Russell v The State of Western Australia
[2011] WASCA 246
•10 NOVEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RUSSELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 246
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 23 MAY 2011
DELIVERED : 10 NOVEMBER 2011
FILE NO/S: CACR 38 of 2010
BETWEEN: CAMERON JAMES RUSSELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 163 of 2008
Catchwords:
Criminal law - Appeal against conviction - Appellant tried jointly with co-accused charged with being an accessory after the fact - Co-accused relied on defence of duress - Whether and if so in what circumstances a co-accused can adduce evidence of other accused's propensity to commit other offences - Construction of s 8(1)(e)(i) of the Evidence Act 1906 (WA) - Whether failure to order separate trials resulted in a miscarriage of justice - Co-accused failed to satisfy evidentiary burden for defence of duress - Whether trial judge's direction capable of overcoming any prejudice to appellant - Construction and application of s 133(4) and s 133(5) of the Criminal Procedure Act 2004 (WA)
Criminal law - Jurisdiction - Validity of indictment - Whether compliance with cl 2(4) and cl 2(5) of sch 1 div 2 of the Criminal Procedure Act 2004 (WA) essential to the existence of jurisdiction to hear and determine a charge
Legislation:
Crimes Act 1958 (Vic), s 399(e)
Criminal Appeals Act 2004 (WA), s 26, s 26(4), s 30(3)(c), s 30(4)
Criminal Code (WA), s 32, s 278, s 562(1), s 624
Criminal Procedure Act 1986 (NSW), s 46, s 130(2)
Criminal Procedure Act 2004 (WA), s 3(1), s 83(2), s 85(2), s 114, s 116, s 126, s 132, s 133, s 133(1), s 133(2), s 133(3), s 133(4), s 133(4)(a), s 133(4)(b), s 133(5), s 133(5)(a), s 133(5)(b), s 133(5)(c), s 133(6), s 142, s 143, s 178, sch 1 div 2 cl 2, cl 7, cl 8
Evidence Act 1906 (WA), s 8(1)(a), s 8(1)(e), s 8(1)(e)(i), s 8(1)(e)(ii), s 8(1)(e)(iii), s 21, s 31A, s 31A(1), s 31A(2)(a), s 31A(2)(b)
Interpretation Act 1984 (WA), s 19
Result:
Leave to appeal granted on grounds 1, 2 and 5
Leave to appeal refused on grounds 3 and 4
Appeal allowed
Judgment of conviction set aside
New trial ordered
Category: A
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353
Belford v The Queen [2011] QCA 43
Braysich v The Queen [2011] HCA 14; (2011) 85 ALJR 593
BRS v The Queen (1997) 191 CLR 275
Carranceja v The Queen (1989) 42 A Crim R 402
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Davies & Cody v The Queen (1937) 57 CLR 170
Demirok v The Queen (1977) 137 CLR 20
Doja v The Queen [2009] NSWCCA 303
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
HML v The Queen (2008) 235 CLR 334
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jones v The Director of Public Prosecutions [1962] AC 635
Jones v The Queen [2009] HCA 17; (2009) 83 ALJR 671
Knight v Jones; Ex parte Jones [1981] Qd R 98
Leaman v The Queen (1987) 28 A Crim R 104
Lowery v The Queen [1974] AC 85
Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
MJS v The State of Western Australia [2011] WASCA 112
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Noto v The State of Western Australia (2006) 168 A Crim R 457
Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Beckett [2009] QCA 196
R v Collie (1991) 56 SASR 302
R v Corak (1982) 30 SASR 404
R v Couper (1985) 18 A Crim R 1
R v Darby [1982] HCA 32; (1982) 148 CLR 668
R v Darrington [1980] VR 353
R v Demirok [1976] VR 244
R v Eriemo [1995] 2 Cr App R 206
R v Gibb [1983] 2 VR 155
R v Glover (1987) 46 SASR 310
R v Hajistassi [2010] SASC 111; (2010) 107 SASR 67
R v Hector [1953] VLR 543
R v Jackson [1982] VR 326
R v Janceski (2005) 64 NSWLR 10
R v Katipa [1986] 2 NZLR 121
R v Lowery (No 3) [1972] VR 939
R v Mertens [2004] EWCA Crim 2252; [2005] Crim LR 301
R v Miller [1952] 2 All ER 667
R v Murrell [2005] EWCA Crim 382; [2005] Crim LR 869
R v N (No 3) [2010] SASC 7
R v Price [2004] EWCA Crim 1359; [2005] Crim LR 304
R v Randall [2003] UKHL 69; [2004] 1 WLR 56
R v Robinson [2005] EWCA Crim 3233; [2006] 1 Cr App R 32
R v Roughan [2007] QCA 443; (2007) 179 A Crim R 389
R v Sarek [1982] VR 971
R v Webb (1992) 59 SASR 563
R v Winning [2002] HCA Trans 276
Re Knowles [1984] VR 751
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Ryan v The State of Western Australia [2011] WASCA 7
Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280
Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
Stubley v Western Australia [2011] HCA 7
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v Russell [2009] WASCA 154
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Winning v The Queen [2002] WASCA 44
Table of Contents
McLure P's reasons.................................................................................................................. 7
Grounds 1 and 2
The course of the relevant evidence
Trial judge's rulings
The trial judge's directions arising from the joint trial
Relevance and admissibility
Ground 3
Ground 4
Ground 5 - miscarriage of justice
A substantial miscarriage of justice
Conclusion
Buss JA's reasons.................................................................................................................... 47
Overview of the State's case at the trial
The application before the commencement of the trial for an order that the appellant and KLA be tried separately
The State's appeal against the trial judge's order that the appellant and KLA be tried separately
Order of addresses and cross‑examination by counsel at the trial
The State's case as opened at the trial
The appellant's case as opened at the trial
KLA's case as opened at the trial
The appellant's video record of interview with police
The application by counsel for KLA for leave to adduce evidence of the appellant's criminal record
Counsel for KLA's cross‑examination of the State's witness, Detective Sergeant Marsh
The evidence of the State's witness, Ms Posavac
The application by counsel for the appellant to discharge the jury
The evidence of the State's witness, Mr Gaunt
The evidence of the State's witness, Mr Perich
The evidence of the State's witness, Ms Lenhard
The evidence of the State's witness, Professor David Joyce
The evidence of the State's witness, Dr Judith McCreath
The evidence-in-chief of the appellant
The application by counsel for KLA for leave to cross‑examine the appellant on the whole of his criminal record and on alleged prior inconsistent statements
The cross‑examination of the appellant
The further application by counsel for the appellant to discharge the jury
The trial judge's direction to the jury after he dismissed the further application to discharge the jury
The evidence of KLA
The trial judge's ruling on self‑defence
The trial judge's ruling on provocation
The prosecutor's closing address
Counsel for the appellant's closing address
Counsel for KLA's closing address
The trial judge's summing up
The jury's verdicts
The grounds of appeal
Grounds 1 and 2 of the appeal
Section 133 of the Criminal Procedure Act
Section 624 of the Criminal Code (WA)
Joint or separate trials for alleged joint offenders: general principles established independently of s 133 of the Criminal Procedure Act
Joint or separate trials for alleged joint offenders: where one accused adduces evidence as to the propensity of the other accused, including where the accused adducing the evidence alleges that he or she acted under duress by the other accused: principles established independently of s 133 of the Criminal Procedure Act
The proper construction of s 133(4) and s 133(5) of the Criminal Procedure Act
Ground 5 of the appeal
Ground 3 of the appeal
Ground 4 of the appeal
The proviso
Conclusion
Mazza J's reasons................................................................................................................. 125
McLURE P: This is an appeal against conviction. The appellant was convicted after trial of the wilful murder of Carli Anne Shaw (the deceased). KLA was tried together with the appellant and convicted of being an accessory after the fact.
The indictment relating to the appellant and KLA is dated 20 November 2008 and relevantly states:
(1)On 7 February 2008 at Rivervale Cameron James Russell wilfully murdered Carli Anne Shaw
And that [KLA] on 7 February 2008 at Rivervale, knowing that Cameron James Russell had committed the said offence assisted him in order to enable him to escape punishment.
(2)In the alternative to Count (1), on 7 February 2008 at Rivervale Cameron James Russell murdered Carli Anne Shaw
And that [KLA] on 7 February 2008 at Rivervale, knowing that Cameron James Russell had committed the said offence assisted him in order to enable him to escape punishment.
On 11 June 2009, four days prior to the scheduled commencement of the trial, the appellant made an application for separate trials. McKechnie J upheld the application and ordered separate trials. That order was the subject of an appeal. On 25 August 2009 the Court of Appeal allowed the appeal and set aside the order for separate trials: The State of Western Australia v Russell [2009] WASCA 154.
The unchallenged evidence at trial established that the deceased died at her home at Armadale Road, Rivervale on 7 February 2008. The appellant and KLA, who were in a relationship, boarded with the deceased. They had a baby who was about 6 months old at the time of the deceased's death. The deceased was a single mother of two children, aged 5 and 2. The deceased's death was caused or contributed to by injuries from a knife or knives. The appellant and the deceased were together in the kitchen of the deceased's home when the injuries were inflicted. Shortly thereafter, KLA assisted the appellant by cleaning up the scene and helping him to place the deceased's body in a doona. She subsequently accompanied the appellant to Stirling Crescent, Hazelmere where the appellant dumped the body. The deceased's body was set alight and burned.
In a police interview conducted on 8 February 2008, the appellant initially denied having assaulted or argued with the deceased, claiming that she had left her house and not returned and that he did not know what had happened to her. He later admitted in the interview that he had argued with her, and that he must have stabbed her. He admitted dragging her body into the shower, where he left it for some hours, and that he later disposed of her body.
In the first part of a police interview conducted with KLA on 8 February 2008, KLA claimed the deceased had left home and not returned. However, in the second part of the interview she began to tell police about what she had seen and heard in the house at the time the deceased died and thereafter. At this stage the interview was terminated.
The appellant and KLA gave evidence in their own defence at trial. In substance, the appellant's evidence was that the deceased had knives in her hands which she was holding vertically; she took half a step towards the appellant and swiped; the appellant stepped back and to the side and gripped the deceased in a bear hug; the deceased kicked her legs in the air and she and the appellant fell to the floor together. When he got up he saw a knife in the deceased's neck. The appellant's case at trial was that he did not cause the deceased's death but, if he did, the death occurred by accident. The trial judge also directed the jury on the defence of provocation.
Counsel for KLA outlined her defence in opening. The defence was that the appellant murdered the deceased. Counsel continued (ts 39):
[A] lot of what the State says is not in dispute from [KLA's] point of view and we're going to accept the evidence that the State puts forward on the three areas where the State says [KLA] did something that assisted [the appellant], because she did all of these three things, and this is not in dispute between the State and [KLA]. She did help [the appellant] clean up after what had happened, after the murder. She did help mop up the blood, she did help move [the deceased's] body. We'll say, and it's a question for you, you accept what you find proven by the evidence, but we will say that is what happened. We will accept that [KLA] fobbed off various friends of [the deceased] and relatives and told them lies about what had happened to [the deceased]. People asked after [the deceased] and she lied to them. The State says they were deliberate lies about [the deceased] and we accept that she lied to those people. The final thing the State says in the case against [KLA], she lied to the police. Well, that's absolutely right, she did lie to the police. She did the first video with the police where she lied to them about what had happened … That's her case, that [the appellant] forced her to do what she did. Now, I said apply your commonsense and you will hear evidence that suggests that [KLA] had every reason to fear [the appellant]. First and foremost, she's just come into the kitchen and there's her flatmate bleeding on the floor, not moving, and [the appellant's] standing over her. That's the first thing that she's faced with. That would, you have thought, given her quite a lot of concern. Secondly, [the appellant] has a history of violence, there will be evidence of that, towards her; that is, towards [KLA], during their relationship and also towards others, and you're going to hear about the reason that his arm's in plaster during the course of this trial. [The appellant] was someone with a temper, he was someone who used a lot of drugs himself, and she had every reason to be afraid of him. So when she was in that position when [the appellant] then made a threat to her, and it's pretty much as clear as this: 'You help me or the same is going to happen to you'.
Evidence was adduced at trial of the appellant's prior convictions for violence, the appellant's previous violence towards KLA and of a violent altercation between the appellant and a witness, Daniel Gaunt.
The appellant relies on five grounds of appeal. The first two relate to the pleading of the charges in the indictment. It is contended in ground 3 that there was a miscarriage of justice occasioned by the cross‑examination of the appellant by counsel for KLA that was in contravention of s 8(1)(e) of the Evidence Act 1906 (WA). By ground 4 the appellant contends the trial judge erred in law in declining to order separate trials and discharge the jury. Alternatively, there was a miscarriage of justice occasioned by the fact that the appellant was tried jointly with KLA (ground 5).
Grounds 1 and 2
It was assumed at all times by all involved that the appellant and KLA had been properly charged as joint offenders in count 1 and, in the alternative, as joint offenders in count 2. The assumption was erroneous, a matter conceded by the State.
The appellant submits that he was either not charged in the indictment with any offence at all (ground 1) or, if he was charged, that the indictment was in breach of the Criminal Procedure Act 2004 (WA) (CPA), with the consequence that the indictment and thus the trial was invalid (null and void).
The indictment, on its proper construction, purports to charge the appellant with wilful murder and, in the alternative, murder and to charge KLA with being an accessory after the fact to wilful murder and, in the alternative, murder. There is no other reasonable construction of the indictment. That is how the lawyers for the parties and the courts who have considered the indictment have all regarded it. Ground 1 must fail.
However, the indictment did not comply with the CPA. Counsel for the appellant conceded, correctly on any view, that the non‑compliance did not occasion him any unfairness or prejudice in the conduct of the trial. The appellant claims that conditions precedent to the jurisdiction of the court to proceed with the prosecution of the appellant had not been satisfied. If that is correct there would have been no trial or the trial would be a nullity: Doja v The Queen [2009] NSWCCA 303 [4].
Whether or not conditions are essential to the existence of jurisdiction to hear and determine a charge depends upon the proper construction of the CPA. Section 83(2) of the CPA provides:
To commence a prosecution in a superior court against a person for an indictable offence, an indictment that alleges the offence must be lodged with the court.
An 'indictment' is defined in s 3(1) to mean a document that contains one or more indictable charges, complies with s 85(2), and is lodged with a superior court (defined as the Supreme Court or the District Court).
Section 85(2) of the CPA provides:
An indictment must ‑
(a)be in writing in a prescribed form;
(b)comply with Schedule 1 Division 2;
(c)be signed by an authorised officer; and
(d)be lodged in the prescribed manner.
Clause 2 of sch 1 div 2 relevantly provides:
(3)A prosecution notice or indictment must contain one charge only, unless clause 7 or another written law permits otherwise.
(4)A charge must allege one offence only, unless clause 8 or another written law permits otherwise.
(5)If a prosecution notice or indictment contains more than one charge, each charge must be in a separate and consecutively numbered paragraph.
It was common cause that cl 7 of sch 1 div 2 of the CPA permitted a charge of wilful murder or in the alternative murder against the appellant, together with a charge against KLA of being an accessory after the fact to wilful murder or alternatively murder. However, cl 8 does not permit one charge against both the appellant for wilful murder and KLA for being an accessory after the fact in relation to that offence. The same applies to the alternative charge of murder. There should have been four separate, consecutively numbered charges in the indictment. Thus, the indictment breaches cl 2(4) and (5) of sch 1 div 2 of the CPA.
The central issue is the effect and consequence of the defects in the indictment. That depends upon the proper construction of the CPA as a whole. Section 178 deals with defects in 'court documents', defined to include an indictment. Section 178 relevantly provides:
(2)Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address.
(3)If a court document is defective in substance or form, the court, on an application by a party or on its own initiative ‑
(a)must order that the document be corrected if the defect is not material to the merits of the case;
(b)may order that the document be corrected in any other case.
(4) …
(5)This section is in addition to and does not affect the operation of section 132.
Section 132 deals with the court's power to amend charges. It relevantly provides:
(1)The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.
(2)The powers in this section may be exercised by a court on its own initiative or on the application of a prosecutor or an accused, unless the contrary intention appears.
(3)…
(4)…
(5)If one charge alleges 2 or more offences and a court is satisfied that the one charge is not permitted by Schedule 1 clause 8, it may amend the prosecution notice or indictment containing the charge so that each of the offences is the subject of a separate charge.
(6)If one charge alleges 2 or more offences and a court is satisfied ‑
(a)that the one charge is permitted by Schedule 1 clause 8;
(b)that the trial of the accused on the charge would be unfair because it alleges the 2 or more offences;
(c)that it is reasonably practicable for any of those offences to be the subject of a separate charge; and
(d)that the separate charge would be in accordance with Schedule 1,
the court may amend the prosecution notice or indictment containing the charge so as to include one or more separate charges.
(7)…
(8)…
(9)…
(10)A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied ‑
(a)the amendment is material to the merits of the case;
(b)the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and
(c)an adjournment would not overcome the prejudice.
The term 'charge' is defined in s 3(1) of the CPA to mean a written allegation in a prosecution notice or indictment that a person has committed an offence. A charge is an essential requirement of a criminal prosecution. An accused is required to plead to a charge (s 126, s 142) and a verdict of the jury must relate to the charge (s 114, s 116).
In analysing the issues it is necessary to distinguish between a precondition to the existence of a power and a condition regulating the exercise of a power. The former is an essential preliminary or condition precedent to the exercise of the jurisdiction, authority or power to act (in this case, to hear and determine the prosecution). The failure to comply with a precondition to the existence of a power will invalidate an act done in purported exercise of that power (that is, the trial will be a nullity).
The failure to comply with a precondition to the existence of a power always results in invalidity. On the other hand, a failure to comply with a statutory requirement that is not a precondition to the existence of a power may (in the absence of any statutory provision to the contrary), but not must, result in invalidity. The correct approach to these questions is identified by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The majority said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition …
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person … exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory [91] ‑ [92].
The majority criticised the distinction between directory and mandatory requirements which they said deflected attention from the real issue which is whether an act done in breach of the legislative provision is invalid. They continued:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' [93].
The first issue is whether a relevant function of an indictment is to invest the relevant court (in this case the Supreme Court) with jurisdiction to hear and determine the prosecution. If that is so, only a valid indictment can enliven the jurisdiction. Whether or not an indictment is necessary to confer jurisdiction and whether or not compliance with a statutory requirement is essential to the validity of an indictment are questions of statutory construction.
It was an unstated assumption of both parties that a valid indictment is an essential preliminary to the exercise of jurisdiction to hear and determine a prosecution. That is the unequivocally clear consequence of the text of the Criminal Procedure Act 1986 (NSW) considered in Doja and R v Janceski (2005) 64 NSWLR 10 (see s 46 and s 130(2)). Such clarity is not evident in the provisions of the CPA. However, as this issue was not specifically canvassed in the submissions of the parties, it is appropriate to proceed on the basis that the unstated assumption is correct.
The focus of attention in the appeal was on whether the failure to comply with cl 2(4) and (5) of sch 1 div 2 of the CPA invalidated the indictment. In my view, s 132 and s 178 demonstrate a clear and unequivocal statutory intention that the breaches in this case do not invalidate the indictment. The power of the court under s 132 and s 178 can only be enlivened in the event it is properly seized of jurisdiction to hear and determine the prosecution. An invalid indictment could not be the subject of amendment. Yet s 132 expressly contemplates an amendment to an indictment in the precise situation that eventuated in this case. That is consistent with s 178, which is concerned with defects of both substance and form.
I would dismiss grounds 1 and 2. In order to deal with the remaining grounds it is necessary to detail aspects of the evidence.
The course of the relevant evidence
The deceased's body was discovered before it had been completely consumed by the fire. The hands, feet and left forearm had separated from the body, a common finding when a body is burnt. The forensic pathologist, Dr J McCreath, located two stab wounds capable of causing death. One was to the neck which resulted in the tip of the blade of the knife being embedded in the deceased's jaw bone, which was also fractured. The wound track was at least 7 cm long. It would take a significant degree of force to pierce the jaw bone. There was also a deep stab wound (9 cm) to the right lung. Other wounds included a 1 cm cut in the deceased's left eyelid, bruising to the front and side of the brain and an impact to the back of her head. Although there were two separate potentially fatal stab wounds, only one of the knives given to Mr Perich had blood on it.
An edited version of the appellant's interview with police was adduced in evidence by the prosecution. The appellant was wearing a cast on his hand. He explained that he broke his finger as a result of 'knocking out' Daniel Gaunt the week before (ts 3 ‑ 4, 17, 30 and 46). He also admitted to using drugs, in particular, taking speed 'but only on the weekends' and otherwise using 'dope' (cannabis) (ts 31).
In his police interview the appellant described the relevant events on 7 February 2008 which included the following. The deceased was a frequent and heavy user of prohibited drugs (including heroin) and prescription drugs. On the day in question, the deceased was angry with the appellant because his family had used two of her potatoes for their meal. He said she just 'skitsed out' and started throwing things at him such as cups and plates (ts 51 ‑ 52). He had started to walk off to his room but stopped when she started to throw things. He continued:
Oh, she had ‑ she had picked up a couple of knives when I started walkin' into the kitchen.
Q. Mm hm.
A. And then I don't remember. I had knives in my hand like ‑ her knives that she had, I had in my hands afterwards.
Q. Mm hm
A. And that was that. And I was freakin'. I didn't know what to do then.
…
Q. Well you mentioned knives ‑ tell us about---
A. I don't know what happened, man, she was just ‑ I had 'em and she was on the ground and that was it. The last thing I remember she had 'em and we were standin' face to face and then I come too with kids lookin' at me. And that was that. She was ‑ I dunno, gone.
…
Q. Cameron, did you stab her with the knives?
A: I think so. I think so, I don't remember. All I know is that she had the knives and then I had the knives and they were covered in blood and that was it. That's all I remember. I don't remember punchin' her, I don't remember doin' anything, just coming too with her on the ground and the knives in my hand and it had all the blood and everything all over her.
Q. Where did that happen in the house?
A. In the kitchen and the laundry.
…
Q. … When she had the knives what did she say or did she say anything?
A. She was just (indistinct) a whole heap of shit, man. I don't remember what. I was already fuckin' pretty much zoned out by then and then ‑‑‑
Q. When you say zoned out, mate ‑ sorry,---
A. When ‑ my eyes just go black and I don't remember fuck all, hey. Just ‑ and pull any weapons ‑ any sort of shit like that on me it's bound to happen. I snap.
Q. You got a bit of an ‑ an anger problem?
A. Not really just in situations like that. It doesn't happen very, very often at all.
Q. Mm hm.
A. But when it does happen fuck, man, I hate it (ts 53 ‑ 54).
The appellant was again asked about what happened as follows (ts 74):
Q. Um, when you went, um, blank---
A. Yep.
Q. ---how long to do you reckon that lasted for?
A. A couple of minutes maybe at the most.
Q. Do you have any injuries on you?
A. Not that I've noticed, no.
Q. Nah, nothing like, um, ---
A. Cuts or anything, nah.
Q. Nah.
A. (indistinct) I think I had this maybe ‑ I dunno. I don't ‑ didn't get nothin'. I fight cunts with knives all the time so it's not as if it's hard or anything like that. Just they make me snap and pull weapons and shit out.
With KLA's assistance, the appellant placed the deceased's body in a doona cover, wrapped it in plastic and placed it in the boot of KLA's car. With KLA and the children in the car, the appellant drove to Stirling Crescent, Hazelmere. The appellant got out of the car and removed the body from the boot. After difficulty in restarting the vehicle, the appellant drove to the house shared by Stephany Posavac, Daniel Gaunt, Aaron Perich and others. He dropped KLA and the children at Ms Posavac's house and left in the vehicle to attempt to locate Ms Posavac and Mr Perich who were still out looking for them. The appellant was unable to locate them before the car again broke down. The appellant walked back to the house.
The appellant gave Mr Perich a bag containing knives from the deceased's kitchen and asked him to hold on to them. Mr Perich put the bag behind his couch. Later, the appellant and Mr Perich returned in Mr Gaunt's vehicle to the site where the deceased's body had been dumped by the appellant. According to the appellant, it was Mr Perich's idea to burn the body and Mr Perich was involved in obtaining and adding fuel (petrol and wood) to the fire (ts 64).
A police officer, Mr JL Marsh, was cross‑examined by counsel for KLA about the appellant's record of prior convictions for assault. The trial judge ruled that it was admissible propensity evidence, relying on the decision in Winning v The Queen [2002] WASCA 44. The evidence is as follows:
On the first page there's an entry, 'Busselton Magistrates Court, 3 April 2007.' Do you see that there---Yes, I do.
And that indicates that Mr Russell was convicted of a common assault offence. Is that right---That's correct.
And he was then placed on a suspended imprisonment order, six months' imprisonment ‑ six months and one day imprisonment suspended for 12 months. Is that right---Yes, that's correct.
All right. On the next page, Fremantle Magistrates Court, in the middle of the page, 13 October 2005---Yes.
Can you see that there---Yes, I can.
Mr Russell was convicted of assaulting a public officer and he was fined $200. Is that correct---Yes, that's correct.
All right. Further down, at the bottom of that page, Busselton Court of Petty Sessions, 13 January 2004, Mr Russell was convicted of assault occasioning bodily harm. Is that right---Yes, that's correct.
And he was sentenced to nine months imprisonment, cumulative. Is that right---Yes.
It says, 'Nine months im cum,' but that means imprisonment cumulative, is that correct---Yes, you're correct.
And over onto the next page, Bunbury Court of Petty Sessions, 11 October 2002, assault occasioning bodily harm. Then in the count column, can you see the number 2 there---Yes, two counts of assault occasioning bodily harm.
… All right. So he was convicted of two counts of assault occasioning bodily harm and received 12 months' imprisonment concurrent on each charge. Is that correct---Yes, that's correct (ts 186 ‑ 187).
A number of prosecution witnesses gave evidence concerning the appellant's assault on Daniel Gaunt including Stephany Posavac, Gaunt himself, Aaron Perich and Sabrina Lenhard.
In February 2008, Ms Posavac was renting the property at 11 Wynne Street, Hazelmere. Daniel Gaunt, Aaron Perich, Sabrina Lenhard and two others (Jerome Governor and Graham Gallagher) lived at the same address. Mr Perich and Ms Lenhard were living in a shed at the back of the property. Ms Posavac gave evidence‑in‑chief without objection as to the circumstances in which the appellant damaged his hand. She said that within the week before 7 February 2008 the appellant broke his hand punching Daniel Gaunt in the head and that as Gaunt fell, unconscious, the appellant kicked Gaunt twice in the head before he hit the ground (ts 245 ‑ 246).
On the night of 7 February 2008, Ms Posavac was on the back patio talking to the appellant and KLA. Ms Posavac said the appellant was very very calm. She said:
Cameron asked me if I could pack him a cone [cannabis]. He asked me if Daniel had any cones and I said, 'Maybe. Not too sure'. He then said, 'Well, you might want to go and check and if he doesn't I'll just kill him' (ts 247).
Ms Posavac also gave evidence that the appellant had visited her house on the previous day, 6 February 2008. Her evidence‑in‑chief was as follows:
Tell the jury what you remember about that conversation with Russell---He asked me if [KLA] had spoken to me about them moving in. I told him yes, but I hadn't made a decision. I had a full house with nowhere to put them. So he ‑ he said ‑ well, you know, that their housemate was ripping them off and doing his head in and he was going to have to kill her soon (ts 253).
Ms Posavac was cross‑examined by the appellant's counsel concerning the incident with Mr Gaunt. Ms Posavac accepted that Mr Gaunt and the appellant 'were both in each other's faces' prior to the appellant hitting Mr Gaunt (ts 265) and that Mr Gaunt had previously struck her including on one occasion with a machete during an argument over drugs.
Counsel for KLA also cross‑examined Ms Posavac in relation to the appellant's assault on Mr Gaunt (ts 266). Counsel for the appellant objected on the basis that KLA was not present during the assault. The objection was disallowed (ts 266). Ms Posavac accepted that the appellant had given Mr Gaunt a hard punch to the face that knocked him 'basically unconscious' (ts 267). She also said that the appellant 'nearly threw a car battery' on Mr Gaunt's head while he was unconscious (ts 270).
She was also cross‑examined by counsel for KLA about a conversation with KLA on the night of 7 February 2008 in which KLA said it would be just her moving in because the appellant would probably be going to gaol (ts 271).
Daniel Gaunt confirmed that the appellant said that he had to move out of the deceased's house soon because 'she was doing his head in and that he was probably gonna have to kill her or something' (ts 280).
Mr Gaunt was questioned by the prosecution about the fact, but not the details, of his altercation with the appellant. However he was cross‑examined on that matter by counsel for the appellant and then counsel for KLA. He admitted being violent to Ms Posavac and accepted the possibility that at one stage in the appellant's presence he had threatened to put Ms Posavac in hospital (ts 283). However, he rejected that he had taken a couple of steps towards the appellant and put his face right in the appellant's face prior to being hit by the appellant (ts 285).
In cross‑examination by counsel for KLA, Mr Gaunt, who had no memory of the assault, said that a couple of days after the incident the appellant had explained to him what he (the appellant) had done, which was punch Mr Gaunt three times in the head and kick him in the head with his steel cap boots a number times. He also told him he was going to kill him with a battery (ts 287).
Aaron Perich gave evidence‑in‑chief for the prosecution to the following effect. On the night of 7 February 2008, the appellant came into his shed and asked Mr Perich to take him to KLA's car which had broken down. Mr Perich got up, grabbed the keys to Mr Gaunt's car and they drove off. The appellant directed Mr Perich to KLA's car which was on Bushmead Road, Hazelmere. The appellant got out of Mr Gaunt's car, collected a petrol tin from KLA's car, returned to Mr Gaunt's car and Mr Perich drove them to Stirling Crescent. The appellant told him to drive towards the end of the road where Mr Perich saw a fire. The appellant got out of the car and Mr Perich watched the appellant pour a can of fuel over the fire. Mr Perich got out of the car, saw what he thought to be a body burning and returned to the car and waited (ts 300).
When the appellant came down to his shed he asked Mr Perich how to get rid of blood and Mr Perich told him bleach. The appellant also passed him a canvas shopping bag and asked him to hide it. Mr Perich later found out that there were knives in the bag (ts 302).
Counsel for the appellant put to the witness the following matters in cross‑examination: (1) Mr Perich drove Mr Gaunt's car to where the deceased's body was still burning; (2) the headlights were shining onto the area of the fire; (3) Mr Perich got out of the vehicle and prodded the burning body with a stick; (4) Mr Perich deliberately spun the back wheels of the car and drove in such a way as to throw gravel and sand onto the area of the body; (5) he then drove the appellant in Mr Gaunt's vehicle back to where the appellant's car was parked and the appellant siphoned more fuel into a can; (6) they then drove back and placed more fuel on the burning body (ts 307); (7) at one stage Mr Perich put fuel on the burning body (ts 307); (8) Mr Perich told the appellant that burning a body would get rid of the bones and everything (ts 307); (9) the following day Mr Perich drove back to Stirling Crescent to the site of the body (ts 308); (10) Mr Perich provided the appellant with a bottle of bleach (ts 309 ‑ 310). Mr Perich denied all but proposition (1).
Mr Perich said he did what he was asked by the appellant because he was scared of him (ts 310, 314, 315, 327). Mr Perich was present during most of the incident in which the appellant assaulted Mr Gaunt (ts 304).
The appellant's counsel expressly challenged Mr Perich's credibility. The witness was extensively cross‑examined on prior inconsistent statements made to police in an interview and in written statements. Indeed he was cross‑examined by the appellant's counsel about a statement he made to police that the appellant told him that he had stabbed the deceased in the neck and mentioned something about her eye (ts 333), evidence he had not given in examination‑in‑chief.
Counsel for KLA explored with the witness why he was scared of the appellant. Mr Perich said it was because the appellant 'king hit my housemate Daniel' (ts 336). He also said that the appellant, who was wearing steel capped boots, kicked Mr Gaunt repetitively in the head and at one stage the appellant was holding a battery above his head threatening to drop it on Mr Gaunt (ts 336).
I have set out above the appellant's evidence as to the events in the kitchen on 7 February 2008. The substance of his evidence concerning Mr Perich's involvement in disposing of the deceased's body was that he told him he had 'effed' up and got into a fight with his housemate and that she was dead and he needed help (ts 612); Mr Perich took two petrol cans with him and they drove to KLA's car, got a petrol can out of the boot of her car, filled the cans and drove to where the body was (ts 613); Mr Perich got out and was poking the body with a stick and then they both emptied the fuel cans over the body (ts 613); the fuel was lit and when the fire died down he and Mr Perich returned to KLA's car to siphon more petrol which was added to the fire; Mr Perich located some wood which he also added to the fire (ts 614 ‑ 615).
The appellant also gave evidence‑in‑chief that he had hit KLA on two occasions (ts 621). It was put to the appellant in cross‑examination by counsel for KLA that he had been violent towards KLA on more than 10 occasions, including throwing things at her and punching her on the arm, and that he was violent to her when he was unable to get drugs (ts 649 ‑ 652). He denied the propositions.
In cross‑examination by counsel for KLA, the appellant gave evidence that he commenced a sexual relationship with the appellant when she was 15 (ts 644 ‑ 645) and was asked about his drug use (ts 646 ‑ 649). In cross‑examination on his convictions by counsel for KLA, the evidence was as follows:
You've got a criminal record for assault, haven't you, Mr Russell---Yes.
And included in those assaults are assaults of other people who you knew. Isn't that correct---Pardon?
Included in those assaults are assaults of other people who you knew‑‑‑Yeah, I think one of them.
One of them---Yeah, one of them was, yes.
All right. Well, 23 November 2006, you committed an assault on a person called Michael Galloway(?). He was somebody who you knew, wasn't he‑‑‑Yeah. Yeah.
You rode up to Mr Galloway and accused him of discussing his relationships ‑ meaning yours---My relationships, yes.
With other people---I walked up to him. He was on a pushbike, yes.
Yes. And you started striking him to the head with both your fists---No.
And then used your right knee to strike him to the left side of his chest‑‑‑No. I pushed him off his bike, threw his bike around and told ‑ took off with his backpack.
Well, he put his hands up, didn't he? And he got bruising to the left side of his face as a result of you punching him---No I didn't - didn't---
... You pleaded guilty to that, didn't you, Mr Russell---Yes, I pled guilty to common assault I think it was.
You got a sentence of six months and one day imprisonment, suspended for 12 months. Is that correct---Yes.
13 October 2005, the police were speaking to you about a matter and you didn't particularly want to be arrested by them, did you---I don't know.
Well, you threw your hand back in a backhanded punch with your left fist at------That was at---
‑ ‑ ‑ one of the officers, didn't you---That's at ‑ no, they gripped me and pulled me out of the van and I nearly went face first.
Mm---That's all I did. I just shrugged my arm basically.
You pleaded guilty to that, didn't you? Assault public officer---Yeah, it was part of a deal thing. But yes, I did.
Yes. And you got a fine---Yes. A $300 fine I think it was.
13 January 2004 you were dealt with in the Busselton Court for assault occasioning bodily harm and you got sent to gaol. Do you recall that‑‑‑Yes, I do believe so, yes.
And that was another person you knew, wasn't it---Yeah, that was---
A man called Benjamin Hearn(?)---Yeah, he was having relations with our other mate and I just didn't want to know about it. I asked him to stop and it just - ended up getting hit.
Well, you went up to him while he was sitting in a car. Is that right---I was talking to him, yes, cos we were friends, yes.
And you punched him in the jaw with your right fist while he was sitting in the car---Not immediately, but eventually, yes.
While he presumably couldn't defend himself while he was sitting in a car, could he, Mr Russell---No.
… The force of that punch propelled him ‑ Mr Hearn ‑ into the windscreen of the car and caused a crack in the windscreen. Isn't that right---Yes. I think so, yes.
You hit him pretty hard, didn't you---I think that was more from him moving forward than me hitting him.
So he threw himself into the windscreen, did he---Well, he went forward, yes, in the passenger seat.
Right. And you continued to abuse him and told him that he deserved it. Is that right---I didn't - no, I didn't continue to abuse him. I said, 'You shouldn't be doing this to Nick'.
The same way you think Mr Gaunt deserved it. Is that right---No.
And then he had a friend with him at the time, didn't he---Yeah, driving. I think so, yeah.
What did you say to the friend---I asked him for a smoke.
Didn't you tell him to leave or you'd do the same to him---No I didn't know him.
…
I'll move on, your Honour. But that ‑ you pleaded guilty to that offence. Is that right, Mr Russell---Yes.
And you received nine months' gaol. Is that correct---I don't know. I received gaol, yes.
And then you were dealt with also in the Bunbury Court in October 2002 for two counts of assault occasioning bodily harm. Do you recall that‑‑‑No - yeah, sort of vague - vaguely. It was a long time ago.
It was. A man who you knew called Paul Reynolds(?). Is that right---I don't know a Paul Reynolds off the top of my head.
All right. You rode up to him from behind without warning, struck him to the back of his head, causing him to fall forward. Recall that---No I don't recall that. I don't remember.
Grabbed him around the neck with both arms and pushed his head into the window of a Bedshed store---No. I don't remember that incident.
Tripped him up. Punched him in the back of the head with a closed fist several times. Do you recall that---No I don't recall that incident.
And then you stood up and kicked him while he was on the ground---No I don't remember that one.
You got 12 months' gaol on each of those two counts, didn't you, Mr Russell---I know I've - I've been to [gaol], yes.
But you got sentenced to gaol for that, didn't you---I don't remember that incident.
…
All right. If you could give that to the usher. I'm going to suggest to you, Mr Russell, that you got 12 months' gaol for each of those two offences. Is that correct---12 months concurrent, I think it said, yes (ts 660 ‑ 663).
KLA gave evidence after the appellant. She said the appellant was physically violent to her. On one occasion he punched her on the arm after they had an argument about his infidelity (ts 752). She said there were acts of violence at least once a week after they had moved in with the deceased (in October or November 2007) and that included hitting her (on the arms) throwing things and yelling (ts 754). She also gave evidence of an occasion in December 2007 when the police attended (ts 754 ‑ 755). KLA was present during some of the altercation between the appellant and Daniel Gaunt. In particular, she saw the appellant standing over Mr Gaunt with a battery above his head (ts 756). She said that made her scared of the appellant (ts 757).
KLA's evidence as to the events on 7 February 2008 is as follows. She was in the lounge room with the children when she heard the appellant and the deceased fighting about using her potatoes. She said the appellant and the deceased had verbal altercations on a regular basis about money and power bills (ts 759 ‑ 760). When KLA followed the deceased's children into the kitchen, the deceased was lying on the floor and the appellant was standing above her with his back towards KLA. She said to the appellant, 'What have you done?':
And was there any reply---He said that he had been waiting to do that for a long time and he told me to get the kids and take them to the lounge room.
She did that. Later the appellant called her back into the kitchen. The deceased was still on the floor and there was a towel over her head. The appellant started dragging the deceased into the bathroom (ts 761). The appellant told KLA to clean the floor. The evidence continued:
And did you end up cleaning the floor---Yes I did.
What did you use to clean the floor---There was a mop and a bucket in the laundry.
And what did you clean off the floor? What was the ‑ what did you do---I cleaned the blood.
Why did you do that---Because he told me to do it, and I didn't know what to do, so I just went with what he said (ts 763).
When she was cleaning the floor the appellant called her into the bathroom and told her to get a blanket or something to put the deceased's body in (ts 763). This was after the shower had been left running over the deceased for, she thought, about an hour (ts 764). She got a doona cover and the appellant told her to slide it underneath the deceased while he held up the body by the arm (ts 764). The evidence continued:
Did you do that---Yes.
Why did you do that---Because I was scared.
What were you scared of---Him.
Why---Because I didn't want him to hurt me (ts 765).
After the body had been placed in the doona cover, the appellant removed a plastic cover from a mattress and wrapped the deceased's body in the plastic. He also obtained a plastic bag which he placed over the deceased's head. The appellant told KLA to get some tape which she did. She gave it to the appellant and he told KLA she had to wrap it around the plastic bag to tie it up (ts 765). The evidence continued:
Did you do that straight away---No.
Why not---Because I didn't want to touch her.
All right. So after he told you to do it, then you didn't do it straight away. What happened then---He told me to hurry up and do it, or the same thing would happen to me (ts 765).
KLA then taped up the plastic bag. On the appellant's instructions KLA also wrapped the tape around the plastic covering the deceased's body (ts 766).
After the body had been wrapped the appellant told KLA to finish cleaning the floor which she did (ts 766). When it was dark the appellant reversed KLA's car towards the back fence and told KLA to go outside and make sure no one was walking past (ts 767). She did as she was told. The appellant got the deceased's body and put it in the boot of the car (ts 767). KLA went back inside and the appellant told her to get the kids and that 'we were going'. She sat in the back of the car with the three children (ts 767).
They went down a no-through road in Hazelmere when the car broke down. The appellant got out of the car, removed the deceased's body from the boot, returned to the car, got a petrol tin from the front and walked away with it. He returned to get a lighter and something else (ts 769). She could smell petrol and feel flames (ts 769). After about 10 minutes the appellant returned to the car. He told her to ring Ms Posavac because the car would not start. She did so and gave her some directions as to where they were. Before they arrived at the scene the car started and the appellant drove to Ms Posavac's house (ts 769 ‑ 770). Ms Posavac and Mr Perich were not there so the appellant left to look for them (ts 770).
At some point Ms Posavac and Mr Perich returned to the house. She did not tell them what had happened (ts 771). Shortly after, the appellant arrived and went to the shed to speak to Mr Perich (ts 771). Mr Perich came and asked Ms Posavac whether they could borrow Mr Gaunt's car which they did. The appellant and Mr Perich were gone for 10 or 15 minutes (ts 772). When they returned Mr Perich gave the appellant some bleach and thereafter the appellant, KLA and the children returned to the deceased's home in Mr Gaunt's car (ts 772). When they got back, the appellant told KLA she had to clean the floor again with the bleach that he had obtained from Mr Perich. She said she did that '[c]os I was still scared' (ts 773).
The next morning KLA made a number of attempts to call Mr Perich who was supposed to take the appellant to hospital for scheduled treatment on his injured hand. At first she used her mobile and then the appellant told her to go to the phone box which was about a 15 or 20 minute walk from the deceased's house. She went to the phone box from the deceased's house about three or four times (ts 774). There is no suggestion that the appellant accompanied her.
KLA admitted to lying to police in her first interview. Her evidence was that she told them what the appellant told her to say (ts 779).
Trial judge's rulings
Counsel for KLA sought leave to cross‑examine the appellant about his convictions (ts 174). Counsel for the appellant opposed the application on the basis that there was no evidence that KLA was aware of them. The trial judge, relying on Winning, ruled the evidence admissible in the State case against KLA. It can be inferred from the exchange with counsel (ts 178) that the trial judge was, at that stage, of the view that the evidence was admissible to prove the propensity of the appellant as well as KLA's state of mind. His position appears to have altered by the time he came to direct the jury (see below).
After counsel for KLA had cross‑examined Ms Posavac, the appellant's counsel applied for the discharge of the jury. The basis of the application was that Ms Posavac's evidence concerning the Gaunt incident was so prejudicial as to be incapable of being overcome by any direction (ts 272). The trial judge's ruling was in the following terms:
This is an application by counsel for the accused Russell to separate the trials, bring this trial to an end and to separate them, because of actual prejudice to the accused such that no direction however crafted can overcome it. My opinion is irrelevant because the Court of Appeal judgment reported as The State of Western Australia v Russell [2009] WASCA 154 but currently suppressed till further order due to this trial has clearly held to the contrary of counsel's submission. There is nothing, no new material or sufficiently new material, that has been put forward that would justify my departing from a decision which is binding upon me and so therefore the application fails (ts 276).
Counsel for the appellant made a further application for the discharge of the jury following the cross‑examination of the appellant concerning his sexual relationship with KLA when she was 15.
The trial judge ruled that the subject of the question was irrelevant and involved a breach of the prohibition in s 8(1)(e)(ii) of the Evidence Act. He continued:
In the overall context of this case, while clearly the material is prejudicial, I consider that having regard to all the circumstances of the case and other matters, it is a matter upon which proper directions to the jury should be able to overcome the prejudicial nature of the relevant evidence.
… I say that because the general relationship between the two co-accused is a legitimate matter of exploration, both by the prosecution and particularly by the accused [KLA]. And the jury will necessarily have to consider in relation to both cases against each accused the nature of that relationship, the degree to which people acted, having regard to what the jury may find was the nature of that relationship. Clearly and obviously it was a sexual relationship at some point. And so really the inadmissible material has disclosed as extra material simply the date at which that point had commenced (ts 744 ‑ 745).
When the jury returned, the trial judge directed the jury that when the relationship between the appellant and KLA started and their ages was irrelevant and they should put it out of their minds. The trial judge continued:
If you regard the age as inappropriate, you cannot use that in any way to reason that the accused Russell may have a propensity to commit crime of any sort, and in particular, you cannot use it in any way to infer that because this relationship may have started when [KLA] was 15, that it makes the accused Russell any more likely to commit the crimes with which he is charged … That would be a completely inappropriate and wrong way to use the evidence and I so direct you (ts 747).
The trial judge's directions arising from the joint trial
The trial judge gave a very lengthy direction to the jury as to what was admissible against each accused. He said:
Now, I'll return to what I said right at the beginning about separate trials and this is a very, very important ‑ everything I've said is important but this is a very important matter because this is a matter which is going to tax you. You are going to have to ruthlessly put aside some of the evidence you've heard in considering the separate cases. If you don't do that, then a miscarriage of justice is going to occur. Now, although both Mr Russell and [KLA] are before you in the same courtroom and when you retire to consider the evidence, you'll have to read verdicts in respect of each of them, there have, nonetheless, as I've said, been two quite separate and distinct trials in this courtroom over the last couple of weeks; one in respect of Russell, one in respect of [KLA]. When you retire to deliberate, you must consider the case of each accused separately. The State has brought charges against both. Their trials have been heard together because, of course, they arise out of a common background of fact and a lot of the evidence is, indeed, relevant against each of them. However, not all of the evidence that you've heard is admissible in respect of Russell and not all the evidence you've heard is admissible in respect of [KLA] but it is particularly the evidence in respect of Russell that I want to talk to you ‑ I've given you an example of that. You remember when each of the records of interview were tendered, I told you they were admitted in the case against the person who'd made it. They were not evidence against the ‑ in the case of the other person.
… Why? Well, they were made out of court, not under oath, the other person had no opportunity to contradict or say, 'No, that's wrong,' and so they're admitted for what you make of them; Russell's record of interview admitted against him, for whatever you make of it, but you cannot supply a gap, if there is one, in the evidence in [KLA] by resort to that, nor can you do it vice versa. The records of interviews stand alone. They are not the difficulty. You've heard evidence of the details of Russell's record of assaults. Now, they are relevant in the case of [KLA], as I will come to, but they have no relevance in relation to the case of Mr Russell. It may sound surprising but a moment's thought will show you why. They are relevant against ‑ well, not against but in the case of [KLA] because they show the background by which it is submitted on her behalf that she may have been frightened of him. So they can be used by you in her case in that way. But they cannot be used in any way in the case against Russell. If these people were being tried separately, you would not have heard of the evidence of his records of assault and some other evidence that I will refer to. You simply wouldn't have heard about them. As a general rule, that evidence is not adduced before juries. So treat it as if you haven't heard about it. Now, I know that is hard to do. You have heard about it. Maybe you've formed some prejudicial view of him. Well, now that you are really coming to the crunch time ‑ I'll speak more about this shortly in 'prejudice' but now you're coming to the crunch time, put it out of your minds. If you can't put it out of your minds, just be aware whenever you start to think about it, that it is not relation to Russell. Particularly, you may not reason that because he has previous convictions for assault, that in some way he is more likely to have unlawfully killed Ms Shaw. Such reasoning is not only illogical but it's impermissible. The record does not form part of the case against him. He is to be judged solely by the evidence that the State has adduced in his case, not by any prejudice that might arise from evidence that does not relate to his case that on other occasions an in completely different circumstances, he may have been violent towards others.
... That relates to his record but it also relates to something you have heard a lot about and that was the assault on Gaunt a few days before. That has very limited relevance. It has a relevance to the question of the credibility of Perich. Perich's credibility is very much in issue. You're going to have to weigh it up, and the fact that he had witnessed or observed a violent confrontation is relevant to how he may have reacted. What he may have done, how he gives his evidence, are all matters for you to weigh up. It is not, however, relevant to say, 'Well, this shows that the accused was violent shortly before, therefore, he must have been violent on the night.' It simply is inadmissible for that form of reasoning. The State doesn't put it forward that way. The State doesn't say, 'Well, it shows violent tendencies on the part of Mr Russell.'
... The State simply puts it forward as I have explained, as part of the background of the relationship between Russell, Perich and the other witnesses, which of course works both ways. The State uses it to say, 'Well, this is why these witnesses acted this way,' you might more readily believe them. The contrary may be, because they had witnessed this violence, they are more likely to be anti-Mr Russell and more readily be prepared to stitch him up … But what it does not do, or allow you to do, is to use the evidence of that assault or the evidence of the records in any way to reason that because he has committed these crimes, he therefore must have committed the crime which the State alleges against him, which is an unlawful killing with intent. Now, you'll also recollect that a couple of days ago, I directed you and I do again, but in shorter form because I directed you fully then, the age at which [KLA] and Mr Russell started their relationship is evidence only insofar as it may, from [KLA's] point of view, explain the nature of the relationship as she asserts it to be. It is not evidence ‑ any view that that was an inappropriate age or relationship, has no relevance whatever to the issues in this case. In a sense, what this case is about is what occurred, in the kitchen, on the night. And evidence that can throw light on that in Russell's case is all available for your consideration. Evidence that is admissible in his case and irrelevant to his case and cannot, in any event, throw ... light on that, such as his previous convictions, [KLA's] record of interview, the fight with Gaunt and the relationship with [KLA] are all irrelevant and must be excluded from your consideration when you are considering the case against Russell (ts 912 ‑ 915).
After repeating the point that 'the records, the actions against Gaunt [and] any other acts of violence, are simply not relevant and part of the case [against Russell]', the trial judge then dealt with the case against KLA. He said:
When you come to consider the case against her, you can take into account the evidence admissible against her and the other evidence available in her case. The evidence is wider than that for Russell, but there are limits. For instance, anything that was said to another person outside her hearing is not evidence against her. Russell's video record of interview is not evidence against her. The evidence of Russell's record of convictions for assaults, any acts of violence that she witnessed or observed, she relies, on and she's entitled to do so, in explaining why she says she felt scared of him on the night and why she did the things she did. You're entitled, when you're considering the case against her, to take those matters into account. But remember also that each of them have given evidence, and each of them have, at some points, given evidence against, you might consider, the other. The evidence that they give in court is admissible in both cases. And so don't forget, it's not all a one-way street. For example, [KLA] asserts that on one occasion, she was grabbed by the hair violently. Mr Russell denies that.
... It's an issue of fact you may have to resolve as you come to look at the cases. So you are entitled to consider all of the evidence, including the evidence of Russell's background and record. When weighing up whether the State has proved that she acted in order to assist him, or whether there's a reasonable possibility that she acted in order to protect herself. Those are matters for you. I cannot emphasise enough however, the need to build a barbed wire fence down between the two cases in relation to the inadmissible material so far as Russell is concerned, and rigidly put it on the side in relation to the [KLA] case (ts 915 ‑ 916).
Relevance and admissibility
In order to deal with grounds 3, 4 and 5, it is necessary to address issues of principle relating to the relevance and admissibility of the impugned evidence, for what purpose and in whose case (the State case against the appellant, KLA or both).
The categories and sources of the impugned evidence are as follows:
Category
Source
1
Evidence relating to the appellant's sexual relationship with KLA since she was 15.
Cross‑examination of appellant by KLA's counsel.
2
Evidence that the appellant possessed and used drugs.
Appellant's video record of interview; evidence‑in‑chief of Posavac; cross‑examination of appellant by KLA's counsel.
3
Evidence of the appellant's assault of Daniel Gaunt.
Appellant's video record of interview; evidence of Posavac (in‑chief and cross‑examination); evidence of Gaunt (in‑chief and cross‑examination); evidence of Perich (in‑chief and cross‑examination); evidence of Lenhard (cross‑examination).
4
Evidence of the appellant's violent conduct towards KLA.
Evidence of appellant (in‑chief and cross‑examination); evidence of KLA (in‑chief and cross‑examination).
5
Evidence of the appellant's convictions for assault.
Cross‑examination of Marsh by KLA's counsel.
6
Evidence of the details of circumstances of assault convictions.
Cross‑examination of appellant by KLA's counsel.
7
Evidence that KLA told Posavac that the appellant was probably going to gaol soon.
Cross‑examination of Posavac by KLA's counsel.
The trial was conducted on the basis of the trial judge's ruling based on Winning that evidence to show that the appellant had committed or been convicted of an offence involving violence was relevant and admissible in the State case against KLA, whether or not KLA was aware of the offences or the convictions. The ruling covered the evidence in categories 3 to 6 inclusive and was made before Mr Marsh was cross‑examined as to the appellant's convictions.
The question in issue is whether and if so in what circumstances a person charged in the same indictment with another (the co‑accused) can adduce evidence of the co‑accused's propensity to commit offences or offences of a particular nature. It is a given that the question only arises if the propensity evidence in question satisfies the test of relevance for general admissibility purposes. The real question is whether the common law similar fact evidence test or the test under s 31A of the Evidence Act is applicable to propensity evidence adduced by an accused in his or her own defence in a joint trial with a co‑accused.
Propensity evidence is ordinarily inadmissible because it is disproportionately prejudicial (that is, its prejudicial effect outweighs its probative value). For a discussion of the common law, see Noto v The State of Western Australia (2006) 168 A Crim R 457 [21] ‑ [28]. As to s 31A, see Dair v The State of Western Australia [2008] WASCA 72; Stubley v Western Australia [2011] HCA 7.
There is English and Australian authority to the effect that propensity evidence is admissible if it is relevant (logically probative) to the defence of a co‑accused, there being no requirement to balance probative value against possible prejudice, and the general fairness discretion does not apply: Lowery v The Queen [1974] AC 85; R v Randall [2004] 1 WLR 56; R v Miller [1952] 2 All ER 667; R v Gibb [1983] 2 VR 155; Winning.
There is a difference of view as to whether propensity evidence admissible in the prosecution case against the accused who adduced it is also admissible in the prosecution case against the other co‑accused whose propensity is the subject of the evidence. See JD Heydon, Cross On Evidence (2010) [19155], fn 238. Lord Steyn in Randall (with whom the other Law Lords agreed) said:
For the avoidance of doubt I would further add that in my view where evidence of propensity of a co‑accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries [35].
In Randall, the defendant and a co‑accused (G) were charged with murder and tried jointly. Each denied the charge and raised cutthroat defences, blaming the other for the death. The defendant had relatively minor convictions unrelated to violence but G had a number of convictions for burglary and had been a party to violence. The trial judge directed the jury that G's bad character was relevant only to his credibility and was irrelevant to the likelihood of his having attacked the deceased. That was held to be a misdirection. The House of Lords concluded that the propensity evidence was relevant to show that the defendant's version of the facts was more probable than that put forward by G and that was so whether or not G had adduced evidence of his good character [29].
In Winning, three persons (the appellant, Avis and Harris) were jointly charged with the wilful murder of Harris' de facto, Lister. The four had been drinking at a tavern. Lister became intoxicated and aggressive and was required to leave the premises. Some time later Lister was stabbed to death in the home he shared with Harris. He was stabbed to death by either or both of the appellant and Avis. The appellant and Avis each ran a cutthroat defence. The appellant gave evidence at trial to the effect that he refused to be party to a suggestion by Avis and Harris to do away with Lister, but did agree to 'slap him a few times'. He claimed that Avis went into the living room where Lister was asleep in a chair and the appellant, who also went into the living room, saw Avis stabbing Lister several times. The appellant said that at Avis' insistence he assisted in taking the body out into a forest and burying it and in dumping and setting fire to Lister's car. Avis did not give evidence at trial. However, Avis' video record of interview with police was tendered in evidence. He told police that he went to the toilet whilst the appellant was doing something in the kitchen and, when he returned, he saw Lister in his chair covered in blood. Avis also gave evidence of his good character. However, Avis had convictions for dishonesty offences, three offences involving violence, an offence of causing unlawful damage and other offences of loitering, assault and wilful exposure. The trial judge rejected an application by counsel for the appellant to lead evidence as to Avis' criminal record. The Court of Criminal Appeal held that the evidence was relevant and admissible and should not have been excluded.
It was said that Avis' case at trial necessarily involved a significant attack on the character and credit of the appellant. Further, the supposed good character and personality of Avis were put to the jury whilst the appellant was disparaged to a significant degree. Based on the reasoning of the court in Lowery, the court concluded that the evidence was wrongly excluded. Olsson AUJ (with whom Malcolm CJ and Steytler J agreed) said:
[E]vidence as to the character of a co-accused … will only be admissible, at the instance of another accused, if it can be shown to be relevant to an issue in the case. Here the relevance is obvious. The issue was as to which of two accused stabbed the victim and as to the respective roles of the various accused in the events preceding and leading up to Lister's death. In a situation in which the appellant was being attacked by counsel for Avis and asserted to have been the primary offender, whilst Avis was being put forward as a loving, caring person unlikely to have committed or participated in the act of homicide, it was very relevant for the appellant to be able to demonstrate that Avis' record patently indicated a predisposition towards criminal violence and that, when it came to an assessment of relative credit, he had a record of dishonesty.
With all due respect to the learned trial Judge, it seems to me that he was also led into error by concluding that, in a scenario such as that discussed above, considerations of relative prejudice may properly be taken into account. The very basis on which evidence of the type in question may be led by one accused against another (ie, that it be logically probative) necessarily negates the existence of a general discretion to exclude evidence on the basis that its potential prejudicial effect in relation to an accused person outweighs its probative value … [C]onsiderations of undue prejudice cannot arise in situations in which one accused seeks to lead evidence against a co-accused which is properly characterised as logically probative [40] ‑ [41].
The issues discussed in Randall were left open in Jones v The Queen (2009) 83 ALJR 671. As the only relevant evidence on the topic was inadmissible hearsay, the majority in Jones noted that the appeal did not provide the occasion to consider the principles discussed in Randall, including that propensity may be relied on irrespective of whether the other accused had put his (good) character in issue [22]. The majority continued:
It is trite to observe that all evidence, including that adduced by an accused in order to raise a doubt as to guilt, must be relevant in the sense that it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings [22].
In the appeal to this court, there was no challenge to the correctness of the reasoning and outcome in Winning. In the circumstances it is appropriate to proceed on the basis that it was correctly decided. Of course 'relevance' is highly fact specific and it is unsafe to simply assume that the propensity evidence is relevant. The appellant in this case did not give evidence that he was of good character.
The reference to 'good character' needs further explanation. Evidence of good character is relevant to both credit and a fact in issue, being the likelihood of a person of good character committing the offence in question: Melbourne v The Queen (1999) 198 CLR 1. As explained in Noto, there is uncertainty as to whether the common law similar fact exclusionary rule applies when discreditable conduct is otherwise relevant as, for example, to rebut evidence of good character. Evidence of bad character admitted to rebut evidence of good character cannot be used positively for the purpose of propensity reasoning as to guilt. Until the High Court resolves the uncertainty, the weight of authority is that evidence of misconduct is admissible if it is relevant for a purpose unconnected with propensity reasoning: MJS v The State of Western Australia [2011] WASCA 112 [3].
I address the relevance and admissibility of each category of impugned evidence in the consideration of ground 5.
Ground 3
The appellant contends that the cross‑examination of the appellant in categories 1 ‑ 6 contravenes s 8(1)(e) of the Evidence Act.
Section 8(1) of the Evidence Act relevantly provides:
(e)a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless ‑
(i)the proof that he has committed or been convicted of such other offence is admissible in evidence to show that he is guilty of the offence wherewith he is then charged; or
(ii)he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or a person who died as a result of the offence wherewith he is then charged; or
(iii)he has given evidence against any other person charged with the same offence;
(f)when paragraph (e)(ii) or (iii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution, or to any other person charged against whom he has given evidence, to call evidence, that such person is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged, notwithstanding that the case for the prosecution or of such other person charged may already have been closed.
As the appellant and KLA were not 'charged with the same offence', s 8(1)(e)(iii) had no application.
The appellant contends that he did not conduct his case in such a way as to enliven s 8(1)(e)(ii) of the Evidence Act. The State does not contend to the contrary. However, it is clearly arguable that the nature and conduct of the appellant's defence involved imputations on the character of the prosecution witness Mr Perich. Even so, the court has a discretion to exclude cross‑examination when fairness requires: Phillips v The Queen (1985) 159 CLR 45, 56 ‑ 58. I will assume for present purposes that the exception in s 8(1)(e)(ii) was not enlivened.
The appellant also submits that it was never suggested by the prosecution or any other party that proof that the appellant had committed or had been convicted of other offences was admissible to show that he was guilty of the offence of wilful murder or murder so as to enliven the exception in s 8(1)(e)(i). That statement is not entirely accurate (see ground 5).
The equivalent of par (i) was considered by the High Court in Attwood v The Queen (1960) 102 CLR 353 in the course of construing s 399(e) of the Crimes Act 1958 (Vic) which was in relevantly the same terms as s 8(1)(e). The question in issue in Attwood was whether the prohibition against cross‑examination in par (e) excludes questions on matters relevant to proof of the crime charged if they also possessed a tendency to show that the accused is of bad character. It was contended that the equivalent of subpar (i) confirmed an intention to prohibit cross‑examination that reflected upon the accused's character even if the matters were relevant to proof of the offence with which he was charged.
The court said of the equivalent of s 8(1)(e):
In practice the words have always been applied as limiting what may be asked in cross‑examination to credit but not as affecting cross‑examination to strictly relevant facts and this seems to be in accordance with the natural reading of the provision …
…
The exclusory words in s 399(e) do not naturally relate to a fact, matter or circumstance which is in itself directly relevant to the proof of the issues although its occurrence or existence incidentally tells against the possession by the accused of a good character or may be the ground of attributing to him a bad character (360 ‑ 361).
The court explained why par (i) was not inconsistent with the conclusion that the prohibition in par (e) only applied to cross‑examination relevant solely to the credit of the accused. In summary, it is suggested that the draftsman saw proof of the commission of, or conviction for, an offence as relevant to a fact in issue but such evidence is ordinarily excluded at common law as a matter of policy under the similar fact evidence rule. In the absence of subpar (i) it may have been suggested that there was no prohibition on cross‑examination of an accused on the commission or conviction of an offence for the purpose of discrediting him if it was relevant to a fact in issue but not admissible for that purpose. The object of par (i) is to permit cross‑examination as to credit only in those circumstances where evidence relevant to a fact in issue is, as a matter of policy, admissible.
Notwithstanding that par (i) is, in form, an exception to the prohibition in s 8(1)(e), in substance and purpose it is not facilitative but confirmatory of a prohibition. That is, s 8(1)(e) prohibits cross‑examination of an accused as to credit in respect of the nominated matters, including cross‑examination tending to show that the accused has committed or been convicted of any offence where the matter is relevant to a fact in issue but inadmissible, unless one of the other exceptions apply.
If and to the extent that the cross‑examination complained of is relevant to a fact in issue in the case against the appellant or KLA and admissible therein, the prohibition in s 8(1)(e) has no application. Any other construction would produce unfairness, particularly in cases where a co‑accused is charged with a different offence or relies on duress: see R v Corak (1982) 30 SASR 404; JD Heydon, Cross On Evidence (2010) [23250].
That is sufficient to dispose of ground 3. However, for the sake of completeness I deal with the respondent's contention that the prohibition in s 8(1)(e) has no application to the cross‑examination in issue because there was no question 'tending to show' any relevant matter. The respondent relies on the decision of the House of Lords in Jones v The Director of Public Prosecutions [1962] AC 635 for the proposition that 'tending to show' means 'make known' or 'reveal' to the jury for the first time. However, the prohibition will be infringed if the cross‑examination, as a matter of substance, travels outside the scope of what had previously been revealed: R v Sarek [1982] VR 971, 979; R v Couper (1985) 18 A Crim R 1, 3 ‑ 5. This is not a complete answer to this ground of appeal as only the matters the subject of categories 2 and 3 above were canvassed in substance in the evidence adduced by the prosecution.
I would dismiss ground 3.
Ground 4
The appellant contends that the trial judge made a wrong decision on a question of law in declining to order, pursuant to s 133(4)(a) of the CPA, that the appellant be tried separately from KLA and that the jury be discharged pursuant to s 116 of the CPA. By his particulars, the appellant contends that the order for separate trials ought to have been made after the evidence in categories 1, 3, 4, 5, 6 and 7 had been admitted at trial. The ground of appeal is not in terms that the trial judge should on his own initiative have exercised the power in s 133(4)(a).
The evidence elicited by counsel for KLA in his cross‑examination of the appellant about alleged prior inconsistent statements made by the appellant to Dr Febbo and Dr Brett was admissible in the State's case against the appellant. This evidence was probative of a fact in issue, namely, the truth and reliability of the appellant's account as to how Ms Shaw came by her death and his intention at material times.
In my opinion, notwithstanding the directions given by the trial judge to the jury, a miscarriage of justice was occasioned by the appellant being tried jointly with KLA. My reasons are as follows.
First, at the trial a significant body of evidence, which was highly prejudicial to the appellant and which I have summarised at [365] above, was adduced by counsel for KLA. The evidence was admissible in KLA's defence of the State's case. However, most of the evidence was not admissible or should have been excluded in the State's case against the appellant, and the prosecutor had been unwilling or unable to elicit other parts of the evidence in his examinations‑in‑chief of the State's witnesses.
Secondly, subject to one exception, when the highly prejudicial evidence, that was not admissible or should have been excluded in the State's case against the appellant, was given, the trial judge did not (and he was not requested to) warn or instruct the jury that the evidence in question was only relevant to KLA's defence of the State's case against her and had no relevance to the State's case against the appellant. The only exception was his Honour's warning or instruction to the jury after counsel for KLA put to the appellant in cross‑examination, and the appellant admitted, that KLA was aged 15 when he commenced a sexual relationship with her. See [253] above.
The obiter dictum of Lord Steyn in Randall at [35] was enunciated in the context of a joint trial where both accused were charged as principal offenders and both ran cut‑throat defences; that is, each accused denied that he was the offender and alleged that the other accused had killed the victim. His Lordship's dictum is not consistent with the manner in which juries have been directed, in similar circumstances, in Western Australia. See Russell No 1, where Miller JA (McLure & Pullin JJA agreeing) said [65]:
It can confidently be said that a jury is capable of performing the intellectual task of complying with a direction that evidence of the first respondent's prior convictions for offences of violence is not to be used as evidence against him, but only to be used in considering the case against the second respondent. See Bowen per Pullin JA at [41]; The State of Western Australia v Osborne [2007] WASCA 183 per Wheeler JA at [39]; Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 per Steytler P at [65]; Mansell v The State of Western Australia [2009] WASCA 140 per Miller JA at [48] ‑ [50].
In any event, I am not persuaded that Lord Steyn's dictum was intended to apply where, as in the present case, the accused were not charged as principal offenders and cut‑throat defences were not run.
Thirdly, the trial judge should not, in my respectful opinion, have left KLA's defence of duress to the jury. As to the elements of this defence, see Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 [6] ‑ [18] (McLure P, Owen JA agreeing). When counsel for KLA closed her case, the evidence of duress relied upon by KLA could not, taken at its highest in favour of KLA, have led a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived. See Braysich v The Queen [2011] HCA 14; (2011) 85 ALJR 593 [17], [36] (French CJ, Crennan & Kiefel JJ). In particular, at least some of the conduct relied on by the State in its case against KLA (for example, the lies told to the police about Ms Shaw's whereabouts and what had happened to her) was not, on any view, reasonably necessary in order to enable her to save herself from serious harm or to resist the appellant's alleged threat of violence.
Accordingly, despite counsel for KLA's concerted attack on the appellant's credibility and defence throughout the trial, KLA did not satisfy the evidential onus on her in relation to the defence of duress. It follows that, based on the manner in which KLA ran her case, she did not have a defence. The concerted attack on the appellant's credibility and his defence did not advance her case in relation to guilt or innocence.
Fourthly, if the prosecutor had run the State's case against the appellant differently, for example, by seeking to adduce 'propensity evidence' against him, then, on the assumption that any such evidence was admissible against the appellant, there is a reasonable prospect that the appellant may have conducted his defence differently, at least to the extent of endeavouring, by all legitimate means, to negate or minimise the prejudicial effect of the propensity evidence.
Fifthly, the appellant's credibility (that is, his truthfulness and reliability) was crucial to his defence. In particular, if the jury thought there was a reasonable possibility that the appellant's account of the facts and circumstances attending Ms Shaw's death and his intention at material times, and his visit with Mr Perich to the site at Hazelmere where her body had been dumped and burned, might be true, this should have resulted in a verdict other than guilty of wilful murder.
Sixthly, the order of addresses and cross‑examination by counsel at the trial involved counsel for the appellant addressing after the prosecutor and before counsel for KLA, and counsel for the appellant cross‑examining the State's witnesses before counsel for KLA. The sole matter in issue between the State on the one hand and KLA on the other was whether the State could prove beyond reasonable doubt that KLA had not acted under duress within s 32 of the Criminal Code and, in these circumstances, counsel for the appellant was, in effect, sandwiched between two prosecutors. It was necessary for counsel for the appellant to endeavour to anticipate, in his addresses and in his cross‑examination of the State's witnesses, what matters would be raised and what evidence would be extracted by counsel for KLA in his addresses and cross‑examination. A trial judge has a discretion as regards the manner in which evidence may be adduced. This discretionary power facilitates the fulfilment of a trial judge's duty to ensure that the issues before the court are investigated not only fully, but fairly. See Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [93] ‑ [102] (Steytler J, Templeman J agreeing). In the present case, it does not appear to have occurred to anyone at the trial that, given the sole matter in issue between the State and KLA, counsel for the appellant should make his addresses and cross‑examine the State's witnesses after counsel for KLA.
Seventhly, as I have mentioned, a significant amount of the highly prejudicial evidence adduced by counsel for KLA, that had not been elicited by the prosecutor, was contained in the prosecution brief. Counsel for KLA extracted the evidence in question by asking leading questions of the State's witnesses in cross‑examination. These witnesses were not adverse or opposed to KLA's interests. As I have mentioned, the only material issue in the trial of KLA was whether the State could prove beyond reasonable doubt that KLA had not acted under duress. A trial judge has a discretion to disallow leading questions in the course of cross‑examination. See Stack [105]. Although it would not have been in the interests of justice, in the present case, for that discretion to have been exercised, as between the State and KLA, for the purpose of disallowing leading questions by counsel for KLA in cross‑examination, the ability of counsel for KLA to ask leading questions, in the circumstances I have described, operated to the material disadvantage of the appellant, especially when counsel for KLA cross‑examined the State's witnesses after counsel for the appellant.
Eighthly, the trial judge appears to have been of the view that it was not open to him to exercise the power under s 133(4)(a) of the Criminal Procedure Act to order separate trials unless 'new material or sufficiently new material' was put forward 'that would justify my departing from a decision which is binding upon me' (ts 276). See also his Honour's comment at ts 743. By 'new material or sufficiently new material' his Honour meant material that was not contained in the prosecution brief. In my opinion, this court in Russell No 1 did not decide, expressly or impliedly, that the trial judge should not exercise the power under s 133(4)(a) except on the basis of material that was not contained in the prosecution brief. The ratio decidendi of this court's decision was that, on the evidence before the trial judge, there was an insufficient foundation for his Honour's conclusion that KLA would be advancing the defence of duress at the trial [46]; in consequence, there was no basis for his Honour to be satisfied that the appellant was likely to be prejudiced by a joint trial; and, therefore, the discretion to order separate trials was never enlivened [50].
Also, the trial judge appears to have been of the view that this court decided in Russell No 1 that, in any and all circumstances that might emerge at the trial, any likelihood of the appellant being prejudiced by a joint trial could be guarded against by a direction to the jury (ts 274, 276 ‑ 277). In my opinion, this court merely noted in an obiter dictum that a direction to the jury could overcome any potential prejudice to the appellant occasioned by 'the admission into evidence of his prior convictions for violent offences' [58], [65], [66] (emphasis added).
Further, the trial judge appears to have been of the view that the justices who heard the appeal in Russell No 1 must have read the prosecution brief and, on the basis of their reading of that material, decided to set aside his Honour's order for separate trials. However, as I have mentioned, this court decided the appeal in Russell No 1 on the basis of limited information placed before it. The parties do not appear to have referred to the prosecution brief. None of the contents of the brief is set out in Miller JA's reasons. His Honour merely referred to the trial judge's comments about the brief.
There is no doubt that the trial judge's views, as to what was decided by this court in Russell No 1 and the implications of that decision, affected his Honour's approach to the initial application by counsel for the appellant to discharge the jury. Also, his Honour's observations about Russell No 1, made in the course of ruling on the initial application, would undoubtedly have affected counsel for the appellant's approach when he made the further application to discharge the jury. As I have mentioned, the further application was based solely on evidence extracted by counsel for KLA in his cross‑examination of the appellant to the effect that the appellant had commenced a sexual relationship with KLA when she was aged 15.
Ninthly, I am not persuaded that counsel for the appellant at the trial decided intentionally, for forensic or tactical reasons, not to object to any passages in the appellant's video record of interview with the police or any other evidence at the trial which was irrelevant or inadmissible or which should have been excluded in the exercise of the trial judge's discretion. See, generally, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115.
Tenthly, the trial judge stressed to the jury in his summing up that the evidence given about the appellant's prior criminal record (relevantly, his convictions for offences involving violence) and KLA's video record of interview with the police were irrelevant to the State's case against the appellant (ts 913). His Honour then told the jury that the evidence of the appellant's assault on Mr Gaunt had 'very limited relevance' (ts 914). It was only relevant to the credibility of Mr Perich and as part of the background of the relationship between the appellant, Mr Perich and the other witnesses (ts 914). His Honour said that the evidence of the appellant's prior criminal record and his assault on Mr Gaunt could not be used to reason that 'because he has committed these crimes, he therefore must have committed the crime which the State alleges against him, which is an unlawful killing with intent' (ts 914). Next, his Honour told the jury that the age at which the appellant and KLA began their sexual relationship was evidence 'only insofar as it may, from [KLA's] point of view, explain the nature of the relationship as she asserts it to be' (ts 914). His Honour said that the relationship between the appellant and KLA was irrelevant to the State's case against the appellant (ts 915). His Honour instructed the jury that when they were considering the State's case against the appellant they must exclude from their consideration the evidence as to his prior criminal record, his assault on Mr Gaunt, his relationship with KLA and KLA's video record of interview with the police (ts 915). Finally, in this connection, his Honour emphasised to the jury 'the need to build a barbed wire fence down between the two cases in relation to the inadmissible material so far as [the appellant] is concerned, and rigidly put it on the side in relation to [KLA's] case' (ts 916).
The trial judge did not, however, mention in his summing up or at any other stage of the trial:
(a)Ms Posavac's evidence, under cross‑examination by counsel for KLA, that on the evening of 7 February 2008 the appellant had threatened to kill Mr Gaunt;
(b)Ms Posavac's evidence, under cross‑examination by counsel for KLA, that on the evening of 7 February 2008 KLA had told her that the appellant would probably be going to gaol soon;
(c)Mr Gaunt's evidence, under cross‑examination by counsel for KLA, that 'a day or two' after the assault, the appellant had told him that he had been 'going to kill' him with the battery;
(d)the appellant's evidence, under cross‑examination by counsel for KLA, that he had written a letter to KLA on 17 March 2008 in which he threatened to kill 'anyone ‑ any future partner of hers who might hurt her'; or
(e)Ms Lenhard's evidence, under cross‑examination by counsel for KLA, that she was frightened of the appellant.
Eleventhly, when the trial judge commenced his summing up to the jury the trial had already occupied 10 sitting days. By that time:
(a)the highly prejudicial evidence that was not admissible or should have been excluded in the State's case against the appellant or that was not elicited by the prosecutor in his examinations‑in‑chief; and
(b)the highly prejudicial evidence that was only admissible in the State's case against the appellant for a limited purpose, but in circumstances where the limited purpose was not explained to the jury before the commencement of the summing up (with the exception of the evidence as to KLA's age when the sexual relationship commenced),
must already have had a seriously adverse impact on the jury's view of the appellant's truthfulness, reliability, character and disposition, and the merits of his defence.
The jury's view about the appellant's credibility was likely to have been formed, as a matter of impression, on a gradually evolving basis as the evidence emerged at the trial. In the very unusual circumstances of the present case, it is unrealistic to think that this impression could have been wholly or even substantially set aside when the jury came to examine the State's case against the appellant, including the appellant's evidence in relation to that case, by reference to the evidence which the trial judge said, in his summing up, was admissible in the State's case against him.
Twelfthly, against the background I have described at [380] ‑ [397] above, the trial judge's directions to the jury were not capable of redressing appropriately, at a very late stage of the trial, the seriously negative effect of the combined force of the highly prejudicial evidence, to which I have referred at [365] above, on the jury's perception of the appellant and his defence. By the time his Honour commenced his summing up, at the latest, it was readily apparent that the appellant was being prejudiced in the trial of the indictment because it also charged KLA. The discretion conferred by s 133(4) of the Criminal Procedure Act was enlivened. By s 133(1), the discretionary power to order separate trials (and discharge the jury) was exercisable, by the trial judge on his own initiative or on an application by the appellant, during the trial. However, when his Honour commenced his summing up (at the latest) it was not open to decide that the prejudice to the appellant could be guarded against by a direction to the jury, as contemplated by s 133(5)(a).
As I have mentioned, s 133(1), by conferring on a judge the discretionary power to order separate trials on his or her own initiative, reflects the fundamental task of a judge in a criminal trial, namely, to ensure a fair trial of the accused. In the circumstances, the fact that the appellant was not tried separately from KLA occasioned a miscarriage of justice. The appellant did not receive a fair trial.
I should emphasise that my conclusion that there was a miscarriage of justice is based upon the combined force of all of the reasons I have given at [380] ‑ [398] above.
The interests of justice ordinarily require that, where two or more accused are charged with committing a crime jointly, they should be tried at a joint trial, but the facts and circumstances of the present case were exceptional.
Although KLA was in Ms Shaw's house when she died, KLA did not witness the circumstances of her death, including the interaction between the appellant and Ms Shaw in the kitchen and laundry. The appellant and KLA were not running cut‑throat defences; that is, this was not a case where each of the accused was alleging that the other accused had killed the victim. The State alleged that the appellant was the principal offender and KLA was 'merely' an accessory after the fact. KLA asserted, in essence, that the appellant had wilfully murdered Ms Shaw, but the appellant made no material allegation against KLA. If the trial judge had ordered separate trials and directed the prosecutor to tell the court, in accordance with s 133(4)(b) of the Criminal Procedure Act, the order in which the appellant and KLA would be tried, there is no doubt, in my opinion, that the State would have elected to try the appellant before it tried KLA. In these circumstances, in particular, where KLA was charged 'merely' with being an accessory after the fact, there was no prospect that an order for separate trials might result in relevantly inconsistent verdicts.
Ground 3 of the appeal
The appellant alleges in ground 3 that there was a miscarriage of justice at the trial occasioned by counsel for KLA's cross‑examination of him. It is unnecessary, in view of my decision on ground 5, to consider ground 3.
Ground 4 of the appeal
The appellant alleges in ground 4 that the trial judge made a wrong decision on a question of law by declining to order, pursuant to
s 133(4)(a) of the Criminal Procedure Act, that the appellant be tried separately from KLA, and that the jury be discharged pursuant to s 116 of that Act. It is unnecessary, in view of my decision on ground 5, to consider ground 4.
The proviso
It must be acknowledged that the State had a powerful case against the appellant that he had wilfully murdered Ms Shaw.
However, in my opinion the miscarriage of justice which occurred at the trial involved a significant denial of procedural fairness. This necessarily precludes the application of the proviso in s 30(4) of the Criminal Appeals Act. See, for example, Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45] ‑ [46] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
Conclusion
I would grant leave to appeal on grounds 1, 2 and 5, but refuse leave on grounds 3 and 4.
The appeal should be allowed, the judgment of conviction for wilful murder should be set aside, and a new trial for the appellant should be ordered.
MAZZA J: I agree with McLure P for the reasons that she gives, that grounds 1 and 2 should be dismissed.
I agree with Buss JA that ground 5 should be upheld. There has been a miscarriage of justice and the appeal should be allowed. In light of this conclusion, I consider that it is unnecessary to decide grounds 3 and 4.
I am grateful to both McLure P and Buss JA for their comprehensive description of the events preceding the trial and of the trial itself before McKechnie J, including the evidence, his Honour's rulings and the summing up. There is no need for me to repeat what they have already said.
I will briefly express my own reasons for reaching the conclusion that I have on ground 5.
I respectfully adopt Buss JA's analysis of the construction of s 133(4) and s 133(5) of the Criminal Procedure Act 2004 (WA).
The issue raised by ground 5 is whether, notwithstanding the directions given by his Honour in the summing up, there was a miscarriage of justice because the appellant and KLA were tried together.
It is, of course, fundamental that whatever the strength of the evidence against an accused, he or she is entitled to a fair trial according to law: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [76] (McHugh J). Where that does not occur, there has been a miscarriage of justice.
This court is bound by s 30(3)(c) of the Criminal Appeals Act 2004 (WA), subject to the provisions of s 30(4), to allow an appeal if, in its opinion, there has been a miscarriage of justice.
The phrase, 'miscarriage of justice', should not be construed narrowly: Davies & Cody v The Queen (1937) 57 CLR 170, 180. It encompasses a multiplicity of situations including those cases where, although the trial has been conducted correctly, the course of events which occurred has resulted in it miscarrying.
In the context of joint trials, this was recognised in R v Demirok [1976] VR 244, in which the Full Court said:
Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or, in some situations, only marginally relevant. In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there is no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of a kind which those rules are intended to produce (255).
With respect, the Full Court was right to emphasise the very rare nature of a correctly conducted trial resulting in a miscarriage of justice. This is because, generally speaking, where persons are charged with offences arising out of an episode in which they are both alleged to have participated, it is in the interests of justice that they be tried together.
King CJ put the principle this way in R v Glover (1987) 46 SASR 310:
I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together (312).
The general position does not change merely because one accused alleges that he or she acted under the duress of another accused: R v Gibb & McKenzie [1983] 2 VR 155, 163 or because some evidence elicited in the case of one accused is inadmissible in the case of another accused. Further, a joint trial may occur where evidence of prior convictions is adduced: The State of Western Australia v Russell [2009] WASCA 154.
I agree with Buss JA's analysis of the admissibility of the evidence adduced at the trial between [360] and [378]. In particular, I agree that the following evidence was not admissible in the State's case against the appellant:
(a)the evidence of the appellant's prior convictions elicited by KLA's counsel from Detective Sergeant Marsh and the facts and circumstances of those convictions;
(b)the evidence elicited by KLA's counsel in cross‑examination of Ms Posovac, Mr Gaunt, Ms Lenhard and the appellant set out at [373] of Buss JA's reasons; and
(c)the evidence given by KLA set out at [376] of Buss JA's reasons.
To my mind, there can be no doubt that the combined force of the evidence which was inadmissible against the appellant in the State's case against him was highly prejudicial to him.
The evidence was adduced gradually over the course of the trial. A significant portion of it was adduced in KLA's counsel's cross‑examination of prosecution witnesses and could not be dealt with at the time by the appellant's counsel, who cross‑examined first. Apart from his Honour's direction to the jury about the appellant engaging in a sexual relationship with KLA when she was 15 years of age, no warning was given to the jury about the other evidence inadmissible in the State's case against the appellant at the time it was given.
In addition to these matters, it is highly relevant to the assessment of whether there was a miscarriage of justice that KLA's defence of duress should not have, for the reasons given by both McLure P and Buss JA, been left to the jury. It seems to me unfair to the appellant that the highly prejudicial evidence adduced by KLA, which would never have been admissible if the appellant had been tried alone, was used in support of a defence which, as a matter of law, was not open.
Finally, but not least, the State's case was not run on the basis that the evidence adduced on behalf of KLA was propensity evidence in its case against the appellant, either at common law or pursuant to s 31A of the Evidence Act 1906 (WA).
His Honour's directions were, in their terms, accurate and plainly intended to neutralise the prejudice caused to the appellant by the joint trial. His Honour used clear and direct language to the jury and instructed them to ignore the evidence which was inadmissible in the State's case against the appellant. The metaphor of the barbed wire fence between the cases of the appellant and KLA was both appropriate and powerful.
However, his Honour did not refer to some significant portions of the prejudicial evidence which was inadmissible against the appellant, as Buss JA has already noted. Moreover, although it is assumed that the jury will faithfully apply a trial judge's directions: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13], the damaging effect and the volume of the prejudicial evidence in this case was such that I do not think that it could be overcome by direction, because the prejudice was likely to be so great that it would not be reasonable to expect the jury to exclude it from its consideration of the State's case against the appellant: Leaman v The Queen (1987) 28 A Crim R 104, 108 ‑ 109.
Having regard to the combined force of all of the circumstances I have mentioned, I regard this case as being one of those very rare cases where, on its facts, it has been demonstrated that the joint trial has occasioned a miscarriage of justice.
This is not a case where it would be appropriate to apply the proviso: s 30(4) of the Criminal Procedure Act. This is because the miscarriage of justice has led to a significant denial of procedural fairness to the appellant. The conviction of the appellant must be set aside and a retrial ordered.
The orders I would make are:
(1)Leave to appeal on grounds 1, 2 and 5 is granted.
(2)Leave to appeal on grounds 3 and 4 is refused.
(3)Grounds 1 and 2 are dismissed.
(4)Ground 5 is upheld.
(5)The appeal is allowed, the conviction set aside and a new trial ordered.
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