Simm v The Queen - [2001] WASCA 79

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SIMM -v- THE QUEEN [2001] WASCA 79

CORAM: MALCOLM CJ
PIDGEON J
WALLWORK J

HEARD: 1 DECEMBER 2000

DELIVERED : 21 MARCH 2001

FILE NO/S: CCA 38 of 2000

BETWEEN: NATHAN SIMM
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Trial - Charges of armed robbery in company with wounding and aggravated burglary in company - Home invasion by group of offenders - Whether evidence correctly put to jury in summing up - Whether trial miscarried

Legislation:

Nil

Result:

Appeals allowed
Convictions quashed
Convictions of stealing with violence in company and stealing in company at a place of human habitation substituted
Further submissions as to sentence

Representation:

Counsel:

Appellant: Ms A G Braddock
Respondent: Ms J A Girdham

Solicitors:

Appellant: Stephen Smith
Respondent: State Director of Public Prosecutions

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

Brennan v The Queen (1936) 55 CLR 253
Saunders v The Queen [1980] WAR 183
Simic v The Queen (1950) 144 CLR 319
Stuart v The Queen (1974) 134 CLR 426

Case(s) also cited:

Domican v The Queen (1992) 173 CLR 555
Glennon v The Queen (1994) 179 CLR 1
James v The Queen [2000] WASCA 100
Maric v The Queen (1978) 20 ALR 513
Mraz v The Queen (1955) 93 CLR 493
Pak v The Queen [2000] WASCA 309
Ronan v The Queen, unreported; CCA SCt of WA; Library No 970073; 28 February 1997
Wedd v The Queen [2000] WASCA 273

MALCOLM CJ: This is an appeal against conviction. The appellant was convicted on 16 February 2000 after trial on two counts, namely, one count of armed robbery in company while armed with a knife and unlawfully wounding a Mr Collings contrary to s 391 and s 393 of the Criminal Code. The second was a count of aggravated burglary by being in Mr Collings' place without his consent, in company, armed with a knife and doing bodily harm to Mr Collings contrary to s 401(2)(a) of the Code. He was sentenced to imprisonment for 6 years for each offence to be served concurrently with each other.
The Crown case against the appellant was that while he had not been armed, he was a party to a "home invasion" of Mr Collings' house in company with a number of other offenders, for the purpose of committing an armed robbery. Only one of the offenders, one Mr Collard, was armed with a knife. At the time of the invasion a Mrs Martin, who also lived in the house, was having a shower. Mr Collings was sitting in a loungeroom. There was evidence that the appellant was the first person to enter the house closely followed by Mr Collard. Mr Collard and Mr Collings had a struggle during which Mr Collings was stabbed. A number of other people also entered the house. A large sum of money was taken.
The case against the appellant was founded on s 7 of the Criminal Code (WA) on the basis that the appellant and his co‑accused had all been involved in the unlawful entry and robbery and that the appellant, in particular, knew that the house was occupied at the time and also knew that Mr Collard was armed with a knife. Alternatively, it would have been possible for the matter to be dealt with on the basis that, if the appellant knew that Mr Collard was armed with a knife, the appellant and his co‑accused having formed a common intention to break into the house knowing that it was occupied, a jury could be invited to find the appellant guilty of the offence charged under s 8 of the Code.
The appellant, who did not give evidence at the trial, admitted to police in a record of interview, which was put in evidence, that he had entered the house and that he had taken two tins of money. He told police that he thought there would be no‑one in the house. He had thought the occupants were away. That is why the accused went to the house. They did not expect anyone to be there. They planned to run in and take the television, video and "all that sort of stuff". The appellant told police that he was the first person to enter the house and that the others must have followed behind him. He said he ran straight into the house. When he passed a room on the way to the bedroom, he saw Mr Collings in that room. He saw Mr Collings jump up. When he was coming back from the bedroom he saw Mr Collings and Mr Collard "scuffling" in the first room and said, "… I just took off as fast as I could". He said that he did not know that any of the offenders had a knife.
It was the fact that there were lights on in the house at the time. The police put that to him and asked him whether that caused him to expect someone to be at home. He said that he thought that the lights had been left on "to make it look like people are at home all night". The appellant was specifically asked whether he had seen anyone in the house besides Mr Collings. His answer was, "I didn't see anybody else". The police then put to him, as was later the subject of evidence at the trial, that there had been a female in the house, who had come out of the bathroom while the robbery was occurring. The appellant's reply was, "Nah, I didn't see her".
The appellant admitted to police that he had taken two tins of money. He said that he took one tin out of "the main room". As he was "ducking out", he saw another tin and grabbed it. He said that he had been in the house for about 15 seconds and that when he had run out, Mr Collings "had not been there".
The appellant told police that he was the first one into the house and the first one out. It seems that by the time he went out, Mr Collings may have gone into the bathroom with Mrs Martin. The appellant told police that he was not in the house when an attempt was made by others to kick their way into the bathroom.
The Crown case against the appellant at the trial depended largely on the evidence of a Mr Steel. He said that after the robbery the appellant had told him about the home invasion. The appellant said that there was supposed to be $50,000 in the house, but "they" had only got "a couple of hundred dollars in some tins". Mr Steel also said that the appellant had told him that there was one fellow sitting in a chair and that "his missus got out of the shower and had nothing on". Significantly, Mr Steel also said that:
"[The appellant] said that they went through the sliding door. Jay [Mr Collard] stabbed the fellow. There was blood squirting out everywhere. Then the two of them [Mr Collings and Mrs Martin] backed themselves back into a room or closet or something, then they ransacked the house and just got a couple of tins of coins."
When opening the prosecution case, counsel for the Crown told the jury that Mr Steel would be called to give evidence and, in outlining his evidence, said:
"… as part of what was told to Mr Steel by [the appellant] he said that he [the appellant] had looked in the window and seen Mrs Martin in the bathroom with no clothes on, and indeed Mrs Martin will give evidence that at some stage she went to the bathroom to have a shower. The accused [the appellant] told Mr Steel that while, as it were, casing the place, they had seen Mr Collings sitting in the chair and he [the appellant] said to the others 'if you're going to do it, let's do it now'. They opened the sliding door and all went in. He [the appellant] told Mr Steel that somebody, a member of the group, had put a knife in Mr Collings and there was blood everywhere, to use [the appellant's] words. [The appellant] recounted how the two people locked themselves in a room and he and the others, as he put it, ransacked the house and [the appellant] mentioned that at the time this occurred he had a shirt wrapped over his head and he told Mr Steel not to tell anybody."
Mr Steel did not give evidence which was in accord with the opening. In particular, he gave no evidence to the effect that the appellant had told him he had looked in the bathroom window and had seen Mrs Martin in the bathroom with no clothes on. Mr Steel did not give evidence that the appellant had told him that while they were "casing the place" they had seen Mr Collings sitting in a chair, or that the appellant had said to him that he had said to the others (including Mr Collard), "if you're going to do it, let's do it now".
Mr Steel did say in evidence what I have already noted, together with evidence that the appellant told him that after "Jay" (Mr Collard) had stabbed Mr Collings, there was blood squirting everywhere, they had ransacked the house and got a couple of tins of coins.
It was contended on behalf of the appellant in support of his appeal that his convictions should be quashed because the learned trial Judge directed the jury on the basis that Mr Steel had given evidence in accordance with the opening address of counsel for the Crown. The learned trial Judge, in summarising the evidence of Mr Steel, told the jury that, on the day after the offence had been committed, the appellant told Mr Steel:
"… that he looked in the window before going into the house and saw a lady. She had no clothes on and he said something about her appearance, and he put to you, well, he could not have actually seen this because one could not see through the window, and Mr Smith invited you to look at exhibit D10. Well, when you have a look at that exhibit you will see that at least half of the window seems to have glazing across it which one cannot see through, but the window in the photograph is partly open; only half is covered by that sort of glass, the other half apparently is open to the air. In any event you may think that in some way persons speaking about that to Mr Steel had seen the woman with no clothes on. Why else would he have mentioned it? You may think in looking at the photograph that it's possible that he saw her through the partly open window. That could be of importance, members of the jury, because it would tend to confirm that before actually entering the house at least the accused man [the appellant] knew that there was someone in there."
In my view, there was no foundation in the evidence for that direction. It raised a false issue which was pregnant with prejudice to the fairness of the appellant's trial. It undermined the appellant's defence at the trial, based upon what he had said in his interview with the police, that when he entered the house he was not aware that there was anyone in the house. In the course of the interview, he had said that he had not looked into the house before entering to see if anyone was there. He said that he was the first one to enter and had run straight into the house. The effect of what he told the police officers was that he saw Mr Collings in one room as he ran towards the bedroom. Mr Collings got up. The appellant ran past that room. As he came running back from the bedroom he said he saw Mr Collings "scuffling" with Mr Collard. He said that he "just took off as fast as I could". He told the police that he did not know (at the relevant time) that any of the offenders had a knife. He did not know that Mr Collings had been stabbed "until about the next day probably".
The evidence of Mr Collings was that he had been at home when the offenders entered his house. He was confronted by someone, who was alleged to have been the co‑accused Mr Collard, standing in front of him with a knife. Mr Collard demanded money. Mr Collings told Mr Collard he would not give him any money. It was then that Mr Collard stabbed Mr Collings. Mr Collings then made his way to the bathroom where he and Mrs Martin barricaded themselves in.
Mrs Martin gave evidence that she had been in the bathroom when she heard a disturbance and a demand being made for money. She then came out of the bathroom. This is consistent with the appellant's statement to police regarding when he saw her. Her evidence was that she had been in the corridor outside the bathroom for about 30 seconds or even less, when Mr Collings told her to get back into the bathroom. She did what she was told and was joined in there by Mr Collings almost immediately. They then barricaded themselves in the bathroom.
When he was cross‑examined, Mr Collings maintained that the appellant could not have gone past the room he was in before he was confronted by the person with the knife (Mr Collard). At the same time he conceded that, from the moment he was confronted by the man with the knife, his attention was focused on that threat.
When counsel for the Crown had concluded his address to the jury, counsel for the defence said to the jury:
"My learned friend, in his paraphrasing of what Mr Steel said, talked to you about - he said: 'Oh, [the appellant] told him they looked in the bathroom and saw his Missus.' Again, Mr Steel didn't use the word 'bathroom' either in evidence‑in‑chief or in cross‑examination, or to the police. Mr Steel said: 'He told me that he was looking in the window and saw this bloke's Missus.' Bathroom is not mentioned. We know she was in the bathroom. My learned friend suggests to you, therefore he must have been looking in the bathroom. That's not what Steel says. Steel says he looked in the window. What window? Have a look at the photographs …"
In my view, counsel for the defence did not himself get it right. What Mr Steel in fact said was that the appellant had told him that they had gone out the previous night and done a home invasion and that Mr Collard had stabbed a person with a knife. That evidence was not, of course, evidence against any of the appellant's co-accused, including Mr Collard. In particular, Mr Steel said that the appellant told him that:
"… there was one fellow sitting in a chair and … the fellow's missus got out of the shower and she had nothing on and she was an ugly bitch.
As well as saying that, did he say anything about what had happened?---He said that they went through the sliding door, Jay stabbed the fellow, there was blood squirting out everywhere, then the two of them backed themselves back into a room or closet or something, then they ransacked the house and just got a couple of tins of coins.
Yes, I didn't quite catch that word. What was the word you used to describe what they did in the house? They - - -?---Ransacked the house.
Certainly, and what was it that they got?---Just a couple of tins of coins."
In this context, I consider that the misdirection by the learned trial Judge was seriously prejudicial to the appellant's defence and was calculated to undermine it. The prejudice was compounded by a further comment by the learned Judge to the jury that:
"In any event, you may think that in some way persons speaking about that to Mr Steel had seen the woman with no clothes on. How else would he [the appellant] have mentioned it. You may think in looking at the photograph that it's possible that he saw her through the partly open window. That could be of importance members of the jury because it would tend to confirm that before actually entering the house at least the accused man [the appellant] knew that there was someone in there."
In my opinion, once again, this misstated the evidence which had been given at the trial in a manner highly prejudicial to the appellant.
It was contended on behalf of the appellant that it had been brought out in the cross‑examination of Mr Steel that, in giving his evidence, he had summarised what had been related to him by a number of people after the incident. Mr Steel was employed at the caravan park where both the appellant and Mr Collard had been living. It was submitted to this Court, as it had been apparently submitted to the jury, that the robbery had been clearly the talk of the caravan park in the immediate aftermath of the robbery so that some of the things which Mr Steel said he had been told by the appellant may have been told to him by others. It was submitted that there were inconsistencies in Mr Steel's evidence.
In the course of his address to the jury, counsel for the Crown had put it to the jury that what the appellant said to the police when interviewed was inconsistent with what he had told Mr Steel. Counsel dealt with the matter this way:
"Leaving that aside what did he tell Mr Steel? None of this - that they were horribly surprised and that there had been a break and that they were going there to break in to steal items of property from somebody when they thought they were out. He said to Mr Steel that they had gone to the house, they had seen the person's Missus through the bathroom and thought, according to him, in his view … and saw her with no clothes on.
Now the significance of that is this: it is beyond dispute that at some stage in the night in question Mrs Martin did indeed go to the bathroom and obviously disrobed to have a shower. These people knew there were people in the house. His explanation, young Simms, [the appellant], to Detective Black and Mr Power that he didn't know there was anyone inside that house is sheer fantasy and nonsense. Of course he knew and of course they knew. And why did he go there? Because they thought there was some bloke there with a huge sum of money; that was what was told to Steel - about $50,000."
It is apparent that the state of knowledge of the appellant both on the question whether there was anyone in the house and on the question whether he knew that Mr Collard was armed with a knife before he went into the house were the two most significant issues in the trial, so far as the appellant was concerned.
After the learned trial Judge had concluded his summing up to the jury, counsel for the appellant drew attention to the misdirection concerning the evidence of Mr Steel. In the course of that discussion the learned Judge said:
"… if I said that Steel's evidence was that [the appellant] told him that before he went into the house he looked through the window, I was wrong, but the important aspect of the matter is that - and this is what I was putting to the jury - if [the appellant] looked through the window and saw the woman with no clothes on, that must have been before he went into the house."
In my opinion, the difficulty with that is that it has been conceded that Mr Steel did not give evidence that the appellant told him before he went into the house he looked through the window. There was no other evidence that he had done so.
The appellant's counsel also raised with the learned trial Judge the matter of the evidence of Mrs Martin herself. In the course of that discussion, the learned trial Judge said, apparently referring to the appellant, "He said he looked through a window and saw her". Counsel for the defence then said, "Mr Steel said he said that, yes". The learned trial Judge then said:
"Steel said, yes. The question is, do they believe Steel? If they believe Steel that he said that, the only appropriate inference is that he looked through the window before going into the house and knew there was someone there ..."
It is apparent that counsel for the defence must have been confused as was the learned trial Judge. The learned Judge then said:
"Steel said, yes. Steel said that [the appellant] said he looked through the window and saw her. The question is, do they believe Steel? If they believe Steel that he said that, the only appropriate inference is that he looked through the window before going into the house and knew there was someone there …"
In my opinion, evidence about the question whether the appellant had told Mr Steel that he had looked through the bathroom window and seen Mrs Martin prior to entering the house was a critical issue at the trial. The case for the prosecution was based upon an invitation to the jury to draw an inference against the appellant that he was part of a group acting in pre‑concert who had agreed among themselves to invade the house and that the appellant, in particular, knew that Mr Collard was armed. Mr Collings initially referred only to Mr Collard as being armed with a knife. He later said that he thought he had seen "glints" and assumed others were armed. Mrs Martin, who had come out of the bathroom briefly, said that two or "maybe three" were armed.

It was contended on behalf of the Crown in support of maintaining the convictions that Mr Collings' evidence was inconsistent with that of the appellant. His evidence was that the person who stabbed him, namely, Mr Collard, had been the first person to enter the house. All five men who had entered were present when Mr Collard demanded money and threatened him. When he refused, Mr Collard had then stabbed him. Mrs Martin gave evidence that when she came out of the bathroom she saw four or possibly five men who had their faces covered. She saw two

men, each of whom was armed with a knife. Neither of them was identified.

It was pointed out by counsel for the respondent that, in his first video interview, the appellant denied any involvement in the offence. He had lied in that interview. He admitted in the second video interview that his initial account had been untrue. He had also given conflicting versions about the location of the two tins of money they had taken. It was submitted that the jury were entitled to accept Mr Collings' evidence that all five accused had been present when Mr Collard demanded money, threatened Mr Collings and then stabbed him.
In all the circumstances, and having regard to the authorities referred to by Wallwork J, namely Simic v The Queen (1950) 144 CLR 319 at 330 and 332 per Gibbs Stephen, Mason, Murphy and Wilson JJ; Saunders v The Queen [1980] WAR 183 at 185 and 186 per Burt CJ; and Stuart v The Queen (1974) 134 CLR 426 at 453, the misdirections to the jury to which I have referred deprived the appellant of a fair trial which resulted in a substantial miscarriage. It follows that the appeal should be allowed and the convictions quashed. It was conceded by counsel for the appellant that the evidence justified a verdict of guilty of the offence of stealing with actual violence while in company with others. In his second video‑recorded interview the appellant admitted taking the two tins containing money and running out of the house after he had seen Mr Collard and Mr Collings scuffling. Counsel for the appellant also conceded that in respect of count 2 the evidence had justified a conviction for stealing at a place ordinarily used for human habitation while in the company of others.
For these reasons, the appeal should be allowed, the convictions quashed and substituted by convictions for the offences to which I have referred. It follows that it will be necessary to review the sentences which were imposed by the learned trial Judge. This is a matter about which it will be necessary to hear further submissions.
PIDGEON J: I agree with the reasons for judgment and conclusions of Malcolm CJ and Wallwork J.
WALLWORK J: The appellant was convicted after a trial of two charges. The first was of robbery with violence in company whilst armed with a knife and at the time unlawfully wounding a Mr Collings. The second was of being in Mr Collings' place without his consent, in company and armed with a knife and doing bodily harm to Mr Collings.

It was not the Crown case that the appellant had harmed Mr Collings, but rather that he had taken part in an invasion of Mr Collings' residence with a number of other offenders for the purpose of committing an armed robbery and that during the course of that robbery Mr Collings had been stabbed.
The appellant now contends that the trial miscarried because the learned trial Judge erred in his summing up to the jury when he told the jury that a Mr Steel who was a witness at the trial, had said in evidence that the day after the offence had been committed, the appellant had told him:
"… that he looked in the window before going into the house and saw a lady. She had no clothes on and he said something about her appearance, and he put to you, well, he could not have actually seen this because one could not see through the window, and Mr Smith invited you to look at exhibit D10. Well, when you have a look at that exhibit you will see that at least half of the window seems to have glazing across it which one cannot see through but the window in the photograph is partly open; only half is covered by that sort of glass, the other half apparently was open to the air. In any event you may think that in some way persons speaking about that to Mr Steel had seen the woman with no clothes on. Why else would he have mentioned it? You may think in looking at the photograph that it's possible that he saw her through the partly open window. That could be of importance, members of the jury, because it would tend to confirm that before actually entering the house at least the accused man Simm knew that there was someone in there."
The appellant complains that Mr Steel did not give evidence that the appellant had told him that he had looked in the window before going into the house and that he had seen the lady concerned. This error had become important to the trial because the learned trial Judge had said as stated above:
"That could be of importance, members of the jury, because it would tend to confirm that before actually entering the house, at least the accused man Simm knew that there was someone in there."
The appellant had not given evidence at the trial. However in a record of interview which was admitted into evidence he had told the police officers that he had not looked into the house first to see if anybody was there. The effect of what he told the officers was he had not thought that anybody was in the house. He had thought the occupants were away. He had told the police officers that he would have been the first person to enter the house and that the others must have followed in behind him. He had run straight into the house. It was not until he was "about to the bedroom" that he had noticed a bit of a scuffle. He had only seen Mr Collings as he was getting to the "room".
It appears to be a fair reading of what the appellant told the police officers that he was there talking about the bedroom of which he had spoken.
The appellant told the police officers that he would have run past Mr Collings "and he (Mr Collings) would have jumped up". The appellant told the officers that he would have been in the room "and then as I come running back out they were scuffling and I just took off as fast as I could." He had told the officers that he did not know that any of the offenders had a knife. He thought they were just going "… to do a house; run in, take the TV, the video and all that sort of stuff." He said he had not expected anyone to be at home and that was why they were going to take the TV. When asked why he had picked that house out he said: "Because one of the boys was saying that they had gone away or something." He then said: "They've gone on holiday and no‑one … no‑one was there."
When the appellant was asked by the officers whether he had expected someone to be home as there was a light on in the house, he said: "No, well I thought it was just like - you know - leave the light on to make it look like you're at home … people are home." He expanded on that when he said:
"… when you're told that the peoples gone away, you know, you think that they'll leave the lights on to make it look like people are home all night."
Importantly when a police officer asked the appellant if anybody else had been in the house besides Mr Collings, he had said: "I didn't see anybody else." It was then put to him that there had been a female in the house who had come out of the bathroom whilst the robbery was occurring. The appellant said: "Nah, I didn't see her."
The appellant told the officers that he did not know that Mr Collings had been stabbed "until about the next day probably". He told the officers he had just been tagging along: "You know, just wanted to fit in sort of thing. Tagged along; thought we'd get a TV and that and sell it and get some money."
When asked where he had got "the tins" from which had contained money, the appellant told the officers: "One out of the main room …." and that he had obtained the second one: "I remember I ran and as I was ducking out I seen it, so I thought I'll just grab it." When it was put to him: "So you were the last to leave the house?" he answered: "I would have been the first to leave the house…first in, first out." The appellant said he had been in the house for about 15 seconds. The appellant told the officers that Mr Collings had not been there when he had run out.
From the questions asked of the appellant it appears that by the time the appellant left the house Mr Collings may have gone into the bathroom with the lady who was in the house. The appellant told the officers that he was not in the house when an attempt had been made by others to kick their way into the bathroom.
At the hearing of this appeal, counsel for the appellant said that the appellant's defence had effectively been: "I didn't know what was going to happen. I didn't know knives were to be used." The contention was that the appellant had in effect said that he had gone into the premises quickly and come out quickly. It was submitted that if the evidence at the trial had been that the appellant had looked into the house before he had gone in and had seen people in the home before he had gone in, that would have cast a very negative light upon his defence. However, that had not been the evidence. On the appellant's statement to the police, the plan was to have been an entering of premises which he had believed to be empty.
It was submitted that the prosecution case at the trial had been that Mr Collings had been at home when the offenders had entered his house. He had seen someone who was alleged to have been a co‑accused Mr Collard, standing in front of him with a knife. Mr Collard had demanded money. Mr Collings had told Mr Collard that he would not give him money, whereupon Mr Collard had stabbed Mr Collings. Subsequently the prosecution alleged that the other offenders had gone through the house and had ransacked it.
It was submitted for the appellant that one view of the case was that the appellant had entered the house first and gone into a bedroom. He had then seen a scuffle after he had passed Mr Collings on the way out. On that basis the appellant had not known that weapons were to be used. He could not then be considered a party to the actual violence. He had not known that anyone was armed. He had just been tagging along. The altercation between Mr Collings and Mr Collard had occurred after the appellant had entered the house and gone into a room. It had been the appellant's defence that he had gone to the premises only to steal and not to be involved in any violence; that he had had no knowledge that anyone was armed. He had taken one tin of money from a room before he saw the scuffle.
On my reading of the evidence it could be that the appellant took the second tin after he had seen the scuffle. He had then left the house.
Importantly the evidence given by Mr Steel at the trial had been that the appellant had told him that the offenders had gone to the premises to do a home invasion. There was supposed to have been $50,000 in the house. However they had only got a couple of hundred dollars in some tins.
Mr Steel had said that the appellant had told him: "There was one fellow sitting in a chair and he said there was another - the fellow's missus got out of the shower and she had nothing on…." Mr Steel also said:
"He said that they went through the sliding door. Jay stabbed the fellow. There was blood squirting out everywhere. Then the two of them backed themselves back into a room or closet or something, then they ransacked the house and just got a couple of tins of coins."
It was submitted for the appellant that there had been nothing in the evidence from which the jury could have inferred that the appellant had seen the lady before he went into the house. That fact just was not in the evidence.
Counsel for the appellant submitted that the evidence had been that Mrs Martin, who was the lady in the shower, had been in the shower at the time at which the incident had commenced. Her evidence had been that she had heard a disturbance and a demand being made for money whilst she was in the bathroom. She had then come out of the bathroom. It was then that she could have been seen by the appellant. Once Mrs Martin had been in the corridor for 30 seconds or for an even shorter period, Mr Collings had told her to get back in the bathroom. She had done that and Mr Collings had followed her in almost immediately. They had then barricaded themselves in the bathroom.
At the trial Mr Collings had become more and more adamant under cross‑examination that the appellant could not have slipped past him before Mr Collings had seen the person with the knife. However, on the other hand Mr Collings had said that from the moment he was confronted with the man with the knife, he had been principally concerned with that.
The trial was further complicated because the learned prosecutor, obviously in anticipation of what it was anticipated Mr Steel would say, had told the jury in his opening that:
"Indeed as part of what was told to Mr Steel by Simm [the appellant] he said that he, Simm, had looked in the window and seen Mrs Martin in the bathroom with no clothes on, and indeed Mrs Martin will give evidence that at some stage she went to the bathroom to have a shower. The accused, Mr Simm, told Mr Steel that while, as it were, casing the place, they had seen Mr Collings sitting in the chair and he, Mr Simm said to the others 'If you're going to do it, let's do it now.' They opened the sliding door and all went in. He, Simm, told Mr Steel that somebody, a member of the group, had put a knife in Mr Collings and there was blood everywhere, to use Mr Simm's words. Mr Simm recounted how the two people locked themselves in a room and he and the others, as he put it, ransacked the house and Mr Simm mentioned that at the time this occurred he had a shirt wrapped over his head and he told Mr Steel not to tell anybody."
That was not the evidence which Mr Steel gave at the trial. Mr Steel did not mention the appellant seeing anybody in the house before he went in there. He had however said in evidence that he had been told by the appellant that after "Jay" had stabbed Mr Collings and there was blood squirting out everywhere, they had ransacked the house and got a couple of tins of coins.
It can be seen that it was very important to the credibility of the appellant's defence that Mr Steel had not said that the appellant had told him that he (the appellant) had looked through the window before he went into the house. It was most damaging to the appellant's defence that the learned trial Judge said in his summing up:
"In any event you may think that in some way persons speaking about that to Mr Steel had seen the woman with no clothes on. Why else would he have mentioned it? You may think in looking at the photograph that it's possible that he saw her through the partly open window. That could be of importance members of the jury because it would tend to confirm that before actually entering the house at least the accused man Simm knew that there was someone in there." (My emphasis)
With respect to his Honour that statement appears to contain a wrong interpretation of the evidence at the trial. It could also have swayed the jury to some degree in coming to their verdict.
It was conceded by counsel for the appellant that the evidence at the trial would be open to the interpretation that the appellant had admitted taking the tins with money in them after the scuffle. He could then have been convicted of stealing with violence.
It was further submitted for the appellant that it was a fair conclusion from the cross‑examination of Mr Steel that he had given a potted version of what had been related to him by a combination of people after the incident had happened. He had been employed at the caravan park where the appellant and Mr Collard had been living. It was submitted that the robbery had clearly been the talk of the caravan park in the immediate aftermath of the robbery. It was submitted that there had been inconsistencies in Mr Steel's evidence.
It was submitted for the appellant that the matter had been further complicated at the end of the trial when the learned prosecutor had said in his summing up:
"Leaving that aside what did he tell Mr Steel? None of this - that they were horribly surprised and that there had been a break and that they were going there to break in to steal items of property from somebody when they thought they were out. He said to Mr Steel that they had gone to the house, they had seen the person's Missus through the bathroom and thought, according to him, in his view…and saw her with no clothes on. Now the significance of that is this: it is beyond dispute at that some stage in the night in question Mrs Martin did indeed go to the bathroom and obviously disrobed to have a shower. These people knew that there were people in the house. His explanation, young Simm's, to Detective Black and Mr Power, that he didn't know there was anybody inside that house is sheer fantasy and nonsense. Of course he knew and of course they knew. And why did he go there? Because they thought there was some bloke there with a huge sum of money; that was what was told to Steel about $50,000."
It was submitted for the appellant at this appeal that the state of knowledge of the appellant before he had entered the premises had been very much a matter in issue at the trial.
In my view the situation was further complicated by defence counsel saying to the jury, after the learned prosecutor had finished his summing up, that:
"My learned friend, in his paraphrasing of what Mr Steel said, talked to you about - he said: "Oh, Mr Simm told him they looked in the bathroom and saw his Missus.' Again, Mr Steel didn't use the word bathroom either in evidence in chief, or in cross‑examination, or to the police. Mr Steel said: 'He told me that he was looking in the window and saw this bloke's Missus.' Bathroom is not mentioned. We know she was in the bathroom. My learned friend suggests to you, therefore he must have been looking in the bathroom. That's not what Steel says. Steel says he looked in the window. What window? Have a look at the photographs…."
Again, as I understand from the transcript, that was a wrong interpretation of the evidence. The appellant's defence was thereby further prejudiced.
When a matter was raised with the learned trial Judge after the jury had retired, his Honour said:
"… if I said that Steel's evidence was that Simm told him that before he went into the house he looked through the window, I was wrong, but the important aspect of the matter is that - and this is what I was putting to the jury - if Simm looked through the window and saw the woman with no clothes on, that must have been before he went into the house."
There was then some discussion about what the evidence of Mrs Martin had been. The learned trial Judge said: "He said he looked through a window and saw her." Defence counsel said: "Mr Steel said he said that, yes." The learned trial Judge then said:
"Steel said, yes. Steel said that Simm said he looked through the window and saw her. The question is, do they believe Steel? If they believe Steel that he said that, the only appropriate inference is that he looked through the window before going into the house and knew there was someone there…."
There was some further discussion about whether the window had been opened by Mrs Martin so that she could climb out.
His Honour did not redirect the jury on that question.
It was submitted for the appellant the jury had been asked by the prosecution to infer that the appellant had been part of a group acting in preconcert who had disguised themselves and armed themselves. The appellant's evidence had been to the contrary.
It was further submitted there had been enough inconsistencies of description concerning the number of persons involved in the offences, to leave room for doubt as to whether the appellant had been a party to any plan concerning the use of weapons. Clearly he had said that he had known nothing about knives. Mr Collings had initially spoken of only one person confronting him with a knife. Subsequently he had said that he thought he had seen "glints". He had assumed that the others were armed. Mrs Martin had said that two or maybe three of the offenders were armed. She had said that there had been four or five people involved.

It was submitted for the appellant that if the errors as to Mr Steel's evidence had not occurred and given that there had been no evidence or admission of preconcert or pre‑planning by the appellant, the result of the trial may have been different, at least concerning the circumstances of aggravation of wounding and being armed with a knife. It was submitted that the account which the applicant had given to the police, the essentials of which were that he had been swept along with the others without foreknowledge of what they were intending to do and without him being complicit in any plan for violence, was at the heart of the matter.
It was submitted for the respondent that the evidence of Mr Collings had been clear that his assailant had been the first person to enter into the house; that all five men who had entered had been visible to him as the assailant had demanded money and threatened his life. The assailant had then stabbed him. It was submitted that Mr Collings' evidence had to some extent been corroborated by the evidence of Mrs Martin, who had said that there had been four, and possibly five men, and that they had had their faces covered. She had seen two men who had held a knife each. The appellant's fingerprints had been found on the tins which had been taken from the house. The appellant in his first video had denied any involvement in the offence. He had told lies on the first video. In his second video he had admitted that his initial account had not been the truth. His credit at the trial had been affected by that. He had given conflicting versions as to where he had taken the tins from. Mr Collings had been emphatic that no‑one had entered the house before his assailant.
It was submitted for the respondent that the effect of all the evidence had been that the appellant had been present at the time of the offences when five men had entered the complainant's house. His assailant had brandished an 8 inch knife. All five offenders had been present as the assailant had demanded money, threatened Mr Collings' life and then stabbed him.
In Simic v The Queen (1950) 144 CLR 319 the learned trial Judge had told the jury, after he had been asked whether there had been any fingerprints found on the relevant weapon: "I think there was evidence about that Mr Foreman, to the effect that there was difficulty about being able to ascertain that." In their reasons for judgment, Gibbs, Stephen, Mason, Murphy and Wilson JJ said at 330:
"The principle to be applied was in our respectful opinion, well stated by the Court of Criminal Appeal in the early case of R v Cohen and Bateman (1909) 2 Crim App Rep 197 at page 207:
'A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words "any other ground". So that the appeal should be allowed according as there is or is not a miscarriage of justice. There is such a miscarriage of justice not only where the court comes to the conclusion that the verdict of guilty was wrong, but also when it is of the opinion that the mistake of fact or omission on the part of the Judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted…If, however, the court in such a case comes to the conclusion, that on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso'."
At 332, when discussing misdirections as to facts, their Honours said:
"Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the mis‑statement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the mis‑statement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the mis‑statement as well as to the strength of the case against the appellant."
In this case it is my view that if his second statement to the police was accepted, the applicant could not have been found guilty of the aggravating circumstances of being armed with a knife and at the time unlawfully wounding Mr Collings. Section 8 of the Criminal Code would require that those circumstances be found to be a probable consequence of the prosecution of the breaking and entering offence which it was the appellant's contention he had agreed to participate in.
The same can be said of the aggravating circumstances alleged in count 2 which were that the appellant was armed with a knife and did bodily harm to Mr Collings.
In Saunders v The Queen [1980] WAR 183 at 185 Burt CJ, when discussing the direction in that case said:
"That direction, if it is to be taken to be a direction upon the application of s 8 of the Code is, I think, incomplete in that it does not tell the jury that to find the appellant guilty of manslaughter they must find that the unlawful killing was a probable consequence - objectively a probable consequence - of the prosecution of the unlawful purpose which he and the appellant Hakala had formed a common intention to prosecute."
Burt CJ said at 186:
"No reference was made to the requirement within s 8 that to sustain a verdict of guilty of manslaughter as against the appellant the unlawful killing by Hakala must be found to have been a probable consequence of the prosecution of the unlawful purpose which the appellant and Hakala had formed this common intention to prosecute."
In the same decision Brinsden J referred to the words of Jacobs J in Stuart v The Queen (1974) 134 CLR 426 at 453 where his Honour said:
"Whether or not the probable consequence of the counsel or common purpose was murder or manslaughter by the applicant could depend on the nature of the counsel or common purpose in the light of the facts known to the applicant, particularly the facts relating to the time at which the counsel or plan to set fire to the nightclub premises should be executed and relating to the times at which the nightclub was open. The probable consequence must be considered as at the time when the counsel was given or the common purpose formed."
Brinsden J also referred to the words Starke J in Brennan v The Queen (1936) 55 CLR 253 at 260-261 where his Honour said:
"A probable consequence is, I apprehend, that which a person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended or foreseen by the actor."
In my view on the facts in this case, on his second statement to the police, the appellant could have been found guilty of stealing money from Mr Collings with actual violence, whilst in company with others. This is because he admitted taking money and running out of the house after he had seen the scuffle between Mr Collard and Mr Collings. Secondly, on count 2 he could have been convicted of stealing in a place ordinarily used for human habitation whilst in company
For the above reasons, I would allow the appeal and substitute the abovementioned verdicts for the verdicts which were recorded against the appellant. The question of sentence would then need to be reopened but we have not heard submissions on that question.