Ritchie v The State of Western Australia
[2016] WASCA 134
•29 JULY 2016
RITCHIE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 134
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 134 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:32/2015 | 8 APRIL 2016 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 29/07/16 | |
| 46 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| A | |||
| PDF Version |
| Parties: | ANGUS WILLIAM JOHN RITCHIE THE STATE OF WESTERN AUSTRALIA ALEXANDER JAMES STEPHENS |
Catchwords: | Criminal law Murder Appeal against first appellant's conviction Nature and scope of prosecutor's duties relating to an out of court mixed statement Whether delay in tendering record of interview occasioned any unfairness Criminal law Murder Appeal against second appellant's conviction Whether verdict unreasonable or unsupported Requirement for an intoxication direction Adequacy of 'aiding' direction Application of proviso Criminal law Murder State appeal against second appellant's sentence Manifest inadequacy |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4) Criminal Code (WA), s 7, s 28(3) |
Case References: | Angliss v The State of Western Australia [2015] WASCA 8 Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 Barry v Police (SA) (2009) 197 A Crim R 445 Bomford v The State of Western Australia [2014] WASCA 43 Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776 Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 Goedecke v The State of Western Australia [2013] WASCA 25 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hughes v The State of Western Australia [2015] WASCA 164 Huynh v The Queen [1999] WASCA 45 Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mack v The State of Western Australia [2014] WASCA 207 Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 Middleton v The Queen (1998) 19 WAR 179 Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85 Peck v The State of Western Australia [2005] WASCA 20 Petersen v The State of Western Australia [2016] WASCA 66; (2016) 75 MVR 234 Prestidge v The State of Western Australia [2014] WASCA 16 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 R v Beck [1990] 1 Qd R 30 R v Callaghan [1994] 2 Qd R 300 R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 R v Reynolds [2015] QCA 111 R v Rudd [2009] VSCA 213; (2009) 23 VR 444 R v Soma [2003] HCA 13; (2003) 212 CLR 299 R v Su [1997] 1 VR 1 R v Vonarx [1999] 3 VR 618 Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 Richardson v The Queen (1974) 131 CLR 116 Rosewood v The State of Western Australia [2014] WASCA 21 Ryan v The State of Western Australia [2011] WASCA 7 Scafetta v The State of Western Australia [2010] WASCA 209 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Stinson v The State of Western Australia [2014] WASCA 72 The Queen v Chin [1985] HCA 35; (1985) 157 CLR 671 The State of Western Australia v Churchill [2015] WASCA 257 The State of Western Australia v Lee [2013] WASCA 246 The State of Western Australia v Smith [2015] WASCA 87 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 Willis v The Queen [2001] WASCA 296 X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 Zwerus v The State of Western Australia [2015] WASCA 174 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RITCHIE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 134 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
ANGUS WILLIAM JOHN RITCHIE
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File No : INS 19 of 2014
Catchwords:
Criminal law - Murder - Appeal against first appellant's conviction - Nature and scope of prosecutor's duties relating to an out of court mixed statement - Whether delay in tendering record of interview occasioned any unfairness
Criminal law - Murder - Appeal against second appellant's conviction - Whether verdict unreasonable or unsupported - Requirement for an intoxication direction - Adequacy of 'aiding' direction - Application of proviso
Criminal law - Murder - State appeal against second appellant's sentence - Manifest inadequacy
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4)
Criminal Code (WA), s 7, s 28(3)
Result:
Appeals dismissed
Category: A
Representation:
CACR 32 of 2015
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J A Scholz
Solicitors:
Appellant : Saupin Legal
Respondent : Director of Public Prosecutions (WA)
CACR 39 of 2015
Counsel:
Appellant : Mr J A Scholz
Respondent : Mr S B Watters
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Saupin Legal
CACR 47 of 2015
Counsel:
Appellant : Mr P D Yovich SC
Respondent : Mr J A Scholz
Solicitors:
Appellant : David McKenzie Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Angliss v The State of Western Australia [2015] WASCA 8
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Barry v Police (SA) (2009) 197 A Crim R 445
Bomford v The State of Western Australia [2014] WASCA 43
Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776
Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
Goedecke v The State of Western Australia [2013] WASCA 25
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hughes v The State of Western Australia [2015] WASCA 164
Huynh v The Queen [1999] WASCA 45
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mack v The State of Western Australia [2014] WASCA 207
Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397
Middleton v The Queen (1998) 19 WAR 179
Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85
Peck v The State of Western Australia [2005] WASCA 20
Petersen v The State of Western Australia [2016] WASCA 66; (2016) 75 MVR 234
Prestidge v The State of Western Australia [2014] WASCA 16
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Beck [1990] 1 Qd R 30
R v Callaghan [1994] 2 Qd R 300
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Reynolds [2015] QCA 111
R v Rudd [2009] VSCA 213; (2009) 23 VR 444
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Su [1997] 1 VR 1
R v Vonarx [1999] 3 VR 618
Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215
Richardson v The Queen (1974) 131 CLR 116
Rosewood v The State of Western Australia [2014] WASCA 21
Ryan v The State of Western Australia [2011] WASCA 7
Scafetta v The State of Western Australia [2010] WASCA 209
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Stinson v The State of Western Australia [2014] WASCA 72
The Queen v Chin [1985] HCA 35; (1985) 157 CLR 671
The State of Western Australia v Churchill [2015] WASCA 257
The State of Western Australia v Lee [2013] WASCA 246
The State of Western Australia v Smith [2015] WASCA 87
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Willis v The Queen [2001] WASCA 296
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
Zwerus v The State of Western Australia [2015] WASCA 174
1 McLURE P: This is an appeal against the conviction after trial of Alexander James Stephens (variously referred to as Stephens or the first appellant) and Angus William John Ritchie (variously referred to as Ritchie or the second appellant) for the murder of David Liam Johnson on 8 March 2013.
2 The State also appeals against the second appellant's sentence of life imprisonment with a non-parole period of 14 years imprisonment for that crime. I will refer to the second appellant as 'the respondent' in the State sentence appeal.
3 The appellants were jointly tried with Nathan Michael Beckton (Beckton) who pleaded guilty to manslaughter part way through the trial. That plea was accepted by the State in full satisfaction of the indictment.
The prosecution case
4 The prosecution case at the end of the trial is substantially consistent with the findings made by the trial judge for sentencing purposes. Mr Johnson and his friend Will Rigden lived in a lodge in Fremantle. Mr Johnson did not know, and had never met, the appellants or any of the other offenders prior to the night of his death on 8 March 2013 when he attended a party at a house at 162 Alfred Road, Swanbourne (the Alfred Road property). He was invited to the party by Rigden.
5 Stephens, also aged 23, owned a white Holden Calais sedan which he drove to the party at the Alfred Road property. Beckton, aged 35, drove himself and his brother-in-law, Noel Dunn, to the party at the Alfred Road property in Beckton's Magna station wagon. Ritchie, aged 23, also went to the party.
6 The party was at the house of Edward Dangla Cruz. It was a 'church night' for the newly formed Apache gang. The appellants both knew Dangla Cruz and were each invited to the party because of that connection. Dangla Cruz also knew a man named Mikulas Adamec-Toman (also known as 'Miki Juice') who invited Rigden to the party. Rigden and Mr Johnson travelled together by train to the Claremont train station. Beckton drove Adamec-Toman to the train station where they picked up Rigden and Mr Johnson and drove them to the party at the Alfred Road property.
7 Mr Johnson consumed a large amount of alcohol at the party and became very drunk (on post-mortem examination he had a blood alcohol level of 0.355%). At one point during the evening Mr Johnson began arguing with Beckton, during which Mr Johnson stood up. Beckton believed Mr Johnson to be acting aggressively and he in turn got up, picked up a nearby meat cleaver and used it in a threatening manner. Dangla Cruz then stepped between Mr Johnson and Beckton. Mr Johnson was punched to the head by a hard blow and fell to the ground. Dangla Cruz told Mr Johnson to leave. Mr Johnson got up and walked to the front of the property. Beckton and Dunn followed him. Beckton punched Mr Johnson again, causing him to fall to the ground near Dangla Cruz's utility, which was parked in the driveway. Mr Johnson crawled under the utility to get away from Beckton.
8 At some point Rigden walked to the front of the property, but did not see Mr Johnson. Believing that Mr Johnson had already left, Rigden walked off. Dangla Cruz came to the front yard and pulled Mr Johnson from underneath the utility. Beckton and Dangla Cruz then seriously assaulted Mr Johnson with numerous punches and kicks.
9 Rigden returned to the Alfred Road property at some point and asked where Mr Johnson was. He was told that Mr Johnson had walked home. Rigden left again, intending to go to the Claremont train station.
10 Some time during the assault upon Mr Johnson, the appellants came from the back of the house to the front driveway and watched as Mr Johnson was further assaulted by Beckton and others. Stephens said he would go home to get his 'girl', which the prosecution alleged was a reference to his gun. The appellants left together in Stephens' car, with Stephens driving. While the appellants were away from the Alfred Road property, Mr Johnson was further assaulted by Beckton and Dangla Cruz.
11 The appellants returned to the Alfred Road property about 15 minutes later. Stephens was in the front passenger seat and Ritchie was driving Stephens' car, which he reversed up the driveway where the assault on Mr Johnson was taking place.
12 When Stephens got out of the car, he was wearing a rolled up balaclava and gloves and was carrying a bag containing his Rossi 12-gauge break action sawn-off shotgun (the shotgun) and ammunition. The prosecution case was that by this point, Stephens had formed the intention to kill Mr Johnson and Ritchie aided Stephens by driving him back to the Alfred Road property with that knowledge.
13 After the appellants had returned to the Alfred Road property, the assault upon Mr Johnson continued. Stephens punched Mr Johnson to the head, then picked up a concrete block or brick of some kind and hit him on the head with it. Stephens commented that Mr Johnson was still alive and then got into his car and drove over Mr Johnson a number of times. At about this time, Mr Johnson's pants were pulled down and a tree branch or stick was inserted in Mr Johnson's anus. After this, Stephens opened the boot of his car and commented something to the effect of 'he's not going to fit' and told Beckton to get his car. Stephens' car was moved and Beckton reversed his station wagon up the driveway and parked it near to where Mr Johnson lay on the ground. Stephens and another placed Mr Johnson on a rug and into the back of Beckton's station wagon. Stephens got into the front passenger seat, Ritchie into the rear seat, and Beckton into the driver's seat of his station wagon. They drove off, leaving Dangla Cruz behind. Dangla Cruz made an effort to clean the driveway and the back area of the house with water and bleach.
14 Beckton drove to Lime Kiln Field in Swanbourne and, upon arriving, turned off the car headlights and drove into the park. He reversed his car and stopped so that the rear of the car was close to a brick wall. Stephens got out of the car armed with the loaded shotgun. He pulled Mr Johnson from the boot of the station wagon onto the ground, and closed the boot. Beckton drove off with Ritchie, leaving Stephens and Mr Johnson in the park. Beckton and Ritchie waited down the road for Stephens to return to the vehicle.
15 At approximately 11.18 pm, Stephens shot Mr Johnson in the head at close range with the shotgun. The shot resulted in gross trauma to the left side of Mr Johnson's face and head. Nearby residents heard the shotgun noise and called the police. The police attended Lime Kiln Field very quickly and discovered Mr Johnson's body.
16 After shooting Mr Johnson, Stephens returned to the waiting station wagon. Beckton then drove the appellants to Claremont train station to look for Rigden. Beckton and Ritchie got out of the car and went in search of Rigden, but he had already left Claremont and arrived at the Fremantle train station.
17 The appellants and Beckton returned to the Alfred Road property. Dangla Cruz and Beckton removed the boot carpet, which had Mr Johnson's bodily fluids on it, from the boot of the station wagon. The boot carpet was ultimately cut into pieces and placed in the bin at Dangla Cruz's house. A short time later, Beckton left the party with Noel Dunn and another man. In the days after the murder, the appellants, Dangla Cruz and Adamec-Toman all associated with each other.
18 The post-mortem examination showed that Mr Johnson had in excess of 100 injuries to his body, the most significant being the shotgun injury to his head. He also had multiple blunt force injuries to his face, torso, limbs, with significant injuries to his lower back and on the outside of both his upper legs and hips. He had multiple rib fractures on the left side, including a flail chest, resulting from multiple ribs being fractured in two places. The flail chest would have affected his ability to breathe. He also had degloving injuries and impressions on his skin consistent with having been caused by being run over by Stephens' car. He also had fractures to his left pelvis and a fractured larynx.
19 At trial, the forensic pathologist was unable to identify a particular injury which caused Mr Johnson's death. She gave a number of possibilities. First, that the rib fractures would have caused pain which in turn would have caused decreased respiration. The flail chest would have potentially compromised his breathing even further. The degloving injuries and significant pelvic fractures would have caused pain and shock and potentially a reduction in blood pressure. The combination of those injuries, together with respiratory depression from Mr Johnson's blood alcohol level, may have resulted in his death. Second, after receiving all the other injuries, he was shot and died from the shotgun injury. Third, Mr Johnson had a trauma to his head sufficient to kill him apart from the shotgun injury (the head trauma), or the head trauma had contributed to his decreased level of consciousness which, in combination with the other injuries, resulted in death. However, the forensic pathologist was unable to say whether the head trauma was inflicted before Mr Johnson was shot due to the massive head injuries from the shotgun blast.
20 After the murder, the appellants and others were placed under police surveillance, which extended to interception of their telephone and text communications.
21 On the afternoon of 19 March 2013, after Beckton had been arrested, the first appellant went to the home of a friend, Stephen Shea, and placed a package into the boot of Mr Shea's vehicle before driving off. Police, who had Stephens under surveillance, recovered from Mr Shea's boot a black plastic bag containing a blue canvas bag. The blue canvas bag contained the shotgun with its barrel wrapped in a sock, ammunition (spent and unspent), an Apache gang vest and a balaclava.
22 After putting the black plastic bag and its contents in the boot of Mr Shea's car, Stephens received a telephone communication from Dangla Cruz. Dangla Cruz asked Stephens to get rid of some carpet and bleach from the Alfred Road property. Stephens went to the Alfred Road property as requested and was removing the bleach when he was arrested by police.
23 The primary witness for the State was Noel Dunn who, at all material times present, was present at the Alfred Road property on the evening and night of 8 March 2013. There was also considerable forensic evidence implicating Stephens. DNA consistent with having come from Mr Johnson was found: (1) on the concrete driveway at the Alfred Road property; (2) on four pieces of carpet found in a wheelie bin at the Alfred Road property; (3) under the front bumper of Stephens' vehicle; (4) on the blue canvas bag in which the shotgun was found; (5) on the balaclava in the blue canvas bag; and (6) on the black plastic bag, which also contained Stephens' fingerprints. DNA consistent with having come from Stephens was also on the black plastic bag, the blue canvas bag, the balaclava and the sock wrapped around the barrel of the shotgun.
24 Each of the appellants and Beckton participated in an audiovisually recorded interview with police after their arrest on 19 March 2013. Stephens' interview took approximately five hours, excluding breaks. The appellants did not give evidence at trial.
Stephens - ground of appeal
25 I will commence with Stephens' appeal against his conviction. He relies on one ground in the following terms:
The failure of the prosecution to advise the defence at the start of the trial whether it would or would not seek to play the appellant's audiovisually recorded interview deprived the appellant of a fair trial according to law and resulted in a miscarriage of justice.
Stephens record of interview
26 Stephens initially denied assaulting Mr Johnson in any way on 8 March 2013. However, as the lengthy interview progressed, his story and his denials shifted. He began to make admissions, in a piecemeal fashion, relating to his involvement in the events of that night.
27 In his record of interview, Stephens admits the following: he was present with Ritchie at the Alfred Road property on the evening and night of 8 March 2013; he observed three people, including Dangla Cruz and another, kicking and punching Mr Johnson when he was lying on the driveway; he punched Mr Johnson in the head when he was lying on the ground, but denied kicking him; he was one of two people who placed Mr Johnson in the back of Beckton's car; Ritchie was present in the back of Beckton's car; they drove off with Mr Johnson because Dangla Cruz had told them to 'get him out of here and take care of him'; when told that by Dangla Cruz, he placed the blue bag containing his shotgun in Beckton's car; he shot the deceased in the head at Lime Kiln Field.
28 Other statements made by Stephens in the record of interview include the following: he denied instructing Beckton to drive the deceased to Lime Kiln Field; he was scared and shot Mr Johnson to keep him and Ritchie 'sweet'; he would probably have been 'smacked' by the other men too if he did not do what they asked of him; Mr Johnson was not conscious or awake during the drive to Lime Kiln Field; Mr Johnson's eyes were closed and he did not make any noise when he was placed on the ground at Lime Kiln Field; Mr Johnson was not breathing when he was placed in the station wagon; he denied wanting or trying to kill the deceased. Otherwise, Stephens denied any involvement in running over Mr Johnson with his car; denied assaulting Mr Johnson with a branch or stick; denied returning to the Alfred Road property in his car with Ritchie driving and him wearing a balaclava; and denied dropping a slab on Mr Johnson's head.
29 In its detail, the record of interview contains both admissions and exculpatory material. When considered in the broad, and after being confronted with the fruits of the police investigation, the record of interview contains a two-pronged defence to the charge: Mr Johnson was already dead when Stephens shot him and he did not inflict any of the other, earlier, life threatening injuries.
30 In her sentencing remarks, the trial judge is scathing in her assessment of Stephens' credibility and reliability in the record of interview ([2015] WASCSR 37 [94] - [97]).
Prior to and at trial
31 At a pre-trial mention on 17 November 2014, all defence counsel made submissions to the effect that they needed to know whether their clients' record of interview was to be played so they could make properly informed forensic decisions (ts 40 - 42). The prosecutor said she had not decided whether or not to adduce the interviews and her decision would depend on how prosecution witnesses were cross-examined and therefore what were the issues in the trial (ts 43 - 45). No formal admissions had been made on behalf of Stephens.
32 The trial began on 19 November 2014. In her opening address to the jury, the prosecutor made no reference to Stephens (or his co-accused) being interviewed by police.
33 On the second day of trial, the trial judge asked the prosecutor whether she intended to play the interviews of Stephens or his co-accused, stating her understanding that the prosecution was obliged to adduce that evidence unless there was a very good reason for not doing so and raised concerns about fairness to the accused in circumstances where it was uncertain whether the interviews would be led (ts 167 - 173).
34 The prosecutor said she had not refused to play the accuseds' interviews, she had simply not made the decision whether or not to do so. She said one circumstance in which she might play an accused's interview was if a version of events was put to witnesses in cross-examination that was inconsistent with the interview. The prosecutor also postulated the possibility of the interview becoming entirely self-serving and thus inadmissible (ts 171).
35 On 5 December 2014 (day 13 of the trial), after the jury had been excused, the trial judge again asked the prosecutor whether she had made a decision on whether to play the accuseds' interviews. The prosecutor said she did not know at that stage but would make a decision by that afternoon.
36 The prosecutor played Stephens' interview on 9 and 10 December 2014 (days 15 and 16 of the trial) through Detective Graeme Johnston. Three more witnesses were called in the prosecution case, which was closed on the morning of 12 December 2014. By agreement with Ritchie's counsel, his interview was not played.
The legal principles
37 The narrow issue in this case is whether the prosecution is obliged to inform an accused, by no later than the start of the trial, whether or not his police record of interview is to be adduced in evidence at trial as part of the prosecution case. The first appellant did not claim that the prosecution was obliged to tender his record of interview as part of its case at trial. The claim is that the prosecution was required to make a decision on whether or not it would adduce that evidence as part of its case and inform the accused of the decision prior to the commencement of the trial. The implication is that any such decision must be final and irrevocable. There is no binding authority directly on point. It is necessary to understand the framework of relevant interconnected legal principles.
38 First, if an out of court statement made by an accused consists of admissions accompanied by exculpatory material, usually referred to as a 'mixed statement', the whole of the mixed statement must be adduced in evidence: Mule v The Queen (2005) 221 ALR 85.
39 Second, binding authority in this State is to the effect that it is a matter for the prosecution to determine whether or not it wishes to adduce as part of its case an admissible out of court statement made by an accused: Middleton v The Queen (1998) 19 WAR 179, 188, 202, Willis v The Queen [2001] WASCA 296 [101], [106], [134] and Peck v The State of Western Australia [2005] WASCA 20 [71]. That is, the prosecution is not bound to tender an admissible out of court statement made by an accused, including a mixed statement. That is consistent with the law in Queensland (R v Callaghan [1994] 2 Qd R 300, 304) and South Australia (Barry v Police (SA) (2009) 197 A Crim R 445).
40 Third, and more broadly, it is for the prosecution to decide what witnesses will be called at trial and to determine the course which will ensure a proper presentation of the prosecution case conformably with the dictates of fairness to the accused: Richardson v The Queen (1974) 131 CLR 116, 119; R v Apostilides (1984) 154 CLR 563, 575; R v Soma (2003) 212 CLR 299 [29]. That is, the prosecutor has a discretion in relation to the calling of witnesses, a discretion which he cannot be compelled to exercise in a particular manner, although the failure to call a witness who ought to be called may result in a miscarriage of justice: Whitehornv The Queen (1983) 152 CLR 657, 674. The prosecution ought to call available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. However, a prosecutor is not bound to call a witness, even an eye witness, whose evidence is judged to be unreliable, untrustworthy or otherwise incapable of belief: Whitehorn (674). Of course, these principles do not directly apply to an accused, who is not a competent or compellable witness for the prosecution: Ryan v The State of Western Australia [2011] WASCA 7 [56] - [63].
41 Fourth, as a general rule the prosecution must present its case completely before the accused is called upon to announce the course that he will follow at trial. That is, the general rule is that the prosecution must not split its case: The Queen v Chin (1985) 157 CLR 671, 684.
42 Fifth, more generally the duty of a prosecutor representing the State is to act with fairness and detachment and always with the objective of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that an accused's trial is fair: Whitehorn (663 - 664).
43 Soma is not authority for the proposition that the fair presentation of the prosecution case ordinarily requires the prosecution to adduce in evidence out of court statements of the accused containing both inculpatory and exculpatory material. The issue in Soma concerns the general rule against the prosecution splitting its case. The accused had participated in a tape-recorded interview with police in which he made inculpatory and exculpatory statements. The prosecution did not adduce the record of interview as part of its case. The accused gave evidence at his trial. In cross-examination, the prosecution relied on inculpatory statements made by the accused as a prior inconsistent statement. That part of the interview containing the prior inconsistent inculpatory statements was tendered by the prosecution without objection. The questions in issue were whether the prosecution had in fact split its case and, if so, whether it fell within the general prohibition. The majority (Gleeson CJ, Gummow, Kirby & Hayne JJ), in a joint judgment, said the underlying principle of the accusatorial and adversarial system is for the prosecution to put its case both fully and fairly before defence counsel is called on to announce the course that will be followed at trial [27]; if the prosecution wished to rely on admissible, incriminating out of court statements made by the accused, it was bound to put them in evidence before the accused was called upon to decide the course he would follow at his trial, unless there was some positive reason for not doing so [31]. There was no such positive reason in that case. Thus, the prosecution was not permitted to split its case by relying on the law relating to prior inconsistent statements to adduce the inculpatory aspects of a mixed statement. If the prosecution wished to rely on the inculpatory statements, it could and should have tendered the mixed statement as part of its case.
44 However, Hayne J in Mahmood v The State of Western Australia (2008) 232 CLR 397 made obiter observations on the prosecutor's duty to tender a mixed statement as part of its case. The accused in Mahmood participated in a videotaped interview with police. He later performed a re-enactment of the events of the day, which was also videotaped. The prosecution tendered the video of the police interview but not the re-enactment video. Counsel for the accused sought to tender part of the re-enactment video in his defence and offered to tender the whole video. The prosecution consented to the tender of only part on the basis that the whole video was self-serving. The High Court sought supplementary submissions on the prosecutor's duty to tender the re-enactment video as part of its case. The reasons of the majority (Gleeson CJ, Gummow, Kirby & Kiefel JJ) are inconsistent with the existence of such a duty although they do not expressly address the subject. However, Hayne J stated:
In its supplementary submissions on this point the respondent relied on the decision of the Court of Appeal of the Supreme Court of Queensland in R v Callaghan and three Western Australian cases in which Callaghan has been considered. It was accepted in Callaghan that the interview, of which the accused had sought to tender evidence at his trial, 'did not contain any inculpating statements.' In was in this context that Pincus JA and Thomas J said in Callaghan:
'If a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents. There is no general obligation on the prosecution to call such evidence. The calling of such evidence is a benefit tendered by the prosecution and accepted by the defence.'
In Western Australia, Callaghan has been said to stand for the proposition that 'it is a matter for the prosecution to determine whether or not it wishes to lead the evidence as part of its case' of an out-of-court statement that contains both inculpating and exculpating material. The decision in Callaghan does not establish that proposition and it is a proposition that is not consistent with a proper presentation of the prosecution case. If there is admissible evidence available to the prosecution of out-of-court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence [41].
45 Kourakis J in Barry v Police construed this passage as directed to cases where there are several out of court statements and that, having tendered the police interview in Mahmood, the proper or fair presentation of the prosecution case required the tender of the re-enactment video [58].
46 The position of Hayne J in Mahmood is to be understood against the background of the law in Victoria. In that State, wholly exculpatory self-serving statements are traditionally adduced by the Crown as part of its case as a matter of fairness: R v Su [1997] 1 VR 1, R v Rudd (2009) 23 VR 444. That is not the position in Western Australia (Peck [70] - [71]) or in Queensland (R v Reynolds [2015] QCA 111).
47 The first appellant also relies on the joint judgment of Hayne and Bell JJ X7 v Australian Crime Commission (2013) 248 CLR 92. The issue in that case was whether the Australian Crime Commission Act 2002 (Cth), as a matter of construction, empowered an examiner to compulsorily examine a person charged with an offence about matters material to that offence. In construing the power to compulsorily examine as excluding a person charged with an offence, Hayne and Bell JJ said:
Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the court room. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid [124].
48 The first appellant claims the statement that an accused is entitled to determine the course to take at trial 'according only to the strength of the prosecution case as revealed by the material provided by the prosecution before trial' supports the proposition that he was entitled to know at the commencement of his trial whether or not the prosecution intended to tender his record of interview. The first appellant's proposition derives no support from the statement relied on and ignores the balance of the sentence relating to the strength of the prosecution evidence at trial. He also claims the High Court in Lee v The Queen (2014) 253 CLR 455 [41] (Lee No 2) unanimously endorsed the observations of Hayne and Bell JJ in X7 at [124]. That is not correct. The paragraph relied on in Lee No 2 relates to a prosecutor at an accused's trial having knowledge of inadmissible evidence compulsorily acquired that does not form part of the material available to the prosecution.
49 Moreover, in Lee v New South Wales Crime Commission (2013) 251 CLR 196 (Lee No 1) Gageler and Keane JJ (who were part of the majority) said that being bound by self-incriminating statements made under oath out of court was not a 'legitimate' forensic disadvantage for an accused. They said:
We are unable to regard as the deprivation of a legitimate forensic choice a practical restraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination. The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring that the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt [323].
50 When pressed for authority directly on point, counsel for the first appellant relied on the decision of the Victorian Court of Appeal in R v Vonarx [1999] 3 VR 618. In particular, he relied on the statement in the joint judgment that an accused person 'is entitled to know all of the evidence which has to be met, in order to have an adequate opportunity to present the defence case as he or she desires, including the manner in which that case is shaped during the course of cross-examining Crown witnesses' [45]. Vonarx involved the prosecution splitting its case. At the start of the accused's trial on sexual offences, the trial judge ruled that certain questions and answers should be excluded from the accused's record of interview (the excluded material). After the prosecution had closed its case but before defence counsel announced the course which the accused would take, the prosecutor indicated that if the accused gave evidence he would seek to cross-examine the accused on the excluded material even if the accused did not give evidence on that subject. The trial judge foreshadowed that if the accused gave evidence, he could be cross-examined on the excluded material. It was accepted by the parties to the appeal that the result of the judicial indication was that the accused changed his intention and elected not to give evidence at his trial. He was convicted. The Victorian Court of Appeal held that once the trial judge had ruled against the admission of excluded material and the prosecution case was thereafter conducted on that basis, the Crown was not permitted to reintroduce the excluded material during cross-examination of the accused because that breached the rule against the Crown splitting its case. Thus the facts in Vonarx are materially different from the facts in this case. In this case the prosecutor deferred any decision. In Vonarx, a decision was made by the trial judge at the commencement of the trial that prejudicial material should be excluded from the record of interview and that positive ruling was acted upon by the parties.
51 In any event, the general rule against the prosecution splitting its case derives from the principle that all matters probative of and relevant to the guilt of the accused should be adduced as part of the Crown case, not that the accused is entitled to know the entirety of the evidence in the State case prior to the commencement of trial.
52 The prosecution's extensive pre-trial disclosure obligations ordinarily provide an accused with sufficient information in advance of the trial to frame and present a defence case theory that is consistent with counsel's instructions: Chin (685 - 686). Moreover, the principle against the prosecution's splitting its case recognises that a decision by the accused on whether or not to give evidence at his or her trial will be finally determined at the close of the prosecution case.
53 The narrow issue formulated by the first appellant has a broader context. It is accepted by the first appellant that the prosecutor is not under an obligation to identify all of the evidence, oral and documentary, upon which it will rely at trial prior to the commencement of the trial. His proposition is that is the general rule to which there may be exceptions but there can be no exception in relation to an out of court mixed statement made by the accused.
54 It is the case that an indictment must list the witnesses who the prosecutor intends to summons to give evidence in any trial of the indictment: Criminal Procedure Act 2004 (WA), cl 2(6) sch 1. However, that reflects a statement of present intention not a binding commitment. Having regard to an accused's right to silence, a criminal trial can be dynamic and fluid and the prosecution is at times required to respond to the emergence during the trial of a defence case of which it had no prior notice.
55 This fluidity is recognised in the principles relating to the prosecution opening: Huynh v The Queen [1999] WASCA 45. Indeed, it is clear from the prosecutor's opening in this case that there was significant potential for unexpected shifts in the evidentiary landscape during the course of the prosecution case. For example, the prosecutor told the jury that she did not have to prove where exactly Mr Johnson died or the exact mechanism of his death or the exact role in the killing of each of the accused or the exact cause of death (ts 94). In opening, the State case was that each accused did an act or acts, either on their own or with another, which resulted in the murder of Mr Johnson, alternatively, that any or all of the accused did acts for the purpose of aiding one of the others to murder Mr Johnson (ts 93).
56 It can be accepted that fairness requires the prosecution to identify, prior to the commencement of trial, the witnesses and the real evidence upon which it then intends to rely in the prosecution case. The first appellant's record of interview was not within that category.
57 This appeal does not involve any challenge to the prosecutor's stated intention, justification or motive in deferring a decision on whether or not the accuseds' records of interview would be adduced in the prosecution case. What the prosecutor told the court is to be taken at face value. For forensic reasons related to the prosecution case, she deferred a decision on whether or not to tender the records of interview until she had more information about the defence cases. I note in passing, without determining the issue, that Cross on Evidence (10th ed) states in relation to mixed statements:
[W]here at the close of the evidence it can be seen that a statement contains no significant admissions - ie it is in essence exculpatory - a 'mixed statement' direction should not be given, because it is unfair to the accused to suggest that admissions have been made. In these circumstances it is difficult to see how the statement remains admissible at all [33455].
58 I am satisfied that the prosecutor does not have an unqualified duty to decide, prior to the start of the trial, whether or not an accused's out of court statement will form part of the prosecution case. However, the prosecutor would ordinarily be in a position to be able to do so. I turn to the remaining objective question, which is whether in fact the delay in tendering the first appellant's record of interview occasioned any relevant unfairness.
Unfairness
59 By the commencement of the trial, the first appellant was in possession of all of the documents that constituted the entire pool of information from which the prosecution would adduce the evidence comprising the prosecution case. He had been informed of the witnesses the prosecution intended to call and was made aware that the prosecution may or may not tender his record of interview, depending upon the prosecutor's assessment of whether it was necessary for the proper advancement of the prosecution case. Prima facie, it would be necessary if it emerged during the defence cross-examination of prosecution witnesses that there were material departures from what the first appellant said in his record of interview.
60 In broad terms, the first appellant's defence case put in cross-examination to the prosecution witnesses, in particular Mr Dunn, was that foreshadowed in the record of interview, namely that Mr Johnson was already dead when the first appellant shot him in the head at Lime Kiln Field and that the first appellant did not inflict any of the other serious injuries which may have caused his death.
61 The cross-examination of the prosecution witnesses who gave evidence prior to the tender of the first appellant's record of interview is consistent with the first appellant's case in closing. This is confirmed by the dismissal of the first appellant's application, made after the tender of the record of interview and prior to the close of the prosecution case, to recall two prosecution witnesses, Mr Dunn and Mr Adamec-Toman. In the course of the application, the first appellant's trial counsel said:
The position is this, that earlier in the matter, I didn't know whether the video was going to be played or not. There are a few scenarios that could play out, either the video was played or not, and in both scenarios, either he gives evidence or not. And I've discussed this with the State and there is a variance between his evidence, if he gives evidence, and that given in the video interview.
Because of all those possible scenarios, I took a conservative approach and there are a couple of things, not many, that I haven't put to Mr Dunn (ts 1572).
62 When asked by the trial judge whether there was a realistic possibility that the first appellant would give evidence, his trial counsel said yes (ts 1573).
63 After considering written and oral submissions from the first appellant and the prosecution, the trial judge determined that all of the matters sought to be raised in the proposed additional questioning of the witnesses had been adequately canvassed by the first appellant's defence counsel in his cross-examination (ts 1575). There is no challenge to the correctness of the trial judge's assessment. It is clear that, from the start of the trial, defence counsel's forensic decisions were unaffected by the uncertainty relating to the tender of the record of interview.
64 In any event, it was clear that if the defence case deviated in material respects from the first appellant's record of interview, the prosecution would be expected to tender the record of interview in its case. Any material deviation would increase the likelihood of the first appellant giving evidence at trial. If the prosecution did not tender the record of interview, it could not use it in the cross-examination of the first appellant.
65 If the defence case did not deviate from the admissions in the record of interview and, because what was left was essentially self-serving, it was not tendered, the first appellant would be under greater pressure to give evidence at trial. However, if that constitutes relevant unfairness the prosecutor would have a duty to tender an out of court mixed statement by an accused in its case. That is not the law in this State. In any event, the tender of the first appellant's record of interview by the prosecution side-steps this issue.
66 I am satisfied there was no relevant or practical unfairness in the appellant's trial. I would grant leave to appeal but dismiss the appeal. However, for the sake of completeness, I will consider the proviso.
Proviso
67 The State provided a detailed schedule of all the evidence in the first appellant's trial for and against his conviction for the murder of Mr Johnson. The prosecution case against the first appellant was overwhelming. I am persuaded that the evidence admitted at trial proved beyond reasonable doubt the first appellant's guilt of the offence on which the jury returned its verdict of guilty.
68 If the outcome limb of the proviso has now reverted to the former test of whether the first appellant has been denied a chance of acquittal which is fairly open to him (Filippou v The Queen (2015) 89 ALJR 776 [15]; Petersen v The State of Western Australia [2016] WASCA 66 [18] - [27]), the answer would be an unequivocal no.
69 The first appellant relies primarily on the process limb of the proviso in the territory canvassed by the High Court in Wilde v The Queen (1988) 164 CLR 365. See Hughes v The State of Western Australia [2015] WASCA 164 [60] - [68]. A prosecutor's breach of duty may, not must, give rise to a miscarriage of justice: Goedecke v The State of Western Australia [2013] WASCA 25 [35]. If the breach gives rise to a miscarriage of justice, it may not be a substantial miscarriage. If, contrary to my view, there has been a breach of the prosecution's duty of fairness, the nature and gravity of the breach falls short of excluding the operation of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) (CAA).
Conclusion
70 For these reasons, I would grant an extension of time to appeal and leave to appeal on ground 1 but dismiss the first appellant's conviction appeal.
Second appellant's appeal against conviction
71 The second appellant relies on three grounds of appeal to the effect that:
(1) the verdict of guilty on which the conviction is based is, having regard to the evidence, unreasonable or cannot be supported;
(2) a miscarriage of justice was occasioned by the failure of the trial judge to adequately instruct the jury that they had to be satisfied beyond reasonable doubt that the acts allegedly done to aid the principal offender were done with the intention of aiding the principal offender;
(3) there was a miscarriage of justice when the trial judge failed to direct the jury that the appellant's intoxication could be taken into account for the purpose of ascertaining whether an intention in fact existed.
72 The appellant's application for leave on these grounds has been referred to the hearing of the appeal. Grounds 1 and 3 are devoid of merit and can be dealt with quickly.
Verdict unreasonable or cannot be supported
73 Courts frequently express their conclusion on whether a verdict is unreasonable or not supported by the evidence for the purposes of s 30(3)(a) of the CAA in terms of a verdict that is unsafe or unsatisfactory: M v The Queen (1994) 181 CLR 487, 492.
74 In M, the plurality held that the test is whether the court thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493). In answering that question, the court must not disregard or discount the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or that the jury had the benefit of having seen and heard the witnesses (493).
75 The question before the court is whether it was open to the jury as a matter of fact to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen (2007) 230 CLR 559 [113], R v Nguyen (2010) 242 CLR 491 [33], SKA v The Queen (2011) 243 CLR 400 [14].
76 The prosecution case, based on the evidence of Mr Dunn, was that Ritchie aided Stephens by his continued and deliberate presence with Stephens and by providing assistance to Stephens in the following ways. First, he drove Stephens' car back to the Alfred Road property while Stephens was seated in the front passenger seat with the shotgun and wearing a balaclava. Second, upon their return to the Alfred Road property, Ritchie reversed the car up to where Mr Johnson was lying. Third, Ritchie was present when Mr Johnson was placed in the boot of the station wagon and voluntarily got into the back passenger seat of the vehicle and went with Stephens and Beckton. They went to Lime Kiln Field where Mr Johnson was shot in the head.
77 It was also the prosecution case that Ritchie's presence at the scene provided fortitude and encouragement for Stephens to do what he did to Mr Johnson. The prosecution relied on the evidence that, after Stephens shot Mr Johnson, Ritchie and Beckton went looking for Rigden on the platform of the Claremont train station. This evidence was relied on to show that Ritchie was a participant in the overall events, not an innocent bystander.
78 Ritchie did not give evidence at his trial. He put the State to proof of its case. His primary position was that the jury should have a reasonable doubt as to whether he saw the shotgun and balaclava at the Alfred Road property.
79 It is clear from the verdicts that the jury accepted the evidence of Mr Dunn. I have read his evidence and see nothing in the record that casts any doubt on the correctness of the jury assessment. It was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt as to the guilt of the second appellant.
80 Ground 1 has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused.
Intoxication
81 When intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed: s 28(3) Criminal Code (WA) (Code).
82 There was no evidential basis upon which an intoxication direction could or should have been given in relation to the second appellant. I infer this to be the reason the second appellant's trial counsel did not refer to his client's intoxication in closing, nor ask the trial judge to direct to the jury on the subject. This ground has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused.
The aiding direction
83 Section 7 of the Code relevantly provides:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
…
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence.
84 Liability under s 7(b) or (c) of the Code requires proof by the State that (1) a person or persons (the principal) has committed the offence; (2) the aider had actual knowledge of the facts amounting to the offence committed by the principal; (3) the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which make up the offence; and (4) what the aider did or omitted to do actually aided or assisted the commission of the offence. See Scafetta v The State of Western Australia [2010] WASCA 209, Bomford v The State of Western Australia [2014] WASCA 43, R v Beck [1990] 1 Qd R 30; Giorgianni v The Queen (1985) 156 CLR 473.
85 The second appellant claims the trial judge failed to adequately direct on the requirement for intention in the third element listed above.
86 The prosecution case was that Ritchie aided Stephens to murder Mr Johnson. The State relied on positive acts of assistance, in particular, driving Stephens, with his shotgun, back to the Alfred Road property and reversing up the driveway to where Mr Johnson was lying. Otherwise it was appropriate to characterise the second appellant's aiding in the form of encouragement. The State case was that the second appellant aided in the death of Mr Johnson, knowing that he was doing so and that he intended to assist (ts 1637, 1639). As the respondent points out, the trial judge accepted the need to direct the jury that the second appellant had to intend to aid in the commission of the offence (ts 1568).
87 In her directions, the trial judge repeatedly refers to the elements that had to be proved to establish that Ritchie had aided Stephens to murder Mr Johnson (ts 1728, 1730 - 1731, 1759 - 1760, 1799 and 1819). The trial judge also provided to the jury a document referred to as a 'question trail'.
88 The trial judge variously directed the jury on aiding as follows:
- Before Mr Ritchie may be found guilty in this capacity as an aider the State must satisfy you of two things. First, it must satisfy you that Mr Ritchie had actual knowledge of the general nature of the offence being committed, or to be committed, by Mr Stephens. You must have actual knowledge of that, as opposed to a mere suspicion that those facts existed, or as to what Mr Stephens was going to do (ts 1728).
…
Secondly, the State must satisfy you that Mr Ritchie gave actual assistance to the commission of that offence … mere presence at the commission of an offence does not, of itself, amount to aiding. For a person to be an aider there must be some deliberate active step by word or action which assists, or at the very least, encourages the commission of the offence (ts 1729). (emphasis added)
- As long as Mr Ritchie knew what Mr Stephens was going to do and he gave active assistance to him to enable him to do it (ts 1729). (emphasis added)
- The issue for you is whether Mr Ritchie gave active assistance with knowledge that the offence was going to be committed or was being committed (ts 1730).
- So at the risk of repeating myself, there are two things the State must prove before Mr Ritchie can be guilty in the role of an aider: first, that he knew the offence that was being committed or was to be committed by Mr Stephens; and secondly, that he gave actual assistance or encouragement, either by act or word, to Mr Stephens to commit the offence (ts 1731).
89 The trial judge also took the jury step by step through the question trail (ts 1759 - 1760). The relevant questions are:
(2) Has the State proved that at the time Mr Stephens killed the deceased that [Mr Ritchie] knew that Mr Stephens intended to cause the deceased's death or to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the deceased's life?
(3) Has the State proved that the accused gave actual assistance or encouragement to Mr Stephens to assault the deceased knowing that Mr Stephens intended to cause the deceased's death or to cause a bodily injury of such a nature as to endanger, or be likely to endanger the deceased's life?
(4) Has the State proved that at the time Mr Stephens killed the deceased, [Mr Ritchie] knew that Mr Stephens was going to assault the deceased in a manner which could well cause death.
(5) Has the State proved that at the time Mr Stephens killed the deceased [Mr Ritchie] gave actual assistance or encouragement to Mr Stephens to assault the deceased in a manner which could well cause death.
90 The question trail makes no reference to whether the second appellant acted with the intention of aiding or assisting Stephens in the commission of the offence.
91 After the jury had retired to consider their verdict they asked the trial judge to elaborate or clarify questions 2 and 4 in the question trail and the difference between them (ts 1798).
92 Later, the trial judge received a further request from the jury in the following terms:
Can you elaborate on the difference between mere presence at a crime not being assistance as opposed to the presence of someone at a crime providing encouragement to the person committing a crime (ts 1813).
93 The second appellant's counsel submitted (as he had done earlier at ts 1586) that any encouragement must be intentional (ts 1817). In response to the jury request, the trial judge said:
For a person to be an aider there must be some deliberate active step, by word or action, which assists or encourages the commission of the offence …
To be an aider a person must give active assistance or, at the very least, encourage in some way the commission of the offence (ts 1819). (emphasis added)
94 Continuing with the response to the jury request, the trial judge said:
Voluntary and deliberate presence during the commission of a crime without any opposition or real [dissent] to being present may be evidence of aiding, if you're satisfied beyond reasonable doubt that Mr Ritchie knew what offence was being committed and was there to provide encouragement or fortitude to Mr Stephens to commit the offence and that the effect of his presence there was actually to encourage Mr Stephens.
It should be obvious to you, of course, that intentional encouragement may also come from any expressions, gestures or actions which you find Mr Ritchie made, if any, which in your view were intended to signify his approval for Mr Stephens actions (ts 1820). (emphasis added)
95 It is the case that neither the prosecutor nor the second appellant's trial counsel objected to the directions on the subject of aiding which had been foreshadowed by the trial judge in the absence of the jury (ts 1685).
96 However, it was only in the direction at ts 1729 ('to enable him') and in the redirection that the trial judge correctly directed the jury on the need for an intention to aid. The use of the word 'deliberate' in the summing up relates to the action, not to the intended effect of the action. Moreover, the question trail is silent on the issue of intention to aid.
97 Having regard to the direction on aiding as a whole and the content of the question trail, I am not satisfied that the trial judge adequately directed the jury on the requirement that they had to be satisfied beyond reasonable doubt that the second appellant acted with the intention of aiding Stephens in the commission of the offence of murder. I would uphold ground 2.
The proviso
98 I have summarised the prosecution and defence case in addressing the unsafe and unsatisfactory ground. The relationship between the outcome aspect of the proviso and that ground of appeal is well understood. See Weiss v The Queen (2005) 224 CLR 300. The prosecution case against the second appellant was very compelling, including on the subject of his intention to aid Stephens in the commission of the murder of Mr Johnson. I am persuaded that the evidence admitted at trial proved beyond reasonable doubt Ritchie's guilt of the offence on which the jury returned its verdict of guilty. If the outcome limb of the proviso has reverted to the test of whether the second appellant has been denied a chance of acquittal which was fairly open to him, the answer would be an unequivocal no.
99 Having regard to its nature and extent, the error is fully and effectively negated by my conclusion that it could and should not affect the outcome of the trial. The process limb of the proviso is not engaged on the facts in this case. Accordingly, the second appellant's appeal against conviction should be dismissed.
The State sentence appeal
100 The State claims that the respondent's sentence of life imprisonment with a non-parole period of 14 years is manifestly inadequate.
101 Save for the anal penetration claim, the facts found by the sentencing judge for sentencing purposes reflect the prosecution case detailed at the commencement of these reasons. In summary, she found as follows. The group mentality at the 'church night' party was a partial explanation for the violence that erupted. During the assault upon Mr Johnson, Stephens and the respondent came from the back of the house to the front driveway and watched as Mr Johnson was further assaulted by Beckton and others. Stephens said he would go home to get his 'girl', referring to his shotgun. The respondent and Stephens left together in Stephens' car, with Stephens driving. Stephens and the respondent returned to the Alfred Road property about 15 minutes later, at which time the respondent was driving Stephens' car. Mr Johnson was still alive at this point. When Stephens got out of the car he was wearing a rolled up balaclava and was carrying a bag which contained his shotgun and ammunition. Stephens had already formed the intention to kill Mr Johnson. By the time the respondent was driving Stephens back to the Alfred Road property, the respondent knew Stephens had a gun and that he intended to kill Mr Johnson.
102 After the respondent and Stephens returned, Stephens, Beckton and Dangla Cruz continued to kick Mr Johnson as he lay on the ground. Stephens punched him to the head and picked up a concrete block or brick of some kind and hit the deceased over the head with it. Stephens commented that the deceased was still alive. He then got into his car and drove over Mr Johnson a number of times. Mr Johnson was still alive at the time Stephens drove over him. The respondent watched and heard these assaults take place.
103 After Mr Johnson's pants were pulled down and he was assaulted with a stick, Stephens then opened the boot of his car and said something to the effect of 'he's not going to fit' and told Beckton to get his car. Stephens' car was moved and Beckton reversed his car to near where Mr Johnson lay on the ground.
104 After Stephens shot Mr Johnson at Lime Kiln Field and returned to the waiting car, Beckton drove to the Claremont train station to look for Rigden. Beckton and the respondent got out of the car and went in search of him, but he had already left. The sentencing judge was unable to make a finding as to the actual cause of Mr Johnson's death.
105 Beckton pleaded not guilty to murder on the first day of trial then, on 24 November 2014, pleaded guilty to the lesser charge of manslaughter which was accepted by the State. Beckton, Stephens and the respondent were all sentenced on 24 February 2015. Beckton was sentenced to 11 years imprisonment and made eligible for parole. Stephens was sentenced to life imprisonment with a non-parole period of 24 years. Dangla Cruz had earlier pleaded guilty to being an accessory after the fact to murder. He was sentenced to 3 years imprisonment on 22 April 2014.
106 As to the respondent's personal circumstances, he was aged 23 at the time of the offence and 25 at the time of sentencing. He had completed year 12 and a number of TAFE certificates; had been a regular consumer of alcohol and prohibited drugs for a considerable time; and had a limited criminal history for which he was fined.
107 The sentencing judge found that the respondent failed to acknowledge responsibility for his actions and was not remorseful. In considering parity issues, the sentencing judge placed significant weight on the fact that the respondent did not directly inflict any injury on Mr Johnson.
Manifest inadequacy
108 The State's claim of manifest inadequacy is a claim of implied error. This court cannot intervene merely because it would have imposed a different non-parole period. The question is whether the non-parole period is unreasonable or plainly unjust. In determining that question, regard is had to the standards of sentencing customarily imposed for offences of the type, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
109 Sentences customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. This court undertook a detailed survey of the relevant statutory framework and sentences customarily imposed in the case of The State of Western Australia v Lee [2013] WASCA 246. It is unnecessary to repeat it here.
110 I have also had regard to subsequent cases including The State of Western Australia v Churchill [2015] WASCA 257, Mack v The State of Western Australia [2014] WASCA 207, Zwerus v The State of Western Australia [2015] WASCA 174, Angliss v The State of Western Australia [2015] WASCA 8, Rosewood v The State of Western Australia [2014] WASCA 21, Stinson v The State of Western Australia [2014] WASCA 72, Prestidge v The State of Western Australia [2014] WASCA 16, The State of Western Australia v Smith [2015] WASCA 87.
111 The facts of the offending in this case are both gross and grossly disturbing. It is difficult to recognise any semblance of humanity or moral conscience in the gratuitous gang mentality inspired violence in which the respondent participated.
112 Based on the facts of the offending and the non-parole periods customarily imposed for murder, the non-parole period of 14 years for the offence committed by the respondent is by any measure very lenient. The same may be said for the sentences imposed on Stephens and Beckton. However, this court is also required to take into account parity considerations in its assessment of whether the non-parole period is manifestly inadequate: Green v The Queen (2011) 244 CLR 462. The State has not appealed against the sentences imposed on Beckton and Stephens.
113 There can be no doubt that the sentencing judge gave close consideration to the relativities in culpability and other sentencing variables in sentencing each of the respondent, Beckton and Stephens. In my respectful opinion, the different sentences properly reflect the differences in sentencing factors between the offenders. That is a powerful factor for not intervening when it may otherwise be open to do so. To intervene only in the sentence imposed on the respondent would, in my assessment, involve a significant element of unfairness. Accordingly, notwithstanding the very lenient sentence imposed on the respondent, I would decline to uphold the appeal.
114 Accordingly, the State appeal against sentence should be dismissed.
115 BUSS JA: I agree with the orders proposed by McLure P. Subject to one qualification, I agree generally with her Honour's reasons. The qualification is that I propose to state my own reasons for deciding that, in any event, the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied in relation to both Mr Stephens' appeal against conviction (CACR 47 of 2015) and Mr Ritchie's appeal against conviction (CACR 32 of 2015).
The principles governing the application of the proviso
116 Section 30(3) of the Criminal Appeals Act provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
117 However, by s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that 'no substantial miscarriage of justice has occurred'.
118 In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:
As this Court's decision in AK v Western Australia ((2008) 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].
- See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).
119 In Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776, French CJ, Bell, Keane and Nettle JJ said that the phrase 'substantial miscarriage of justice', in this context, means that 'the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her (Pollock v The Queen (2010) 242 CLR 233 at [70]; 84 ALJR 713) or that there was some other departure from a trial according to law that warrants that description (Baiada Poultry Pty Ltd v The Queen at [22] - [23]; 86 ALJR 459 per French CJ, Gummow, Hayne and Crennan JJ; see, eg, AK v Western Australia (2008) 232 CLR 438 at [57] - [59]; 82 ALJR 534 per Gummow and Hayne JJ; at [109] - [110] per Heydon J)' [15].
120 It is unnecessary, in the present case, to consider whether there is any material difference or inconsistency between the approach to the proviso mandated by Weiss, on the one hand, and the observations of the plurality in Filippou as to the meaning of the phrase 'substantial miscarriage of justice' in the context of the proviso, on the other. See the views expressed by McLure P in Petersen v The State of Western Australia [2016] WASCA 66; (2016) 75 MVR 234 [16] - [27]. If there is any material difference or inconsistency it is of no consequence in the present case.
The application of the proviso: overview of the State's case at trial
121 The deceased, David Johnson, was killed during the evening of 8 March 2013.
122 The deceased, who was aged 32, lived in Fremantle with a number of other young men including Will Rigden, who was aged 23.
123 Mr Johnson did not know and had never met any of the offenders prior to the evening of 8 March 2013. He attended a party at 162 Alfred Road, Swanbourne at the invitation of Mr Rigden. They travelled together from Fremantle to the house at Alfred Road.
124 Mr Stephens, who was aged 23, lived in Shenton Park. Mr Ritchie, who was also aged 23, lived in Subiaco. Mr Stephens owned a white Holden Calais sedan which he drove to the party.
125 Mr Beckton, who was aged 35, lived in Beeliar. Mr Beckton went to the party with his brother-in-law, Noel Dunn. Mr Beckton travelled with Mr Dunn to the party in Mr Beckton's blue Mitsubishi Magna station wagon.
126 At the party the deceased began arguing with Mr Beckton. During the argument the deceased removed his shoes. Mr Beckton believed the deceased was acting aggressively. Mr Beckton picked up a meat cleaver and wielded it in a threatening manner. Edward Dangla Cruz, who lived at the Alfred Road house, stepped between the deceased and Mr Beckton. The deceased was then punched forcefully to the head. He fell to the ground and may have been unconscious for a short time. Mr Dangla Cruz told the deceased to leave. He got up and prepared to leave by walking to the front of the premises. At that point he was endeavouring to leave.
127 Mr Beckton and Mr Dunn followed the deceased to the front of the Alfred Road premises. Mr Beckton punched the deceased again. He fell to the ground near Mr Dangla Cruz's utility vehicle, which was parked in the driveway. The deceased crawled under the utility to escape from Mr Beckton.
128 At some stage Mr Rigden walked to the front of the premises. He did not see the deceased and, believing he had already left, Mr Rigden departed and walked towards the Claremont train station, where he anticipated the deceased would be.
129 Mr Dangla Cruz came to the front of the premises and pulled the deceased from underneath the utility. Mr Beckton and Mr Dangla Cruz then seriously assaulted the deceased with numerous punches and kicks.
130 At some point Mr Rigden returned to the Alfred Road house and asked about the deceased. He was told that the deceased had walked home. Mr Rigden departed again and walked towards the Claremont train station.
131 During the assault upon the deceased by Mr Beckton and Mr Dangla Cruz, Mr Stephens and Mr Ritchie moved from the back of the Alfred Road premises to the front driveway. They watched as the deceased was further assaulted by Mr Beckton and others. Mr Stephens said he would go home and get his 'girl'. The State alleged that this was a reference to his gun. Mr Stephens and Mr Ritchie left together in Mr Stephens' car. Mr Stephens was the driver. While they were away, the deceased was assaulted again by Mr Beckton and Mr Dangla Cruz.
132 About 15 minutes after they left, Mr Stephens and Mr Ritchie returned to the Alfred Road house. By this time, Mr Ritchie was driving Mr Stephens' car. Mr Stephens was sitting in the front passenger seat.
133 When Mr Stephens got out of the car, he was wearing a rolled-up balaclava and gloves and was carrying a bag which contained his Rossi 12-gauge break action sawn-off shotgun and ammunition. The State's case was that, at this stage, Mr Stephens had formed the intention to kill the deceased and that Mr Ritchie was aiding him by driving him back to the Alfred Road house with that knowledge.
134 After Mr Stephens and Mr Ritchie returned, the assault upon the deceased continued. Mr Stephens punched the deceased to the head. He then picked up a concrete block or brick of some kind and struck the deceased over the head with it. Mr Stephens commented that the deceased was still alive. He said something to the effect, 'this cunt's still alive' or 'still breathing'. Mr Stephens got into his car and drove the car over the deceased a number of times.
135 At or about this time, the deceased's pants were pulled down and he was assaulted with a branch or stick. It appeared as though the branch or stick was protruding from his anus.
136 Next, Mr Stephens opened the boot of his car and said something to the effect, 'he's not going to fit'. Mr Stephens told Mr Beckton to get his (Mr Beckton's) car. Mr Stephens' car was moved and Mr Beckton reversed his (Mr Beckton's) car and parked it near the deceased, who was lying on the ground. The deceased was placed on a rug, and Mr Stephens and another person put the deceased in the back of Mr Beckton's car. Mr Stephens got into the front passenger seat, Mr Ritchie into the rear seat and Mr Beckton into the driver's seat. They drove away from the Alfred Road house, leaving Mr Dangla Cruz behind. Mr Dangla Cruz made an effort to clean part of the driveway (which contained the deceased's blood, vomit and faeces) with water and bleach.
137 Mr Beckton drove to Lime Kiln Field in Swanbourne. Upon arriving, he turned off the head lights and drove into the park. He reversed the car and stopped so that the rear of the car was close to a brick wall. Mr Stephens got out of the car with his loaded gun. He pulled the deceased from the rear of the car, placed him on the ground and closed the boot. Mr Beckton drove away leaving Mr Stephens and the deceased in the park. Mr Beckton stopped on the road, some distance away, and he and Mr Ritchie awaited Mr Stephens' return.
138 At about 11.18 pm, Mr Stephens shot the deceased in the head at close range with the shotgun. The deceased suffered a gross trauma to the left side of his face and head. The police were called by nearby residents who heard the noise. The police attended Lime Kiln Field promptly and discovered the deceased's body in the park.
139 After shooting the deceased, Mr Stephens ran to the waiting car. Mr Beckton then drove Mr Stephens and Mr Ritchie to Claremont train station to look for Mr Rigden. Mr Beckton and Mr Ritchie got out of the car and searched for him. However, Mr Rigden had already left Claremont by train and had arrived safely at Fremantle.
140 Next, Mr Beckton, Mr Stephens and Mr Ritchie returned to the Alfred Road house. Mr Beckton and Mr Dangla Cruz removed carpet from the boot of the car. Some of the deceased's bodily fluids were on the carpet. It was ultimately cut into pieces and placed in a bin at the Alfred Road house. Shortly afterwards, Mr Beckton left the party with Mr Dunn and another man.
141 In the days after the murder, Mr Stephens, Mr Ritchie, Mr Dangla Cruz and another man associated with each other.
The application of the proviso: the injuries suffered by the deceased
142 A post-mortem examination of the deceased showed that he died from multiple injuries while grossly affected by alcohol. His blood alcohol level was 0.35%.
143 The deceased had in excess of 100 injuries to his body (including scratches and abrasions). Many of the injuries were to his torso and head. The most significant was the gunshot wound to his head, which resulted in extensive disruption of his skull and facial skeleton. The deceased had multiple blunt force injuries to his face, torso and limbs, with significant injuries to his lower back and on the outside of both his upper legs and hips. He had multiple rib fractures on the left side, including a flail chest resulting from multiple fractures to one rib. The flail chest would have affected his ability to breathe. The deceased had degloving injuries and impressions on his skin, consistent with his having been run over by Mr Stephens' car. He had fractures to his left pelvis and a fractured larynx.
The application of the proviso: the cause of the deceased's death
144 The forensic pathologist who carried out the post-mortem was unable to identify a particular injury which caused the deceased's death. However, the forensic pathologist advanced a number of possibilities:
(a) The rib fractures (not merely the flail chest) would have caused pain, which in turn would have resulted in decreased respiration. The flail chest would potentially have compromised his breathing even further. The degloving injuries and the significant pelvic fractures would have caused pain and shock and, potentially, a reduction in blood pressure. The combination of all of those injuries and the respiratory depression attributable to the deceased's alcohol level may have resulted in his death.
(b) After receiving all the other injuries, the deceased was shot and died from the gunshot wound.
(c) The deceased had trauma to his head sufficient to kill him before he received the gunshot wound, or a head injury which contributed to his decreased level of consciousness, and those injuries, in combination with all of the other injuries, resulted in his death. The forensic pathologist was unable to say whether the deceased had received such a head injury before he was shot because of the gross trauma caused by the shotgun blast.
The application of the proviso to Mr Stephens
145 Counsel for the State attached to his written submissions a detailed schedule of evidence in accordance with Practice Direction 7.4. Counsel for Mr Stephens did not file a responsive schedule.
146 On 19 and 20 March 2013, Mr Stephens participated in an electronically recorded interview with police.
147 Mr Stephens admitted that he and Mr Ritchie were present at the Alfred Road house on 8 March 2013, having arrived at about 4.30 pm in his white Holden Calais sedan.
148 Initially, Mr Stephens denied having assaulted the deceased in any way on the night of 8 March 2013. Indeed, initially, he denied ever having met the deceased. However, as the interview progressed, Mr Stephens began to admit, on a piecemeal basis, his involvement in the events of that night. Many of his eventual admissions related to matters which he had repeatedly denied in earlier parts of the interview.
149 A critical admission made by Mr Stephens in the police interview was that he shot the deceased at Lime Kiln Field and, some time later, he placed the shotgun in the boot of Stephen Shea's car (EROI 90 - 92, 96, 98, 111 - 112, 119). However, there was also other compelling evidence at the trial as to Mr Stephens having shot the deceased, including CCTV footage which timed the dumping of the deceased and his shooting at Lime Kiln Field, and surveillance and forensic evidence relating to the shotgun and Mr Stephens' concealment of the shotgun in the boot of Mr Shea's car.
150 Mr Stephens' case at trial was to the effect that he could not be criminally responsible for the deceased's death because he was already dead, when Mr Stephens shot him, from injuries inflicted earlier in the night.
151 In the police interview, Mr Stephens was asked what he would have done if he, Mr Beckton and Mr Ritchie had found Mr Rigden at the Claremont train station (after shooting the deceased at Lime Kiln Field). He replied:
STEPHENS: I wouldn't have shot him. Not someone that's still breathing.
SSGT WESTON: What do you mean by that?
STEPHENS: Well, the other guy was, he wasn't even breathing when we put him in the back of the car (EROI 127).
- That exculpatory statement was consistent with Mr Stephens' case at trial to the effect that the deceased was already dead when Mr Stephens shot him.
152 Mr Stephens' defence counsel said, in his closing address, that the deceased's death was attributable to the serious injuries he suffered during the assaults at the Alfred Road premises. Mr Stephens' case was that he had not inflicted any of those injuries.
153 Mr Stephens made two statements in his police interview which indicated that the deceased was alive when Mr Stephens shot him.
154 First, there was the following exchange:
STEPHENS: Oh, well, they, Eddie [that is, Mr Dangla Cruz] didn't want him outside the front of his house anymore. He, he said get him out of here and take care of him.
SSGT WESTON: So, when he said get him out of here and take care of him, what did that mean?
STEPHENS: Ah, pretty much, yeah, pretty much what happened to him, like - - -
SSGT WESTON: Did Eddie mean get out of, get him out of here and kill him?
STEPHENS: Yeah, pretty much.
SSGT WESTON: Did Eddie say those words? What words did Eddie actually say?
STEPHENS: I can't remember the exact words. He didn't use the words kill him. But, yeah, he didn't use those words.
SSGT WESTON: Okay. So how did you get the, how did you come to feel that that was what he meant?
STEPHENS: It's just the way he, way it was said, and the way that everyone looked at us. And, like, it's kind of, like, we knew. Well, I, I, I knew straight away what he meant. Just the way everyone was looking and the way it was said (EROI 120 - 121).
155 Secondly, when asked why he would carry out Mr Dangla Cruz's instruction to shoot the deceased, Mr Stephens replied:
SGT JOHNSTON: So I'm just curious as to why you would, why you would carry out their request.
STEPHENS: 'Cause I watched 'em, I watched them beat someone, like, half to death on the floor (EROI 128 - 129).
156 It was open, on the two statements made by Mr Stephens in the police interview, to conclude that the deceased was not yet dead if:
(a) he had been beaten 'half to death'; and
(b) Mr Stephens had been asked to 'take care' of him by killing him.
157 However, the admissions were not, in the context of the police interview as a whole, unequivocal. I refer, in particular, to Mr Stephens' contradicting exculpatory statement that he would not have shot someone who was still alive.
158 However, all of the other evidence at trial (that is, the evidence apart from Mr Stephens' police interview) required the defence case, as a matter of forensic reality, to confront Mr Stephens' involvement in shooting the deceased.
159 I am satisfied, on my examination of the trial record, that the prosecutor's failure to inform Mr Stephens' defence counsel, prior to the commencement of the trial, whether or not she would tender the police interview did not materially affect the presentation of the defence case at trial.
160 As the police interview was ultimately adduced as part of the State's case, Mr Stephens was able to rely upon his exculpatory statements in the police interview as part of his defence case without subjecting himself to cross-examination.
161 Mr Stephens' case at trial that he was not criminally responsible for the deceased's death also depended upon his denial of any involvement in the serious assaults upon the deceased at the Alfred Road premises.
162 Mr Stephens' initial denial, in the police interview, of any involvement in the serious assaults upon the deceased included denials of the allegations that he had reversed his car over the deceased and had dropped a concrete block or brick onto him (EROI 109). Those denials were made in the context of other denials of allegations relating to Mr Stephens' ownership and use of the shotgun with which the deceased was shot. As the interview progressed, and Mr Stephens was confronted with the available evidence as to his involvement, Mr Stephens admitted shooting the deceased:
STEPHENS: Um. I did shoot him. I didn't bash him. I shot him. I got told to do it, so I did it. And yeah.
SSGT WESTON: Okay. Tell us what happened.
STEPHENS: Pretty much what you just described.
SSGT WESTON: Are you able to talk us through what happened? Was everything I just said then, was that correct?
STEPHENS: Not, I didn't run him over.
SSGT WESTON: Okay. So who did?
STEPHENS: To be honest, I can't even remember. I remember that there were a group of them bashing him. Then, yeah, got told to go deal with him (EROI 111).
163 Mr Stephens was questioned in detail about the events at Lime Kiln Field. He was then questioned further about his involvement in the serious assaults upon the deceased at the Alfred Road premises. At that stage, Mr Stephens admitted assaulting the deceased by punching him:
STEPHENS: Um. I might have punched him. I'm pretty sure I didn't kick him.
SSGT WESTON: Why did you punch him?
STEPHENS: Well, pretty much just because Eddie [that is, Mr Dangla Cruz].
SSGT WESTON: Okay. Can, what do you mean by that?
STEPHENS: Well, Eddie's one of my mates and he, for him to piss Eddie off that much, he must have done something pretty bad, but I don't even, I don't even know what he's done, what he did that night.
SSGT WESTON: So when you punched him, where was he?
STEPHENS: He was just on the, on the floor.
SSGT WESTON: Where did you punch him?
STEPHENS: Just in the head (EROI 132 - 133).
164 Upon being questioned again in relation to his involvement in the serious assaults upon the deceased at the Alfred Road premises, Mr Stephens did not deny reversing his car over the deceased or dropping a concrete block or brick onto him. Rather, Mr Stephens said he could not remember doing those things:
SSGT WESTON: What the evidence tells us is that your Commodore was then used to run David [that is, the deceased] over.
STEPHENS: See, I can't even remember that happening.
SSGT WESTON: The evidence also tells us that you were driving when that occurred.
STEPHENS: [indistinct] I, I can't remember.
SSGT WESTON: That your Commodore was reversed over him several times.
STEPHENS: I, but I can't remember.
SSGT WESTON: Could it have happened?
STEPHENS: I, I don't think I'd reverse over the top of someone. Half that, half the whole night was a blank to me, so.
…
SSGT WESTON: It's at this point the evidence indicates that you made a comment that he was still breathing, and that you punched him while he was on the ground.
STEPHENS: I can't remember. I - - -
SSGT WESTON: It's also at this point that the evidence tells us that you grabbed a slab and you dropped the slab on his head.
STEPHENS: See, I can't [indistinct] I can't remember that either (EROI 133 - 134).
165 Those statements in the police interview concerning the specific acts of reversing his car over the deceased and dropping a concrete block or brick onto him were primarily self-serving (denials) or, at their highest, equivocal (no recollection). Accordingly, the statements were only admissible as part of a 'mixed statement'. Further, there were insufficient admissions in the police interview to establish that Mr Stephens did those acts and, accordingly, the State relied on other evidence in order to establish the allegations.
166 At the trial Mr Dunn gave evidence that Mr Stephens had been involved in the serious assaults upon the deceased by reversing a car over the deceased and dropping a concrete block or brick onto him. Those assaults were linked to some of the most severe injuries inflicted upon the deceased and may well have caused his death.
167 Mr Dunn gave this evidence:
(a) At the Alfred Road premises Mr Stephens said he was 'going home to get the/my girl' (ts 468).
(b) Mr Stephens and Mr Ritchie left the Alfred Road premises in Mr Stephens' car. Mr Stephens was driving. They returned about 15 minutes later. Mr Ritchie was then driving Mr Stephens' car. Mr Ritchie reversed the car close to where the deceased was lying on the driveway. Mr Stephens was wearing a balaclava, had a pair of gloves on his hands and was carrying a dark coloured sack. Mr Stephens also had a 'mini' rifle/musket that was 'a little bit over 30 cm' in length (ts 469 - 471, 583).
(c) Mr Stephens, Mr Beckton and Mr Dangla Cruz then punched the deceased, who was still lying on the ground (ts 472).
(d) Mr Stephens picked up a rock and hit the deceased on the head with it once or twice (ts 472 - 473, 559).
(e) Mr Stephens then said, in substance, 'fuck, this cunt's still alive' or 'still breathing'. Next, Mr Stephens got into his car and reversed the car over the deceased about three or four times. Mr Ritchie was standing to the right of the driveway while Mr Stephens was running over the deceased (ts 473 - 474).
(f) Mr Beckton and Mr Dangla Cruz placed the deceased on a dark coloured rug. Mr Stephens and Mr Beckton then placed the rug, with the deceased on it, on the back seat of Mr Beckton's car. There was something like a towel spread on the back seat beneath the rug on which the deceased lay. At this time, Mr Ritchie was still standing to the side (ts 476 - 477, 589).
(g) Mr Beckton got into the driver's seat, Mr Stephens into the front passenger seat and Mr Ritchie into the back seat. Mr Stephens had the rifle in his hand as he got into the car. They drove away (ts 477 - 478).
(h) Mr Stephens, Mr Ritchie and Mr Beckton returned to the Alfred Road premises later that night. Mr Beckton and Mr Dangla Cruz removed the carpet covering the back seat of Mr Beckton's car and put it in a bin (ts 481).
(i) On the night in question, Mr Dunn saw only one shotgun, namely the rifle/musket which Mr Stephens brought with him when he and Mr Ritchie returned to the Alfred Road premises. Mr Dunn did not see anyone else, apart from Mr Stephens and Mr Beckton, handle the gun (ts 483).
168 In addition to Mr Dunn's evidence, there was forensic evidence in relation to the use of Mr Stephens' white Holden Calais sedan to reverse over the deceased. A State witness, Senior Constable Stuart Byass, a forensic investigator, gave evidence that the impressions retrieved from the deceased's left rib, chest area and abdomen could have been caused by various specific parts of the undercarriage of Mr Stephens' car. A swab collected from the front bumper of the car tested positive for the deceased's DNA. There was also black staining on the deceased's body that was consistent with a car being driven over him and consequent degloving injuries to his front torso and middle back (extending to his buttock). The degloving injuries were consistent with compressive force such as being run over by a car (ts 1212, 1216 - 1219, 1257 - 1259).
169 CCTV footage taken from 1 Pine Close, Swanbourne revealed the following. On 8 March 2013, at about 11.14 pm, a vehicle entered Lime Kiln Field; Mr Stephens got out of the vehicle and removed the deceased from the boot of the car; the car left the park; there was a flash from a gun; and Mr Stephens ran from the park to the waiting car (exhibit 41).
170 Mr Shea gave evidence that on 19 March 2013 Mr Stephens visited him at his home in Wembley. He said Mr Stephens arrived in a white Commodore sedan. Mr Stephens asked Mr Shea if he could put something in the boot of Mr Shea's car. Mr Stephens put what appeared to Mr Shea to be a black jumper or bundle in the boot, beneath the carpet.
171 I am satisfied, on my examination of the trial record and after weighing the evidence, that the State proved beyond reasonable doubt that Mr Stephens murdered the deceased.
172 In particular, I am satisfied, to the criminal standard, that:
(a) Mr Stephens returned to the Alfred Road premises with Mr Ritchie;
(b) when he returned, Mr Stephens had with him his shotgun, ammunition, balaclava and gloves;
(c) upon returning to the Alfred Road premises, Mr Stephens punched the deceased in the head, picked up a rock and hit the deceased over the head with it once or twice, and then got into his car and drove the car over the deceased a number of times;
(d) the deceased was alive when Mr Stephens assaulted him in the manner I have just described;
(e) when Mr Stephens assaulted the deceased he intended to cause his death;
(f) Mr Stephens' assault upon the deceased made a significant or substantial contribution to his death; and
(g) if (contrary to my view) the deceased was still alive when Mr Stephens, Mr Ritchie and Mr Beckton took him to Lime Kiln Field, Mr Stephens killed the deceased, and intended to kill him, with a blast from his shotgun.
173 I remain satisfied, to the criminal standard, in relation to each of those matters even if the admissions against interest made by Mr Stephens in his electronically recorded interview with police are disregarded.
174 On my examination of the trial record and after weighing the evidence, the only inference reasonably open is that Mr Stephens was guilty of murder. No other reasonable inference is open on the trial record as a whole. I remain of that view even if the admissions against interest made by Mr Stephens in his electronically recorded interview with police are disregarded.
175 After paying full regard to:
(a) the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence;
(b) the jury's advantage in having seen and heard the witnesses; and
(c) the prosecutor's failure to inform Mr Stephens' defence counsel, prior to the commencement of the trial, whether or not she would tender the police interview,
I do not have a reasonable doubt as to Mr Stephens' guilt on the count of murder pleaded in the trial indictment or as to the correctness of his conviction on that count. I remain of that view even if the admissions against interest made by Mr Stephens in his electronically recorded interview with police are disregarded.
176 I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has in fact occurred. First, as I have mentioned, I am persuaded to the criminal standard of proof, on my examination of the trial record and after weighing the evidence, as to Mr Stephens' guilt on the charge of murder. The jury properly rejected his defence. I am persuaded to the criminal standard that Mr Stephens has not been denied a chance of acquittal that was fairly open to him. Secondly, I am satisfied beyond reasonable doubt that nothing at or in the conduct of the trial (including the prosecutor's failure to inform Mr Stephens' defence counsel, prior to the commencement of the trial, whether or not she would tender the police interview) precludes this court from deciding that no substantial miscarriage of justice has in fact occurred. The prosecutor's failure does not, on the facts and in the circumstances of the present case, preclude 'the proviso' from being engaged.
The application of the proviso to Mr Ritchie
177 The State's case and Mr Ritchie's case at trial are summarised by McLure P in her reasons dealing with Mr Ritchie's ground of appeal that the verdict of guilty on which his conviction is based is, having regard to the evidence, unreasonable or cannot be supported.
178 Counsel for Mr Ritchie failed to acknowledge, in his written submissions, a significant aspect of Mr Ritchie's behaviour on the night in question; namely, his role in aiding the commission of the murder by driving Mr Stephens' car back to the Alfred Road premises while Mr Stephens was in the front passenger's seat, clad in a balaclava and gloves, and holding his gun.
179 There was direct evidence of Mr Ritchie's involvement in the offending which established that his actions and conduct went well beyond the threshold of 'mere presence' at the crime scene. See, in particular, the evidence of Mr Dunn, including his evidence to the effect that Mr Ritchie drove Mr Stephens back to the Alfred Road premises; Mr Stephens arrived on that occasion with a balaclava, gloves and gun; and Mr Ritchie reversed the car close to where the deceased was lying on the driveway.
180 Mr Ritchie's behaviour in driving Mr Stephens' car back to the Alfred Road premises was a key aspect of the State's case that Mr Ritchie aided Mr Stephens in the commission of the murder.
181 I am satisfied, on my examination of the trial record and after weighing the evidence, that the State proved beyond reasonable doubt that Mr Ritchie 'aided' Mr Stephens, within s 7(b) or s 7(c) of the Criminal Code (WA), to murder the deceased.
182 Mr Ritchie aided or assisted Mr Stephens with actual knowledge that Mr Stephens intended to kill the deceased; with that knowledge, Mr Ritchie did things with the intention or purpose of aiding or assisting Mr Stephens in killing the deceased; and the things done by Mr Ritchie actually aided or assisted Mr Stephens in killing the deceased.
183 On my examination of the trial record and after weighing the evidence, the only inference reasonably open is that Mr Ritchie was guilty of aiding Mr Stephens to murder the deceased. No other reasonable inference is open on the trial record as a whole.
184 After paying full regard to:
(a) the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence;
(b) the jury's advantage in having seen and heard the witnesses; and
(c) the trial judge's error in failing adequately to direct the jury on the requirement that it had to be satisfied beyond reasonable doubt that Mr Ritchie acted with the intention or purpose of aiding Mr Stephens in committing the offence of murder,
I do not have a reasonable doubt as to Mr Ritchie's guilt or as to the correctness of his conviction.
185 I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has in fact occurred. First, as I have mentioned, I am persuaded to the criminal standard of proof, on my examination of the trial record and after weighing the evidence, that Mr Ritchie was guilty of aiding Mr Stephens to murder the deceased. The jury properly rejected his defence. I am persuaded to the criminal standard that Mr Ritchie has not been denied a chance of acquittal that was fairly open to him. Secondly, I am satisfied beyond reasonable doubt that nothing at or in the conduct of the trial (including the trial judge's failure adequately to direct the jury in the manner I have mentioned) precludes this court from deciding that no substantial miscarriage of justice has in fact occurred. Her Honour's failure does not, on the facts and in the circumstances of the present case, preclude 'the proviso' from being engaged.
186 MAZZA JA: I agree with the orders proposed by McLure P for the reasons given by her Honour, save for her Honour's treatment of the proviso. In that regard, I agree with the reasons of Buss JA.
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