Ramsay v The State of Western Australia

[2008] WASCA 17

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   RAMSAY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 17

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   23 OCTOBER 2007

DELIVERED          :   31 JANUARY 2008

FILE NO/S:   CACR 152 of 2006

BETWEEN:   JAMES ANDREW RAMSAY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAVRIANOU DCJ

File No  :IND 32 of 2005

Catchwords:

Criminal law - Conspiracy - Criminal Code 1913 (WA), s 558(1) - Nature and elements of the offence - Actual intention to commit an offence - Agreement between two or more people to commit an offence - Later withdrawal from or abandonment of the agreement is not a defence - No requirement that any unlawful or overt acts have been undertaken towards the implementation of the agreement

Criminal law - Appeal against conviction - Whether conviction unsafe and unsatisfactory - Whether it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty

Criminal law - Practice and procedure - Evidence of a co­offender who pleaded guilty and was convicted separately and agreed to testify for the prosecution at the appellant's trial in exchange for a reduced sentence - Warning required that the co­offender's prior plea of guilty must not be used as evidence against the appellant

Criminal law - Practice and procedure - Statements by a witness at an earlier trial which are adopted by the witness at a later trial are part of the witness's evidence at the later trial

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)
Criminal Code 1913 (WA), s 304(2), s 558(1)

Result:

Leave to appeal granted in relation to ground 1
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S A Shirrefs SC

Respondent:     Mr D Dempster

Solicitors:

Appellant:     Holborn Lenhoff Massey

Respondent:     Director of Public Prosecutions (WA)

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

Ansari v The Queen [2007] NSWCCA 204

Director of Public Prosecutions v Doot [1973] AC 807

Giorgianni v The Queen (1985) 156 CLR 473

Harman v Western Australia [2004] WASCA 230; (2004) 29 WAR 380

Jones v The Queen (1997) 191 CLR 439

Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309

Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485

M v The Queen (1994) 181 CLR 487

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Peters v The Queen (1998) 192 CLR 493

R v Condren (1990) 49 A Crim R 79

R v Jacquier (1979) SASR 543

R v O'Brien [1954] SCR 666

R v Trudgeon (1988) 39 A Crim R 252

Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Western Australia v Marchesi [2005] WASCA 133; (2005) 30 WAR 359

1. WHEELER JA:  I agree with Buss JA.

2. PULLIN JA:  I agree with Buss JA.

3. BUSS JA:  The indictment against the appellant charged that between 3 June 2004 and 8 June 2004, Jamie Johnston, the appellant and Julian Murray conspired with each other and another (later identified as Grant Rushby) to commit an indictable offence, namely, with intent to harm Kellie Anderson, doing an act as a result of which bodily harm would be caused to her. 

4. On 21 August 2006, the appellant and Murray stood trial before Healy DCJ and a jury.  After hearing evidence from Anderson, Rushby and two other witnesses, the trial was aborted on 22 August 2006. 

5. The appellant and Murray were then tried before Stavrianou DCJ and a jury from 30 October 2006 to 1 November 2006.  On 1 November 2006, the trial judge directed the jury to acquit Murray following a no‑case submission.  The appellant was, however, convicted on 2 November 2006.  He was sentenced to 3 years and 4 months imprisonment with eligibility for parole.  The appellant appeals to this court against his conviction.

6. I should also note that:

   (a)On 9 October 2006, Johnston appeared before Sleight DCJ and pleaded guilty to the charge.  He was sentenced to a term of imprisonment.

   (b)On 10 August 2004, Rushby appeared before Kennedy CJDC and pleaded guilty to the charge.  He was sentenced to a term of imprisonment, but received a discount for his fast‑track plea, his past cooperation with the police, and his willingness to give evidence of significance against the appellant.

Overview

1. In 2004, the appellant had a short relationship with Anderson as a result of which she became pregnant.  He wanted Anderson to terminate the pregnancy, but she refused.  The appellant contacted Rushby and told him that he needed someone 'beaten up'.  Rushby subsequently approached Johnston, who later approached Murray, to carry out the assault.

1. The appellant, Anderson and Rushby gave evidence.  Johnston did not give evidence.  Murray was acquitted following the no-case submission (ts 494 ‑ 502).  Various other witnesses were called.

Anderson's evidence

1. The material substance of Anderson's evidence was as follows.

2. In about mid‑January 2004, Anderson moved from Augusta, where her parents lived, to Subiaco.  In April 2004, she returned  to Augusta.  At that time, Anderson had an interest in a car detailing business in Wangara called Executive Detailing.  She had a business partner named Anita Wawrzyniak (ts 321 ‑ 323).

3. Anderson met the appellant in January 2004, and commenced a relationship with him that lasted for about three or four weeks.  In early February 2004, Anderson discovered she was pregnant and told the appellant.  She said he was the father.  The appellant was very upset and wanted Anderson to terminate the pregnancy.  He was concerned about the cost of supporting a child, and that it would affect his job in some way.  The appellant said it would cost him $250,000 over 18 years.  Anderson next saw the appellant in about June 2004.  By that time, they had been in contact via mobile phone text message, but were not getting along because the appellant did not want his name on the birth certificate, and he still wanted Anderson to terminate the pregnancy (ts 323 ‑ 325, 332, 337).

4. When Anderson met the appellant in June 2004 at a restaurant in Leederville, he again raised the possibility of terminating the pregnancy, but Anderson told him it was too late.  The appellant then left.  Anderson stayed at the restaurant with friends. 

5. Anderson was shown some photographs of a silver motor vehicle which she identified as her car.  She also identified herself in other photographs.  She said the photographs would have been taken on the night she met the appellant in Leederville in June 2004 (ts 332 ‑ 334).

6. Anderson worked about one day a week, usually on Fridays, when she would drive from Augusta to Perth.  Her business partner, Anita, managed the business, and Anderson did the administration work.  Anita drove a green Commodore.  Anderson would see Anita on weekends in Perth and would sometimes stay at her house.  Anderson said she had spoken to the appellant about her general interests, including her interest in horse‑riding.  She said he would know that she went to football matches.  Anderson did not tell the appellant that she had sought legal advice in relation to her pregnancy (ts 335 ‑ 336).

7. Anderson said that when she lived in Subiaco, the appellant knew where her apartment was located.  When she returned to Augusta in April 2004, however, they were no longer on speaking terms.  She had not told him where she was moving to.  The appellant would have been aware that her parents lived in Augusta.  He might have known where her business was located, but would not have known much about it (ts 336 ‑ 337, 341).

8. When Anderson was informed that the appellant had been charged with the offence in question, she attempted to contact him, but the appellant's bail conditions prohibited him from having contact with Anderson.  Anderson assisted in an application to change the appellant's bail conditions, and was able to communicate with him.  Anderson said she had been getting along quite well with the appellant since that time, and had written to the prosecutor saying she did not want to be part of the trial.  Anderson appeared by subpoena.  Apart from the appellant's monetary concerns in relation to the child, he had told her that he did not want a child whose parents would not be together.  Anderson said she had never asked the appellant for money (ts 337 ‑ 339).

Rushby's evidence

1. The material substance of Rushby's evidence was as follows. 

2. At all material times, Rushby was a member of the Special Air Service (SAS).  The appellant was in Rushby's team, and Rushby was his superior.  Rushby met Johnston through a common interest in skydiving (ts 341 ‑ 342).

3. The appellant spoke to Rushby in about early April 2004 and told him that he was in trouble with someone.  The appellant said he 'needed someone beaten up to get off his back'.  The appellant asked if Rushby knew anyone outside of the regiment who could take care of it, and Rushby replied in the affirmative.  Rushby had Johnston in mind, but did not give the appellant a name.  The appellant did not tell Rushby who he was speaking about, the gender of the person, or explain his 'problem'.  Rushby then approached Johnston for help.  Rushby told Johnson that one of his mates was 'in trouble' and 'needed someone outside the regiment to get him off his back'.  Rushby still did not know the nature of the problem.  Johnston told Rushby to get some information about who it was and then Johnston would take care of it.  Rushby understood Johnston to mean that he wanted as much information as possible about the person who was to be beaten up (ts 342 ‑ 343).

4. Some time later, the appellant approached Rushby, and Rushby told him to get the information, namely, as much information on the person as possible, but did not specify the kind of information that was required.  The appellant told Rushby in a later conversation that the person was a female.  The appellant and Rushby had a few short conversations, and the appellant was 'just determined to get it happening'.  One Friday morning, (4 June 2004), before the appellant and Rushby were going away for work, Rushby told the appellant to give him the information and $2,500 that day, because the appellant wanted it to 'happen' before he went away.  Earlier, the appellant had asked Rushby how much it would cost.  Rushby then discussed the cost with Johnston who told him it would be $1,500.  Rushby added the additional $1,000 because of 'a bit of greed'.  The appellant gave him an envelope containing the information and money.  On that Friday, the appellant told Rushby that he was 'getting extorted for money and that it was a girl that he'd slept with and she'd fallen pregnant and she was extorting him for cash and wouldn't take an abortion or something and he wanted her beaten up to get rid of the baby'.  Rushby had not named Johnston to the appellant.  As far as Rushby knew, the appellant did not know Johnston (ts 344 ‑ 346).

5. Rushby then drove to Johnston's house.  On the way, he took $1,000 for himself out of the envelope.  He saw that the envelope also contained, besides money, a note and some photographs, but he did not pay much attention to the contents.  He gave Johnston the envelope.  After handing over the envelope, Rushby began to realise what he was getting involved in, and began to feel sick.  Johnston reassured him and said 'Must happen, must be a bad person'.  Rushby then went home.  Johnston did not tell him what was going to happen.  Rushby had told Johnston, however, what the appellant wanted done (ts 347 ‑ 348, 400 ‑ 401).

6. That night (4 June 2004), or the next night (5 June 2004), Johnston called Rushby to tell him that Johnston's house had been raided by the police and that the envelope had been taken.  Rushby then thought it was all over.  Johnston told Rushby to get some more information and he would take care of it, but Rushby did not really say anything because he thought it was his 'out'.  Rushby spoke to the appellant on the following Monday (7 June 2004), explained the situation, and said that everything was finished, nothing could happen, that the police had the envelope, and that as far as Rushby was concerned, it was over (ts 348).  Rushby said he was 'sort of pleased that it had stopped' (ts 402).

7. Rushby admitted he was a convicted thief.  A police search of Rushby's locker revealed a Glock pistol with the serial number erased, and a search of his house revealed stolen ammunition for the Glock pistol, stolen ammunition for a rifle also found at his house, and an illegal silencer.  Rushby was then interviewed by police (ts 363 ‑ 365).  Rushby said the Glock pistol found in his locker belonged to Johnston.  The pistol was not from the SAS.  Rushby agreed that stealing the ammunition (from the SAS) was dishonest.  He had had the pistol for a couple of weeks or so.  He also had had an illegal rifle barrel for some years, although the rifle itself was licensed (ts 378 ‑ 382, 404).  In later questioning, the stolen ammunition was described as 'leftover ammunition' that Rushby took home after shooting training, to use on the weekend.  He did this rather than waste the leftover ammunition by shooting it into the ground, so he did not have to return it to the armoury (ts 402).

8. On 20 July 2004, Rushby received legal advice that if he agreed to give evidence as a prosecution witness, he would receive a substantial discount on his sentence.  On that day, Rushby signed a statement making allegations against the appellant.  Before attending court on 10 August 2004, Rushby gave an undertaking to the prosecution that he would give evidence against the appellant.  Subsequently, Rushby received a discounted sentence.  Rushby agreed he knew that if he did not give evidence in accordance with his statement, he could be re‑sentenced and returned to prison.  Rushby also agreed he had been advised by his lawyer that if he said to the jury at trial that his statement was false, Rushby could be charged with perjury, an offence for which one could be imprisoned.  Rushby confirmed that he told the truth in that statement (ts 365 ‑ 370, 405 ‑ 408).

9. Rushby's relationship with Johnston was explored.  Rushby had gone shooting with Johnston, using his illegal firearm and stolen ammunition.  The ammunition was stolen from the SAS.  Rushby agreed that Johnston was a 'small‑time crook'.  Rushby said that once he had got to know Johnston a little better, he realised how bad he was, and started breaking ties with him.  Rushby had started breaking those ties by the time he contacted Johnston in relation to the appellant's 'problem' (ts 370 ‑ 372).

10. Rushby was then questioned about his level of involvement in the offence.  The questioning was, relevantly:

    See, it was you who organised this, wasn't it?---No.  I was the middle man.

    Middle man.  You've said in the past you were the one who organised it, haven't you‑‑‑I was part of the organisation but I didn't actually organise who it was and the photos and the letters and everything else.

    Well, do you recall giving evidence on your oath on 21 August 2006 [at the previous trial which was aborted]?---Yes.

    Right.  You were asked this question...:

    'Yes.You were the one, using your words, who organised this, didn't you?‑‑‑Yes.'

    Were you asked that question and did you give that answer?-I must've, yes.

    Did you tell the jury on that occasion the truth?---Yes.

    So you were the one, using your own words, who organised it.  Correct?‑‑‑That's taken out of context.

    ...

    Now, same oath, same bible, different jury, that's what you're asked and that's what you said, wasn't it?---It's the way you asked the questions that forced me into saying a certain answer.  I did help organise this but it wasn't my idea or anything.  He came to me and I put it through to Johnston.  So I was part of the organisation but I didn't sit down and think the whole thing up myself.

    What, is this another attempt by you to blame somebody else?---I'm not trying to blame anyone.  I'm just here to tell the truth.

    I understand that, but what you're trying to tell this jury, where you say, 'I was just the middle man', that's completely different to what you told another jury, isn't it? Isn't it?---It depends on the way you asked the question last time.  I can't remember how you asked it.

    ...

    It is clear to you what the question was.  Correct?---It depends what you are asking at the start of – like, three or four questions before that that led to that question.

    Okay?---I admit I was part of this.

    Let's do it.  Let's do it, the couple of questions before.  Question:

    'In fact you were the patrol commander of this particular SAS regiment, weren't you?---No. 

    Well, you were his?---Senior in charge.'

    So what you were telling the jury was that you were senior to [the appellant].  Correct?---Yes.  Question:

    'You wouldn't take orders from him, would you?---No'

    That question was asked of you and that answer was given.  Correct?‑‑‑Yes.

    You told the jury the truth?---Yes.  Next question:

    'You're the one who gave him the orders.  Correct?---Correct, at work, yes.

    Yes.You were the one, using your words, who organised this, didn't you?---Yes.'

    ---They were my words that I spoke to [Johnston] but they were coming from him (ts 372 ‑ 376).

    Counsel then read out the next few questions that followed that question:

    'Because you knew [Johnston]?---Yes.

    How'd you come to know him?---Through skydiving.

    What do you believe, from what he had told you, that he was the person who could organise?---Yes.

    Did you want to be a crook?---No.'

    Let's go back then, because what I was putting to you was the word 'organise' that you had used and I will go back to page 161.  This is when [counsel for the state] was asking a question, back on 21 August [at the previous trial].  Question:

    'Was there some purpose in what you were going to do with the $1000?---No.  Just when I was organising this at the start, when I was organising this for him, my intentions were to get him out of trouble and I wasn't even thinking about money but, sort of, the further I got into it, [Johnston] said you don't do these things for free.  For some reasons, at that time, I wasn't thinking straight and I sort of agree with him, like, yeah.  So who came up with the $2500 figure?---Between Johnston and myself.'

    Were you asked those questions and did you give those answers?---Yes.  Yes, I did.

    So it was you who used the words, 'At the start when I was organising this for him', correct?---Correct.  I was organising that for him.

    Yes.  So when I put to you later on... 'You were the one, using your words, who organised this, didn't you?---Yes', you told the jury the truth, correct?‑‑‑It's  - I admit I was part of the organisation-

    Your Honour, it's a fairly simple question.  He either did tell the jury the truth or he didn't tell the jury the truth?---I don't know how to answer that question.  I told the truth and I am part of the organisation but it's not -I didn't make this whole thing up by myself.

    I know you are going to keep saying that.  The answer you have given to this jury about you being the middleman is very different to an answer you gave to a jury back on 21 August 2006, isn't it?---Well, you're very good at making me answer what you want to hear, so (ts 372 ‑ 376).

11. Rushby could not recall the dates or times of the conversations he had had with the appellant, or the number of conversations he had had with him, in relation to Anderson (ts 390).

12. Rushby's statements in his police interview on 8 June 2004 were put to him:

    [T]his is the police officer asking you a question.  Question:

    'Think clearly what he said.  Try and remember the conversation?---He just said he was getting extorted money from this girl that was pregnant with his child.'

    All right?---And that's all.  That's really all he said.

    So the miscarriage side then, that's just something that came up in your head?---Yeah.

    You were asked those questions and did you give those answers?---I must have, yes.

    Did you tell the police the truth?---Yes.  There was no misunderstanding on that day with what he wanted done.

    I'm not asking you about on that day, I'm asking you about when you were asked on 8 June and you were doing your best to tell the police the truth and they were asking you about the conversation that you had with [the appellant] and what you told them was that the miscarriage side, that's just something that came up in your head.  Correct?---Correct (ts 392).

    Later, Rushby was asked about the use of the word 'miscarriage':

    You were asked some questions by my learned friend concerning the use of the word 'miscarriage' and it was put to you that you previously said that the word 'miscarriage' wasn't used to your recollection but it was something that was in your head?---Things can be said in numerous different ways but the end result is still the same.  I can't remember the exact words he used but it was very clear what he wanted done (ts 408).

1. Rushby was asked about another portion of his interview:

   Now.  I want to...go to page 27 of your interview:

   'It is the case that [the appellant] didn't want the kid around?---Yeah.

   Whether that be male or female.  Is that what [the appellant] said to you?---Well, not in those exact words.  It was just all assumed, I suppose.'

   You were asked that question and did you give that answer?---Yes.

   Did you tell the police the truth?---Yes.  There was -

   Now I want to go to page 29:

   'I'll put it to you one more time.  Isn't it the case that [the appellant] wanted the child not around because?---Yeah

   It's going to cost him big money over 18 years?---That's my assumption, yes.

   Your assumption?---Mm.

   Did he ever say that?---In not words, I supposed, yes, he didn't say straight out, "I want the baby dead" or anything like that.

   Did he say, "I don't want the baby around"?---I suppose I just assumed.'

   You were asked those questions and did you give those answers?---I must have, yes.

   Did you tell the police the truth?---Yes (ts 393).

2. Rushby was questioned as to whether the appellant actually used the word 'touch up' in relation to Anderson.  Rushby could not remember the exact words the appellant used, and said he did not remember whether he used the words 'touch up'.  However, he confirmed that the appellant did use the words 'bashed' or 'beating'.  The evidence given by Rushby at the previous trial (which was aborted), on 21 August 2006, was put to him: 

   'You can't even remember the words he used in these conversations, can you?---Not word-for-word, no.

   And you can't recall whether he used the word 'beating', can you?---No.

   And you can't recall whether he used the words 'touch up', can you?---No.'

   You were asked those questions and did you give those answers?---Yes.

   Did you tell the truth?---Yes.

   ...'

   So let's go back to when Mr  O'Sullivan was asking you questions...see what you have got to say about the word 'bashed':

   'Can you recall what he said?---He needs someone bashed to get them off his back.

   Someone bashed to get them off his back?---Mm.

   Were they the words that he used? Do you remember?---I can't remember the exact words he used.'

   Now, were you asked those questions by the prosecutor at the last trial and did you give those answer?---Yes.

   Did you tell the prosecutor and the jury on 21 August the truth?---Yes (ts 393 ‑ 395).

3. Rushby was asked about his intention in passing on the information to Johnston:

   What were you intending should happen by passing on the information?‑‑‑I knew what was happening, she was going to get assaulted and beaten up, but at the time it was like – I had one person saying this has to happen and the other person saying, 'Hurry up and get me the information', and I was sort of like in between and I just did it and it really didn't hit home until after I'd passed the envelope over and I got sort of like an aftershock of what I'd actually been involved in (ts 401).

Other prosecution evidence

1. Evidence given by Katy Byfield at the previous trial (which was aborted) was read in by consent (ts 415).  Ms Byfield was a police officer and a friend of Anderson.  She was with Anderson, at the restaurant in Leederville, in June 2004, when Anderson met the appellant.  Ms Byfield identified photographs she was shown as being of Anderson's car parked at Leederville, and of Anderson and herself at the restaurant in Leederville (ts previous trial 151 ‑ 155).

2. The statement of Yen Nguyen was read in.  Mr  Nguyen worked in a camera store in Melbourne that developed the photographs which the appellant had taken of Anderson and her car.  Mr  Nguyen recognised some of the photographs and recalled developing them.  He also remembered a male person collecting them (ts 415 ‑ 416).

3. Detective Sergeant Jade Smith gave evidence.  He was the case officer for the investigation involving the appellant.  He gave evidence in relation to the search of Johnston's premises on 4 June 2004.  The search warrant related, in part, to this investigation.  During the search, the police located, in a cupboard, $1,300 and an envelope containing another envelope, inside which were some photographs and a document headed 'Target: Kellie Anderson' (ts 418 ‑ 421).  The outer envelope had a fingerprint impression of the appellant's right thumb.  The inner envelope (which contained the 'Target' document and the photographs) did not yield any fingerprints of the appellant, but showed a fingerprint of Rushby.  The 'Target' document itself did not show any fingerprints or DNA of the appellant.  The police had seized the appellant's computer, but could find nothing linking the 'Target' document to the computer (ts 433 ‑ 435).

4. On 30 June 2004, Detective Sergeant Smith interviewed Murray.  Murray was questioned in relation to the investigation, and then charged with conspiracy to commit an indictable offence (ts 422).

5. Detective Senior Sergeant Thomas Mills gave evidence in relation to finding a receipt for a camera store in Melbourne in the appellant's work locker.  The police interviewed the appellant and charged him.  The police conducted a search which showed that the appellant had no prior criminal record (ts 437 ‑ 443).

6. Mark Preston, a colleague of the appellant from the army, testified, in effect, as to the appellant's good character (ts 553 ‑ 555).

Document headed: 'Target: Kellie Anderson'

1. The document found in the inner envelope, which was headed 'Target: Kellie Anderson', read:

   Target:

   Kellie Anderson

   Description:

   Female, blonde hair,

   Height Approx 165 cm/ 5'5"

   Weight 55kg

   Small Petite

   Address: Jane Rd, Augusta - The phone book does list the actual house No

   The listing is under W & L Anderson

   Vehicle:

   Silver Holden Commodore (Late Model)

   Reg No 1 AYJ 798

   Work address:

   Executive Car Detailing

   3/14 Dellamarta Rd, Wangara - In laneway behind Posh Deli

   She does not work everyday usually only 1 day a week, either Monday or Friday

   She returns to Perth most weekends.  Though where she stays in Perth is unknown at this stage.

   She watches Subiaco FC games on some weekends.

   During the week she rides with Margaret River Pony Club usually on Tuesdays at: Pony Club Grounds, Terry Rd, Margaret River.

   She always sees her friend Anita who is also her business partner, she works everyday at their business in Wangara.  Her home address is:

   2/280 West Coast Hwy, Scarborough

   She drives a blue Holden Commodore Reg No 1 BDI 345

   She will always lead you to her, especially on weekends (ts 420).

Transcript of telephone conversation between Johnston and Murray on 4 June 2004

1. A conversation between Johnston and Murray (see ts 428, 435 ‑ 436), on 4 June 2004, after Rushby had given Johnston the envelope, was recorded by the police.  Johnston (J) telephoned Murray (M).  The conversation was, relevantly:

   J: All right.  Um.  I've got an envelope for yah.

   M:An envelope?

   J:Yeah.

   M: Who, who needs to be fuckin (whistle)?

   J: First one, easy mate, kick in the guts for five hunge, happy with that.

   M: Yeah mate.

   J:And the next one is a, uh, like that other one.

   M:Yep.

   J:But um, that first one...

   M:Just.

   J:Mate, all that is kick, kick in the guts.

   M:Where's that, down there?

   ...

   J:But uh, I got, I've got um, the second one he hasn't given me yet until the first one's done.  And then uh, get that one out of the way, then he'll, he's not, as soon as, you're finished with the info, it's gonna be burned.

   M:Yep.  All right.

   J:The first one's all done out properly mate.

   M:Yep.  When will you want it done?

   J:Eaw! Not this weekend, next weekend.

   ...

   J: I got the money for it straight up so.

   M:Yep, done.

   ...

   J:Uh, I'll be probably there tonight about seven.

Transcript of telephone conversation between Rushby and Johnston on 5 June 2004

1. The conversation between Johnston and Rushby, after the police had searched Johnston's house and seized the envelope, on 5 June 2004, was recorded by the police (ts 348 ‑ 349).  Rushby (R) telephoned Johnston (J).  The conversation was, relevantly:

   J:Um, I got some bad news.

   R:What's that?

   J: Uh I don't really want to say it over the phone.

   R: Yeah?

   J:Um, when can I catch up with yah? Um, I mean its, its, its bad but it's not real bad, do you know what I mean?

   R:It just can't be done?

   J:No, no, it, it ca [sic], it can be done.  Right?

   R:Yeah.

   J:I suppose, I suppose I can take, yesterday uh, in the, I went down to get me mail, right?

   R:Yeah.

   J:And in me mail was um, some envelopes for people that don't live at my unit and also like old mail for people who must lived here previously.

   R:Yeah.

   J:But amongst it was uh, like a new, a new, uh newsagent bag, two envelopes in it and some photos.

   R:Yeah?

   J:Well, um, the other night, Kempy, when he went back to Kalgoorlie; got stopped by the cops, all right?

   R:Yeah.

   J:Yep, they went through his car, everything like that, cool, la di da.  Nothing on him.  And then last night, about seven-thirty last night...

   R:Yeah.

   J:Um, I had nine officers come through me door with uh, guns out, everythin' blarin'.  Uh, with a search warrant...

   R:Yeah?

   J:But they...found that photos and everything else that was there.  They said what was it, what's this? I said um, I'm not actually quite sure.  I said that come, was in the mailbox was all the mail and that.  They said um, there's this lady under surveillance for some reason.  I said look mate, I don't know, I said I've got the other couple of mates who stayed here from time to time and um...

   R:Yeah.

   J:And um, I, I thought that might, might be theirs or something like that so I put it in their wardrobe, cos I put it in the other, other wardrobe.

   R:Yeah.

   J:And uh, I said that's, I said let's not (inaudible) face it, um, they said aw, they then they turn around and said, okay, well, it doesn't look sinister.  I said, does she owe money on this car or something?

   R:Yeah.

   J:I said I'm, I said I'm not sure, mate, I said um, I'm not, I'm not quite sure what, what it's all about.  I said um, I thought Maybe me mate might know something about it but if not, he says okay, we'll um, we'll take it anyway, so they've taken it.

   R:Yeah.

   J:And um, la di da so, but, thank fuck there was nothin' written on it about, you know, so it looks like she's uh, a private investigator's taken for uh, the car or something?

   R:Yep.

   J:That's what they think; they think anyway but...

   R:Yeah.

   J:Because I didn't know anything about it, they, they took it.

   ...

   R:Nothin's happening.  That's fine.

   J:No, no, no it will, something can happen mate.  No dramas, you just need to get me um, a, another thing again, you know, cos they took everything.  So either I, I pay him back the fuckin, pay back that whatever was there...

   R:Yeah?

   J:And I , I lose out or, I just, it gets done you know? Just uh, I...

   R:So you, yeah, I'll come and see yah mate.

   ...

   J:But, but as it is, um, they don't think anything um, you know what I mean?

   R: Yeah.

   ...

   J:There was, nothing looks, nothing looks suss on it at all.  It's quite professionally done actually.

   R:Yeah, no worries mate.

   ...

   J:So, um, I don't know if you want to let him know? I don't think anything will come of it but.

   R:Yeah, I'll uh, I'm getting, I'll give you a ring on Monday mate.

   ...

   J:Okay, yeah I, I don't wanna stress you out.  See I, they don't, they are not, they, they are not stressed about it at all but just because I said I didn't know anything about it.

   R:Yeah.

   ...

   J:They took it.  So I just said it just come in the mail I thought might, it might be I've got a couple of mates who stay here on and off, I thought Maybe it might be the, their ex girlfriend or something, I don't know.

   R:Yeah, all right.

   ...

   J:Cos it, the big thing was the car as well, the photos of the car and the number plates, so.

   R:Yeah, yeah.

   J:It look like, um, private investigator was, she might have been doin' an insurance scam or something, they don't know, so.

   ...

   R:No worries mate, I'll, I'll , I'll give you a ring, I'll give you a ring later.

   J:Yeah, just, just um, I don't know if you wanna tell em, I don't know if you wanna spin them out but...

   R:Yeah.

   J:All you needs to do is just get me a bit more primer and be done.

   R:All right.  See you mate.

Appellant's evidence

1. The material substance of the appellant's evidence was as follows.

2. At all material times, the appellant was a serving member of the SAS, and had no prior convictions.  His relationship with Anderson began in about January 2004, and lasted for about three weeks.  On 14 February 2004, Anderson told the appellant that she was pregnant.  The appellant told Anderson, by telephone and in person, that he did not want to have the child, and did not support Anderson's decision to have the child.  He denied asking Anderson to terminate the pregnancy (ts 503 ‑ 504, 512 ‑ 514).

3. The appellant went to see a solicitor who advised him that he should confirm the paternity of the child, and that child support for 18 years would probably cost him about $250,000.  The solicitor also required Anderson's date of birth and address to confirm that the firm had no conflict of interest.  The appellant told the solicitor that he did not know her date of birth.  He knew that Anderson lived in Subiaco, but did not know the address (ts 505, 515 ‑ 518).  The appellant said he was concerned, after seeing the solicitor, about the financial impact of having a child, but also said Anderson had not asked him for any money.  He agreed that he did not want the financial commitment or any commitment to the welfare of the child at that time.  The appellant had not asked Anderson about a paternity test (ts 514 ‑ 515).  He was not in contact with Anderson again, except via the occasional mobile phone text message, until May 2004 (ts 506).

4. The appellant first spoke to Rushby about Anderson in early to mid April 2004.  He spoke to him about Anderson because Rushby was his superior, and the appellant thought he might be redeployed overseas, and wanted to make Rushby aware of the situation, in case he needed some time off, for example, to get legal advice.  The appellant told Rushby that he was under a lot of stress and that someone was pregnant by him.  Rushby told him that they would talk about it later.  The appellant next spoke to Rushby about Anderson at the end of April 2004, and told him 'everything'; namely, about his relationship with Anderson, the legal advice he had received, and that he no longer knew where Anderson lived (because she had moved) or her date of birth.  The appellant said that he was probably going to have to get someone to find that information for him.  By that, the appellant was referring to the hire of 'a private investigator or something like that'.  He explained that he and Anderson were not speaking, he did not want to tell Anderson that he was getting legal advice, he was away often for work, and he did not have the time to find out the information himself.  The appellant gave Anderson's name to Rushby, and told him that she had been living in Subiaco, but was now living in Augusta.  Rushby told the appellant that he knew someone who could probably help the appellant with ascertaining Anderson's address and date of birth (ts 506 ‑ 508, 520 ‑ 521).  The appellant said he looked up the telephone book for Andersons in Augusta, but could find none (ts 523).

5. The appellant denied telling Rushby that Anderson was 'extorting money' from him (ts 508).

6. As to whether Rushby had ever suggested that he could take some action, in addition to finding out Anderson's address and date of birth, the appellant said that Rushby had 'alluded' to it during a conversation.  Rushby had said, 'I could probably get this sorted out for you if you want to'.  The appellant thought Rushby was being sarcastic because he was smiling when he said it.  The appellant did not ask what Rushby meant, and Rushby did not elaborate.  The conversation took place in about May 2004, and was a 'passing comment at work' (ts 524 ‑ 526, 546).  In his police statement, the appellant said he did not know what Rushby meant by that comment; may be, 'to have her killed or, I don't know'.  In evidence, the appellant again said he did not know what Rushby meant by that comment and he thought Rushby was being sarcastic.  The appellant did not say in his police statement that he thought Rushby was being sarcastic (ts 548 ‑ 551).

7. On 22 May 2004, the appellant met Anderson at a restaurant in Leederville.  He admitted, at this time, taking some photographs from outside the restaurant, of Anderson and of her car.  He said he took the photographs because Rushby had come up to the appellant at work and said, 'Just give me any information that you have'.  The appellant did not have any information in relation to Anderson and, consequently, took the photographs (ts 508, 527, 532 ‑ 538).

8. The appellant next spoke to Rushby about Anderson on 4 June 2004.  Rushby came into work and said, 'Just give me whatever you have and $2,500 and leave it with me and I'll sort it out'.  The appellant gave Rushby an envelope containing the photographs and $2,500.  He denied ever saying to Rushby that he wanted Anderson 'touched up', bashed, assaulted, or physically harmed (ts 509, 526 ‑ 527, 539, 552).  The appellant denied that he had ever seen the 'Target' document (ts 539 ‑ 540).  The appellant denied giving Rushby the envelope containing the photographs and the money for the purpose of harming Anderson.  He believed that Rushby would give the envelope with the photographs and the money to whoever would get the information (ts 541).  The appellant denied that he thought the photographs and money were going towards harming Anderson (ts 552).

9. The photographs had black marks on the back.  The appellant admitted he had scribbled over the address of the camera store (which appeared on the back of the photographs), and said it was a 'spur of the moment thing' because he did not know to whom Rushby was going to give the photographs.  The appellant thought that Rushby knew someone in the police force and was going to obtain the information about Anderson that way.  He said he 'did not really think about it' and he 'just did it'.  The appellant did not know the people that Rushby was dealing with and did not want them 'coming back' to him (ts 509 ‑ 510).  He said there was no agreement, at any stage of his dealings with Rushby, that Anderson would be harmed or assaulted.  The appellant believed Rushby would obtain the information about Anderson that the appellant required for his solicitor (ts 510).

10. While giving evidence, the appellant remembered that Anderson had sent him a mobile phone text message in about February or March 2004 saying, 'If you don't support me emotionally, you will financially'.  This was not put to Anderson in cross‑examination (ts 519 ‑ 520).

11. The appellant knew some details about Anderson, such as her physical characteristics, the type of car she had, and the kind of business she ran (but not its location).  He assumed that Anderson was living in Augusta, he knew she liked horseriding, he knew Anita (her business partner) and he knew Anderson socialised with Anita.  However, the appellant denied knowing other facts, put to him by the prosecutor, about Anderson's life.  He did not give Rushby any of the information he knew about Anderson (ts 528 ‑ 530).

12. The appellant said that on Monday, 7 June 2004, Rushby came to work and said that 'his mate' (referring to Johnston) had been raided, and that the police had the photographs and the money, and thought it was an insurance scam.  Rushby said 'Don't worry about it.  I'll get your money back'.  The appellant denied that Rushby had said to him that the appellant would have to take some more photographs and give them more information (ts 542).  The appellant did not say anything about an insurance scam in his police statement (ts 544 ‑ 545).

Relevant legislation

1. The appellant was charged under s 304(2) and s 558(1) of the Criminal Code 1913 (WA). At the time the offence was committed, s 304(2) provided:

   If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -

   (a)bodily harm is caused to any person; or

   (b)the life, health or safety of any person is or is likely to be endangered,

   the person is guilty of a crime and is liable to imprisonment for 20 years.

   Section 558(1) provided:

   Any person who conspires with another person -

   (a)to commit an indictable offence (the 'principal offence'); or

   (b)to do any act or make any omission in any part of the world which, if done or made in Western Australia, would be an indictable offence (the 'principal offence') and which is an offence under the laws in force in the place where it is proposed to be done or made,

   is guilty of -

   (c)a crime if the principal offence is a crime; or

   (d)a misdemeanour if the principal offence is a misdemeanour.

Grounds of appeal

1. On 9 May 2007, Wheeler JA ordered that leave to appeal be granted on grounds 2, 3 and 4, and that the application for leave to appeal be heard with the appeal in relation to ground 1.

2. The grounds of appeal are:

   1.The verdict of guilty is unreasonable or cannot be supported by the evidence.

   Particulars

   The evidence was not capable of satisfying a jury that there was a conspiracy of the nature and type alleged, in particular an agreement in which at least two of the alleged conspirators intended that its unlawful object should in fact be committed.

   2. The learned trial judge erred in failing to direct the jury that evidence of a plea of guilty by the witness Rushby following his arrest:

   2.1was not evidence that Rushby pleaded guilty to the offence in the indictment, and

   2.2could not be used as evidence of the existence of the conspiracy alleged.

   3. The learned trial judge erred in directing the jury that 'the content of the statements [made by Rushby] in the previous trial is not evidence in this trial'.

   4. The learned trial judge erred in failing to direct the jury that prior statements made by the witness Rushby including those made to police could be used as evidence in the trial where he adopted them as true.

Ground 1:  verdicts which are unreasonable or cannot be supported having regard to the evidence

1. By s 30(3) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal 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.

2. In M v The Queen (1994) 181 CLR 487, 492, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence.  Also see Jones vThe Queen (1997) 191 CLR 439, 450.

3. In M, McHugh J said that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction (523).  In Jones, Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just (450).

4. In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that:

   upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).

   In answering that question, their Honours said:

   [T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations (493).

   Their Honours explained the application of the test:

   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).

   Also see Jones (450 ‑ 451).  The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory:  Jones (452); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, [25].

5. In Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) 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, 69 ALJR 83). 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]. (emphasis in original)

   Also see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

Ground 1: the offence created by s 558(1)(a) of the Criminal Code

1. The offence of conspiracy created by ss 558(1)(a) of the Criminal Code requires that:

   (a)at least two people have made an agreement to commit an indictable offence (the principal offence); and

   (b)at least two of the people who have made the agreement intend that the principal offence be committed.

   See Giorgianni v The Queen (1985) 156 CLR 473, 506 (Wilson, Deane and Dawson JJ); Peters v The Queen (1998) 192 CLR 493, 516 ‑ 519 (McHugh J, Gummow J agreeing).

2. A person cannot, by recklessness, make an agreement to commit the principal offence.  Also, a mere expectation, as distinct from an intention, that the principal offence would be committed, is insufficient.  See R v Trudgeon (1988) 39 A Crim R 252, 256 (Gleeson CJ); Ansari v The Queen [2007] NSWCCA 204, [61].

3. Each of the conspirators must have knowledge of the acts agreed and intended to be performed which, upon performance, would constitute the principal offence.  It is not, of course, necessary that the conspirators know that the acts in question, upon performance, constitute an offence.  See Giorgianni, (506) (Wilson, Deane and Dawson JJ); Western Australia v Marchesi [2005] WASCA 133; (2005) 30 WAR 359, [14] (Steytler P, McLure JA agreeing).

4. Although there must be an agreement and an intention to commit the principal offence, it is not necessary that the agreement and the intention be that all of the conspirators personally perform the acts which constitute the principal offence.  What is necessary is that there be an agreement and an intention that the principal offence in question be committed. 

5. It is unnecessary, to support a conviction under s 558(1)(a), that there be any unlawful or 'overt' acts performed or undertaken towards the implementation of the agreement to commit the principal offence. See Marchesi, where Steytler P said:

   The conspiracy comprises only the agreement:  R v Trudgeon (1988) 39 A Crim R 252 at 254, per Gleeson CJ; R v Carusi (1990) 45 A Crim R 165; affd Carusi v The Queen (1990) 64 ALJR 657. It does not include the unlawful or "overt" acts which are agreed upon: R v Gudgeon (1995) 133 ALR 379 at 389, per McPherson JA and Thomas J. Indeed, it does not matter for the purposes of the offence whether the agreement is or is not put into action. In R v Rogerson (1992) 174 CLR 268 at 279, Brennan and Toohey JJ said, of a conspiracy to pervert the course of justice, that, like any other conspiracy to commit an offence, it was complete without the doing of any act save the act of agreeing to pervert the course of justice. While overt acts will often be relied upon as a means of proof of the existence of a conspiracy, an overt act is not itself an "element" of the conspiracy: R v Winfield & Lipohar (1997) 70 SASR 300 at 310, per Millhouse J, and, on appeal, Lipohar v The Queen (1999) 200 CLR 485 at 541 [140], 560 [189] and [190], per Kirby J (dissenting in the result), and 573 [227], per Callinan J; Kamara v Director of Public Prosecutions [1974] AC 104 at 119; and Gummer v Commissioner of Police [1995] 1 Qd R 346 at 354, per Pincus JA, with whom White J was in agreement [14].

6. As Steytler P noted in Marchesi, although the offence is complete upon the agreement being made, a conspiracy continues while its unlawful purpose is put into effect [15].  See Director of Public Prosecutions v Doot [1973] AC 807, where Lord Pearson said:

   A conspiracy involves an agreement expressed or implied.  A conspiratorial agreement is not a contract, not legally binding, because it is unlawful.  But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge or termination.  When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place …  But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with.  It is not dead.  If it is being performed, it is very much alive.  So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct.  The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be (827).

   Also see Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485, [14]; Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122, [35].

7. Since the offence created by s 558(1)(a) is complete upon at least two people making an agreement to commit the principal offence and at least two of those people intending that the principal offence be committed, the liability of the conspirators who satisfy both requirements is not affected if any or all of them subsequently withdraw from or abandon the agreement or cease to have the requisite intention. In other words, any such withdrawal, abandonment or cessation does not affect the existence of the conspiracy between the formation of the agreement with the requisite intention, on the one hand, and the withdrawal, abandonment or cessation, on the other. In R v O'Brien [1954] SCR 666, Taschereau J said:

   This is not the case of the conspirator, who after having completed the crime, withdraws from the conspiracy. If a person, with one or several others, agrees to commit an unlawful act, and later, after having had the intention to carry it through, refuses to put the plan into effect, that person is nevertheless guilty, because all the ingredients of conspiracy can be found in the accused's conduct. But, when the conspiracy has never existed, there can be no withdrawal (669) [13].

Ground 1:  its merits

1. The appellant submitted, relevantly, in relation to ground 1, that:

   (a)It was necessary for there to be evidence that the conspirators (or at least two of them), with intent to harm Anderson, agreed to the doing of an act as a result of which bodily harm would be caused to her.  It would be insufficient for the evidence to establish merely an agreement to harm someone unknown in that this would be a conspiracy different from the one alleged in the indictment and it would be necessary for there to be evidence from which it could be concluded that the conspirators (or at least two of them) intended harm to occur, but were indifferent as to the identity of the person to be harmed.

   (b)Although Rushby, on behalf of the appellant, contacted Johnston and sought his services, and later provided him with the envelope, Rushby gave evidence that it was not his intention that Anderson should be harmed.  Rushby said that after handing the envelope to Johnston, he realised what might actually happen to Anderson, and he did not want any harm to come to her.  A conspiracy cannot be committed recklessly.

   (c)There was no evidence that Johnston knew the unlawful object was the doing of an act to cause bodily harm to Anderson.  In particular, Johnston did not know that the person to be harmed was a woman or that she was pregnant.  According to the appellant, the relevant evidence was to this effect:

   (i)Rushby's evidence was that he handed the envelope to Johnston.  There was no evidence that Johnston ever examined the contents of the envelope.  In particular, there was no evidence that Johnston looked inside the inner envelope which contained the information about Anderson.

   (ii)Rushby's evidence was that he told Johnston 'what the appellant wanted done'.  There was no evidence as to what he actually said to Johnston.  He may have said no more than the person to be harmed was to received a 'kick in the guts'.

   (iii)The telephone conversation between Johnston and Murray on 4 June 2004, together with the other evidence at the trial, did not permit the conclusion that at 1503 hours or at any time between 4 and 8 June 2004 (the period of the conspiracy), Johnston knew anything more than there was a person unknown, and an associate of Rushby wanted that person harmed.

   (iv)Further, given Rushby's evidence that he initially told Johnston that 'he [the appellant] wanted someone outside the regiment to get him off his back' (ts 343), (emphasis added), it is reasonably open to conclude that Johnston mistakenly believed the intended victim to be a male.

   (d)In short, the evidence at the trial did not permit a jury to be satisfied of the existence of the conspiracy alleged in the indictment.  At best, the existence of the conspiracy was a matter of speculation.  At most, the evidence permitted a finding that the appellant attempted to incite the commission of an indictable offence.

2. I have summarised, at [18] ‑ [31] above, the material substance of Rushby's evidence. In particular:

   (a)On Friday, 4 June 2004, Rushby told the appellant to give him the information about the person to be beaten up and $2,500 that day, because the appellant wanted it to 'happen' before he went away.

   (b)On 4 June 2004, the appellant gave Rushby an envelope containing the information (that is, the document headed 'Target:  Kellie Anderson' and the photographs) and the money.

   (c)On 4 June 2004, the appellant told Rushby that he was 'getting extorted for money and that it was a girl he had slept with and she'd fallen pregnant and she was extorting him for cash and wouldn't take an abortion or something and he wanted her beaten up to get rid of the baby'.

   (d)On 4 June 2004, Rushby drove to Johnston's house.  On the way, he took $1,000 for himself out of the envelope the appellant had given him.  Rushby saw that the envelope also contained, besides money, a note and some photographs, but he did not pay much attention to the contents.  He gave Johnston the envelope.

   (e)On 4 June 2004, after Rushby giving the envelope to Johnston, Rushby began to realise what he was getting involved in, and began to feel sick.  Johnston reassured him and said 'Must happen, must be a bad person'.  Rushby then went home.  Johnston did not tell him what was going to happen.  Rushby had told Johnston, however, what the appellant wanted done.

   (f)On the night of 4 or 5 June 2004, Johnston called Rushby to tell him that Johnston's house had been raided by the police and that the envelope had been taken.  Rushby then thought it was all over.  Johnston told Rushby to get some more information and he would take care of it, but Rushby did not really say anything because he thought it was his 'out'. 

   (g)Rushby spoke to the appellant on the following Monday, 7 June 2004, explained the situation, and said that everything was finished, nothing could happen, that the police had the envelope and that as far as Rushby was concerned, it was over.  Rushby said he was 'sort of pleased that it had stopped'.

3. Senior counsel for the appellant conceded, properly, that the name of the alleged victim (Kellie Anderson) was not important.  He said:

   The name is merely a particular.  What is essential for the conspiracy, for it to be made out, is that this specific person, name or otherwise, is the object of it … (appeal ts 13).

   Senior counsel did not dispute, properly, that the identification of the alleged victim as the young woman who was pregnant to the appellant after a brief relationship with him and was allegedly extorting cash from him, was a sufficient identification for the purposes of the conspiracy alleged in the indictment (appeal ts 13).

4. Although there was no detailed evidence as to precisely what Rushby told Johnston when he handed over the envelope, Rushby did say in evidence, without objection, that he told Johnston what the appellant wanted done. 

5. Senior counsel for the appellant summarised his argument in relation to ground 1, as follows:

   … our submission is that the evidence does not permit satisfaction beyond reasonable doubt of the existence of the conspiracy, be it a conspiracy between [the appellant] and Rushby or a conspiracy between [the appellant] and Johnston (appeal ts 18).

   Senior counsel added, relevantly, that the evidence, taken as a whole, was not capable of excluding the reasonable hypothesis that Rushby did not have more than an expectation (as distinct from an intention) that Anderson would be beaten up (appeal ts 9).

6. In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that:

   (a)from and including the completion of the conversations and dealings between the appellant and Rushby on 4 June 2004;

   (b)up to and including Rushby giving the envelope to Johnston on 4 June 2004,

   each of the appellant and Rushby had agreed that an act should be done as a result of which bodily harm would be caused to Anderson, and each of them intended that an act should be done as a result of which bodily harm would be caused to her. 

1. Rushby was the principal prosecution witness.  It is apparent, from the jury's verdict of guilty, that the jury was satisfied beyond reasonable doubt that the evidence of Rushby was, in all material respects, truthful and reliable.  It is also apparent from the jury's verdict that the jury rejected, in all material respects, the appellant's evidence.

2. I consider that from and including the completion of the conversations and dealings between the appellant and Rushby on 4 June 2004, up to and including Rushby giving the envelope to Johnston on 4 June 2004, the only reasonable inference, based on the whole of his relevant knowledge and conduct before giving the envelope to Johnston, was that Rushby had agreed with the appellant that Anderson should be beaten up and that he intended that the beating up should occur.

3. Rushby's evidence, if accepted as truthful and reliable in all material respects, established to the requisite standard that the appellant had agreed with Rushby that Anderson should be beaten up and that, at least, at all material times on 4 June 2004, the appellant intended that the beating up should occur.  As I have mentioned, it is apparent from the jury's verdict of guilty, that the jury was satisfied beyond reasonable doubt that Rushby's evidence was, in all material respects, truthful and reliable.

4. It is unnecessary, in the circumstances, to decide whether it was open to the jury to be satisfied beyond reasonable doubt that at any material time Johnston joined the agreement between the appellant and Rushby or shared their intention or, alternatively, there was an agreement between the appellant and Johnston in the terms alleged in the indictment and with the requisite accompanying intention.

5. In my opinion, the appellant's conviction was not unreasonable, and it is a conviction which is capable of being supported, having regard to the evidence.

6. Ground 1 fails.

Ground 2

1. Rushby was charged as a result of his involvement in the events which culminated in the appellant being charged.  Rushby pleaded guilty and undertook to give evidence against the appellant and others.  He received a sentencing discount for his promise of future cooperation.

2. The fact that Rushby had pleaded guilty to some offence, and had been sentenced for it, was adduced at the appellant's trial in the course of Rushby's cross‑examination by the appellant's counsel.  The prosecutor had previously sought to adduce that evidence, but counsel for the appellant and counsel for Murray (who, as I have mentioned, was discharged at the conclusion of the prosecution case) successfully objected to the evidence being led on behalf of the State (ts 353 ‑ 362). 

3. The specific offence to which Rushby had pleaded guilty was not made known to the jury, at the specific request of counsel for Murray (ts 361).

4. Counsel for the appellant cross‑examined Rushby in relation to his plea of guilty, his undertaking to give evidence against the appellant and others, and his receipt of a sentencing discount for the purpose of attacking Rushby's credit (ts 366 ‑ 367).  He was not cross‑examined, however, as to the specific offence to which he had pleaded guilty.

5. The appellant submitted, in relation to ground 2, that in the circumstances it was imperative that the learned trial judge direct the jury that the fact that Rushby had pleaded guilty to some offence:

   (a)was not evidence that he had pleaded guilty to the conspiracy alleged in the indictment against the appellant;

   (b)could not be used as evidence against the appellant of the existence of the conspiracy alleged against him; and

   (c)could not be used as evidence against the appellant of his participation in that alleged conspiracy.

6. The learned trial judge directed the jury, in relation to Rushby's plea of guilty, as follows:

   As you heard, one of the persons who is said to be a party to the alleged conspiracy has pleaded guilty and that is [Rushby].  The plea of guilty cannot be used in evidence against [the appellant].  The plea of guilty of [Rushby] is not to be taken into account by you as evidence against [the appellant] that [the appellant] committed the conspiracy.

   Evidence of [Rushby's] plea of guilty was introduced by questioning by [the appellant's] counsel...to attack the credit of [Rushby] on the basis that by giving evidence for the state he received a benefit by receiving a lesser penalty and I have explained to you the competing submissions of the state in relation to that proposition (ts 601).

7. The learned trial judge also directed the jury, at the commencement of his summing up, that they must not guess or speculate about matters that were not in evidence (ts 569).

8. In my opinion, the learned trial judge's directions dealt adequately with Rushby's plea of guilty.  His Honour emphasised that the plea of guilty could not be used in evidence against the appellant.  He added that the plea of guilty could not be taken into account as evidence that the appellant had committed the conspiracy alleged against him.  His Honour also explained to the jury why the evidence of Rushby's plea of guilty had been adduced; namely, to attack his credit.

9. The appellant's trial counsel was an experienced counsel in criminal trials, and he did not apply to the learned trial judge for a different direction or a redirection.

10. There is no basis for supposing that the jury may have ignored the learned trial judge's directions, and there is no basis for supposing that the jury may have used the fact of Rushby's plea of guilty as part of an impermissible course of reasoning, or otherwise for an impermissible purpose.

11. Ground 2 fails.

Grounds 3 and 4

1. The appellant's trial counsel put to Rushby, in cross‑examination, several prior statements he had made in his videotaped record of interview with the police and in evidence he had given at the earlier aborted trial (ts 372 ‑ 376, 392 ‑ 394).

2. Rushby adopted some of his prior statements as being true (ts 372, 374, 376, 392 ‑ 395).

3. The appellant submitted that the learned trial judge was in error in that he directed the jury only on the use of Rushby's evidence from the earlier aborted trial and only on the issue of credibility.  According to senior counsel for the appellant, his Honour mistakenly directed the jury that 'the previous evidence is not evidence in this trial' (ts 601).  Senior counsel also complained that his Honour failed to direct the jury on the use of Rushby's answers to police during the videotaped record of interview.  The appellant's written submissions state, relevantly:

   The previous statements that were adopted by Rushby were on matters of significance.  In particular they were relevant to the nature of the relationship between the appellant and Rushby as well as to the detail of what Rushby said the appellant told him.  This was evidence that was important to the jury's consideration of the case as a whole and which by virtue of his Honour's direction they were told to ignore, save as an assessment of the credibility of Rushby.

4. The learned trial judge directed the jury as to Rushby's prior statements, as follows:

   You will recall that in cross-examination [Rushby] was asked about statements he had made and evidence he had given on prior occasions and I have actually read the bulk of that cross-examination to you.

   There are two things I wish to say about that evidence.  The first is the content of the statements in the previous evidence is not evidence in this trial.  It is evidence on oath which you saw and heard him give which is evidence you are to consider.  The second is that if you find a witness has previously made a statement that is inconsistent with the evidence the witness has given then the fact the witness has previously made an inconsistent statement or given inconsistent evidence is a matter which you can take in to account in considering their credibility as a witness in this trial.  Whether or not it does affect the credibility of the witness is entirely a matter for you (ts 601). (emphasis added)

   The appellant's trial counsel did not object to his Honour's direction, and did not seek a different direction or a redirection.

5. In my opinion, Rushby's adoption, in evidence, of some of his prior statements as truthful, those statements having been put to him in the presence of the jury, made the statements in question 'evidence in this trial' and 'evidence on oath which [the jury] saw and heard him give', within the terms of the learned trial judge's direction.  Compare Harman v Western Australia [2004] WASCA 230; (2004) 29 WAR 380, where Steytler J (as his Honour then was) said:

   … the trial judge told the jury, in explaining what evidence is, that a lawyer's question or a police officer's question, is not evidence and that only the answer is evidence.  Counsel for the appellant at the trial had invited his Honour to redirect the jury on that issue because what had been said 'might unfairly water down cross‑examination'.  He submitted that if the witness adopted the question that had been put, then the lawyer's question became part of the evidence.  He relied, in particular, upon the cross‑examination of Coffin in that respect.  The trial judge responded by saying that it was obvious to the jury that if a witness answered 'yes' to a particular proposition, then the witness was adopting that proposition and that the adoption of the proposition amounted to evidence by the witness.

   In my respectful submission, his Honour was correct in what he said.  There is no substance to the appellant's complaint [114] ‑ [115].

6. In my opinion, the learned trial judge adequately directed the jury to the effect that they could use the prior statements (including those made during the videotaped record of interview), which Rushby had adopted in evidence as truthful, as evidence of the truth of those statements.  His Honour's direction was not confusing.  It would have been apparent to the jury that when Rushby adopted, in evidence, a prior statement as truthful, that statement became part of his evidence at the trial. 

7. Senior counsel for the appellant referred the court to R v Condren (1990) 49 A Crim R 79, 88 ‑ 89, and R v Jacquier (1979) SASR 543, 554. However, the direction which should be given in any case must be determined having regard to the particular facts and circumstances. No formulaic or ritual direction is required. Neither Condren nor Jacquier establish that, in the present case, the learned trial judge's direction was erroneous.

8. Grounds 3 and 4 fail.

Conclusion

1. I would grant leave to appeal in relation to ground 1.  All grounds of appeal are, however, on analysis, without merit.  The appeal should therefore be dismissed.