Poland that the absence of forensic evidence implicating anyone other than S was no basis upon which to conclude that other people were not in the unit. Defence counsel reminded the jury that fingerprints and DNA are not always left at a crime scene.
Defence counsel submitted that the distribution of items stolen from the burglary around the neighbourhood was clear evidence of the involvement of others. Defence counsel highlighted that the wallet and pen box were found some distance from 258B Grand Promenade, Dianella, thereby suggesting that they were dumped there by someone other than Mr Poland.
It was submitted that the evidence of W and J should leave the jury with no confidence that they were aware of all of the items that had been stolen from the unit, and that items may have been stolen of which they were unaware. In any event, defence counsel pointed to the evidence that the Subaru car key had not been found and suggested that it might have been taken by someone other than Mr Poland.
Defence counsel further submitted that, despite a thorough search by police, the item used to anally penetrate S was missing, and the person who took it (not being Mr Poland) was the person who had used it on S.
The defence were critical of the way in which the police had investigated the case. It was suggested that the police had taken a blinkered approach to potential co-offenders. It was submitted that the focus of the police investigation on the whereabouts of those who had been at unit 1, 288 Grand Promenade, Dianella, was flawed. For example, it was suggested that the police should have investigated Mr Taylor because he had earlier driven Ms Craggs to the unit. Similarly, defence counsel was critical of the police for not undertaking further DNA analysis of Mr Poland's jeans pocket and the inside of his hoodie, as well as the clothing of others in order to include or exclude Mr Bromfield's DNA. With respect to Mr Bromfield's DNA being found on the ring discovered at 270A Grand Promenade, Dianella, it was submitted that this DNA could have been transferred from someone other than Mr Poland, thus reinforcing the case that there was more than one offender.
In the end, no suggestion was made on behalf of Mr Poland that Mr Calyun, Mr Bromfield, Bevan Parfitt, Alan Parfitt or any of the women who were at unit 1, 288 Grand Promenade, Dianella, were involved in the burglary. However, it was suggested to the jury that they should look carefully at Colin Poland and Ashley Parfitt as co-offenders.
It was submitted that Ashley Parfitt's movements had not been completely accounted for. With respect to Colin Poland, it was submitted that:
(a)Mr Poland's blood was found on the back of the shorts that Colin Poland was wearing when he was apprehended by the police;
(b)at one stage during the night, Colin Poland left unit 1, 288 Grand Promenade, Dianella, and went to the Gull service station, thus he walked past 258B Grand Promenade, Dianella;
(c)if he was looking for Mr Poland that night, he may have found him there; and
(d)no real reliance can be placed upon Ms Cragg's evidence, given her sleepless and drug-affected state.

Defence application with respect to count 3

Prior to the jury's empanelment, and in their absence, the State made it clear that the case against Mr Poland on count 3 was upon the basis that he was the sole offender (ts 18).
In response, defence counsel submitted that it was 'improper' for the State to present its case upon that basis. Defence counsel submitted that there was no case to answer on count 3 (ts 20).
In the course of submissions, there was a discussion between counsel and the learned trial judge as to the admissibility of statements allegedly made by S to others regarding the number of offenders. The State accepted that, in the event that S, first, gave evidence which was inconsistent with those statements; or second, could not recall what he had said to those persons, then evidence could be adduced of what S had said on this topic as a prior inconsistent statement going to S's credibility (s 21 and s 22 of the Evidence Act 1906 (WA)). At one point during submissions, the following exchange took place between the learned trial judge and the State:
SWEENEY DCJ: Yes. But providing the basis is set up. I mean, it seems to me if Ms Boston says to him, 'Do you accept there was more than one burglar?' And he says, 'Yes, yes, I accept that. I think I saw another one,' or 'I remember there were four,' or whatever - whatever emerges ‑ ‑ ‑
PETRUSA, MS: I'm not anticipating that, your Honour.
SWEENEY DCJ: No, but let's say - let's say he says that then it seems to me the defence has what it wants.
PETRUSA, MS: And I would have to reconsider the State's position, your Honour, in terms of the case in its entirety.
SWEENEY DCJ: Well, you've taken a view ‑ ‑ ‑
PETRUSA, MS: I have, yes.
SWEENEY DCJ: - - - on the facts and the reliability of what he has said to have first said and you've taken a strong position, if I can put it that way, on count 3 that that count stands or falls on that proposition being made good.
PETRUSA, MS: Yes.
SWEENEY DCJ: But you accept as a basic proposition the defence is entitled to explore his recollection as to whether there was more than one perpetrator and to further that position, should it need to, depending on what he says, it would be entitled to put to him prior statements [made] to other people: the daughter, the son-in-law, the police officer and a doctor.
PETRUSA, MS: Yes, your Honour.
SWEENEY DCJ: All right. All right. Thank you for that (ts 58 - 59).
Defence counsel went further and submitted that the statements were admissible for their truth. The basis for this submission was that the statements were reliable, probative and should be admitted despite their hearsay nature. Defence counsel disavowed any reliance upon the statements being part of the res gestae (ts 54) and did not refer to s 79C of the Evidence Act with respect to notes taken by a police officer (First Class Constable Wooler) and records kept by Sir Charles Gairdner Hospital.
On 5 June 2013, her Honour dismissed the defence application that there was no case to answer in respect of count 3 (ts 103).
Defence counsel made a further no-case submission at the conclusion of the State's case (ts 1251 - 1252). That application was also dismissed by the learned trial judge (ts 1276).
I will deal with Mr Poland’s proposed grounds of appeal against conviction in reverse order.

Ground 2 - were the verdicts unreasonable?

This court must allow an appeal if, in its opinion, a verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) Criminal Appeals Act 2004 (WA). Where a court of criminal appeal sets aside a verdict on this ground, it frequently does so, expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492.
The relevant legal principles to be applied in respect of a claim that a verdict of guilty should be set aside because it is unreasonable or cannot be supported were recently described by Buss JA (with whom Martin CJ and I agreed) in Mack v The State of Western Australia [2014] WASCA 207 [143] - [147] in these terms:
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 - 493); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ); M (492 - 493); SKA [20].
Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the evidence (in particular, the competing evidence). See SKA [22], [24].
However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

Mr Poland's submissions

Counsel for Mr Poland's primary submission was that the only witness capable of giving direct evidence as to the number of offenders in the unit that night was S. His evidence, it was claimed, was consistent with there being more than one offender (appeal ts 16). Alternatively, it was submitted that there were 'two significant shortcomings in the [State's] case' (appeal ts 19). First, the evidence of Mr Bromfield's DNA on the ring stolen from 258B Grand Promenade, Dianella, suggests that someone apart from Mr Poland was involved in the offences. This is because, although many swabs were taken from Mr Poland's clothing, Mr Bromfield's DNA was not found on any of them. Second, the implement used to sexually penetrate S has not been found, which suggests it must have been taken away by someone other than Mr Poland (appeal ts 19 - 20, 25, 36 - 37).

Analysis - ground 2

The critical question for the jury to decide was whether the State had proved beyond reasonable doubt that the one and only offender was Mr Poland. Put another way, it was for the State to exclude as a reasonable possibility that Mr Poland, together with one or more persons, were the offenders.
The answer to this question depended upon a consideration and analysis of the whole of the evidence produced at trial. As Mr Poland elected not to give or adduce evidence, the question must be answered by having regard to the evidence led by the State, including Mr Poland's video record of interview.
I do not accept the submission put on behalf of Mr Poland that S's evidence gives rise to a reasonable doubt as to whether he (Mr Poland) was the one and only offender.
S testified that he lost consciousness and had no recollection of what happened to him between the demand for jewellery and money and waking up in the intensive care unit at Sir Charles Gairdner Hospital. His recollection, as expressed in his examination-in-chief and re-examination, was that, when he went to the door, he saw and spoke to only one person.
In cross-examination, S agreed that:
(a)the person at the door commenced his demand for money and jewellery with the words 'we want' (ts 239);
(b)there was another man behind the man who came inside (ts 239); and
(c)there were two people at the door (ts 242).
These answers, which are capable of supporting Mr Poland's submission to this court, cannot be read in isolation. Rather, they must be viewed in the context that, during cross-examination, S frequently expressed uncertainty and difficulty recalling events (ts 237 ‑ 239, 241 ‑ 244). Moreover, when asked in re-examination how he knew there were other people at the door, S said that he 'felt' that someone else was there, rather than actually having seen anybody else.
Further, on any view, S suffered very serious and life-threatening injuries to his head and other parts of his body. Among other things, his eyes had been swollen shut as a result of the beating he received. He apparently lost consciousness.
Mr Poland's counsel pointed to:
(a)S's Glasgow Coma Scale score of 15;
(b)the evidence of Dr Mackay and Dr Paterson; and
(c)the fact that S correctly advised doctors that he was taking the blood-thinning medication, Warfarin,
to support the proposition that S was coherent whilst he was in the emergency department.
The Glasgow Coma Scale is not a test of cognitive accuracy and reliability. It is, as Dr Paterson explained, an objective marker of how awake someone is. Although the medical evidence reveals that S was conscious and able to communicate whilst he was in the emergency department, it does not equate to an ability to accurately recall and relate the traumatic and sudden events which had occurred only hours before.
Having regard to all of these matters, the jury was entitled to be satisfied beyond reasonable doubt that S only spoke to and dealt with one man at the front door, and that there were no others present. Alternatively, any impression S had that there were others present was unreliable, incapable of acceptance and did not create a reasonable doubt as to whether the State had proved Mr Poland's guilt on counts 2 and 3 and the circumstance of aggravation pleaded in count 1 that he did bodily harm to S. It must be remembered that the jury had the considerable advantage, which this court does not have, of seeing S give evidence.
I now turn to Mr Poland's alternative submissions concerning Mr Bromfield's DNA and the absence of the implement used to sexually penetrate S.
In respect of the submission concerning Mr Bromfield's DNA, Mr Poland's counsel submitted that there were three possibilities: first, Mr Bromfield was actually present and the evidence that he was elsewhere when the offences occurred was unreliable; second, Mr Poland transferred the DNA onto the ring; third, someone other than Mr Poland transferred Mr Bromfield's DNA onto the ring.
No challenge was mounted at trial to the evidence that:
(a)Mr Bromfield was at the celebrations at the Bennett Springs Tavern in Beechboro from approximately 7.30 pm on 14 October 2011;
(b)after the celebrations, Mr Bromfield was 'kicked out' of the tavern just after midnight on 15 October 2011; and
(c)Mr Bromfield and others returned to his mother's house where he remained until he walked his friend, Clare, home at about 2.00 am or 2.30 am.
With respect to the second and third possibilities, the jury was entitled to be satisfied beyond reasonable doubt that it was Mr Poland who transferred Mr Bromfield's DNA onto the ring. According to Mr Bromfield's mother, Mr Poland was Mr Bromfield's best mate. Mr Calyun's evidence was that, leading up to the date of the offences, Mr Bromfield and Mr Poland were living (with others) in close quarters at unit 1, 288 Grand Promenade, Dianella. Mr Calyun's unchallenged evidence was that both men were at that address on 14 October 2011. There was, in my view, ample opportunity for Mr Bromfield's DNA to be transferred to Mr Poland.

Buss JA made a number of observations concerning s 79C of the Evidence Act. Amongst those observations, his Honour noted that each of s 79C(1) and s 79C(2a) makes admissible statements in a document, and not the document itself. His Honour also noted that s 79C(3) is significant because s 79C not only makes a statement in a document admissible notwithstanding the rule against hearsay; it also makes the statement admissible notwithstanding the rule against secondary evidence of the contents of the document.
A statement in a document only becomes admissible under s 79C(1) and s 79C(2a) of the Evidence Act 'on production of the document'. There was some controversy in this case about whether the document had been produced.
Relevantly, the words 'production' or 'produced' are not defined in s 79B of the Evidence Act.
The evident purpose of the production of a document is to enable its authenticity and accuracy to be evaluated and, if necessary, tested under cross-examination. The requirement in s 79C(1) and s 79C(2a) for production of a document does not equate to a requirement that the document be tendered. The distinction is appropriate because, as I have just said, each of s 79C(1) and s 79C(2a) makes admissible statements in a document, not the document itself. The document may ultimately be tendered if there is a proper basis for doing so, but that is not a positive requirement.
'Production' of the document requires formal presentation of the document to the court during the hearing. The need to produce the document to the court is supported not only by the natural and ordinary meaning of the expression 'production of the document' used in s 79C(1) and s 79C(2a), but also:
(a)by the requirement in s 79C(2a) that the court be satisfied that the business record is a genuine business record; and
(b)to enable the court, pursuant to s 79C(5)(a), to draw any reasonable inference from the form of the contents of the document for the purposes of deciding whether or not a statement in the document is admissible.
Thus, I would construe the expression 'production of the document' in both s 79C(1) and s 79C(2a) as conditioning admissibility upon production of the document to the court during the hearing, without necessarily requiring the document to be tendered in evidence.
In the present case, the hospital notes containing the statement made by S about 'multiple people' were not produced to the court. A precondition of admissibility under s 79C(1) and s 79C(2a) was not met. Accordingly, the statement in the notes was not admissible for its truth pursuant to either subsection.
Ground 1 has not been made out.

The application of the proviso if the s 79C point had been made out

The State submitted that if ground 1 was upheld to the extent that S's statement, as recorded in the Sir Charles Gairdner Hospital notes, was admissible pursuant to s 79C of the Evidence Act, the proviso contained in s 30(3) of the Criminal Appeals Act should be applied (appeal ts 67). In case I am wrong in my analysis of the s 79C point, I will deal with the State's submission.
I gratefully adopt the following statements made by Buss JA in LFG v The State of Western Australia [2015] WASCA 88 [378] - [380] as to the proper application of the proviso:
Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
However, by s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that 'no substantial miscarriage of justice has occurred'.
In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:
As this Court's decision in AK v Western Australia ((2008) 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].
See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] ‑ [51] (French CJ, Crennan, Bell & Keane JJ).
I am satisfied beyond reasonable doubt that no substantial miscarriage of justice would have occurred by reason of the failure to admit, as evidence of its truth, the statement made by S as recorded in the Sir Charles Gairdner Hospital notes.
I will not repeat my analysis of the evidence with respect to ground 2. It is sufficient for me to say that I am, based upon that analysis, satisfied beyond reasonable doubt of the appellant's guilt of the counts set out in the indictment. Further, for the reasons I set out in [226] hereof, and while, even if the evidence of S's statement as recorded in the hospital notes was admissible, it was, in my view, highly unreliable as to its accuracy and therefore of little, if any, weight. Its admission, either by itself or in combination with the other evidence, does not change my view as to the appellant's guilt.
Finally, any failure to admit the evidence pursuant to s 79C of the Evidence Act was not, in the circumstances, of such a nature that precludes the application of the proviso.
Had the s 79C point been made out and, to that extent, ground 1 had been allowed, I would have applied the proviso.

Conclusion and orders - conviction appeal

While I would give leave to appeal in respect of each ground, neither has been made out. Accordingly, Mr Poland's appeal against conviction must be dismissed.
The orders I would make are:
1.Leave to appeal is granted.
2.The appeal is dismissed.

The appeals against sentence

As I have said, each of the parties has sought leave to appeal against sentence.
Mr Poland's sole proposed ground of appeal against sentence is that the total effective sentence infringed both limbs of the totality principle. He does not challenge any of the individual sentences. The State alleges that the individual sentences for counts 2 and 3 (aggravated grievous bodily harm and aggravated sexual penetration without consent) were manifestly inadequate (grounds 1 and 2) and that the total effective sentence infringed the first limb of the totality principle (ground 3).
In each appeal, the question of leave was referred to the hearing of the appeal.

The sentencing remarks

The learned sentencing judge found that Mr Poland was entirely responsible for 'everything that happened' to S (ts 1558).
Her Honour found that, sometime after 10.50 pm on 14 October 2011, Mr Poland pounded on the door at 258B Grand Promenade, Dianella. Before S got to the door, Mr Poland kicked it open. Mr Poland demanded money and jewellery. After Mr Poland entered the unit, he struck S and engaged in a sustained and savage beating of him, using at least one, and probably two, different weapons. Her Honour found that Mr Poland knew that he was beating an elderly man (ts 1559). Her Honour found that Mr Poland beat S to prevent him from calling police or alerting neighbours. She said that the violence inflicted upon S was 'absolutely senselessly excessive' (ts 1560).
In addition to beating him, Mr Poland anally penetrated him with an object, perforating his rectum. Her Honour described this act as a 'senseless, gratuitous act of violence and cruelty' (ts 1561).
Her Honour described in detail the injuries S sustained, noting that he 'suffered grievous bodily harm on several counts'. She noted that, as a result of the injury to S's rectum, he has been left with a colostomy pouch and is now blind in one eye.
Her Honour was careful to differentiate between the grievous bodily harm (the subject of count 2), and the perforated rectum (the subject of count 3).
Her Honour observed that Mr Poland rendered no assistance to S.
In relation to the burglary, her Honour found that Mr Poland ransacked the unit, bundled the items he had stolen and then concealed them. Her Honour found that when J, W and O returned to the unit, Mr Poland was pretending to be an innocent passerby who was trying to hail a taxi. Her Honour said that Mr Poland told a series of lies in his video record of interview with the police.
Her Honour remarked on the adverse effects that Mr Poland's offending has had upon S and W. She said that S's life has been irrevocably changed. He must now use a walking frame. S has had to leave the accommodation in which he lived and move in with W because he requires constant care. He finds it impossible to read and write and has stopped driving. S's short-term memory has been affected and his ability to play music has deteriorated. Her Honour said:
In short, [S] has gone from being an 89-year-old gent, living his life with a pretty decent amount of independence and quality of enjoyment of life, to being someone who now has to live with family, who cannot do many of the activities he used to enjoy, and who is painfully aware that he is now dependent on others for many of his basic day-to-day needs, such as showering and changing the colostomy bag. And his family have had to change their lives to meet his needs (ts 1566).
W has been severely affected by the offences. She has been diagnosed with post-traumatic stress disorder and depression.
Her Honour described the burglary as blatant and brazen (ts 1573). She said that counts 2 and 3 were within 'the worst case category' of offending (ts 1573).

Mr Poland's personal circumstances

Mr Poland was 30 years of age when he committed the offences and 32 years of age when he was sentenced. His childhood was marred by victimisation and abuse.
Mr Poland has used a variety of illicit drugs over the years, as well as alcohol and benzodiazepines.
Mr Poland has a lengthy criminal history. As an adult, he has been convicted of assault occasioning bodily harm and burglary. Her Honour observed that violence towards total strangers was not out of character and that committing burglaries was 'positively in character' (ts 1568). Her Honour remarked:
Your record overall reflects a violent man who has no respect for the law or the rights of his fellow human beings.

The reports

The learned sentencing judge had the benefit of a pre-sentence report and psychological report. Mr Poland denied any responsibility in relation to the offences, including having ever been inside the unit. This is despite his plea of guilty to the burglary and to the presence of his DNA inside the unit. Paradoxically, Mr Poland told the clinical psychologist that he was so heavily intoxicated on the night in question that he had little recollection of what he had done.
In the opinion of the clinical psychologist, the anal penetration was likely not a reflection of any sexual deviant interest, but, rather, was fuelled by violence and perhaps a desire to debase his victim.
In the opinion of the psychologist, it is likely that Mr Poland has an antisocial personality disorder. Mr Poland's overall score, using the HCR-20 tool, was predictive of a high risk of reoffending in a violent manner.

Mitigating factors

Her Honour expressed the view that there was not much to be said in mitigation. She acknowledged the plea of guilty in respect of count 1. However, it came at a very late stage in the face of overwhelming forensic evidence. Her Honour allowed a 5% discount for the plea pursuant to s 9AA of the Sentencing Act 1995 (WA) (ts 1572). Her Honour considered Mr Poland's childhood abuse as mitigatory. Her Honour said that Mr Poland was not entitled to mitigation by reason of his age, insight or willingness to take responsibility for his offending (ts 1573 - 1575).

The sentences

Her Honour noted that the maximum penalty was 20 years' imprisonment for count 1; 14 years' imprisonment for count 2; and, 20 years' imprisonment for count 3.
Her Honour considered the dominant sentencing considerations were personal and general deterrence, as well as public protection. As to general deterrence, her Honour said that it was necessary to send a message to the community that vicious offences against the elderly and vulnerable will be met with serious punishment (ts 1575). As to public protection, her Honour said that Mr Poland represented 'a danger to the community' and posed 'a high risk of violently reoffending' (ts 1575).
Although the three offences occurred in the one night and were linked, her Honour considered it inappropriate to apply the one transaction rule, or to make the sentences concurrent.
Her Honour reasoned that, purely for reasons of totality, the sentence for count 1 (the burglary) 'will be less than it deserves' (ts 1576). She then went on to impose the sentences referred to earlier in these reasons (ts 1576).

General principles applicable to appeals against sentence

This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. In the present case, each appeal relies upon implied error only. It has not been alleged that the learned sentencing judge made some error of legal principle or fact.
There are special principles applicable to State appeals. They are well known and need not be repeated. I bear in mind that the principle of double jeopardy, which once applied to State appeals, has now been abolished: s 41(4)(b) of the Criminal Appeals Act. This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow a State appeal against a sentence that is erroneously lenient.
Before an individual sentence can be said to be manifestly inadequate or excessive, or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2; (2014) 236 A Crim R 116 [26].
The orthodox approach to the question of whether an individual sentence is manifestly inadequate or excessive is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences customarily imposed in comparable appellate cases and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context refers to the destruction of any reasonable expectation of a useful life after release. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at simply by adding up all of the appropriate individual sentences.
It is relevant in the consideration of each appeal to have regard to any comparable cases. Such cases are a yardstick against which the sentences in question may be measured. However, the range of sentences imposed in other cases does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. The guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon a careful consideration of its own facts and circumstances.

Analysis of Mr Poland's appeal against sentence

It was submitted on behalf of Mr Poland that the accumulation of each of the sentences imposed by her Honour failed to take account, or any proper account, of the fact that the offences occurred as part of the one transaction. It was submitted that her Honour should have made each of the sentences wholly or partly concurrent to give effect to both limbs of the totality principle.
These submissions must be rejected. The one transaction rule is not a rule at all. It will not always be the case that individual offences, when committed as part of the one episode, will attract concurrent sentences. This is because the ultimate requirement when sentencing a person who has committed multiple offences is to impose punishment which is a just and proper reflection of the offender's total criminality: Lesay v The State of Western Australia [2011] WASCA 154 [21]. In any particular case, how this is achieved will vary. Some or even total accumulation may be required, even when the offences are committed as part of one episode of criminal conduct.
I will not repeat the circumstances of the offending. Looked at overall, these were horrendous offences committed upon an elderly and extremely vulnerable man which have had serious consequences not only for him, but also for those who care for him. Two of the offences were, rightly in my view, characterised as being in the worst category of their kind. There was little that could be said by way of mitigation. The plea of guilty on count 1 came very late. Mr Poland's personal circumstances were, generally, unfavourable. Her Honour was entirely correct to emphasise personal and general deterrence, as well as the protection of the public.
I have reviewed a number of cases which have involved overall offending with some factual similarity to the present case, namely Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1; Cooper v The State of Western Australia [2009] WASCA 37; Pollock v The State of Western Australia [2009] WASCA 121; Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 and THG v The State of Western Australia [2012] WASCA 139. I immediately put to one side Keating because, on any analysis, the facts and circumstances of that case - which resulted in a total effective sentence of 24 years' imprisonment without parole - were worse than the present case.
It is unnecessary to analyse the facts and circumstances of the other cases I have mentioned. It is sufficient to say that I do not regard the total effective sentence imposed upon Mr Poland as being inconsistent with those cases.

Without doubt, the total effective sentence imposed upon Mr Poland was substantial. However, a proper exercise of the sentencing discretion required the imposition of a substantial sentence. I am far from persuaded that the total effective sentence in the present case infringed the first limb of the totality principle.
Nor have I been persuaded that the total effective sentence infringed the second limb of the totality principle. I do not regard it as 'crushing', as that term is to be understood.
Mr Poland has not demonstrated implied error by the learned sentencing judge. As error has not been demonstrated, this court cannot intervene.
I would not give leave to appeal. Mr Poland's appeal must be dismissed.

Analysis of the State's appeal against sentence

The crux of the State's submissions in respect of its appeal against sentence is that there was a disconnection between her Honour's finding that counts 2 and 3 were in the worst category, and the individual sentences for those offences, as well as the total effective sentence, ultimately imposed. Senior counsel for the State conceded that, if the individual sentences on counts 2 and 3 were increased, there would have to have been some concurrency, a position echoed by counsel for Mr Poland (appeal ts 78, 84).
The real issue raised by the State is the question of totality. As this court explained in Giglia v The State of Western Australia [2010] WASCA 9 [40], where there is a challenge on totality grounds, the severity of the sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.
The characterisation that an offence is in the worst category allows, although does not require, a sentencing judge to impose the maximum penalty or something approaching it: The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 and GHK v The State of Western Australia [2014] WASCA 19 [46]. As was pointed out in GHK, whether, in a particular case, a sentencing judge is required to impose the maximum penalty or something approaching it for an individual offence within the worst category will depend upon the application of settled sentencing principles to the facts and circumstances of the individual offence, and the personal circumstances and antecedents of the offender.
Standing by themselves, and having regard to the finding that the offences were in the worst category, I would have considered the individual sentences for counts 2 and 3 to be manifestly inadequate. However, each sentence does not stand by itself. It must be viewed in light of the total effective sentence imposed upon Mr Poland.
Having regard to the overall criminality, and taking into account all of the relevant circumstances, including those referable to Mr Poland, I regard the total effective sentence imposed upon him as being towards the lower end of an appropriate exercise of the sentencing discretion. However, that is an insufficient basis for this court to intervene. I would not interfere with the overall sentence that was imposed upon Mr Poland. While I would give leave to appeal with respect to all three grounds of the State's appeal, I have concluded that none of the grounds have been made out, with the consequence that the appeal must be dismissed.

Conclusion and orders - sentence appeals

The orders I would make in respect of Mr Poland’s appeal against sentence are:
1.Leave to appeal is refused.
2.The appeal is dismissed.
The orders I would make in respect of the State's appeal against sentence are:
1.Leave to appeal is granted on grounds 1, 2 and 3.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Honourable Justice Mazza
8 MAY 2020