Ripper v The State of Western Australia
[2024] WASCA 30
•25 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RIPPER -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 30
CORAM: BUSS P
MAZZA JA
VANDONGEN JA
HEARD: 4 DECEMBER 2023
DELIVERED : 13 MARCH 2024
PUBLISHED : 25 MARCH 2024
FILE NO/S: CACR 32 of 2023
BETWEEN: PATRICIA ROSE RIPPER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 1254 of 2022
Catchwords:
Criminal law - Appeal against conviction - Whether conviction was unreasonable or unsupported by the evidence - Whether trial judge failed to adequately direct the jury as to use of evidence of one count in proof of another - Whether retrial should be ordered
Legislation:
Criminal Appeals Act 2004 (WA), s 23, s 24, s 30(3)(a), s 30(5), s 30(6)
Criminal Code (WA), s 7, s 8, s 10A(1), s 10B, s 294, s 400(2), s 401, s 401B
Sentencing Act 1995 (WA), s 76(1), s 80, s 81, s 84F
Result:
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal allowed
Judgment of conviction on count 2 set aside
Acquittal ordered on count 2
Respondent resentenced on count 1
Category: B
Representation:
Counsel:
| Appellant | : | A G Elliott |
| Respondent | : | B F Stanwix |
Solicitors:
| Appellant | : | William Gerard Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
ALI v The State of Western Australia [2021] WASCA 144
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
DLS v The State of Western Australia [2021] WASCA 197; (2021) 293 A Crim R 113
Dragon v The State of Western Australia [2008] WASCA 252
Dreja v The State of Western Australia [2012] WASCA 151
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Eldridge v The State of Western Australia [2020] WASCA 66
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Hamilton v The Queen [2021] HCA 33; (2021) 274 CLR 531
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Larussa v The State of Western Australia [2023] WASCA 62
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
McHenry v Western Australia [No 2] [2010] WASCA 71
O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315
Sturniolo v The State of Western Australia [2023] WASCA 147
Wark v The State of Western Australia [2023] WASCA 66
REASONS OF THE COURT:
Introduction
On separate dates in May 2021, two homes in adjacent suburbs south of the Swan River were broken into and several items of value were stolen. A medical dressing was found on a balcony at one of the homes, located in Mount Pleasant (Mount Pleasant address), near a window that had been smashed in order to gain entry. Material containing a mixed DNA profile was later found on the dressing. When police later arrested the appellant in July 2021, some of the jewellery that had been stolen from the Mount Pleasant address was found in the appellant's bedroom. At the other home, in Rossmoyne (Rossmoyne address), material containing a mixed DNA profile was extracted from a swab taken from broken glass on an external sliding door that had also been damaged to gain entry. Subsequent statistical analysis strongly suggested that the appellant's DNA contributed to both of the mixed DNA profiles found at the Mount Pleasant address and at the Rossmoyne address respectively.
The appellant was charged on indictment with two counts of home burglary, contrary to s 401(2)(b) of the Criminal Code (WA) (Code). The first count alleged that on or about 2 May 2021, at the Mount Pleasant address, while in a place without consent, that place ordinarily being used for human habitation, the appellant committed the offence of stealing. The second count alleged that on a date unknown between 16 May 2021 and 30 May 2021, at the Rossmoyne address, while in a place without consent, that place ordinarily being used for human habitation, the appellant committed the offence of stealing. The appellant pleaded not guilty to both counts and was tried in the District Court. After a two‑day trial in the District Court, the appellant was convicted of both offences by the unanimous verdicts of a jury, and she was subsequently sentenced to a term of 4 years and 6 months' immediate imprisonment in respect of that offending. In reaching that conclusion the trial judge said:
On count 1, I impose the head term, which will be two years and six months' imprisonment. And I've reduced that term from one of three years' imprisonment for totality reasons.
On count 2, I impose a term of two years' imprisonment to be served cumulatively. Two years is the mandatory minimum for this offence, given that you are a repeat offender. I find that the offending falls towards the lower end of the range of severity of offences of this type, given that the premises were unoccupied at the time and that the value of the items stolen was modest, although not insignificant.
But in any event, I consider that two years is appropriate for totality reasons, given the accumulation of the sentences. The court is required, when imposing a mandatory minimum - a sentence which a mandatory minimum is required to place the offending within the scale of seriousness of offending of a similar kind, but in this case, whilst ordinarily the offence would warrant more than two years, for totality reasons I think two years is sufficient.[1]
[1] Sentencing ts 6.
Earlier on 22 October 2020, the appellant was sentenced in the District Court by Prior DCJ in relation to an unrelated offence. A sentence of 8 months' imprisonment was imposed, but an order was made under s 76(1) of the Sentencing Act 1995 (WA) that the term of imprisonment be suspended for 12 months.
Because of the appellant's convictions for the two offences of burglary, both of which were committed during the suspension period of the suspended imprisonment imposed by Prior DCJ, the trial judge was required to deal with the appellant in accordance with s 80(1) of the Sentencing Act. The trial judge concluded, in that regard, that an order should be made under s 80(1)(b) of the Sentencing Act, namely that the appellant serve 2 months' imprisonment, being part of the term of imprisonment that was suspended by Prior DCJ. Although it is not immediately apparent from the trial judge's sentencing remarks, his Honour must have concluded that it would have been unjust to have made an order under s 80(1)(a) of the Sentencing Act that the appellant serve the whole of the term of imprisonment that was suspended, having regard to the totality principle. The trial judge ultimately ordered that this period of 2 months' imprisonment should be served cumulatively, with the result that the total effective sentence imposed on the appellant was 4 years and 8 months' immediate imprisonment. That sentence was backdated to commence on 25 December 2021.
The appellant now appeals against conviction. However, the appeal only concerns the judgment of conviction that relates to the offence committed at the Rossmoyne address, which was count 2 on the indictment that was presented against the appellant in the District Court. Initially, the appellant relied on a single ground of appeal in which she contended that the verdict of guilty relating to that offence was, having regard to the evidence, unreasonable or could not be supported. However, before the hearing of the appeal, the court raised with the parties an issue about whether the trial judge erred by failing to give the jury any directions about what evidence was, and was not, admissible in proof of count 2. As a consequence, at the hearing of the appeal, the appellant was granted leave to add a further ground of appeal concerning the trial judge's directions.
Counsel for the appellant also applied for leave to amend the original ground of appeal at the hearing of the appeal. The proposed amendment was to include a further particular in support of the appellant's contention that the verdict of guilt in respect of count 2 was unreasonable or could not be supported.
On 13 March 2024, the court made the following orders:
1.Leave to appeal is granted in relation to ground 1.
2. Leave to appeal is refused in relation to ground 2.
3. The appeal is allowed.
4. The judgment of conviction in relation to count 2 in indictment 1254 of 2022 is set aside.
5. Judgment of acquittal in relation to count 2 in indictment 1254 of 2022 is entered.
6. The sentence of 2 years 6 months' imprisonment for count 1 in indictment 1254 of 2022 is varied by increasing it to 3 years' imprisonment to be immediately served.
7.The sentence of 3 years' imprisonment is backdated to commence on 25 December 2021.
8.The appellant is eligible to be considered for parole.
These are our reasons for making those orders.
Before turning to deal with the grounds of appeal, it is necessary to set out some of the background to this matter, commencing with the charges that were preferred against the appellant.
Prosecution case
The prosecution case, as opened to the jury, appeared to be relatively straightforward. In her opening address, the prosecutor explained to the jury the legal basis on which it was contended that the appellant was guilty of the two offences charged in the indictment. Specifically, she explained that the State case was that the appellant was in both homes that were the subject of the counts in the indictment without the consent of either of the owners, and that she personally committed an offence of stealing while she was in those places. However, the prosecutor also told the jury that the appellant may not have committed the burglaries on her own. She explained that if the jury were satisfied that she was not on her own when she committed the burglaries, then she would still be guilty if the jury accepted that the appellant was 'part of a common purpose or plan to burgle that house'.[2]
[2] ts 16.
It is important to note that, based on the prosecutor's opening address and on a later exchange between the prosecutor and the trial judge (which we will come to later in these reasons), the prosecution case was that the appellant was criminally liable for both offences charged by operation of either s 7(a) or s 8 of the Code only. The prosecution did not rely on s 7(b) or s 7(c) of the Code in the alternative.
In relation to count 1, the prosecution case was that the owner of the Mount Pleasant address left her home on the afternoon of 1 May 2021 and travelled to Mandurah. When she returned to the Mount Pleasant address the next morning, she found that someone had smashed a glass sliding door on a balcony to gain entry to her home and had stolen jewellery and other property worth about $86,000. When police later carried out a forensic examination at the address, they found a medical dressing on the balcony. The dressing was later sent for DNA analysis. Police also developed some glove‑like patterns on various items at the Mount Pleasant address, including on a glass door.
The appellant was arrested on 9 July 2021, and her home in Mandurah was searched. In the appellant's bedroom police found two items of jewellery that were later identified as having been stolen from the Mount Pleasant address during the burglary. The search of the appellant's home was electronically recorded, and an edited version of that recording was played to the jury before being tendered as an exhibit. During the search the police asked the appellant several questions about the jewellery. The appellant initially denied any knowledge of the jewellery. However, she later appeared to acknowledge that she had at least previously seen one of the items of jewellery.[3]
[3] Transcript of electronic record of interview with the appellant on 9 July 2021, 6.
In relation to count 2, on 16 May 2021 the owner of the Rossmoyne address left to go on holidays. Rossmoyne is located close to Mount Pleasant. On 29 May 2021, the owner found out that someone had broken into her home and so she returned to Perth early. When she returned to the Rossmoyne address, she found that the glass in a rear sliding door had been smashed in two places, and that several items or property valued at about $10,000 were missing, including jewellery, clothing, and a camera.
The police also conducted a forensic examination at this address. As was the case in relation to the burglary committed at the Mount Pleasant address, several distinct, glove‑like patterns were developed on various items as a result of a fingerprint examination, including on the inside of the frame of the smashed rear sliding door. Police took DNA trace swabs from the edges of the two holes that had been smashed in the rear sliding door. Those surfaces were swabbed because they could not have been exposed before the glass was broken. The prosecution case was that any DNA found on the broken edges of the glass must have been deposited on those surfaces at or after the time the glass was smashed.
The appellant made some admissions in the record of interview that was conducted during the search at her home in Mandurah. The appellant told police that she had previously lived at an address in Mount Pleasant. The prosecution relied on this fact as part of its circumstantial case in relation to both counts on the indictment because that address was situated relatively close to both homes that had been broken into. However, the appellant said that she could not recall when she had last lived at that address, and in the end the trial judge suggested to the jury that this evidence may not 'have a great deal of significance in the case'.[4]
[4] ts 90.
At the trial the prosecution adduced evidence from Daniel Turner, an experienced forensic scientist employed by PathWest, concerning the results of tests conducted on the dressing found at the Mount Pleasant address and on the swabs taken from the broken edges of glass taken from the damaged rear sliding door at the Rossmoyne address. Given the significance of Mr Turner's evidence in the context of the two grounds of appeal, that evidence is referred to in greater detail later in these reasons. At this stage, it is sufficient to record that Mr Turner gave evidence that a mixed DNA profile was obtained from the swab taken from the broken glass in the rear sliding door at the Rossmoyne address, adjacent to the door's locking mechanism. That mixed DNA profile contained a DNA profile that matched the appellant's DNA profile, but it also contained a DNA profile from another unidentifiable person.
Mr Turner gave evidence that DNA can be present on a target surface through two different mechanisms. He explained that the first mechanism is by 'direct transfer', where DNA is deposited directly from the donor of the DNA onto a target surface. He also said that DNA material may be indirectly transferred to an object, in circumstances in which an original donor of the DNA has had no direct contact with the object. Mr Turner did not give any evidence about whether the DNA material that matched the appellant's DNA profile had been directly or indirectly deposited on to the broken glass of the rear sliding door.
Defence case
The appellant gave evidence at trial. Her evidence‑in‑chief was very confined. She said that at the beginning of 2021 she had been living at the address in Mandurah that was searched by police, with her partner and his parents. She said that she shared a bedroom with her partner. She also said that in May 2021, she had been working with her mother at her mother's plant nursery.
The appellant gave evidence, initially without objection, that shortly after she had been charged with the two offences, her partner told her that he had committed the burglaries. She also said that he had given her the jewellery stolen during the burglary at the Mount Pleasant address a few days before the police arrested her. When asked why she did not tell the police where she had received jewellery from, the appellant told the jury that her partner could be 'quite untrustworthy', that she did not want to implicate him in anything as their relationship had been going well. She also said that she was very nervous, concerned and shocked.
In cross‑examination, the appellant denied a suggestion that she was living in Mount Pleasant at the time of the offences and said that she last lived in that suburb 20 years ago. However, she accepted that she may have been living in the Perth area at the relevant time, although she said that she could not recall exactly where.
The appellant also accepted that her DNA was on the medical dressing found after the burglary at the Mount Pleasant address. However, she said that she could not remember wearing the dressing in May 2021. Although the appellant did not formally admit that her DNA formed part of either of the two mixed DNA profiles that were recovered, that matter was not seriously in dispute. The defence case was that the appellant was not present at either of the two homes while a burglary was being committed and that there were other reasonable explanations for the presence of her DNA at those homes.
In cross‑examination the appellant agreed that she had lied to the police about her knowledge of the jewellery found in her bedroom. However, she disagreed with the suggestion that she was lying in her evidence when she said that she was not able to recall where she was living in May 2021, or about her denials that she committed either of the offences charged. The prosecutor put to the appellant that she was the principal offender who had committed both offences charged on the indictment. In that regard, the prosecutor suggested that the appellant had broken the doors at both houses, gone into both houses, and had personally stolen items of property therein, but the appellant denied all of those propositions.
In re-examination, defence counsel asked the appellant when she had moved into the address at Mandurah. She said that she thought that one of her partner's relatives was watching the Australian Open tennis tournament at the time. However, when the trial judge pointed out that the Australian Open takes place in January of each year, she agreed that her answer to police, that she had been there for a month before she was arrested in July, was unlikely to be correct.
Counsels' final addresses
Before counsel delivered their respective closing addresses, and in the absence of the jury, the trial judge raised an issue about the scope of the State's case. His Honour noted that the prosecutor had opened the case against the appellant on the basis that the jury might find her guilty of the offences charged as a 'principal offender by being in the respective residences [referred to in the counts on the indictment] without consent and committing [the offence of stealing]'.[5] He also observed that the State had relied on an alternative basis of liability, namely, that she was acting with others jointly to commit the offence, purportedly relying on s 8 of the Code.
[5] ts 77.
When the trial judge asked whether the State also alleged that the appellant committed either of the offences because she had done an act for the purpose of enabling or aiding another person to commit the offence, or on the basis that she was an aider, for the purposes of s 7(b) or s 7(c) of the Code respectively, the prosecutor disavowed any reliance on either basis of liability. It is difficult to understand the prosecutor's approach. After all, the prosecutor had opened to the jury on the basis that it was possible that the appellant had committed both offences with another person and maintained that this was a reasonable possibility in her exchanges with the trial judge before she commenced her closing address.[6]
[6] ts 77 - 79.
The trial judge was obviously troubled by the prosecutor's approach. At one stage in his exchanges with the prosecutor he said:
Well, if there was someone else involved, which a jury might find there probably was … then why couldn't the jury find that if Ms Ripper did not commit the offence herself that she assisted someone else to do so? … Isn't that the simplest pathway to criminal responsibility in the alternative?[7]
[7] ts 78.
The trial judge did not make any rulings about how the prosecution case would ultimately be left to the jury to consider until after counsel had delivered their respective closing addresses. However, before the prosecutor began her closing address, the trial judge gave the jury a direction about the limited relevance of the appellant's evidence that her partner had told her that he had committed the burglaries:
But of course, the State's position is that there may well have been someone else involved. The issue for you, as I'll direct you in due course, is whether Ms Ripper was involved in a way that would make her criminally responsible for the burglaries.[8]
Prosecutor's closing address
[8] ts 81.
In her closing address, the prosecutor argued that the jury should reject the appellant's denials because her evidence was not credible. In relation to count 1, she said that the only reasonable explanation for the presence of the medical dressing on the balcony at the Mount Pleasant address, on which traces of a mixed DNA profile which included a profile matching the appellant's DNA profile were found, was that the appellant had been at that address when the burglary was committed. The prosecutor also suggested that it was highly unlikely that the dressing had made its way to where it was found at that address by some other means. She argued that the fact that two items of jewellery stolen in the burglary were found in the appellant's bedroom a relatively short time later 'corroborated' the appellant's involvement in the burglary.
In relation to count 2, the prosecutor submitted that the only reasonable explanation for the fact that a DNA profile, which formed part of a mixed DNA profile but which matched the appellant's DNA profile, was found on the broken glass of a rear sliding door leading into the Rossmoyne address was that the appellant 'reached her hand through the hole to unlock the door and gain entry to the house'.[9] The prosecutor suggested, in effect, that the jury might conclude that the DNA profile matching the appellant's DNA profile was deposited either when the appellant made direct contact with the broken glass with her hand, or indirectly from a glove that she was wearing at the time. The prosecutor argued that it was not plausible that someone other than the appellant caused the appellant's DNA to be transferred to the broken glass on the door, whether indirectly from either their own hand or from the glove they were wearing, or by some other means.
[9] ts (closing address) 5.
The prosecutor's principal submission was that the appellant had committed all the physical acts constituting both of the offences, in that she had committed an offence of stealing while in the homes of the complainants without their consent. However, consistent with the approach taken in her opening address and with what she said in her exchanges with the trial judge before commencing her closing address, the prosecutor expressly recognised the possibility that the jury might not be satisfied that the appellant actually went into either of the two homes the subject of the two offences. For example, at one point in her address the prosecutor said:
In relation to each count, if you're satisfied that Ms Ripper did attend the relevant address, but you're not satisfied that she herself went inside, you'll then need to consider whether Ms Ripper attended the address because she had a common purpose or plan with another person to burgle the address.[10]
[10] Addresses ts 8.
A short while later the prosecutor also said:
Because of course, finding Ms Ripper criminally responsible for the offences does not require you to find that she was the only one at the address or that she went inside. You may well think that somebody else was there but that Ms Ripper attended with a common purpose of entering the house and stealing property from that address. And if you accept that Ms Ripper attended the address, then I'd suggest to you that her purpose must have been to enter the house and steal property.[11]
[11] Addresses ts 8.
It is patently clear from those passages that the prosecutor was intending to invoke s 8 of the Code as a basis for criminal liability.
It is unnecessary for us to deal in any great detail with the prosecution case to the extent that the State sought to rely on s 8 of the Code as a basis for liability. This is because, as will be seen, the trial judge ultimately instructed the jury that they could only find the appellant guilty of either count if they were satisfied that she actually entered the relevant place and personally committed the offence of stealing therein.
However, it is convenient to make two observations about the prosecutor's attempt to rely on s 8 of the Code as a basis for criminal liability. First, to the extent that the prosecutor relied on s 8 of the Code, it was necessary for the jury to be satisfied that the appellant was physically present at the time the offences were committed. This is because it was not part of the prosecution case that the appellant had formed a common intention to prosecute an unlawful purpose with another person in circumstances in which she had not actually been present at the time either of the offences were committed. Second, the prosecutor's address did not adequately convey all of that which the jury would have been required to decide for the purpose of determining the appellant's liability under s 8 of the Code. In particular, the prosecutor's submissions did not ever make it clear that even if the jury were satisfied that the appellant had formed a relevant common intention to prosecute an unlawful purpose in conjunction with another person, they were also required to be satisfied that the commission of the offence alleged was a probable consequence of the prosecution of such a purpose. However, as will become clear, nothing turns on the prosecutor's approach to the operation of s 8 of the Code.
Defence counsel's closing address
In his final address, defence counsel explained that there was no dispute that the offences alleged on the indictment had been committed. He told the jury that the only issue was whether they should be satisfied beyond reasonable doubt that the appellant was the offender in relation to either or both of the offences charged.
Defence counsel then spoke about the offence charged in count 2. After explaining to the jury how the offender must have gained entry to the Rossmoyne address, with a view to suggesting that the offender must have been wearing gloves, defence counsel then argued that it was reasonably possible that the appellant's DNA had been indirectly transferred onto the broken glass of the rear sliding door from the outside of a glove worn by the offender. The point of defence counsel's argument was to suggest that, notwithstanding the presence of the appellant's DNA at the scene of the offence, the jury could not be satisfied to the criminal standard that she had been present at the time the burglary the subject of count 2 was committed.
Defence counsel then spoke about count 1. He suggested that the medical dressing found at the Mount Pleasant address, on which traces of a mixed DNA profile that included a DNA profile matching the appellant's DNA profile were found, may have been transported there by her partner, perhaps when it got caught in his clothes, or when it fell out of a pocket, or when it got stuck to the bottom of his shoe. Counsel also argued that there was a reasonable explanation for the appellant having been found in possession of jewellery stolen in the course of the offence charged in count 2, namely, that the appellant's partner had given her the jewellery after the burglary had been committed.
In relation to the appellant's own evidence, counsel candidly accepted that there were aspects that were not 'particularly compelling'.[12] He nonetheless submitted that the jury should accept her denials that she had committed either of the offences, and her evidence that she was in a relationship and had been cohabitating with her partner. These submissions heavily implied that the appellant's partner had committed the offences, and that he had done so without the appellant's involvement.
[12] ts (closing address) 15.
Towards the end of his address defence counsel argued, contrary to the prosecutor's submissions, that there was no evidence that someone else had been involved in committing the offences as part of an unlawful common purpose with the appellant. However, and somewhat inconsistently, he also argued that if the jury were satisfied that the appellant was physically present at the time either or both of the offences were committed, then it did not follow that they would be satisfied that the appellant actually committed the offence. In that regard, counsel said:
It could have been one of the people who the State say may have been there who went with her, she could have just been tagging along and her partner or someone else might have said, 'Let's go commit a burglary,' and without participating in it, just standing in the backyard. Why is that implausible?[13]
[13] ts (closing address) 17.
Trial judge's directions
Before his Honour started his directions to the jury, he told counsel that he was inclined to direct the jury that it was not open to them to consider whether the prosecution had proved that the appellant was guilty of either offence on the basis that she was liable for the commission of those offences under s 8 of the Code. One of the reasons he gave was that there was no evidence that anyone else had been involved in the burglaries, although this may have been somewhat inconsistent with the difficulties he had earlier expressed about the State's decision not to rely on s 7(b) or s 7(c) of the Code.
In response to his Honour's indication that he was not inclined to direct the jury to consider the prosecution case that the appellant was criminally liable for the offences by operation of s 8 of the Code, the prosecutor made the following submission:
PROSECUTOR: Your Honour, I think all I could say is, firstly, the reason why the State sought to leave section 8 open is because if the jury are not satisfied that Ms Ripper herself entered the house, then they shouldn't be precluded from finding guilt, if there is some other basis on which she should be found guilty.
I appreciate there is not [sic] evidence that there was a second person present, the State obviously didn't present any evidence to that effect, although the jury shouldn't be precluded from being satisfied as to her guilt because they've got this doubt in their mind as to whether there were one or more than one people present.
They might well think that there was a second person present because there were two contributors to the DNA [at] each scene.[14] (emphasis added)
[14] ts 84.
Defence counsel submitted, in effect, that the trial judge should direct the jury to consider whether the appellant was guilty of the counts on the indictment only by reference to the question of whether she was a principal offender for the purposes of s 7(a) of the Code and that they should be directed not to consider the State's alternative case based on s 8 of the Code. Counsel submitted that it was not open to the jury to convict on the basis that the appellant was criminally liable in accordance with s 8 of the Code because there was no evidence that the appellant had formed a common intention to prosecute an unlawful purpose in conjunction with another person.
In light of the issues raised by the grounds of appeal, which are reproduced later in these reasons, it is only necessary to refer in detail to certain parts of the trial judge's directions.
After the trial judge gave the jury standard directions about the onus and standard of proof, as well as directions about the manner in which the jury deliberations and the delivery of verdicts should take place, his Honour then gave the jury a 'separate consideration direction'.[15] In that regard, the jury were told that they had to consider the evidence relating to the individual charges in deciding whether they had been proved beyond reasonable doubt. They were also told that the 'evidence of one count doesn't prove another', that they had to give separate consideration to each count, and that they did not have to return the same verdict in respect of both counts on the indictment.[16]
[15] Hamilton v The Queen [2021] HCA 33; (2021) 274 CLR 531 [22].
[16] ts 89.
The trial judge identified for the jury the evidence the parties had adduced during the trial, before formulating the issues they were required to determine. In that regard, the trial judge told the jury that the real issue for them to decide was whether the appellant was the person who had committed the burglaries that had taken place at the two addresses in Mount Pleasant and in Rossmoyne. He also explained that the defence case was that the accused was not present at the time either of the burglaries were committed, and that there were innocent explanations for her DNA being found at the scene of both offences and having been found in possession of items that had been stolen in the course of the burglary the subject of count 1.
On the question of the legal basis on which the prosecution alleged that the appellant was liable for having committed the offences, the trial judge gave the jury the following directions:
Now, you might think that there could have been other people involved in the offences, or another person. That of course, is a possibility but there is no evidence of anyone else being involved in either burglary. There's no other person's DNA that's been found[17] and as I said, there's no eye-witness evidence. There's really no evidence that implicates anyone else in the commission of these offences.
So you are only concerned to decide whether the evidence as a whole proves beyond reasonable doubt that Ms Ripper committed the burglary offence charged in each count.
Notwithstanding what [the prosecutor] said to you about [an] alternative basis of criminal responsibility being that she was acting with others, my direction to you as a matter of law is that there is no evidence implicating anyone else in the commission of these offences, even though that possibility obviously exists.
But it would be a matter of speculation on your part to find that Ms Ripper was part of a plan performed by her and one or more others to commit an offence that she did particular acts in furtherance of that plan.
My direction to you is that you have to consider the evidence with a view to deciding whether the evidence supports, as the only reasonable conclusion, a conclusion that Ms Ripper committed the burglary in each case. And I'll come in due course to explain what has to be proved in that respect.[18] (emphasis added)
[17] This part of the trial judge's direction was inaccurate. When this was later pointed out by defence counsel, his Honour then reminded the jury that both of the mixed DNA profiles that were obtained from the medical dressing found at Mount Pleasant and from the swab taken from the broken glass at Rossmoyne contained a DNA profile (or profiles) other than the appellant's own profile.
[18] ts 93 - 94.
In effect, his Honour directed the jury that it was not open to convict the appellant of either offence on the basis that she had formed a common purpose or plan to commit a burglary with others. He told the jury that they were required to decide whether the only reasonable inference, based on all the evidence, was that the appellant actually committed the offences charged. It is important to note at this point, however, that his Honour also told the jury that it was possible that another person or persons had been involved in the commission of the offences.
Later in his directions, the trial judge explained to the jury in more detail what the prosecution was required to prove for them to convict the appellant of either count in the indictment. Consistent with his earlier determination that it was not open to the State to rely on s 8 of the Code, the trial judge told the jury:
So that's what has to be proved, members of the jury, to establish an offence of home burglary, that the accused was the offender, that the accused entered the place of another without their consent, and that in the place, the accused committed the offence of stealing. And it is the circumstance of aggravation that the place was ordinarily used for human habitation.[19] (emphasis added)
[19] ts 100.
It is also necessary to note that his Honour gave a conventional 'Liberato direction',[20] in which he explained that if the jury accepted the appellant's evidence, or thought that what she had said might be true as a reasonable possibility, then they would acquit her. He also told the jury that even if they rejected the appellant's evidence, they:
should put her evidence to the side and decide on the basis of evidence that you do accept whether that evidence proves the State's case beyond reasonable doubt.[21]
[20] See Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
[21] ts 95.
Grounds of appeal
The appellant ultimately relied on the following grounds of appeal:
1.There was a miscarriage of justice occasioned by the judgment of conviction entered against the Appellant on count 2 of indictment 1254 of 2022 due to the verdict of guilty on that count being unreasonable or unsupported by the evidence.
Particulars
a.Count 2 was a charge that the Appellant had committed a home burglary at Rossmoyne at the place of [the complainant] on a date between 16 and 30 May 2021.
b.The only fact in issue at trial was whether the Appellant was the burglar.
c.The only evidence tending to prove this fact was the presence of the Appellant's DNA at the scene.
d.The way in which the State presented its case and the whole of the evidence before the jury was incapable of negating a reasonable inference consistent with the Appellant's innocence, namely that her DNA was present at the scene due to indirect transfer and not due to her participation in the home burglary.
e.The way in which the State presented the case and the whole of the evidence before the jury was incapable of negating a reasonable inference consistent with the appellant's innocence, namely that she may have deposited her DNA as an aider without committing an offence inside the premises.[22]
[22] Particular (e) of ground 1 was added at the hearing of the appeal.
2.The learned primary judge erred in law in failing to direct the jury as to the use they may make of evidence or a conviction in respect of one count when considering the other count, and in failing to direct the jury how they must not, use evidence or a conviction relating to one count in proof of the other count.
Particulars
a.The appellant was tried on two counts of burglary;
b.The learned primary judge gave an orthodox direction about the need for separate verdicts (T89.3);
c.The learned primary judge directed the jury that 'evidence of one count doesn't prove another';
d.There is a danger that the jury may have found that the appellant committed the burglary the subject of count 1 and that as a result of that finding, to have further concluded that she committed the burglary the subject of count 2;
e.The learned primary judge should have informed the jury of the precise manner in which such a finding could be used;
f.The learned primary judge should have directed the jury that they should not reason (if they so found) that just because one explanation given by the appellant was not true, that the other explanation was not true, nut [sic] did not do so; and
g.The failure to give a direction which the circumstances require to be given amounts to a misdirection.[23]
[23] Leave to amend the grounds of appeal to include ground 2 was granted at the hearing of the appeal.
At the hearing of the appeal, counsel for the appellant confirmed that both grounds of appeal are concerned only with the conviction for count 2. Accordingly, the conviction relating to count 1 will remain unaffected by the result of this appeal.
Ground 1
Where a ground of appeal asserts that a verdict of guilty on which a conviction is based should be set aside, this court is required to apply the principles referred to in Wark v The State of Western Australia.[24] Those principles were very recently summarised in Sturniolo v The State of Western Australia[25] and do not need to be repeated other than to reiterate that the nature and extent of the court's task will be informed by:
(a)the elements of the offence;
(b)the accused's defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the tribunal of fact;
(f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.[26]
[24] Wark v The State of Western Australia [2023] WASCA 66 [329] - [342].
[25] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] - [72].
[26] Wark v The State of Western Australia [342].
The nature of the court's task in this case is relatively confined. This is because the appellant's essential contention is that the verdict of guilty in relation to count 2 is unreasonable or cannot be supported because the court should conclude, after undertaking its own independent assessment of the whole of the evidence, that it was not reasonably open to the jury to be satisfied that the only rational inference was that the appellant was physically present at the time that offence was committed (particular (d) of ground 1). As we have already observed, an indispensable part of the State case was that the appellant was physically present at the time the offence was committed.
In the alternative, the appellant contends that if it was open to the jury to be satisfied that the appellant was physically present at the time the offence was committed, it was nevertheless not open to them to be satisfied that the appellant did all of the acts comprising the offence of burglary, which the prosecution was required to prove before she could be found to have been criminally liable pursuant to s 7(a) of the Code. Specifically, by particular (e) of ground 1, the appellant contends that it was not open to the jury to be satisfied that the only rational inference was that she entered the place the subject of count 2 and committed an offence of stealing therein.
The distinction between the contentions made in particulars (d) and (e) is important. If the contention in particular (d) is made out, then not only must the judgment of conviction entered in respect of count 2 be set aside, but there can be no order for a retrial. This is because, as has already been noted, the prosecution case depended on the jury being satisfied beyond reasonable doubt that the appellant was physically present at the time the offence was committed.
On the other hand, if it was open to the jury to be satisfied beyond reasonable doubt that the appellant was physically present at the time count 2 was committed but, consistent with particular (e), it was not open to be satisfied that she actually entered the relevant place and committed an offence of stealing therein, then further consideration will need to be given to the question of whether the court should order a retrial. This is because there will be a question about whether the court should exercise its discretionary power to order a retrial having regard to, amongst other things, the cogency of the evidence that was adduced at the appellant's trial and whether it was capable of supporting a conviction on a basis other than s 7(a) of the Code.
The parties' submissions
The parties' submissions in support of ground 1 can be stated briefly. The appellant submits that it was not open to the jury to be satisfied beyond reasonable doubt that she was physically present at the time count 2 was committed. The appellant rightly accepts that it was open to the jury to reject her evidence that she was not involved in the commission of that offence. However, it is submitted that having rejected the appellant's evidence, the jury were required to put her evidence to one side and to then consider the evidence relied on by the prosecution, which, it is submitted, was not properly capable of supporting the verdict.
In the context of particular (d), it is submitted that the only evidence available to the prosecution to prove that the appellant was present at the time of the offence was the presence of DNA material in a mixed DNA profile that was highly likely to have originated from the appellant that was found on a rear sliding door that had been used to gain entry to the Rossmoyne address. The appellant submits that it was not open to the jury to be satisfied that the only rational inference that could properly be drawn from that evidence was that the appellant was present at the time the offence was committed. More specifically, the appellant contends that it was not open to the jury to conclude that the only rational inference was that the appellant had deposited her DNA material directly onto the rear sliding door while she was committing the offence. The appellant says that alternative rational inferences were open, including an inference that material containing the appellant's DNA was indirectly deposited onto the rear sliding door by another person whose DNA was also present in the mixed DNA profile that was found, possibly from the gloves that they were wearing when they broke the glass of that door.
In relation to particular (e), the appellant submits that even if it were open to the jury to find that the appellant had been physically present when count 2 was committed, it was not open to be satisfied that she was criminally liable pursuant to s 7(a) of the Code, which was the only other basis of criminal liability left to the jury to consider. It is submitted that, in light of what was decided by the majority in O'Dea v The State of Western Australia,[27] before the jury could be satisfied that the appellant was guilty of count 2 on the basis of s 7(a) of the Code, they would need to be satisfied beyond reasonable doubt that she had done all of the acts that constituted that offence. The appellant contends that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant actually went into the place the subject of count 2, or that she committed an offence of stealing while she was in that place. According to the appellant, it follows that the verdict of guilty in relation to that count should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
[27] O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315 [30], [67] ‑ [69].
The respondent submits that the appellant has failed to demonstrate that it was not open to the jury to be satisfied to the requisite standard that she was physically present at the time count 2 was committed. The respondent submits that, having regard to all the evidence, including the appellant's evidence, it was open to the jury to conclude that the appellant was physically present when count 2 was committed and was guilty of that offence.
As the appellant was granted leave to amend ground 1 by adding particular (e) at the hearing of the appeal, counsel for the respondent did not have the benefit of prior notice that he would be required to deal with the issues raised by that particular. As a result, the respondent's counsel was offered further time to consider his response and the opportunity to provide written submissions after the conclusion of the hearing of the appeal. However, counsel did not request further time and did not take the opportunity of filing further written submissions. Instead, counsel made oral submissions at the hearing of the appeal.
The respondent's counsel attempted to demonstrate why the court should conclude that it was open to the jury to find that the appellant had done all of the acts comprising the offence the subject of count 2 as required by s 7(a) of the Code. However, he ultimately appeared to accept that it was difficult to resist ground 1 being allowed on the basis of particular (e).[28]
Determination of ground 1
[28] Appeal ts 38 - 39.
It is unnecessary to decide whether to accept particular (d) of ground 1, that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was physically present at the time count 2 was committed. Because of the narrow basis on which the prosecution case was ultimately left to the jury, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant committed the offence charged in count 2, because it was not open to find that the appellant did all of the acts comprising that offence as required by s 7(a) of the Code. In particular, it was not open to the jury to find to the criminal standard that the appellant had committed an offence of stealing while she was in the Rossmoyne address. It follows that particular (e) of ground 1 is made out. Before setting out the reasons for reaching that conclusion it is necessary to identify the evidence relied on by the prosecution to prove the offence charged in count 2 in more detail.
It is convenient to commence that process by observing that in its case relating to count 2, the prosecution did not rely on the evidence that was relevant to prove count 1, or any finding of guilt that the jury may have reached in respect of that offence. Further, and as will be seen in the context of ground 2, the trial judge gave the jury several directions that required separate consideration to be given to counts 1 and 2.
The approach taken by the prosecution is somewhat puzzling given that both offences were committed in relatively similar ways, within a short period of time, and at unoccupied residential addresses located within a relatively short distance from each other. What it means for the purposes of this appeal, however, is that the only evidence that was relied on by the prosecution to establish the appellant's guilt in relation to count 2 was as follows.
Firstly, the prosecution relied on the evidence of the owner of the Rossmoyne address. It is plain that this evidence was not capable of rationally affecting the jury's consideration of whether the prosecution had proved to the necessary standard that the appellant had been physically present at the time the offence was committed, or whether, if she was present, she did all of the physical acts that comprised that offence.
Secondly, the prosecution relied on the evidence of Constable Brodie Gill, a forensic police officer who attended the Rossmoyne address after the offence had been committed and carried out a forensic examination at that address. His evidence included that he saw what appeared to be glove marks on the frame of the glass sliding door that had been used to gain entry during the burglary. He also gave evidence that he took two swabs from the sliding door, one each from the edges of glass in the two holes that had been smashed in the glass to effect entry, and that both swabs were sent for further analysis. In cross‑examination, Constable Gill agreed that one of the holes was big enough for a hand, including a gloved hand, to fit through in order to open the door's locking mechanism.
Constable Gill's evidence strongly suggested that any DNA found on the edges of the glass in the sliding door could only have been deposited there after the glass had been broken and, therefore, while forcing entry to the home to commit count 2. However, none of Constable Gill's evidence, when considered on its own, could prove that the appellant was physically present at the time the burglary was committed.
Thirdly, and most significantly, the prosecution relied on evidence from a forensic scientist, Daniel Turner, which was relevantly concerned with the analysis of the swabs that Constable Gill had taken. Mr Turner gave evidence that a mixed DNA profile was found in the swab that was taken from broken glass in a hole in the rear sliding door that was adjacent to the door's locking mechanism. Mr Turner explained that a mixed DNA profile is a profile that has more than one contributor, and that the mixed DNA profile that was obtained in this case included a profile that matched the appellant's DNA profile. He explained that it also contained a DNA profile from someone other than the appellant, however that person could not be identified because the DNA was recorded at levels that were too low for further interpretation.
Mr Turner's unchallenged evidence about the statistical analysis that was carried out was that the mixed DNA profile was 550 million times more likely to have occurred if the appellant was a contributor to that profile. Unsurprisingly, in the face of that evidence, the proposition that the appellant's DNA had been deposited onto the broken glass of the rear sliding door was never seriously questioned by or on behalf of the appellant.
Mr Turner also gave evidence that the DNA profile that matched the appellant's DNA profile contributed about 93% of the total DNA in the mixed DNA profile. The other unidentifiable DNA profile made up the remaining 7% of the mixed DNA profile.
Importantly, in the context of ground 1, Mr Turner gave evidence that 'DNA can be present on a target surface through two different mechanisms'.[29] He explained that the first mechanism is by 'direct transfer', where DNA is deposited directly from the donor of the DNA onto a target surface. Mr Turner said this can occur when a person touches a surface and leaves behind traces of DNA. He also said that direct transfer can occur through other mechanisms, for example, by sneezing onto a surface.
[29] Emphasis added.
Mr Turner explained that DNA will not always be recovered after a direct transfer event. He said that there are many different variables that affect whether DNA will be recovered, including the amount of DNA material transferred in the first place and the length of time between the deposition of the material onto the surface and the sampling of the surface. He also said that environmental factors such as sunlight or bacteria may degrade DNA, that whether DNA is detected may depend upon the effectiveness of the recovery process itself, and that DNA may not be recovered where a barrier, such as a glove, was present. He went on to explain that matters such as the abundance and type of DNA containing cells (such as skin cells and blood cells), whether a surface has been washed, and the duration of and friction involved in any contact, may affect whether sufficient, or any, DNA is recovered.
Mr Turner then gave evidence that DNA may also be indirectly transferred to an object. He said that the indirect transfer of DNA to an object occurs when the original donor of the DNA has no direct contact with the object. To further explain this concept, Mr Turner referred to the possibility that he may have touched the bench that was in front of him in the witness box. He said that when he left the courtroom and the next person came in and sat at the same bench, that person may get his DNA on their hands after touching the bench, by a process of indirect transfer.
Mr Turner said that whether DNA is recovered after indirect transfer has occurred is influenced by the same factors that influence the recovery of such material after direct transfer. He said that one of the biggest factors that affects the recovery of DNA after indirect transfer has occurred is the number of transfer steps. He explained that for every subsequent transfer step, the chance of recovery is reduced. Mr Turner also confirmed that a DNA profile alone cannot establish the biological source of the DNA. He also gave evidence that he was unable to say how long-ago DNA may have been deposited on a surface or, importantly, how it came to have been deposited. He further stated that where DNA from more than one person is found on a surface, he could not say whose DNA was deposited on the surface first.
In cross‑examination, Mr Turner agreed that DNA could be transferred from the outside surface of a glove to another surface, including onto a glass sliding door. He also agreed that the proportions of DNA found in a mixed DNA profile do not allow him to determine whether any of the material was transferred to a surface by indirect or direct transfer. Further, Mr Turner agreed that some people shed more DNA than other people. He said that this naturally meant that such people deposit more DNA when they touch a surface as compared to poor shedders, who may only shed a small amount of such material.
Accordingly, and as can be seen from this summary, at the end of the prosecution case the only substantive evidence relied on to prove that the appellant was guilty of count 2 was the presence of biological material on the broken glass of the sliding door that almost certainly contained the appellant's DNA. It is important to appreciate, in this context, that the prosecution did not adduce any other evidence that was capable of bearing on the question of which of the two mechanisms of transfer, direct or indirect, was more likely to have resulted in the biological material containing the appellant's DNA being deposited onto the broken glass of the sliding door. In that regard, Mr Turner did not give any evidence about which mechanism was more likely to have occurred in the circumstances of this case. There was also nothing in the balance of the State's case that may have enabled the jury to favour one mechanism over the other. For example, there was no evidence about the specific type of biological material that had been deposited onto the glass of the sliding door, which may have suggested which of the two mechanisms was more likely. In those circumstances, the evidence relied on by the prosecution gave rise to the reasonable possibility that biological material containing the appellant's DNA had been indirectly deposited onto the broken glass.
Based on other evidence relied on by the prosecution, the possibility that indirect transfer of the appellant's DNA had occurred was real and not hypothetical. In that regard, biological material from an unknown person was also found on the broken glass. Further, there was evidence that suggested that a glove was likely to have been used when entry was made to the Rossmoyne address. In circumstances in which there was no evidence about whether any of the DNA - whether from the appellant or from the other unknown person - had been directly or indirectly deposited onto the broken glass, the presence of those DNA profiles on the broken glass as part of a mixed DNA profile might reasonably be explained on the basis that at least one of them had been indirectly transferred from the outside of a glove or, indeed, indirectly transferred by any other means. In that regard it is important to recall that Mr Turner's evidence about the statistical analysis carried out on the mixed DNA profile and the relative proportions of DNA material found in the mixed DNA profile was that those proportions said nothing about whether any of the DNA material had been directly or indirectly transferred to the glass.
Accordingly, at the close of the prosecution case the possibility that the DNA material matching the appellant's DNA profile had been deposited onto the broken glass by indirect transfer could not be excluded.
The appellant chose to give evidence at her trial. Based on our review of the transcript of the appellant's evidence, her evidence was very unsatisfactory. When the appellant's trial counsel attempted to ask her whether she was able to explain the presence of her DNA at the homes that were the subject of the two charges, the prosecutor objected, and her counsel did not then persist with this line of questioning. The appellant's counsel also declined the trial judge's invitation at the end of the appellant's evidence‑in‑chief to further explore this issue with the appellant. Ultimately, this meant that the appellant did not provide any cogent explanation for how biological material containing her DNA may have been deposited on the broken glass of the sliding door of the Rossmoyne address. Instead, the appellant gave evidence that in May 2021 she was living in Meadow Springs[30] with her partner and her children. She also said that at this time she was working with her mother at a plant nursery, 'potting succulents and cactuses'.[31] The appellant also gave hearsay evidence that her partner had told her that he had committed the burglaries,[32] and that her partner had given her the stolen jewellery that was found by police in her bedroom when she was arrested. The overall effect of the appellant's evidence‑in‑chief was that she had not committed either of the burglaries, and that it was at least likely that her partner committed count 2 while wearing gloves that the appellant had previously used while working with her mother at a plant nursery.
[30] A suburb of Mandurah.
[31] ts 65.
[32] Before counsel delivered their closing addresses the trial judge instructed the jury that the appellant's evidence about what her partner told her was hearsay and that it was not evidence that was admissible to prove that someone else committed the offences (ts 81).
The appellant was not subjected to a lengthy cross‑examination. She was asked several questions about when she had moved into the address in Meadow Springs, which is where she was living when the police searched her bedroom. She was also asked about when she was living with her partner. It is unnecessary to reproduce the cross‑examination. It is enough to observe that the appellant's answers to those questions were confusing and sometimes inconsistent.[33]
[33] ts 70 - 71.
It is more significant, however, that the appellant accepted in cross‑examination that she had lied to the police about what she knew about the jewellery they had found in her bedroom. Although the fact that she was found in relatively recent possession of the stolen jewellery was, in the context of the prosecution case at trial, relevant only to whether she was guilty of count 1, the fact that she had lied to the police was a matter that was available to the jury to be used in assessing her credibility generally, including in assessing her denials that she had committed the burglary the subject of count 2.
In re-examination, the appellant was asked about when she moved into the address at Meadow Springs. Again, her answers were confusing. The unsatisfactory nature of her evidence did not improve when the trial judge then attempted to clarify her answers after the re-examination.
It was plainly open to the jury to reject the appellant's evidence. The appellant's counsel accepted as much at the hearing of the appeal.[34] It was well open to the jury, who had the advantage of seeing and hearing her give evidence, to conclude that none of her evidence was credible. It was also open to the jury acting reasonably to reject the appellant's evidence that she had nothing to do with the commission of the offence charged in count 2 because she had, on her own admission, lied to the police about a very significant matter. The jury were also entitled to reject the implication of the appellant's evidence that her partner had committed count 2, and that he had indirectly transferred her biological material to the broken glass of the sliding door when he gained entry using a glove she had previously used while helping her mother at a plant nursery.
[34] Appeal ts 11
At the hearing of the appeal the appellant's counsel appeared to submit that because it was open to the jury to reject the appellant's evidence, in carrying out its own independent assessment of the sufficiency and quality of the evidence, this court must put her evidence to one side, as the jury were instructed to do in this case.[35] It was submitted that when the appellant's evidence is put to one side all that is left is the evidence relied on by the prosecution, namely that biological material containing the appellant's DNA was found on the broken glass of the sliding door.[36] On this basis it was submitted that it was not open to the jury, acting reasonably, to conclude that the only rational inference was that the appellant was physically present at the time count 2 was committed because, as explained above, it was reasonably possible that the appellant's DNA had been indirectly deposited onto the broken glass door.
[35] ts 95.
[36] Appeal ts 11.
In light of our conclusion in relation to particular (e), which is detailed below, and having regard to the fact that, as we explain later in these reasons, we would exercise the court's discretion not to order a retrial, it is unnecessary to decide whether particular (d) of ground 1 has been made out. It is also unnecessary to give further consideration to the larger question raised by counsel's submissions, about whether in carrying out its task of deciding whether it was open to the jury to be satisfied to the requisite standard that the appellant was physically present at the time the count 2 was committed, this court should simply put the appellant's evidence to one side, and disregard it as if it had not been given.
As has already been observed, the prosecution case was put to the jury on a very narrow basis. The prosecutor expressly disavowed any reliance on s 7(b) or s 7(c) of the Code, despite the trial judge inviting her to reconsider that stance. Further, the trial judge eventually directed the jury not to consider the prosecution's alternative case based on s 8 of the Code. The consequence of these decisions was that before convicting the appellant of count 2 the jury had to be satisfied that the appellant was criminally liable under s 7(a) of the Code.
In O'Dea v The State of Western Australia,[37] a majority of the High Court (Gordon, Edelman & Steward JJ) held that before an accused can be found criminally liable for an offence under s 7(a) of the Code the prosecution must prove that the accused actually did the act (or, by extension, all of the acts) that constitute the relevant offence under consideration. In that case, the appellant was charged with an offence of unlawfully doing grievous bodily harm to another with intent to maim, disfigure, disable, or to do some grievous bodily harm, contrary to s 294(1)(a) of the Code. The majority held that the appellant in that case could only be found to be liable for that offence under s 7(a) of the Code if the prosecution proved that he actually did an act that caused the relevant grievous bodily harm.[38]
[37] O'Dea v The State of Western Australia [30], [62], [67] - [69], [79] - [81] (Gordon, Edelman & Steward JJ).
[38] O'Dea v The State of Western Australia [67].
In this case the appellant was charged in count 2 with an offence of burglary, contrary to s 401(2)(b) of the Code. The elements of that offence are that the appellant was in the place of another person, without their consent, and that while the appellant was in that place, she committed an offence. For the purposes of count 2 the offence that the appellant was alleged to have committed while in the place of another was the offence of stealing. Accordingly, and consistently with what was decided in O'Dea, in order to establish that the appellant was guilty of count 2 on the basis that she was liable for that offence under s 7(a) of the Code, the prosecution was required to prove that she was actually in the place of another, and that while she was in that place she personally did an act that constituted an offence of stealing.
For the purposes of count 2, the only evidence that the appellant was in the place of another and that she personally committed an offence of stealing while she was in that place was the presence of DNA matching the appellant's DNA profile on the broken glass of the sliding door. However, and as has already been noted earlier in these reasons, the prosecutor conducted the State's case on the basis that it was reasonably possible that the appellant committed count 2 with at least one other person. In her closing address the prosecutor went so far as to effectively concede that there was a possibility that the jury might not be satisfied that the appellant ever actually went inside the place that was the subject of count 2.[39]
[39] ts (closing address) 8.
The fact that the State conducted its case against the appellant on this basis is unsurprising, as the mixed DNA profile obtained from the swab taken from the broken glass demonstrated that DNA from two individuals had been deposited onto that glass. However, the prosecutor's concession was inconsistent with the prosecution case that the appellant was criminally liable for the offence charged in count 2 under s 7(a) of the Code. If the jury were not satisfied that the appellant ever physically entered the Rossmoyne address, then the appellant could not be found guilty of count 2 under s 7(a) of the Code.
Regardless of the prosecutor's concession, and as we have already said earlier in these reasons, based on the evidence adduced by the prosecution, the possibility that the DNA material matching the appellant's DNA profile had been deposited onto the broken glass by a process of indirect transfer could not be excluded. Therefore, on the assumption that it was open to the jury to find that the appellant was present at the time the offence was committed, it was not reasonably open to conclude that the only rational inference to be drawn from the relevant DNA evidence was that the appellant had entered the place the subject of count 2, or that she had then committed an offence of stealing while she was in that place. Based on the prosecution evidence, it was reasonably possible that the person whose DNA was also found on the broken glass had indirectly transferred the appellant's DNA while he or she was in the process of gaining entry to the Rossmoyne address.
Even if it were open to the jury to infer that the appellant had entered the place the subject of count 2, and then even if only to the limited extent that one of her hands, or a part of one of her hands, was 'in the place' when the glass was broken and when an attempt was made to open the locking mechanism,[40] it was not open to the jury to conclude that the only rational inference was that she committed the offence of stealing while she was in that place. If the appellant had actually entered the place, it was still reasonably possible that she then stood back and watched while the other person whose DNA was also found on the broken glass actually did the acts of stealing.
[40] Section 400(2) of the Code provides that a person enters or is in a place as soon as any part of the person's body, or any part of anything in the person's possession or under the person's control, is in the place.
It follows that particular (e) of ground 1 should be allowed. The consequences of this conclusion will be addressed after dealing with ground 2.
Ground 2
Given the conclusion reached in relation to ground 1 it is unnecessary to give detailed consideration to the issues raised by ground 2. However, as ground 2 was fully argued it is appropriate to deal with that ground, albeit briefly.
This ground was added by the appellant, with leave, after the court wrote to the parties before the hearing of the appeal to enquire whether the appellant intended making any submissions about the adequacy of the trial judge's directions. In particular, the court enquired whether the appellant intended to argue that the trial judge failed to direct the jury about how they may, or how they must not, use any evidence or a finding of guilt relating to count 1 in proof of count 2.
As has already been noted, the prosecutor did not rely on the evidence that was admissible in relation to count 1 in proof of count 2. She also did not at any time suggest that the jury could use a conclusion that the appellant had committed the offence charged in count 1 in considering whether the prosecution had proved that she was guilty of count 2. The trial judge did not give, and was never asked to give, the jury any directions warning them against using the evidence relating to count 1 in that way, or in engaging in a process of reasoning towards guilt in relation to count 2 that relied on a finding of guilt in relation to count 1. However, by ground 2 the appellant asserts that the trial judge's failure to give those directions amounts to an error of law.
At the hearing of the appeal, counsel for the appellant did not suggest that there was a rule of law that required the trial judge to give the direction that he contended should have been given. Instead, the effect of counsel's submission was that in the circumstances of this case such a direction was required to avoid a perceptible risk of a miscarriage of justice.
In DLS v The State of Western Australia it was said that:[41]
The general principle is that a trial judge should give the jury a warning whenever a warning is necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. The 'possibility of a miscarriage of justice' is both the occasion for giving a warning to the jury and the determinant of its content. (footnotes omitted)
[41] DLS v The State of Western Australia [2021] WASCA 197; (2021) 293 A Crim R 113 [83].
In the circumstances of this case, it appears from counsel's submissions that the relevant 'possibility of a miscarriage of justice' relied on is that the jury may have reasoned towards a conclusion of guilt in relation to count 2 based on evidence that the State did not in fact rely on, and by adopting propensity reasoning.
Contrary to the submissions made on behalf of the appellant, there was no perceptible risk that the jury may have used the evidence relating to count 1 in deciding whether the prosecution had proved that the appellant was guilty of count 2, or that it may have engaged in propensity reasoning.
There was nothing said by the prosecutor in her opening or closing addresses, or in her cross‑examination of the appellant, which suggested that it was open to the jury to use the evidence or to reason in that way.
The trial judge also gave the jury several directions which precluded that approach. Specifically, the trial judge told the jury that they were required to make two separate decisions, each one relating to the separate counts on the indictment. His Honour directed the jury to consider the evidence in relation to each count and 'decide on the basis of the evidence relating to that charge whether it is proved beyond reasonable doubt'.[42] His Honour also instructed the jury that the evidence of one count does not prove another count, and that they needed to give separate consideration to the charges. He also made it clear that the jury did not have to give the same verdict for both counts because separate verdicts were required. Finally, he told the jury that 'you cannot find Ms Ripper guilty of either count unless you're satisfied beyond reasonable doubt that it was committed by her'.[43] The system of justice requires the assumption, as a general rule, that juries understand and follow instructions that are given to them by trial judges.[44] There is no reason to doubt that the jury in this case did anything other than follow the trial judge's instructions.
[42] ts 89.
[43] ts 89.
[44] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J); Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [28] ‑ [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).
In considering whether there was a perceptible risk of a miscarriage of justice, it is also relevant to note that trial counsel, who was immersed in the issues and atmosphere of the trial, did not ask the trial judge to give the directions that the appellant contends should have been given, or indeed any directions of law. It is also instructive, in this context, to recall what was said by McHugh J in KRM v The Queen:[45]
Thus, although the evidence on one count may show a propensity to commit crime - even crime of the kind the subject of the other charges - the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning.
[45] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [37].
Ground 2 does not have any reasonable prospect of succeeding. It follows that leave to appeal in relation to that ground should be refused.
Conclusion
For the above reasons the appeal should be allowed, based on particular (e) of ground 1. It was not open to the jury to find the appellant guilty of count 2 because, upon the whole of the evidence, it was not open to conclude that the only rational inference was that the appellant was in the place the subject of that offence, or that she committed any act of stealing while she was in that place. While that conclusion necessarily means that the conviction for count 2 must be set aside, the question that arises is whether a judgment of acquittal should be substituted or whether there should be a retrial.
Should the court exercise the discretion to grant a retrial?
As a matter of fact, when this court reaches a conclusion under s 30(3)(a) of the Criminal Appeals Act 2004 (WA) that a verdict of guilty on which a judgment of conviction is based should be set aside because it is unreasonable or cannot be supported, a judgment of acquittal ordinarily follows. However, as was noted by Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ in Director of Public Prosecutions (Nauru) v Fowler,[46] the power of an appeal court to instead grant a new trial is discretionary.
[46] Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630.
In Gibson v The State of Western Australia,[47] this court said that:
Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case. Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused'. (citations omitted)
[47] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [206].
For the following reasons, a retrial should not be ordered, and a judgment of acquittal should be entered in respect of count 2.
Firstly, the evidence adduced by the prosecution in relation to count 2 was not cogent. At the conclusion of the prosecution case, the effect of Mr Turner's evidence was that there existed a reasonable possibility that biological material containing the appellant's DNA had been indirectly deposited onto the broken glass of the sliding door by a person other than the appellant whose biological material was also found on that glass. This made it difficult for the prosecution to prove that the appellant was physically present when the offence was committed, and that, even if she was present, that she actually entered the relevant place and committed an offence of stealing therein. If a new trial were ordered, it would give the prosecution the opportunity to supplement its case against the appellant by relying on evidence that it did not rely on at the appellant's trial. Such evidence may include evidence relating to count 1, including evidence that the appellant was convicted of count 1. This would then present the prosecution with the opportunity to invite the jury to engage in propensity reasoning to bolster its case that the appellant was physically present when the offence was committed.
Secondly, there is a question about the nature of the case that the prosecution would be able to put before a jury at a retrial. After the hearing of the appeal, the court wrote to the parties for the purpose of inviting submissions about a range of issues, including whether a new trial should be ordered on the condition that the State case be limited to an allegation that the appellant is criminally liable for the offence in count 2 under s 8 of the Code. Given the conclusion that the verdict of guilty in respect of count 2 was unreasonable or cannot be supported on the basis that the appellant was criminally liable by operation of s 7(a) of the Code, it would clearly not be open to the prosecution to proceed on that basis alone.
It was submitted on behalf of the appellant that there should be no retrial and that a judgment of acquittal should be entered. On the other hand, the State submitted that the trial judge wrongly withdrew from the jury the question of whether the appellant was criminally liable under s 8 of the Code and that the jury was wrongly deprived of the opportunity of considering whether, if they were not satisfied that the appellant was liable under s 7(a), she was nevertheless liable under s 8.
In light of the evidence relied on at the appellant's trial, the prosecution could not properly secure a conviction at a retrial based on a stand-alone alternative case under s 8 of the Code. This is because before the appellant could be found guilty of count 2 by operation of s 8 of the Code, the prosecution would be required to prove that the appellant had formed a common intention to prosecute an unlawful purpose in conjunction with another person. However, and as has been explained, while there is a reasonable possibility that more than one person was involved in the commission of count 2, and that they may therefore have formed a common intention with the appellant to commit a burglary, the evidence is incapable of proving that fact beyond reasonable doubt. In these circumstances it would be futile to order a new trial, as a prosecution case based only on s 8 would inevitably fail.[48]
[48] McHenry v Western Australia [No 2] [2010] WASCA 71 [41] (Owen JA, Jenkins J agreeing), citing Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, 188.
The reality is that the prosecution did not know, and could not prove, that the appellant committed count 2 on her own, or that she committed it with one or more other persons. This meant that the prosecution could not prove to the requisite standard that the appellant did all the acts necessary to constitute the offence of burglary, which was necessary to attract the operation of s 7(a) of the Code,[49] and this also meant that the prosecution could not positively prove that the appellant was liable under any one of s 7(b), (c), (d) or s 8 of the Code, standing alone.
[49] O'Dea v The State of Western Australia [62].
It is not necessary or appropriate to determine, in light of O'Dea, the precise legal basis on which a person, such as the appellant, might now be prosecuted for an offence in those circumstances. The outcome of this appeal does not depend on a determination of that issue and the court has not had the benefit of considered submissions from the parties to assist in the resolution of that important question.
Thirdly, the appellant has already served a substantial proportion of the total sentence that was imposed on her. As has already been mentioned, the appellant was sentenced to a total effective sentence of 4 years and 8 months' immediate imprisonment, backdated to commence on 25 December 2021. Accordingly, even if the appellant's conviction and sentence in relation to count 2 were left undisturbed, the appellant would be eligible to be released on parole in late April 2024.
Other issues
Having determined that there should not be a retrial of count 2, and that a judgment of acquittal should be entered in relation to that charge, two other issues arise for consideration.
The first issue is whether the court should exercise the power in s 30(5)(c) of the Criminal Appeals Act and enter a judgment of conviction in respect of count 2 for some other offence, and then impose a sentence for that offence that is no more severe than the sentence that was originally imposed. The second issue arises if the court does not exercise the power in s 30(5)(c), which is whether the court should exercise the power in s 30(6) of the Criminal Appeals Act and vary any sentence that was imposed for an offence other than count 2 at or after the time the appellant was sentenced for that offence.
Both parties were invited to make submissions about these issues after the hearing of the appeal.
Should the court exercise the power in s 30(5)(c) of the Criminal Appeals Act?
The parties submitted that in the circumstances of this case it was not open to the court to exercise the power in s 30(5)(c) of the Criminal Appeals Act. Those submissions should be accepted.
Section 30(5) is in the following terms:
(5)If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.
A precondition to the exercise of the power to enter a judgment of conviction for a different offence after allowing an appeal against conviction, conferred by s 30(5)(c), is that the offender could have been found guilty of some other offence instead of the offence that is the subject of the appeal. In determining whether the appellant could have been found guilty of some other offence instead of the offence of burglary that is the subject of the appeal, it is necessary to consider the effect of s 10A(1) of the Code, which provides as follows:
A person charged with an offence cannot be convicted by the court dealing with the charge of any other offence instead of that offence unless -
(a)the accused is charged with the other offence as an alternative to that offence; or
(b)this Chapter provides otherwise.
As can be seen from the terms of s 10A(1) of the Code, a person cannot be convicted of any other offence other than an offence with which they have been charged unless either s 10A(1)(a) or (b) applies. As the appellant was not charged with any other offence as an alternative to the offence charged in count 2 on the indictment, s 10A(1)(a) of the Code did not apply. Accordingly, the question that arises is whether, under s 10A(1)(b), ch IIA of the Code 'provides otherwise'.
The only provision that appears in ch IIA of the Code that is potentially relevant to this issue is s 10B, which is in the following terms:
10B.Alternative offence, meaning and effect of
(1)This section applies if a provision of this Code, or of another written law, that creates an offence (offence A) provides one or more alternative offences for offence A.
(2)If a person is charged with an offence (offence A), whether or not on indictment, the person, instead of being convicted as charged, may be convicted of any alternative offence that is provided for offence A.
(3)This section does not prevent -
(a)this Code, or another written law, from providing a simple offence as an alternative offence for an indictable offence; or
(b)a person charged in an indictment with an indictable offence from being found guilty by a jury, and convicted and punished by a superior court, for a simple offence that is an alternative offence for the indictable offence.
(4)This section does not limit the operation of the other sections in this Chapter.
As can be seen, s 10B(1) provides that s 10B applies if a provision of the Code, or of another written law, that creates an offence provides one or more alternative offences for that offence. The appellant was charged in count 2 with an offence contrary to s 401(2)(b) of the Code. However, that provision, which creates the offence of burglary, does not provide for any alternative offences for that offence. This means that s 10B of the Code does not apply as s 10B(1) is not engaged. It necessarily follows that if this court were to allow the appeal and set aside the appellant's conviction of the offence charged in count 2, it would not be open to enter a judgment of conviction for some other offence pursuant to s 30(5)(c) of the Criminal Appeals Act.
Having concluded that it is not open to exercise the power in s 30(5)(c), it is necessary to then consider whether the court should exercise its power in s 30(6) of the Criminal Appeals Act.
Should the court exercise the power in s 30(6) of the Criminal Appeals Act?
Section 30 (6) is in the following terms:
(6)If the Court of Appeal enters a judgment of acquittal of offence A or enters a judgment of conviction of offence B, it may vary any sentence -
(a)that was imposed for an offence other than offence A at or after the time when the offender was sentenced for offence A; and
(b)that took into account the sentence for offence A.
Both parties submitted that it was open to the court to exercise the power in s 30(6) of the Criminal Appeals Act to vary the sentence of 2 years and 6 months' imprisonment that was imposed in respect of count 1. The appellant submitted that if the court decided to exercise that power, it should vary that sentence to a sentence of no more than 3 years' imprisonment, because that was the term of imprisonment that the trial judge said he would have imposed were it not for the need to give effect to the totality principle.
However, the parties did not agree about whether it was open to the court to exercise the power in s 30(6) of the Criminal Appeals Act to vary the trial judge's order made under s 80(1)(b) of the Sentencing Act. As noted at the beginning of these reasons, the trial judge made an order under s 80(1)(b) that the appellant was to serve 2 months' imprisonment, being part of a term of 12 months' suspended imprisonment previously imposed on the appellant by Prior DCJ, because the appellant had committed the two burglary offences the subject of this appeal during the suspension period.
The appellant submitted that this court does not have the power under s 30(6) of the Criminal Appeals Act to vary the trial judge's order under s 80(1)(b) of the Sentencing Act, because that order was not a 'sentence'. As can be seen from the terms of s 30(6), which was reproduced earlier in these reasons, the power conferred by that provision is, relevantly, a power to 'vary any sentence … that was imposed for an offence'.[50]
[50] Emphasis added.
On the other hand, the State submits that the court does have the power under s 30(6) of the Criminal Appeals Act to vary the order that was made by the trial judge under s 80(1)(b) of the Sentencing Act. However, those submissions did not deal with the question raised by the appellant about whether such an order is a 'sentence' for the purposes of s 30(6).
The appellant's submissions should be accepted.
In Hall v The Queen,[51] Murray J (with whom Kennedy & Pidgeon JJ agreed) said:
In the Sentencing Act, s 39(2) the various sentences available under that Act are referred to, including in par (f) the imposition of suspended imprisonment with an order for the release of the offender. An order made under s 80 is not a sentence under the Sentencing Act, but it is an order under that Act, which makes it a sentence within the meaning of the Criminal Code against which, by leave, the applicant may appeal to this Court. But it is important to note that upon that appeal, no question will arise as to the propriety of the original orders and in my view, the question in a case such as this will simply be whether the applicant can demonstrate that the learned sentencing judge erred in making the order under s 80(1)(a) for the service of the suspended imprisonment because the judge should have decided in terms of s 80(3) 'that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed'. (emphasis added)
[51] Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [24].
In Dreja v The State of Western Australia,[52] Pullin JA cited what was said by Murray J in Hall v The Queen when noting that a fine imposed under s 80(1)(d) of the Sentencing Act is not a sentence under that Act.
[52] Dreja v The State of Western Australia[2012] WASCA 151 [1].
A similar conclusion to that reached by the court in Hall v The Queen was also reached by Buss JA (as his Honour then was), with whom Wheeler and McLure JJA agreed, in Dragon v The State of Western Australia,[53] in relation to orders made under s 84F of the Sentencing Act:[54]
By s 84F(5), if, relevantly, under s 84F(1)(a), a court orders a person to serve a term of imprisonment that was suspended:
(a)s 88 applies in respect of the term to be served; and
(b)the court may make a parole eligibility order under s 89,
'as if the term to be served were a term of imprisonment being imposed by the court'.
The concluding words of s 84F(5) emphasise that a judge who is dealing with an offender under s 84F and orders the offender to serve a term, or part of a term, of imprisonment that was suspended, is not, in performing that function, imposing the term of imprisonment, or the relevant part of the term. The term of imprisonment, or the relevant part of the term, which is activated under s 84F remains part of the sentence imposed by the court which originally suspended it. (emphasis added)
[53] Dragon v The State of Western Australia [2008] WASCA 252 [45] ‑ [46].
[54] Orders may be made under s 84F of the Sentencing Act when a person commits a relevant offence during the suspension period of a conditional suspended imprisonment order imposed under s 81.
Section 84F(5) of the Sentencing Act is in substantially the same terms as s 80(5). Accordingly, the observations that were made by Buss JA in Dragon v The State of Western Australia apply with equal force in the circumstances of this case.
Various provisions in the Criminal Appeals Act, including s 23 and s 24, which confer rights of appeal on convicted offenders and prosecutors respectively, draw a clear distinction between sentences imposed on a person, on the one hand, and orders that are made as a result of a conviction, on the other. Section 31 of the Criminal Appeals Act, which is concerned with this court's decision‑making powers in relation to certain appeals commenced under s 23 and s 24, also draws that distinction. By contrast, s 30(6) of the Criminal Appeals Act only confers power on this court to 'vary any sentence'.
In our view, having regard to the authorities to which we have referred, and to the clear distinction drawn in the Criminal Appeals Act between sentences imposed and the making of orders as a result of a conviction, the trial judge's order that was made under s 80(1)(b) of the Sentencing Act, that the appellant serve part of the sentence of 12 months that was imposed by Prior DCJ was not a 'sentence' for the purposes of s 30(6) of the Criminal Appeals Act. It follows that this court does not have the power to 'vary' that order under that provision.
The power in s 30(6) of the Criminal Appeals Act is, however, engaged in relation to the sentence that was imposed for count 1 upon this court entering a judgment of acquittal of the offence charged in count 2. This is because the sentence for the offence charged in count 1 was imposed by the trial judge at the same time the appellant was sentenced for count 2, for the purposes of s 30(6)(a). Further, the sentence imposed for count 1 'took into account' the sentence for count 2, for the purposes of s 30(6)(b) because the trial judge reduced the sentence of 3 years' imprisonment that he said he would otherwise have imposed, to a term of 2 years and 6 months' imprisonment, in the application of the totality principle.
In Larussa v The State of Western Australia,[55] it was said that the power in s 30(6) of the Criminal Appeals Act is discretionary, and that it is to be exercised to the extent, and only to the extent, that the court considers it is appropriate to do so.
[55] Larussa v The State of Western Australia [2023] WASCA 62 [104].
The State did not submit that the sentence of 3 years' imprisonment that the trial judge would otherwise have imposed was inadequate or that this court should, in exercising the power in s 30(6) of the Criminal Appeals Act, impose a sentence of greater than 3 years' imprisonment. In any event, absent strong reasons for doing so, the court will generally not vary a sentence for another offence in a manner which results in a total effective sentence that is more severe than the sentence imposed at first instance for that offence and 'offence A'.[56]
[56] ALI v The State of Western Australia [2021] WASCA 144 [29].
The maximum penalty for the home burglary the subject of count 1 is 18 years' imprisonment. Upon the entry of a judgment of acquittal in relation to count 2, the appellant is no longer a 'repeat offender', for the purposes of s 401B of the Code. This means that the court is not bound to impose any minimum term of imprisonment under s 401(4) of the Code.
The offence charged in count 1 was serious. In the commission of the offence entry was gained by breaking a glass rear sliding door when the homeowner was away. About $86,000 of jewellery was stolen and it appears only some of that jewellery was ever recovered. The offending was aggravated by the fact that the appellant committed the offence during the suspension period of a suspended term of imprisonment that was imposed for an unrelated offence.
The appellant was 38 years of age at the time of the offending. According to the trial judge's findings, she has a criminal record that includes various property‑related offences and burglaries, as well as traffic offences and what were described as 'breaching offences'. It can be inferred that the trial judge concluded that most of those offences were drug related as the gaps in the appellant's offending corresponded with her abstinence from drug taking.
In Eldridge v The State of Western Australia,[57] it was said that home burglaries are serious and prevalent offences, which are ordinarily met with terms of imprisonment. Further, it was noted that there has long been a recognition that sentences for home burglary need to be firmed up.
[57] Eldridge v The State of Western Australia [2020] WASCA 66 [64].
In all the circumstances, we would exercise the discretion in s 30(6) of the Criminal Appeals Act by varying the sentence that was imposed for count 1 by ordering that the appellant be sentenced to 3 years' imprisonment, which is the sentence the trial judge said he would have imposed had the appellant been sentenced only for count 1.
Given our conclusion that the court does not have the power to vary the order made by the trial judge because of the appellant's reoffending whilst under suspension, the order that she serve 2 months of the sentence of 12 months' imprisonment imposed by Prior DCJ, and the order that it be served cumulatively on the sentence for count 1, remain unaffected.
The appellant is to serve a total effective sentence of 3 years' and 2 months' imprisonment to be immediately served. That sentence is to be backdated to commence on 25 December 2021. The appellant remains eligible for parole.
For the above reasons, on 13 March 2024 we made the orders set out in [7] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LB
Research Associate to the Honourable Justice Vandongen
25 MARCH 2024
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