TB v The State of Western Australia
[2015] WASCA 212
•27 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TB -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 212
CORAM: BUSS JA
MAZZA JA
CHANEY J
HEARD: 6 MAY 2015
DELIVERED : 27 OCTOBER 2015
FILE NO/S: CACR 93 of 2014
BETWEEN: TB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 95 of 2014
BETWEEN :DVH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :REYNOLDS DCJ
Citation :[2014] WACC 3
File No :CCPE 195 of 2014
Catchwords:
Criminal law - Appeals against conviction - Appellants convicted after trial of manslaughter - Causation - Intervening act breaking the chain of causation - Proper construction of s 272 of the Criminal Code (WA) - Accident - Objective element of the defence of accident in the case of children - Whether convictions for manslaughter unreasonable or cannot be supported having regard to the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5)
Criminal Code (WA), s 23B, s 270, s 272, s 279(1)(c), s 280, s 281
Result:
CACR 93 of 2014
Leave to appeal granted on ground 2
Appeal allowed
Judgment of conviction for manslaughter set aside
Judgment of conviction for unlawful assault causing death entered
CACR 95 of 2014
Leave to appeal granted on grounds 1 and 3
Appeal allowed
Judgment of conviction for manslaughter set aside
Judgment of conviction for unlawful assault causing death entered
Category: A
Representation:
CACR 93 of 2014
Counsel:
Appellant: Mr P D Yovich
Respondent: Mr J A Scholz & Mr L M Fox
Solicitors:
Appellant: David Walls & Co
Respondent: Director of Public Prosecutions (WA)
CACR 95 of 2014
Counsel:
Appellant: Mr S Corish
Respondent: Mr J A Scholz & Mr L M Fox
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257
Brennan v The King [1936] HCA 24; (1936) 55 CLR 253
Campbell v The Queen [1981] WAR 286
DC v The State of Western Australia [2014] WASCA 121
Director of Public Prosecutions (Vic) v TY (No 2) [2006] VSC 494; (2006) 14 VR 430
Hooper v The Queen [2000] WASCA 394; (2000) 116 A Crim R 510
Hussaini v The State of Western Australia [2009] WASCA 207
Jemielita v The Queen (1995) 81 A Crim R 409
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
Mack v The State of Western Australia [2014] WASCA 207
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
R v Taiters [1997] 1 Qd R 333
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228
Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
The State of Western Australia v JWRL [2010] WASCA 179
Table of Contents
Buss JA's reasons...................................................................................................................... 7
The State's case at the trial
Overview of the facts and circumstances of Mr Litchfield's death and its aftermath
TB's video‑recorded interview with police
TB's three 'starnet' telephone calls
The evidence of JJW
The evidence of EHW
The primary judge's findings and comments in relation to TB
The primary judge's findings as to TB's interaction with Mr Litchfield
DVH's 'starnet' telephone calls
The primary judge's findings and comments in relation to DVH including DVH's interaction with Mr Litchfield
The primary judge's analysis of s 272 of the Code and his application of s 272 to the evidence
The primary judge's reasons: the first and second questions arising from s 272 and their application in relation to TB
The primary judge's reasons: the first and second questions arising from s 272 and their application in relation to DVH
The primary judge's further conclusion on the second question in relation to each of the accused who were convicted
The primary judge's reasons: the third question arising from s 272
The primary judge's ultimate conclusion on causation
The primary judge's reasons: s 279(1)(c) and s 23B(2) of the Code
The primary judge's reasons: accident in relation to each of the accused
The primary judge's reasons: the unlawful killing was not murder
The primary judge's verdicts
TB's grounds of appeal
DVH's grounds of appeal
Relevant findings of the primary judge that are not challenged by TB or DVH
Concessions by TB and DVH in the appeals
The critical issues in the appeals
The first issue: causation: DVH's submissions
The first issue: causation: applicable legal principles
The first issue: causation: its merits
The second issue: accident: TB's and DVH's submissions
The second issue: accident: applicable legal principles
The second issue: accident: its merits
The third issue: verdict of guilty unreasonable and cannot be supported having regard to the evidence: TB's and DVH's submissions
The third issue: verdict of guilty unreasonable and cannot be supported having regard to the evidence: applicable legal principles
The third issue: verdict of guilty unreasonable and cannot be supported having regard to the evidence: its merits
The appropriate orders that should be made in the appeals
The sentencing of TB and DVH for unlawful assault causing death
Mazza JA's reasons.............................................................................................................. 108
Chaney J's reasons............................................................................................................... 108
BUSS JA: Each appellant in CACR 93 of 2014 (TB) and in CACR 95 of 2014 (DVH) appeals against conviction.
On the evening of 17 March 2013, Tauri Litchfield, who was aged 28, died of a traumatic brain injury after falling onto a bitumen surface in the car park at the front of Taubmans Professional Trade Centre (Taubmans) on the north east corner of Pinjarra Road and George Street, Mandurah.
As at 17 March 2013, TB was aged 14 years 2 months and DVH had recently had his 15th birthday.
TB and DVH and four other male juveniles, namely JR, EW, HCJ and AU, were jointly charged with Mr Litchfield's murder. The State's case on the murder charge was based on s 279(1)(c) of the Criminal Code (WA) (the Code).
As at 17 March 2013, JR was aged 15 years 5 months, EW was 14 years 5 months, HCJ was 14 years 10 months and AU was 15 years 5 months.
All of the accused pleaded not guilty.
After a trial in the Children's Court before Reynolds DCJ (the primary judge):
(a)TB, DVH, JR and EW were acquitted of murder and convicted on the alternative charge of manslaughter, contrary to s 280 of the Code; and
(b)HCJ was acquitted of murder and all alternative charges.
During the trial the State discontinued its case against AU.
On 24 April 2014, his Honour imposed the following sentences:
(a)each of TB, JR and EW: 4 years 6 months detention; and
(b)DVH: 5 years 6 months detention.
The sentences of TB and DVH were backdated to 27 March 2013.
After the hearing of the appeals and before the delivery of judgment, this court, on its own initiative, released DVH on bail pending the determination of his appeal. By that time, TB had already been released under a supervised release order.
I would allow the appeals, set aside the judgments of conviction for manslaughter and enter judgments of conviction for unlawful assault causing death, contrary to s 281 of the Code. My reasons are as follows.
The State's case at the trial
The prosecutor outlined the State's case in her opening address, relevantly, as follows:
Each of the accused is charged with murder. The State case is that liability arises pursuant to section 279(1)(c), in that Tauri Litchfield's death was caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to endanger life. The unlawful purpose being prosecuted was to assault the deceased or to steal from him, whether with or without an assault.
The act done in prosecution of the unlawful purpose was the chasing of the deceased, in the context of him already having been assaulted and/or detained by a member or members of the accuseds' group. The State case is that that act constituted a threat or intimidation, which caused the deceased to do an act which caused his death; namely, to run and fall and hit his head on a bitumised surface.
As I said, pursuant to section 272 of the Code, if that is proved beyond reasonable doubt against an accused, those who engaged in the threats or intimidation are deemed to have caused his death, as are those who were a party to that act, pursuant to section 7 or 8 of the Code. The State case is that the act, being the chasing, was of such a nature as to be likely to endanger life, having regard to the following factors:
Firstly, the apprehension of further violence which, to the knowledge of each of the accused, the deceased must have felt at the time that that act was committed; secondly, the environment in which the act was committed; thirdly, the time of night at which it was committed; fourthly, the fact that the deceased had already been significantly assaulted and had, at least at one stage, already been knocked to the ground, whether he temporarily lost consciousness or not; fifth, the state of intoxication of the deceased, which the accused either did appreciate or should have appreciated; sixth, the fact that the conduct of the accused, prior to the act had already caused the deceased to run into the middle of the road with approaching traffic, in an effort to get help and escape the accused.
The State case is that each of the accused, by engaging in the chase, is a principal offender. In the case of [JR], [TB], [EW] and [DVH], each is additionally alleged to have made contact with the deceased or attempted to do so in the course of the chase for the purpose of apprehending him (ts 55 ‑ 56). (emphasis added)
Later, the prosecutor abandoned the alternative case based on s 8 of the Code.
After all of the evidence had been taken and before the commencement of closing addresses, the primary judge raised some matters with the prosecutor about the State's case. The prosecutor explained the State's case in relation to threats or intimidation and causation as follows:
… in the context of him already having been assaulted and detained, and or detained … a member [or] members of the accused group chased him in such a way that that constituted a threat or intimidation which caused him to do the act which caused his death. Now, if he had not been chased, the State says, he would not have been running at the speed he was and it could hardly be said that in those circumstances, or it would be much more difficult to say in those circumstances that he was driven to do the act he did up to 50 or so metres down a road by reason of the assault on the foot path that had earlier taken place.
… the background, from the pickpocketing onwards … is by no means irrelevant to the State case. It forms the very basis for the chase to constitute such a threat or intimidation that it drove him to do the act which caused his death (ts 1031).
The prosecutor made these submissions about threats or intimidation and causation in her closing address:
Your Honour has clear evidence as to what occurred prior to Mr Litchfield running, first of all across the road and then to the car park. There can be no doubt, the State says, that following the assault to which Mr Litchfield was subjected before he ran onto the road, the pursuit of him after that point, both initially and then at speed down the hill, constituted threats or intimidation which caused him to do the act which caused his death.
Your Honour has clear evidence [of] the speed at which he was running from his pursuers at the time that he went over that wall, and the closeness and speed with which at least some of them were pursuing him, even admitting for a moment the individual admissions of the accused, there is overwhelming evidence that by threats or intimidation Tauri Litchfield was driven to do the act which caused his own death, to take the plunge over a brick wall at speed hitting his head on the bituminised car park below.
Adding in the admissions of each accused the State says it could not be clearer in the case against each of them, that Mr Litchfield was very frightened of the accused, desperate to get away from them and that that was the direct result of their pursuit of him in the context of the assault which had gone before.
If your Honour finds that to have been the case then section 272 of the Code deems the accused against whom you make that finding to have killed Mr Litchfield. If your Honour does not make that finding against any particular accused then he is, of course, entitled to be entirely acquitted (ts 1111 ‑ 1112). (emphasis added)
Overview of the facts and circumstances of Mr Litchfield's death and its aftermath
An overview of the facts and circumstances of Mr Litchfield's death and its aftermath, as found by the primary judge, is as follows.
On 17 March 2013, Mr Litchfield was in Mandurah with his partner and some friends. He had been drinking alcohol. His partner told him that he should not drive home.
Mr Litchfield decided to walk home. He was not accompanied by his partner or any of his friends. At a little after 7.00 pm, he was walking in an easterly direction on the northern side of Pinjarra Road. The road was on his right.
On 17 March 2013, TB and DVH and seven of their friends including the other accused (the appellants' group) were also in Mandurah. They had travelled by bus and train and had arrived in the late afternoon. At a little after 7.00 pm, the appellants' group were also walking in an easterly direction on the northern side of Pinjarra Road. Their intention was to go home.
The movements of Mr Litchfield and the appellants' group were, in part, recorded by closed circuit television cameras at a number of business premises. A compilation of 63 extracts of CCTV footage was tendered by the prosecutor and became exhibit 20. A document summarising where each of the 63 extracts was taken, what was depicted in each extract and (where possible) the time each extract was recorded, was received in evidence as an aid and became exhibit 54.
At about 7.10 pm, Mr Litchfield and the appellants' group were walking in the same direction and were in reasonably close proximity. They traversed George Street, which joins Pinjarra Road from the north.
Some time after Mr Litchfield and the appellants' group traversed George Street, DVH touched Mr Litchfield's back pocket. EHW, who was a member of the appellants' group, described what happened as an attempt by DVH to pick Mr Litchfield's pocket. Mr Litchfield turned and slapped DVH across the back of the head.
DVH responded by punching Mr Litchfield to the right side of his jaw. Mr Litchfield fell backwards into a row of bushes. The bushes were at the front of business premises occupied by Aussie Home Loans. Its premises were the fourth business premises to the east of George Street and on the northern side of Pinjarra Road.
Later, police found Mr Litchfield's hat and thongs in front of the Aussie Home Loans premises, about 60 m east of the place where he fell in Taubmans' car park.
After he fell backwards into the row of bushes, Mr Litchfield got up and ran onto Pinjarra Road. He was seen by two witnesses, namely Peter Dawson and Brodie Kerry, who were passing in motor vehicles. The primary judge summarised their evidence, and the evidence of Mr Kerry's mother, Pauline Bell, in his reasons for decision:
Peter Dawson (Mr Dawson) was driving his car west on Pinjarra Road in the kerbside lane when he noticed the car ahead of him look like it swerved a little bit and its brake lights came on. He travelled further down Pinjarra Road and saw a person on the left hand kerb. He got a good view of the person. That person was obviously Mr Litchfield. He was looking to the other side of the road. He stretched out both of his arms and showed open palms when facing the other side of the road. He stepped on the road and looked at Mr Dawson's car. Mr Dawson flashed his lights. He said that he was about 15 metres away from Mr Litchfield when he did that. Mr Litchfield then stepped back on to the pavement. He looked like he was stumbling. Mr Dawson thought that he was drunk.
Mr Dawson said that out of the corner of his right eye, there was a silhouette of what looked like three or four people. He said that he was going pretty slow by the time he got to Mr Litchfield, crawling, 20 to 25 kilometres per hour.
Pauline Bell (Ms Bell) was driving her car on Boundary Road and turning left to head west on Pinjarra Road. The Mercedes Benz car yard is on the south west corner of Boundary Road and Pinjarra Road. She said that it was about 7:30pm and dark and that she had her car lights on. Her son, Brodie Kerry was a passenger in the front of her car.
There are two lanes each way on Pinjarra Road at this location. Ms Bell said that she turned into the lane closer to the middle. She noted about three aboriginal youths to her right on the other side of the road. She was not sure whether or not they were on the footpath. She had her car window down and heard a really loud yell. She did not know what was said. She said that the three youths that she had observed took off towards the yelling which was towards the Mandurah Forum. That is an easterly direction.
While there is no doubt that Ms Bell entered Pinjarra Road from Boundary Road, I think that when photographs were shown to Ms Bell that she got mixed up with where in particular she was on Pinjarra Road. She placed what she had seen a block further west along Pinjarra Road from where it actually happened.
Brodie Kerry was in the front passenger seat of the car being driven by Ms Bell, his mum. He said that his mum turned into the kerbside lane to travel west on Pinjarra Road. The Mercedes Benz CCTV footage confirms that. Brodie Kerry said that when they got to the corner he looked east and then west. When they turned around the corner he saw a guy on the left hand side of the road standing on the footpath. That would have been Mr Litchfield. He said that there was an aboriginal guy towards the other side of the road between the broken line. That broken line was no doubt the line separating the two lanes for traffic travelling east on Pinjarra Road. He said that the aboriginal guy kept going to the centre of the road. He said that both of them were in the centre of the road and his mum drove her car straight past them in the kerbside lane. Again, the Mercedes Benz CCTV footage confirms that people on the road were to the right hand side of Ms Bell's car when she drove past. I should mention that Mr Litchfield had crossed the southern kerbside lane of Pinjarra Road before Ms Bell came along and so she did not have to brake to avoid him. Brodie Kerry said that he was 100 percent sure that Mr Litchfield had walked in front of his mum's car. Reference to the CCTV footage from Mercedes Benz shows that this is actually true, but that Mr Litchfield did so when Ms Bell turned off Boundary Road in to Pinjarra Road and not when she had travelled further west on Pinjarra Road.
Brodie Kerry said that he saw the aboriginal guy with his arms up and both fists out and the guy, who was Mr Litchfield, with both arms out to the side with his palms showing. He said that the aboriginal seemed to be staggering a little bit and that the white guy (Mr Litchfield) was standing up pretty straight and not staggering. I will say now that I accept Mr Dawson's observation of Mr Litchfield and not Brodie Kerry's [33] ‑ [39].
JJW, who was a member of the appellants' group, was not charged with any offence and was called by the prosecutor as a State witness. JJW gave evidence that some members of the appellants' group, including TB and DVH, 'attacked' Mr Litchfield again after DVH punched him. This 'attack' did not involve assaulting Mr Litchfield but, rather, attempting to steal from him after he had got up from the row of bushes and run onto Pinjarra Road (ts 517 ‑ 518). Mr Litchfield then moved diagonally across Pinjarra Road and back to the northern side of the road. He returned to the northern side of Pinjarra Road some distance to the west of the point where he had run onto the road. He then ran away from the appellants' group.
The primary judge found that TB and DVH and the other two juveniles who were convicted chased Mr Litchfield at speed in a westerly direction. Mr Litchfield did not run along the road or the footpath. Rather, he veered into the car park shared by two businesses whose premises abutted Taubmans, namely Kings Park Fashion and Jaycar.
Mr Litchfield then travelled over a low retaining wall which separated the Jaycar car park from the Taubmans car park. The level of the Jaycar car park was about 1.19 m higher than the level of the Taubmans car park. Mr Litchfield ran through the Jaycar car park, went over the wall (which was about two courses of bricks high on Jaycar's side) and fell onto the Taubmans car park.
The primary judge found, based on a combination of the evidence of JJW, EHW (who was also not charged with an offence and was also called by the prosecutor as a State witness) and the CCTV footage that, when Mr Litchfield went over the wall, he was being chased by TB, DVH, JR and EW. His Honour found that their purpose in chasing Mr Litchfield was to catch up with and assault him.
The primary judge found that Mr Litchfield suffered his fatal injury as a result of striking the left side of his head on the bitumen surface of the Taubmans car park after he had travelled over the retaining wall and had then fallen on the back of his head [287].
Dr Clive Cooke, a forensic pathologist, Dr Victoria Fabian, a neuropathologist, and Mr Stephen Honeybul, a consultant neurosurgeon, gave evidence as to the cause and mechanism of Mr Litchfield's death.
There was uncontradicted evidence that Mr Litchfield suffered a laceration 1.5 cm left of the midline on the back of his scalp. This laceration penetrated the full thickness of the skin. A skull fracture underlay the laceration but extended further. Mr Litchfield suffered extensive bruising and bleeding, as well as swelling, in his brain.
Most of the brain injury was to the front and right of Mr Litchfield's brain. He suffered what was described as a 'contrecoup' injury, in which the application of force to the back and left side of his head resulted in a traumatic injury to the front and right side of his brain.
Mr Litchfield had abrasions on four toes of one foot. A bloodstain made by Mr Litchfield was found on top of the retaining wall in the vicinity of the place where he travelled over the wall. The primary judge found that Mr Litchfield may have 'tripped on the top of the wall as he went over' [294].
The evidence relied on by the State in its case against TB included a video‑recorded interview with police on 27 March 2013, three 'starnet' telephone calls made by TB while he was in custody on remand, the CCTV footage showing the movements of Mr Litchfield and the appellants' group, and the evidence of JJW and EHW. TB did not give evidence at the trial. His defence, based on what he had told the police in his video‑recorded interview, was that he had not been involved in the chase for any unlawful purpose. The primary judge rejected the defence.
The evidence relied on by the State in its case against DVH included various 'starnet' telephone calls made by DVH while he was in custody on remand, the CCTV footage showing the movements of Mr Litchfield and the appellants' group, and the evidence of JJW and EHW. DVH did not participate in a video‑recorded interview with police and he did not give evidence at the trial.
TB's video‑recorded interview with police
The primary judge recounted, in his reasons for decision, the principal features of TB's video‑recorded interview with police. His Honour said:
At the beginning of the interview, TB gave the following narrative responses:
'A. Oh, well, um, like we was in Mandurah and like think we was coming up that like I think that's like Pinjarra Ave like the car dealers and that over that side and the shops on the other side, like motor bike shops and we was walking up that street and like this guy who was like walking in front of us and then like, he stopped and then, I don't know. For some matter, he ended up talking to us and then like, one of the boys asked him for a cigarette and then he said he hasn't got none and then another boy asked him for a cigarette
A. Oh and then, um, then, like he ‑ and then, when another boy asked him for a cigarette, he slapped him across the back of the head and he said, "I thought I told youse", and then he started swearing and then he, um, he like, he said that. Then like he was walking and that's when one of the boys ‑ the boy that he slapped, pushed him and then he like ‑ then I looked at him and the boy ‑ the boy hit him and then ‑ that's all I can say about that ‑ and then, um, oh, a bit after that, after some other things happened, that's when, um, like, he was like he got up and he ran, like, through the thing and when he was running, I grabbed his shirt ‑ about ‑ good enough distance, about five or ten metres away from the ledge, saying "There's a ledge there", pointing at the ledge and like he like ‑ ‑ ‑
A. I was trying to prevent him from like, falling off the ledge and falling ‑ tripping over the ledge, 'cause the ledge was like, built higher and then it was a big drop on the other side ‑ and then three of the other boys ran up to him and helped me try and grab him and one of the boys said "It would be easier if we could get him to hit the floor before then", so he like, he kicked his ankle and then he didn't go down and he started running faster and by then he like ‑ he was already at the ledge and he jumped over the bricks and then he looked, like the ledge was there and then he, like landed like on the side of his ankle, like on the side of his ankle. He landed on the side of his ankle, like that and spun, like he spun and landed on his head.
A. And, um, when he hit the floor, like that's when I got over the ledge and I looked down and he was bleeding and so I jumped down and I checked if he was breathing and like I checked his neck for a pulse and I said, "He's breathing", and that's when I said, "Let's go, he should be all right", and that's when we walked, like started walking. We like, stood up and when I stood up and I ran and then like, I just ran and ran and then like, when we stopped, I said, "One of you boys ring the ambulance and tell them", and 'cause I didn't have a phone on me and one of the boys said, "Yeah, I will when I get to the train station", and ‑ and I don't think he did ring the ambulance and like, he was breathing fast, like when I checked him, he was like breathing fast and then we left. We ran to the train station, um, oh, and there was ‑ there was, yeah, I think there was eight of us.'
During the interview, there were times when TB did not want to and did not name other people, and also answer questions. He of course has a right to silence and so none of that can be used and I do not use any of it against him at all.
TB said that Mr Litchfield talked to them as they walked up Pinjarra Road. He said that he sounded drunk because he was angry. He later added that he thought that Mr Litchfield was angry because he was 'like frustrated' and 'like his words were mumbled up and he was loud'. He agreed that Mr Litchfield was slurring his words saying 'yeah, all mumbled up and stuff'.
TB said that 'the boy' asked for a cigarette when they were on Pinjarra Road on the other side from the Mercedes Benz business. He did not want to name 'the boy'. He was entitled to take that position and so I do not use it against him at all. When asked what happened after the boy asked for a cigarette, he said:
'Q. Okay so the boy's asked him for a cigarette and what's happened then?
A. And that's when he started swearing and he slapped that boy across the back of the head.
Q. Yep.
A. And then that's when I don't want to say that bit in between that and him running away from us.
Q. All right, well where were you standing when he slapped the boy across the back of the head?
A. I was standing next to that boy.
Q. So you were standing next to that boy when he slapped him across the back of the head.
A. Yep.
Q. So what did he do then when he got slapped across the back of the head?
A. He ‑ I don't want to say anything. I ‑ '
I again mention that I put aside TB's refusals to answer questions because he was simply but importantly exercising his right to silence. But what is admissible and relevant is that TB said that the slap followed a request for a cigarette and that he was standing next to the boy who got slapped. I will comment on that later in relation to my assessment of TB's credibility and reliability, mindful at all times of course that it is the State which carries the onus or burden of proof and that TB does not have to prove anything.
TB said that after the boy got slapped, the other boys just laughed. He said that the boy got angry. When asked what happened then, he said:
'Q. Okay so then what happened?
A. That's when he ‑ he ‑ that's when he got up off the floor and that's when he started running from us and I grabbed him and I lost my grip from his shirt and he ran.'
At that stage TB had not indicated how Mr Litchfield had got on the floor (the ground). He said that Mr Litchfield ran back towards the old bridge, ie west. When asked how far he would have had to run (to the ledge) he replied 'he probably ran 20 metres, 30 metres. Then he jumped down the thing'.
The Police interviewer asked TB whereabouts on the ground Mr Litchfield fell. TB said that he fell in the bushes. He said that 'the bushes was like in front of the car park'. On the whole of the evidence, the reference there by TB to 'the car park' was clearly a reference to the car park in front of Aussie Home Loans further east of the car park in front of Taubmans Paints, and not the car park in front of Taubmans Paints where Mr Litchfield came to rest.
When TB was asked where he grabbed Mr Litchfield and what happened when Mr Litchfield did not stop he replied:
'A. I grabbed him when he first started like, just after he first started running, when I noticed the ledge.
Q. Where did you grab him?
A. Oh, I grabbed his shirt.
Q. Did you say anything to him?
A. I said, "Stop, the ledge".
Q. Yep.
A. And then he didn't stop.
Q. What happened when he didn't stop?
A. That's when the other three boys came running up and started trying to stop him.
Q. So the other three boys came running up to try and stop him?
A. Yeah.
Q. All right so, um, what did they do or say to him?
A. They just said, "Stop".'
TB spoke about one of the other boys trying to trip Mr Litchfield so that he would not reach the ledge. He added that this other boy said 'I'm going to make him fall before he gets to the ledge'. He added that the boy tried to make Mr Litchfield fall, but he did not fall.
TB also said in his interview that the other boy tried to ankle tap Mr Litchfield about five metres from the ledge. When asked to describe the ankle tap he said that the other boy 'didn't get it'.
The following exchanges cover the location and how TB says that he tried to grab Mr Litchfield:
'Q. Okay so when he got up from the bush ‑ ‑ ‑
A. Yeah.
Q. ‑ ‑ ‑ did he run backwards did he?
A. He ran like that around the bush and around the other side of the bush.
Q. Okay.
A. And I jumped through the bush and told him to go ‑ pointed him towards, like up towards the way he was walking.
Q. So he runs this way ‑ ‑ -
A. Yeah.
Q. ‑ ‑ ‑ you ran through the bush?
A. Yeah.
Q. You try to grab him?
A. Yeah.
Q. He ‑ your hand, your grip slips ‑ ‑ ‑
A. Yeah.
Q. ‑ ‑ ‑ he continues running.
A. And then I yelled out to the boys when he got about there and they all run over and he was about there when the boy tried to trip him.'
TB described to the Police how Mr Litchfield jumped, landed on his left leg, and rolled his ankle, spun and then faced them and landed backwards with a thumping sound. When asked where he was when Mr Litchfield landed he said:
'Q. Backwards on his back, okay and what happened then so he's come backwards on his back, where were you then?
A. I was ‑ I was ‑ like them three boys were standing there and I was coming like, I was standing behind them, like looking over the ledge.'
TB added that he was standing about a step or two from the ledge when he was behind the others looking over the ledge. He said that he could see Mr Litchfield's chest moving quick and blood coming from underneath his head.
TB then said that all four of [the group] jumped down and one of the other boys said 'run, run'. He made it clear that it was a case of 'we' rather than 'I' who jumped down from the ledge into the car park.
One of the Police witnesses sought to further clarify this point later when he asked TB who was the first one to go over to check Mr Litchfield. TB said 'oh, one of them other three boys'.
Later in the interview on the issues of how Mr Litchfield landed and when TB went down into the car park, TB was asked and replied:
'Q. He kept spinning so when he actually hits the ground, he's actually backwards?
A. Yeah. He's backwards.
Q. Okay and then did he just stop there when he hit the ground?
A. Yeah. He just bang and then that's when ‑ by the time he hit the ground, I was probably about there.
Q. You were?
A. Yeah and them boys was here.
Q. Okay. What did you guys say when that happened?
A. That's when one of the boys said ‑ one of the boys said, "Let's quickly check him", and then we all jumped down and then checked him.'
Later again TB was asked and replied:
'Q. ‑ ‑ ‑ how were ‑ you were standing about a step back from the ledge, right and did you go over the ledge to go and see how he was?
A. Yeah. We all jumped down.'
TB told the Police that when he jumped down into the carpark, he felt around Mr Litchfield's neck to try and feel for a pulse. He said that he felt something beating so he said to the others 'let's go, he should be alright'. TB also said that Mr Litchfield's eyes were closed. He added that he was not sure if Mr Litchfield was awake 'but his eyes was like, blinking'. TB said that he thought that they should call an ambulance. He also told the Police that he thought that Mr Litchfield was 'not really hurt'.
The Police executed a search warrant on TB's home and seized items of clothing. They were looking for a blue t shirt with the motif 'Wanted' on it. TB was wearing that t shirt on the day and night in question. TB was asked and replied to questions on the clothing he wore as follows:
'Q. ‑ ‑ ‑ on the front, okay. We seized that item today. Was that the t shirt you were wearing on Sunday?
A. I'm not sure.
Q. You can't remember?
A. Yeah, I can't remember.
Q. All right. We were also looking for some pink shorts. We seized some shorts today, which is like a ‑ ‑ ‑
A. Like an apricot colour.
Q. Apricot, yep. Excellent, you are better with colours than I am. Okay, were you wearing those shorts last Sunday on the seventeenth of March?
A. No they are not mine.
Q. Okay. We were also looking for some light coloured shoes.
A. Yeah.
Q. Right. Do you remember what shoes you were wearing on that Sunday, the seventeenth of March?
A. No.
Q. You can't remember?
A. I think I was wearing like, white slip on.
Q. Where are those white slip on's now?
A. I don't think ‑ I think I ripped a hole in them, I think and chucked them out.'
These responses by TB on my assessment are examples of him being deliberately evasive.
Later in the night, and on the resumption after a break in the interview, TB was told by the Police that they had spoken with EHW. When TB was asked if he knew EHW he said 'who's that?'. Again, that was TB being deliberately evasive.
Further upon the resumption of the interview, TB was asked a very long, fact filled question occupying 21 lines in the transcript, to which he answered 'yeah, nothing of that is true'. Included in the question was mention that EHW had told Police that DVH assaulted Mr Litchfield. Clearly DVH did hit Mr Litchfield before Mr Litchfield ran on to Pinjarra Road. I have no doubt that TB well knew that that had happened. On his own admission he was standing next to DVH when Mr Litchfield slapped him across the back of the head. Accepting the evidence of EHW and JJW, it was immediately after that that DVH punched Mr Litchfield, although JJW did not see it connect. Despite all of that, I do not use TB's answer against him in any way because that particular factual issue of DVH assaulting Mr Litchfield was so buried in the question that it would be dangerous to do so [111] ‑ [133].
TB's three 'starnet' telephone calls
The primary judge summarised two of the three 'starnet' telephone calls made by TB while he was in custody on remand, as follows:
I now turn to refer to and comment on some of the starnet calls, being recorded telephone calls between TB and another or others when TB was on remand in custody at Banksia Hill Detention Centre. On 1 April 2013, TB had the following conversation:
'R Are they goin' witness against youse?
TBYeah.
RFuckin' little maggots.
TBYeah. That's happened to the one that kicked his head in, too.
RWho?
TB[J].
RUnna?
TBYeah.
RLittle dogs, hey.
TBYeah. I wonder what [JJW] said to the [indistinct].
RYeah. He's not even in the [indistinct].
TBNo, he's not. But then again, he done nothin'. But wonder what he said he seen?
RYeah, unna?
TBHe might have said he seen us three kick his head in.
RMmm.
TBHe's a [c---]. If he did he's a dog, too, and [indistinct].'
There are two parts of this conversation, each of which requires separate comment. The first part concerns TB's response 'yeah. That's happened to the one that kicked his head in, too'. That, of course, is not evidence that could be used at all against any other accused. That said, it is admissible in the case of TB because it goes to his state of knowledge of what happened to Mr Litchfield.
The second part of the conversation concerns what JJW may have said to the Police. The State rely on TB's statement 'he might have said he seen us three kick his head in' in the context of what was said, as an admission by TB that he kicked Mr Litchfield in the head. In my view this statement by TB is not an unequivocal admission. TB may be speculating on what someone else, albeit someone else who was present at the scene, may have said to the Police. People can and do tell the Police things that are not true. What TB said, is in my view, not necessarily an unequivocal admission of the truth of the content of what he said. Accordingly, I will not use this piece of evidence adverse to TB at all or in any way at all. In short, I will ignore it.
There is a second starnet call relied on by the State. On 30 April 2013 TB had a conversation with a to be identified female as follows:
'TB And they still, they still charged us and we never ever done it.
TBIFI know, when he done it to himself.
TBYeah.
TBIFAnd what they don't realise is when someone falls off so high and they don't try and stop themselves, you can do damage to your own fucking head.
TBYeah.
TBIFAnd he fell on fucking cement, it's not like he fell on fucking grass.
TBYeah.
TBIFIf he fell on grass it would have been fucking different.
TBMmm.
TBIFMm. But yeah. And so I'll put this on ten or eleven?
TBI mean, the fellow, if the fellow was a black fellow, but he would have gotten up.
TBIFOh.
TBBecause he didn't even look that bad, he was looking around at us. He was moving his head looking at us.
TBIFYeah.
TBAnd I was saying, get up, get up, but he wouldn't get up. And so yeah' [134] ‑ [137].
The evidence of JJW
The primary judge summarised in his reasons the evidence given by JJW:
[JJW is] now 17 years old. He was also a member of the group of nine young people, including the five defendants, who attended the Crab Fest in Mandurah. He was also part of the whole group that met up with Mr Litchfield on Pinjarra Road.
JJW is related to two of the other boys in the group. AU is a second cousin and both DVH and EW are first cousins. JJW gave the following evidence.
JJW gave evidence that when the group was on the western side, ie the ocean side of the Old Mandurah Bridge, that all of the group went to the IGA store and that none of them stayed at the skate park. That was obviously wrong but on my overall assessment of the evidence, nothing turns on it. He remembered Mr Litchfield walking with the group on Pinjarra Road. He recalled that Mr Litchfield was wearing a blue shirt, thongs and a hat. He said that Mr Litchfield was in a good mood and was staggering.
JJW said that he and AU spoke to Mr Litchfield about smokes. Mr Litchfield told them that he had no smokes. JJW also said in cross‑examination that when he and AU were asking Mr Litchfield for smokes, both JR and EW were touching Mr Litchfield's pockets. JJW recalled that Mr Litchfield said 'don't touch me please' to 'all of us'. He said that in response to Mr Litchfield saying that, 'we' started walking faster.
I am not sure in particular who 'we' was a reference to, but he said that the pick pocketing did not stop and that he and AU got away from Mr Litchfield. Later in cross‑examination he expanded on that when he agreed with counsel for JR, that he was walking in front of Mr Litchfield. It was in that context that he said that he did not see JR try to take anything from Mr Litchfield's pockets.
In the context of JJW's evidence, it was after all of that, and when he was about 100 metres up the road, that he saw Mr Litchfield hit, like a smack, DVH to the back of his head with an open hand. He added that it 'just rocked his [DVH's] head'. He said that this 'just made DVH angry', which upon objection by counsel for DVH, he changed to 'made him [DVH] retaliate'.
JJW said that when Mr Litchfield smacked DVH, that Mr Litchfield also said 'fuck off, get away'. JJW also said that after Mr Litchfield smacked DVH, that 'then he [DVH] started harassing him, yeah, like attacking him'. He said that he saw DVH throw a punch at Mr Litchfield's head, he thought his face, but that he did not see it connect. He said that he saw that when he was still running down the road 'trying to stop him [DVH]' and 'from them attacking him [Mr Litchfield]'.
JJW said that it was DVH, EW and TB who were attacking Mr Litchfield and no one else. He described TB as 'like, a little friend of ours'. He went on to say that the others were down there and indirectly identified the others as those other than him, AU and EHW. He described the position of the others relative to the position of DVH, EW, and TB as 'just there'. He said that 'they wasn't hitting him or nothing like that, yeah…just trying to steal stuff off him'.
There was an objection to the reference to 'trying to steal stuff off him' but really that needed to stay in evidence simply and only for the purpose of understanding that JJW was saying that they were doing something but that the something did not involve or include hitting Mr Litchfield.
JJW said that the attack on Mr Litchfield happened on the footpath. He said that Mr Litchfield remained standing. He then observed Mr Litchfield run to the middle of the road and 'DVH' and 'most of them boys' go on the road. He said that he did not see anyone not go on to the road. He said that DVH went on to the road and towards Mr Litchfield.
JJW accepted in cross‑examination that he had stated in his police statement that most of the boys were not on the road. He gave evidence that he meant 'most of them was on the road' and that he cannot remember saying to the police that 'most of them wasn't on the road'.
JJW gave evidence that when this part of the incident was happening that he was still up the road with AU and EHW. He did not see how close DVH got to Mr Litchfield and he did not see DVH or any of the others do anything to Mr Litchfield.
JJW gave evidence that when Mr Litchfield was in the middle of the road 'he was swearing at us ‑ swearing at them, yeah', 'yeah, like tell them to stop'. When JJW was asked how many times Mr Litchfield said that, he replied 'good enough'. He said that Mr Litchfield 'kept saying' it.
JJW recalled observing Mr Litchfield put his arms up in front of himself and holding both palms forward, indicating 'like stop', when he was walking back towards the north side of Pinjarra Road. JJW observed this when he looked back from about 100 metres up the road. In cross‑examination JJW was asked how come he was 100 metres up the road? He replied as follows:
'Good. You were a hundred metres up the road, you said, didn't you?---Yeah.
How come you were a hundred metres up the road?---Cos I knew they was going ‑ like, touching him and that ‑ touching him, like, in a bad way and then do something like this.'
But touching the pockets?---Yeah.
All right. And then you've shot through, have you? You've run up the road?---well, started ‑ started walking faster, yeah.
When JJW was also asked in cross‑examination what made him turn around and look back, he replied 'shouting ‑ heard them ‑ help it ‑ heard people shouting behind'.
JJW was asked in cross‑examination what he did and saw when he turned around. He was asked and replied as follows:
'What did you do yourself? Like, when you turned around, what did‑‑‑I just stood there, like, look at these dumb fucks here.
And how long after you turned around and you looked did you see the ‑ the man ‑ the deceased man run?---I seen him like ‑ I seen him‑ not ‑ not running yet but I just standed up there waited for a bit, so ‑ that's when I seen the boys started like ‑ seen ‑ seen [DVH] swinging but don't know if it connected him or not.'
When JJW was asked whether Mr Litchfield stayed on the road he replied 'no, he took off running… to a building with a car park' and that the boys went 'running', 'chasing him'. He identified the boys who chased Mr Litchfield as DVH, TB, JR, HCJ and EW.
JJW said that the boys were on the footpath when Mr Litchfield ran from them. When asked whether anything happened in relation to the bush located around where Mr Litchfield ran from the boys, he replied 'not that I know of'. He then said that he did not see anyone in the bush. This was a reference to the bush near the Aussie Home Loans sign.
JJW said that he and AU started to run 'after them' because BS had come running up to him and called out his name. He also said that he ran because he wanted to try and stop 'them' from chasing Mr Litchfield.
In JJW's evidence in chief he put an 'X' on a large aerial map of the Mandurah area relevant to this case. He indicated that the 'X' represented how far east he went on Pinjarra Road before he ran back down after Mr Litchfield had run on to the road. In cross‑examination, on the factual issue of him running after the boys who were chasing Mr Litchfield, he was asked and replied as follows:
'Corish, Mr: And you remember putting an "X" on that ‑ that map of the big Mandurah area?---Yeah.
And that's as far as you got before you turned around and saw people running. Is that right?---Yeah.
And if you're not sure about something, please just say so. Okay?‑‑‑Pardon? Say that again?
That's ‑ that "X" you put on the big map ‑ ‑ ?---Yeah.
‑ ‑ ‑ that's as far as you got?---Yeah.
All right. And you left that point when you saw people running. Is that right?---Yeah.
And did you run back ‑ back down the hill?---Yeah. Once [BS] come and told me.
Sorry?---Once [BS] runned up towards me.
Did [BS] come and tell you something, did he?---Yeah.
All right?---Not told me but he, like, shouted my name.
All right. And then did you start running?---Pardon?
Then did you start running down the hill?---Yeah.
Or walking down the hill?---Started running.
All right. Full speed?---Good enough, yeah.
All right. Were you trying to catch up with the other boys who were running?---Yeah.
Did you catch up with them?---Nah.
No. Were you trying to hang back so you weren't with the boys who were running?---Nah.
All right. Did they appear to you to be running fast or running slow?---Pardon?
The boys who were running, who you say you could see running, did they appear to be running fast or running slow?---Probably their pace or a bit faster.
All right. Same speed as you or faster than you or slower than you?---I don't know. I'm not them, yeah.
Yes. Well, you could see them, couldn't you?---Yeah, I could just ‑ yeah.
Were you catching them?---Nah.
No. So did you run full speed down the hill or you just jogged down the hill?---I run good enough, yeah.
Is that full speed?---Nah.
You were just jogging down ‑ ‑ ‑ ?---Yeah, full ‑ full speed, I started running, yeah.
All right. Were you trying to catch up with them?---Yeah.
All right. You caught up with them when they were down in the car park [sic] ‑ car park where the white man was laying on his back, that that right?---That's right.
These responses are consistent with what JJW said in his examination in chief when he was asked whether he caught them, and he replied 'not fast enough'.
JJW positioned both EHW and BS as being up the road after he and AU had run after the boys. He said that both EHW and BS only walked half way down (ie half way down from where they were towards the Taubmans Paints car park where Mr Litchfield came to rest) and that EHW and BS met up with the others when the others came back up from the car park. Given how JJW explained this part of the incident, both JJW and AU would have also run back from the Taubmans car park area to meet up again with EHW and BS further east up Pinjarra Road.
In JJW's evidence in chief, in relation to him running after the boys and what he saw, he was asked and replied as follows:
'Did they stop running?---Yeah.
When did they stop running?---When he fell, yeah.
Did you see him fall?---No.
So tell us, did you catch up to them after they stopped running?---Yeah.
And what did you see when you caught up to them?---I seen him laying on the ground.
Seen him laying on the ground?---Yeah.
Who?---That man.
And where was he lying on the ground?---The car park.
And how was he lying on the ground?---On his back, yeah.
On his back. Where were the boys that had run down there ---Standing round.
Was everybody standing in the same place?---As where, like?
Okay. That's ‑ you're right. Thank you [JJW]. You said the man was lying on his back in the car park?---Yeah.
Were there people standing in the car park?---Yeah.
Who?---[DVH], [TB], [HCJ] and [EW].
Where was [JR]?---He was standing up on the brick wall.
Standing up on the brick wall?---Yeah.
And where did you run to?---I was, I run too along the footpath, yeah.
Did you go into the car park at all?---No.
What about [AU]?---Nah.
I need to make that clear. Did [AU] run down on the footpath with you or some other way?---He run ‑ yeah, he run down the footpath with me. Yeah.
And did he go into the car park?---No.
What about [BS] and [EHW], where were they?---They was up the road.
Up the road. Did you ever see either of them come down when you and [AU] ran down?---No, they just walked halfway, I think yeah, and met up with them.
Okay. So when you saw that man lying on the road ‑ sorry; on the car park, was he awake?---I don't know, yeah.
How good a look did you have at him?---I just looked and, like "Let's go".
Pardon?---Panicking, yeah.
…
You panicked?---Yeah.
Did the man move?---Yeah.
How did he move?---Like, a bit.
Like, what did he move; what part?---His feet and his arms.
And did you see his eyes open?---Nah.
And ‑ ‑ ‑ ?---Too far from him.
Could you see any injuries on him?---No.
The other boys who were standing in the car park, did you see anyone touch the man?---[DVH].
What did he do?---Give him a kick.
Where did he give him a kick?---To the head.
Do you know what part of his head?---No.
Did it do anything to the man lying on the ground?---I don't know, like, yeah.
What did it do?---Just moved his head.
Made his head do what?---Move.
Are you able to say how hard that kick was?---No.
Was [DVH] wearing shoes?---Yes.'
Later in JJW's evidence in chief he said that when DVH kicked Mr Litchfield in the car park, he was coming down on the footpath and was about 10 metres away. When asked about the lighting and whether there were any cars going past when he says that he observed that, he said 'good enough, yeah'.
JJW was cross‑examined by counsel for DVH on this aspect of his evidence in chief. In cross‑examination he was asked and replied as follows:
'Did you actually get down to the car park when the boys were down in the car park?---Yeah.
How long did you say the boys were standing around in the car park for?---About ‑ before I got there?
Yes?---I don't know. About 15 ‑ 15, 20 seconds.
All right. You said in your evidence that you saw [DVH] kick the man while he was lying on his back in the car park area to the head somewhere. Is that right?---That's right.
You never got close enough to the man in the car park to see that. Correct or not correct?---No, I just like ‑ I was ‑ I was getting there.
You were getting there?---Yeah.'
JJW also gave evidence that other than him seeing DVH kick Mr Litchfield when Mr Litchfield was lying in the car park, he did not see anyone else touch Mr Litchfield when he was lying there.
…
JJW also gave evidence when cross‑examined by counsel for HCJ, that when he ran down towards the car park, he overtook HCJ on the footpath and got down there (ie to near the car park) before HCJ. JJW agreed that HCJ was separate from DVH, TB, JR and EW.
JJW also agreed with counsel for HCJ that he had previously told the Police that he saw EW, DVH and TB go over the wall and that he made no mention of HCJ doing so. Again, I must make it clear that what JJW told the Police is not admissible against any of EW, DVH and TB on this point and at all. So I do not use it at all against any of them. However, in relation to HCJ only, JJW agreed in evidence that HCJ did not go over the wall and that he could not remember if HCJ went near Mr Litchfield in the car park.
JJW gave evidence that when he was on the footpath near the car park, he told the boys 'lets go' and that he was swearing at them. He said that he panicked. He said that all of them started walking and then 'most of us run'. He said that he caught up with EHW and BS up on top of the hill. After that, all of the boys stuck together and went to the train station. The Mandurah train station is located east of the scene of this incident.
It is clear from all of the evidence that a phone that Mr Litchfield had in his possession on the night, came into the possession of EW. It is also clear from all of the evidence that when all of the members of the group later caught a train from the Mandurah train station, that when on the train they looked at photographs on Mr Litchfield's phone.
JJW in his evidence in chief said that JR had told him that he had pick pocketed the phone from Mr Litchfield's pocket. When cross‑examined by counsel for JR, JJW said that he did not see JR take anything from Mr Litchfield. He said that he saw JR pick the phone up from off the ground and not from Mr Litchfield's pocket. JJW said that JR later said 'who wants this phone?' and EW took it from him. In cross‑examination, JJW said that JR could have said 'who's phone is this?'.
I should also mention that when JJW was cross‑examined by counsel for HCJ he admitted that he initially lied to the Police on whether the members of the group got together at DVH's place after the incident and talked about it. Initially he told the Police that they did not. He now agrees that they did. He explained the lie on the basis that he was worried because he was the oldest [57] ‑ [90].
The primary judge found JJW to have been 'a credible witness and generally reliable' [108].
The evidence of EHW
The primary judge summarised in his reasons the evidence given by EHW:
EHW is now 17 years of age. He was a member of the group of nine young people, including the five defendants, who went to the Crab Fest in Mandurah.
It was obvious to me from EHW's demeanour and how he responded to some of the questioning that he felt under considerable pressure when he gave his evidence. That is not at all surprising in the circumstances. He was one of a group of young people who were socialising together on this day during the afternoon and into the night. If not good friends, they were at least associating together on a friendly basis. EHW had stayed at DVH's house the night before after they had been to a party. DVH is his cousin. Further to that, when he gave his evidence, AU was still a defendant in the hearing and AU is his nephew. EHW gave the following evidence.
Relatively soon after the nine members of the group began walking away from the Mandurah CBD area and in an easterly direction on Pinjarra Road, there were two groups. One was a group of seven in front and the other consisted of two behind that larger group, being JR and DVH. It is clear from what EHW said in combination with CCTV footage taken from Bridgestone Tyres located on the north west side of the intersection of Pinjarra Road and George Street, that by the time they all reached that location, all nine were walking together with Mr Litchfield.
EHW identified himself on the CCTV footage. Initially he was walking at the back of the group and it appears on the footage that he was using a phone. He gave evidence that he was using a phone to communicate with his girlfriend on Facebook. No issue was taken with that by any party. EHW gave evidence that as he walked in an easterly direction alongside Pinjarra Road his attention changed from time to time from the group and Mr Litchfield to communicating with his girlfriend on Facebook.
The relevant CCTV footage which shows the group and Mr Litchfield approaching George Street and then walking east of it, shows that various members of the group were moving about changing their relative positions. Indeed EHW can be seen to stop using his phone and move from the back of the group to merge in with the group by the time they got to George Street. Some members of the group may have stepped on to the road from time to time but essentially they all walked in an easterly direction on the footpath on the northern side of Pinjarra Road. EHW said that he did not remember seeing the Taubmans Paints premises on the north east corner of the intersection of Pinjarra Road and George Street from when he walked past it on the night in question.
EHW gave evidence that he saw DVH trying to pick pocket Mr Litchfield's back pocket. This happened near some bushes near an Aussie Home Loans sign. The location of these bushes, the sign and the premises of Aussie Home Loans can be seen in various photographs in evidence. The Aussie Home Loans business was located in the fourth building east of the Pinjarra Road and George Street intersection. The first building housed Taubmans Paints, the second, the Jaycar business, the third, the AutoWest business, and then the fourth building. Aussie Home Loans was the second business going from west to east in this fourth building.
By reference to EXHIBIT 12.3 which is an aerial photograph of the relevant section of Pinjarra Road showing various buildings and features, and which has a measurement scale on it, it can be easily concluded that this bush area is about 50 metres or so to the east of the wall in question which separated the Taubmans Paints and Jaycar premises.
EHW said that DVH put his hand in Mr Litchfield's back pocket. He said that most of the other boys were around when DVH did that. He was cross‑examined on this by counsel for DVH. During that cross‑examination he said that he saw DVH touch Mr Litchfield's pocket but not put his hand in Mr Litchfield's pocket. He then went on to say that DVH tried to pick pocket Mr Litchfield. The precise detail on this matter of fact does not really matter.
It was at this location near the bushes that EHW said that he saw Mr Litchfield slap DVH on the back of the head with an open palm. He said that the contact knocked DVH's head forward a bit. He then saw DVH hit Mr Litchfield pretty hard with a left closed fist to the jaw which knocked him back first in the bush. He said that he was about two to three metres away from DVH when DVH punched Mr Litchfield. He also indicated that the other boys were closer around Mr Litchfield, closer than he was, when DVH punched Mr Litchfield. He also said that EW was on the other side of DVH when DVH punched Mr Litchfield. EHW also said that he kept walking after DVH punched Mr Litchfield and that Mr Litchfield was awake and got back up after he had been punched.
EHW said that he, JJW and BS kept walking (in an easterly direction) after DVH had hit Mr Litchfield. While EHW was walking, at times he was communicating with his girlfriend on Facebook and at other times he was looking back to see what was happening. He indicated that he ended up walking to the next street corner east of George Street, which is the corner of Forrest Street and Pinjarra Road.
EHW went on to say that when Mr Litchfield got up from in the bush, he just ran, not that fast, across the road. There were a couple of cars on the road and he thinks that Mr Litchfield ran in front of a car.
EHW gave evidence that the rest of the boys, 'the rest of the six', followed Mr Litchfield and were in different places rather than altogether. He referred to six because he was further east with JJW and BS. The closest the boys got to Mr Litchfield was about two metres away from him. EHW gave evidence that Mr Litchfield went to just before the curb [sic], not the footpath (on the south side of Pinjarra Road).
EHW said that DVH and EW were shaping up to Mr Litchfield, like trying to fight him. He then said in his evidence in chief that EW was not shaping up to Mr Litchfield but rather just surrounding him. He limited the shaping up to DVH and indicated that by shaping up he meant putting two fists up. Later when cross‑examined by counsel for EW, EHW said that they were all shaping up to Mr Litchfield. He acknowledged that he did not mention in his police statement that EW shaped up. When cross‑examined by counsel for DVH, EHW said that he could not really remember if DVH put his fists up when Mr Litchfield walked towards DVH but also said that DVH did do that when he was around Mr Litchfield somewhere.
When EHW gave evidence on when Mr Litchfield was moving back to the north side of Pinjarra Road, he said that the boys were not on the (northern) footpath, and were spread out a bit. He said that Mr Litchfield was telling them to stop, 'just leave me alone'. He said that Mr Litchfield was just trying to keep himself up. He added that Mr Litchfield was a bit drunk.
EHW said that when Mr Litchfield came back across the road, he did so 'a bit down the road'. By that he obviously meant further west and towards the foreshore. He described Mr Litchfield coming back 'diagonally'. He gave evidence that no one touched anyone when they were on the road. When EHW said that Mr Litchfield ran 'diagonally', he was then asked 'did anyone else go there?' and he replied 'yeah, they followed him, chased him'. When asked 'who did?', he said, 'the boys'. At that time BS and JJW remained with him and AU also remained behind.
When EHW was asked in cross‑examination on whether the boys moved where Mr Litchfield came back over the road, he said that 'they were following him, yeah' and agreed that he saw them move down the road. Later in cross‑examination he agreed that when he first saw his friends start to run they did not all start to run at the same time and that some ran off and he said that some walked after. He later again in cross‑examination said that EW was one who walked not ran.
What EHW meant when he said 'some walked after' was not made clear to me but that does not matter in my overall assessment of the evidence. EHW said that when Mr Litchfield got back to his side of the road (ie the northern side), 'then when he got into the car park I said that there was a bush right there and I couldn't see behind that'. He explained that he meant the bushes near the Aussie Home Loans sign [40] ‑ [56]
The primary judge made the following observations about the credibility and reliability of EHW as a witness and the evidence he gave:
When considering the credibility and reliability of EHW as a witness and the evidence he gave, it is necessary to refer to and comment on some evidence he gave near the end of his cross-examination by counsel for DVH. EHW was being cross-examined on whether and when in particular he saw DVH put his fists up at Mr Litchfield. It reached the point where EHW said as follows:
'Okay?---Look, all I can remember is [DVH] hitting him, him falling, trying to get away, them boys coming back from the thing saying he fell over. That's all I can remember. '
Through no fault of anyone's, EHW gave that evidence at about 4:00 pm after he had spent much of the day in the witness box. Counsel for DVH was the fourth counsel in line to cross‑examine EHW. None of that could be helped other than by rest breaks which we had. It was very shortly after this evidence that I adjourned for the day at about 4:06 pm because EHW was showing signs of tiredness and extreme frustration.
EHW presented as an unsophisticated young person and so one who could be reasonably said would struggle with having to make distinctions on points of detail over a prolonged period of time. It was in the interests of justice for there to be a break at that point so that he could continue his evidence the next day freshened up.
At the beginning of the next morning of the hearing, counsel for DVH asked and EHW replied as follows:
'[EHW], I know it was a long day yesterday. I'm just going to ask you a few more questions. Okay?---Yeah.
All right. Towards the end of that long day; and I'm not being critical of you here for a moment, you, can I suggest, lost your ‑ your temper ever so slightly but gave a ‑ a very neat summary of what you remember. And I'm just going to remind you of what you said. Okay? I'm just going to read from the transcript. Is that okary?---Yeah.
All right. You said:
"Look, all I can remember is [DVH] hitting him, him falling, trying to get away, them boys coming back from the thing saying, 'He fell over'. That's all I can remember."
It might sound like an obvious lawyer's question, but firstly, do you remember saying those words yesterday?---Yeah.
All right. And that's correct, isn't it? That's all you can remember?‑‑‑Yeah.'
On my assessment of EHW's evidence, it is my firm view that he could and did accurately recall much more of the incident and the lead up to it and subsequent events than he said he did in the passage that I have now just referred to twice. That evidence was given out of extreme frustration. By the time he first gave it, he had just had enough and wanted to give up. His responses on the following morning simply but importantly show that his extreme frustration from the day before was irretrievable.
Early in counsel's cross‑examination of EHW, CCTV footage was shown of Mr Litchfield walking up Pinjarra Road with the nine boys in the group. It could be seen from the footage that Mr Litchfield was wearing shorts and a blue top. After the footage was played to EHW, the following exchanges were made:
'Okay. You can see a ‑ and I understand you said you can't remember what he was wearing, but you can see a person with a blue top there, is that right?---Yep.
Assuming that the colours on the CCTV footage are correctish, you can certainly see a blue coloured top?---Yeah.
Does that refresh your memory or ‑ or make your memory better about what the white guy was wearing?---Nah.
All right. Have you got any idea what he was wearing?---No, I can't remember.
Pants, clothes (inaudible)?---Can't remember.
Butt naked?---Can't remember.
All right. Are you saying you can't remember whether he was naked or not?---I don't know what he was wearing.
All right?---I can't remember.
He had clothes on?---Yeah, he had clothes on but I can't remember what he was wearing.
Right. What else ‑ I'll withdraw that. In your evidence you said he was staggering?---Yeah, he looked like he was a bit drunk.
So you remember that bit, you just can't remember whether he had clothes on or not?
FORRESTER, MS: No, that's not true.
REYNOLDS, CCJ: No, no, sorry.
THE WITNESS: I just can't remember what he was wearing, mate.
CORISH, MR: All right, okay. Describe how he was staggering for me?---Well, how would you stagger if you was drunk?
Did you understand my question, [EHW]?
FORRESTER, MS: (Indistinct).
…
Did you understand my question?---No.
I want you, in your own words, to describe what he was doing when he was staggering?---Staggering.
Right?---Like anyone else would stagger when they're a bit drunk.'
Clearly the factual issue that counsel wanted to canvas was EHW's evidence that Mr Litchfield was staggering. That said, I am not sure what the purpose was to put to or ask EHW whether Mr Litchfield was 'butt naked'. EHW's answer to that question of 'can't remember' taken in the context of what was asked and replied immediately before and after, very clearly shows that EHW was simply saying that he could not remember what Mr Litchfield was wearing. It is against that background that counsel then put to EHW 'so you can remember that bit, you just can't remember whether he had clothes on or not'. EHW was clearly not suggesting that he could not remember whether Mr Litchfield had clothes on or not.
The point that I wish to make from this, is that EHW became extremely frustrated with counsel and the cross‑examination very early on. That was obvious from EHW's demeanour. I am in no way being critical of anyone, including counsel, but rather just stating the fact based on my overall assessment.
After EHW was then cross‑examined on his evidence that Mr Litchfield was staggering, the following exchanges were had by counsel and EHW:
'There was only one white guy amongst your ‑ your ‑ that group of people as you walked along Pinjarra ‑ Pinjarra Road, is that right?‑‑‑Yep.
Yep?---Mm hmm.
All right. He was the guy with the bright blue shirt on, wasn't he?‑‑‑That's what you reckon.
So you ‑ are you prepared to answer my questions, or listen to my questions and answer them, [EHW]?---Yeah.
Or do you want to have a break?---But I told you I can't remember what he was wearing, didn't I?
All right. But you remember this white guy staggering?---Mm.'
In my view those exchanges lend further support to my assessment that EHW was extremely frustrated.
Further, on my assessment, EHW's extreme frustration was certainly maintained, if not made worse, after the following exchanges between counsel and EHW on the factual issue of pick pocketing:
'[DVH] touches the white man's back pocket. What's the next thing that happens?---He feels him touching his back pocket.
Well, is that you just reading someone's mind or guessing?---Well, what if someone touched you on the back pocket? Would you feel it?
Is that ‑ I mean, you've just given evidence about what the ‑ what ‑ the white man could feel?---Yeah. He obviously ‑ ‑ ‑
Are you just guessing that?---Nah. He obviously felt him touch it and when he felt him he slapped him on the back of the head.'
There is no issue on behalf of DVH that he was pick pocketing Mr Litchfield and that it immediately preceded Mr Litchfield smacking DVH to the back of the head. Anyway, that is the overwhelming evidence and there is nothing to the contrary. EHW clearly inferred that Mr Litchfield felt DVH at least attempting to pick pocket him. It is the only reasonable inference open. Indeed, even DVH said this himself in a telephone call on 9 July 2013 which was intercepted and recorded and which I will refer to in more detail later. It is against all of that, and by reference to EHW's demeanour and his responses that I have no doubt that EHW felt that counsel was being unnecessarily argumentative. Again, it is not a case of what counsel intended, but rather the effect on the witness which matters.
In addition to the specific instances, by the time EHW expressed the limited recollection of the incident as previously set out, he had been further challenged, albeit fairly on points of detail. As I have mentioned it is the effect on him which matters.
It also needs to be borne in mind that all of this is in addition to the pressure that EHW no doubt felt by reason of giving evidence in a case against his friends and/or associates.
Having made all of these observations and comments, I now wish to set out EHW's statement of limited recollection together with other things he said at the time, which in my view puts it in a context which both supports and confirms my view.
'The man. And where do you say that was?---On the road.
Whereabouts on the road?---On the other side.
Sorry?---On the other side.
On the other side of the road?---Or on this side.
On the Mercedes' side of the road?---Can't really remember.
Do you want to have a break, [EHW]?---No, I just want to get this over and done with.
Okay. Did you say it was on the other side of the road, the Mercedes' side of the road or the side of the road that you were on?---Mercedes' side.
All right. Well, that's not true at all, [EHW]. You just made that up?---No.
Correct or not correct?---Never made it up.
Okay?---Look, all I can remember is [DVH] hitting him, him falling, trying to get away, them boys coming back from the thing saying he fell over. That's all I can remember.
I understand that absolutely?---Yeah.
The white guy was on the other side of the road though, wasn't he?‑‑‑Yeah.
Only once, wasn't he?---Then he came back over.
Sorry? Only once, yes or not ‑ or no?---Yes and then he came back over.
Right. Came back over and was walking towards [DVH], is that right?---Think so.
Yes. Then there was some argument?---Yeah.
And then there was a chase?---Yeah.'
For all these reasons I find that EHW's recollection of the incident and related matters is not limited to the extent he expressed out of extreme frustration and wanting to bring his evidence to an end.
I note that EHW got the car parks of Taubmans Paints and Jaycar mixed up when he showed where Mr Litchfield came to rest. In my view that was a genuine mistake and of no significance [91] ‑ [107].
The primary judge's findings and comments in relation to TB
The primary judge found that TB deliberately lied to the police on a number of material matters of fact [140]. TB knew the truth of some material matters of fact and deliberately stated untruths in relation to them [140]. His Honour described TB's lies as follows:
First, TB stated that Mr Litchfield slapped the boy who asked for a cigarette. TB was there and on his own admission he was next to DVH. I have no doubt that he would have known that DVH was trying to pick pocket Mr Litchfield. DVH was not asking for a cigarette. I accept JJW's evidence that Mr Litchfield had earlier said to all of them, 'don't touch me please'. I have no doubt that TB would have heard that. I also have no doubt that TB would have also heard Mr Litchfield tell DVH to 'fuck off, get away' as JJW also said. I also accept JJW's evidence that TB also attacked Mr Litchfield, together with DVH and EW, after Mr Litchfield slapped DVH. This is not an instance of TB exercising his right to silence and refusing to say why Mr Litchfield slapped DVH. He positively lied about it rather than tell the truth which would have revealed a wrongdoing by DVH, a member of the group.
Secondly, I find that TB deliberately lied when he said on several occasions that he stopped with three other boys at the top of the ledge and checked out Mr Litchfield before they then all jumped down into the car park to have a closer look.
The combination of the aerial photograph of the scene with the measurement scale, EXHIBIT 12.3, and the CCTV footage from Jaycar and Bridgestone Tyres, EXHIBIT 20, shows that four boys were chasing Mr Litchfield at speed proximate to their approach to the ledge, within about 10 metres or so, and that Mr Litchfield went over the ledge at speed with one boy following very close behind him, and then both of them closely followed by another two, and then another one.
Further to all of that, the enhanced Bridgestone CCTV footage, by itself, does not show four boys standing on the high side at the ledge looking at Mr Litchfield lying down in the car park below. While the quality of this footage is poor, it does show two boys standing on the high side at the ledge, and who were obviously looking at the boys in the car park below near Mr Litchfield. If the CCTV footage showed that, then it would have shown TB and three others standing in that same position on the high side at the ledge if that had actually happened.
There is simply no reasonable possibility at all that TB and three other boys stopped on the high side of the ledge and paused to check out Mr Litchfield after he had landed, before then going down into the car park to have a closer look.
The State does not rely on lies of TB as 'Edwards Lies' that go to establish a consciousness of guilt on the part of TB. Rather, the State simply but importantly seeks to rely on lies told by TB as credibility lies. I approach my consideration of the evidence on that basis.
On my assessment of TB's recorded interview, he clearly admits chasing Mr Litchfield. He admits grabbing Mr Litchfield's shirt when Mr Litchfield was running away from him and others. He also admits that this did not happen within five metres or so of the ledge but rather some 20 to 30 metres further up Pinjarra Road at or about the bushes.
What TB also does, is to seek to give an explanation on why he chased Mr Litchfield. The explanation was to try and stop Mr Litchfield from falling over the ledge or going over the ledge and then falling over. I positively reject that explanation. It is blatant nonsense and a complete fabrication. TB presented to me as having no credibility and reliability at all in relation to the exculpatory statements he made.
It is well established that the fact finder, whether it be in a hearing by judge alone or in a trial by judge and jury, can accept some part or parts of what a person says and reject another or other parts. It is not necessarily an all or nothing thing.
It can be noted that I have used evidence of both EHW and JJW in combination on the factual issue of DVH pick pocketing Mr Litchfield and Mr Litchfield complaining about that aloud and slapping DVH when TB on his own admission was positioned right next to DVH, to find that TB told a lie in his recorded interview with the Police [141] ‑ [150].
The primary judge's findings as to TB's interaction with Mr Litchfield
The primary judge said that, in addition to his finding that TB had admitted in his video‑recorded interview that he had chased Mr Litchfield, his Honour was also satisfied beyond reasonable doubt, on the basis of all of the other evidence which was admissible generally against all of the accused, that TB had chased Mr Litchfield [151]. The relevant evidence included the CCTV footage, various photographs and the evidence of Mr Dawson, Ms Bell, Mr Kerry, JJW and EHW. His Honour elaborated:
I accept the evidence of JJW generally and in particular that, TB was one of the boys who attacked Mr Litchfield, as he described it, after Mr Litchfield smacked DVH and DVH then threw a punch at Mr Litchfield. I also accept JJW's evidence that TB was one of the four boys, as he ultimately said, who chased Mr Litchfield. I should also add that I am also satisfied beyond a reasonable doubt that JJW had accurately identified each of DVH, JR and EW as the other three boys, who with TB, chased Mr Litchfield [153].
DVH's 'starnet' telephone calls
The primary judge summarised various 'starnet' telephone calls made by DVH while he was in custody on remand, as follows:
The conversation in a call made on 18 May 2013 included as follows:
'D No, he, he snapped me in the head, dud, I got up. I said, hey, mother fucker. Whack boy.
TBIM3[indistinct] you dumb [c---].
DPut him asleep, dud. When he was asleep I was sitting there stomping his head in.
TBIM3No.
DBut, yeah, that's when he jumped up and running of cliff. Oi.'
The conversation in a call made 25 May 2013 included as follows:
'TBIM2 Why, what happened that night?
DFucking, no, he ‑ he slapped me in the head and then ‑ yeah.
TBIM2Was that you bonding?
DNo, I only hit him once and then he was out.
TBIM2He was out.
DI don't know. But, then, yeah, he woke up brother starting shitting, took off running off a fucking cliff thing. Smashed his head then (indistinct).'
The conversation in a call made on 9 July 2013 included as follows:
'TBIM5 Fuck, ay. Well, youse went down to Crab Fest, ay?
DYeah.
TBIM5Yeah.
DAnd like, he come walkin' outta IGA, you know? Nah. I was tryina pickpocket him.
TBIM5At the skate park there?
DNah. You know where IGA is?
TBIM5Aw, in Silbersands.
DYeah. Along Pinjarra Road there.
TBIM5Yeah, yeah. I know what you mean.
DYeah. Fuckin' ‑ I was like walkin' along there [indistinct], and then my nigger ‑ fuckin' ‑ next thing I know [indistinct] he come walk' outta IGA an' all. And like, after that there like I was walkin' behind him tryina pickpocket him 'n shit.
TBIM5Yeah.
DHe felt it boy, turned around, ahh, just like, slapped me in the head n' all.
TBIM5Yeah.
DI was all dazed you know. And then ‑ ‑ ‑
TBIF2Hello, my darling.
DAnd then fucking ‑ ‑ ‑
TBIF2Hello?
DAnd then fuckin' ‑ ‑ ‑
TBIF2Hello?
DI just punched him in the jaw and all n' put him to sleep, you know?
TBIF2Who you talkin' to?
DI was talkin' to [R] there, man.
TBIF2[indistinct] say hello and I'll pass back to him.
DYeah. [indistinct] knocked him out.
TBIM5Yeah, yeah.
DAnd like ‑ yeah ‑ like, all I did was like ‑ ‑ ‑
TBIM5What, you put him to sleep?
DYeah. That's all. And then, like, because I was still dazed a bit, you know, I was angry ‑ just like kicked him in the head, boy.
TBIM5Yeah.
DAnd then he fell off the fuckin' ‑ ‑ ‑
TBIM5Yeah. It woul-it woulda happened hell fast, ay?
DYeah.
TBIM5Yeah, man.
DThen I ‑ when he got up, you know, he took off runnin' and fell off like, a ledge [c---] ‑ ‑ ‑
TBIM5Aw, no.
DCar park ledge thing, boy ‑ big wall.
TBIM5Yeah.
DLike, split his head n' that shit.
TBIM5Yeah. So that's what ‑ that's what really made that happen, hey?
DYeah.
TBIM5Yeah.
D[indistinct] you know, he was still alive, you know? But all he had was a serious concussion and bleeding ‑ internal bleeding of the brain [221] ‑ [223].'
DVH did not admit in any of the 'starnet' calls that he had chased Mr Litchfield.
The primary judge's findings and comments in relation to DVH including DVH's interaction with Mr Litchfield
The primary judge summarised other evidence in relation to DVH which his Honour accepted beyond reasonable doubt:
EHW said that DVH was trying to pick pocket Mr Litchfield near some bushes near an Aussie Home Loans sign. He also said that DVH punched Mr Litchfield. Apart from the specific location where that occurred, DVH admitted that. EHW also said and I accept that DVH went on to the road towards Mr Litchfield and shaped up to Mr Litchfield. Brodie Kerry's evidence supports that and I am satisfied beyond reasonable doubt on that fact. I have already explained why I find that EHW recalled more than what he limited himself to when he was cross‑examined by counsel for DVH and that can be taken as repeated.
I also accept the evidence of JJW that, (1) Mr Litchfield's smack to DVH's head made DVH retaliate straight away, and (2) following on from that DVH was attacking Mr Litchfield, as he described it, with EW and TB, and (3) when Mr Litchfield returned to the northern side of the road he was swearing at them and telling them to stop and held his arms up with his palms forward and (4) then DVH swung at Mr Litchfield but JJW does not know if it connected, and (5) that DVH was one of the four boys who chased Mr Litchfield to the west, and (6) that DVH kicked Mr Litchfield to the head when Mr Litchfield was lying in the car park after he fell. I find that JJW had a clear view of this and that he was only a short distance away, about ten metres, when he observed it. He was crossed examined on this factual issue and on my assessment he reliably maintained his position on it.
There is a particular factual issue on the evidence in relation to DVH which I need to address. There is oral evidence and CCTV footage that DVH broke away from the group and sat on a seat near Pronto's, well west of George Street. While sitting there, Mr Litchfield walked past. Shortly after DVH got up and continued walking and eventually caught up with Mr Litchfield and others in the group. Before he got up, JR, who had also broken away from the group, caught up with him at the seat. They then both walked off together to rejoin the rest of the group. The State has submitted that DVH had a sinister reason for waiting behind for Mr Litchfield to go past. On my assessment of the evidence, it would also be reasonably open to infer that DVH was simply waiting for JR. Accordingly, I do not draw any adverse inference against DVH that he had any sinister motive for waiting behind until Mr Litchfield went past.
The evidence of EHW and JJW, and particularly the evidence of JJW in combination with the CCTV footage from Mercedes Benz and Jaycar, supports the finding, which I make, that DVH was one of the first three boys seen chasing close behind Mr Litchfield when they all ran west past the entrance to Jaycar on the Jaycar car park and towards the wall. I should add that DVH was no doubt one of those four boys and that his clothing did not match the clothing of the fourth boy chasing Mr Litchfield, who I am satisfied was TB.
I should add to all of this, that on the whole of the evidence admissible against DVH, which necessarily does not include any of the interviews and starnet calls of the other accused, the evidence is overwhelming that DVH chased Mr Litchfield and also, that in relation to this incident, he was the instigator and main protagonist [225] - [229].
The primary judge concluded that, on the whole of the evidence admissible against DVH (which did not include any of the interviews and 'starnet' calls of the other accused), the evidence was 'overwhelming' that DVH had chased Mr Litchfield and, also, that in relation to the incident, DVH was 'the instigator and main protagonist' [229].
The primary judge's analysis of s 272 of the Code and his application of s 272 to the evidence
Section 272 of the Code provides:
A person who, by threats or intimidation of any kind, or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him.
The primary judge said that the questions arising from s 272 which had to be answered separately in relation to each accused were as follows. First, did the accused threaten or intimidate Mr Litchfield? Secondly, if yes to the first question, did the threat or intimidation cause Mr Litchfield to do an act? Thirdly, if yes to the second question, did the act result in Mr Litchfield's death [250]?
Before addressing each of those questions in relation to each accused, the primary judge made the following 'general comments' about 'when Mr Litchfield was walking with the group [in an easterly direction] on the northern side of Pinjarra Road before he reacted to DVH pickpocketing him' [254]:
In my view, walking alone at night with no or few other members of the public about and being surrounded by nine strangers who were all together in the one group, with one or more of them moving around you, asking you for something, arguing with you, touching you, and in particular touching your pocket(s), generally closing down your personal space, being persistent about it, would, objectively speaking, be very threatening and intimidating. Mr Litchfield was in that situation [255].
The primary judge's reasons: the first and second questions arising from s 272 and their application in relation to TB
As to the first question arising from s 272, the primary judge repeated his finding that TB chased Mr Litchfield [266]. His Honour then elaborated:
[TB chased Mr Litchfield] against a background of knowing that, (1) and by reference to the evidence of JJW, that he, DVH and EW had attacked Mr Litchfield, in the way that JJW described attacking, and (2) that Mr Litchfield had run away across the road to obviously escape being attacked, and (3) that DVH was continuing to threaten Mr Litchfield by shaping up to him when he was crossing back over the road to [the] north side of Pinjarra Road, and (4) that Mr Litchfield was seriously outnumbered.
I find beyond reasonable doubt that TB chasing Mr Litchfield against that background of circumstances was clearly threatening and intimidating. Further, Mr Litchfield's level of fear would have been further escalated or at least maintained by TB grabbing his shirt when he had started to run away and then chasing him from close behind and at speed and in company [267] ‑ [268].
As to the second question arising from s 272, the primary judge repeated 'everything [he had] just mentioned in the answer to [the first] question' in relation to TB [269]. His Honour added that, on a separate consideration of TB's case, he made 'the same findings on [the second] question … for TB as [he] did in the case of JR' [270]. The relevant findings in the case of JR were these:
1. Did JR threaten or intimidate Mr Litchfield?
257.I repeat my finding that JR chased Mr Litchfield. He did so against the background of knowing, (1) that DVH had tried to pick pocket Mr Litchfield, and (2) that DVH had punched Mr Litchfield, and (3) that DVH had kicked Mr Litchfield to the head and chest, and (4) that Mr Litchfield had run across the road to obviously escape being assaulted, and (5) he had no doubt observed DVH shaping up to Mr Litchfield and thereby continue to be threatening towards Mr Litchfield when he came back across the road, and (6) that Mr Litchfield was seriously outnumbered.
258. I find beyond reasonable doubt that JR chasing Mr Litchfield against that background of circumstances was clearly threatening and intimidating. Further, Mr Litchfield's level of fear would have been further escalated or at least maintained by JR knowingly trying to grab him when he had started to run away and then chasing him from close behind and at speed and in company.
2.Did JR's threatening or intimidating behaviour cause Mr Litchfield to run and go over the wall?
259I repeat everything just mentioned in the answer to question 1.
260I am satisfied beyond reasonable doubt that Mr Litchfield's level of fear for his own safety and wellbeing would have been extreme. Further, I am satisfied beyond reasonable doubt that it would have caused him to continue to run as fast as he could and to go over the wall to try and escape.
The primary judge's reasons: the first and second questions arising from s 272 and their application in relation to DVH
As to the first question arising from s 272, the primary judge repeated his finding that DVH chased Mr Litchfield [271]. His Honour then elaborated:
[DVH chased Mr Litchfield] against the background of knowing, (1) everything he did that forms part of the evidence against him in this case and which I have accepted beyond reasonable doubt, including his own admissions in the startnet calls on what he did to Mr Litchfield, and (2) that Mr Litchfield had run away across the road to obviously escape being assaulted, and (3) that Mr Litchfield was seriously outnumbered [272].
It is plain, on a fair reading of the primary judge's reasons as a whole, that his Honour was satisfied beyond reasonable doubt that DVH's conduct in chasing Mr Litchfield, against the relevant background circumstances, was threatening and intimidating. See, in particular, [225] ‑ [226], [228] ‑ [229], [292] ‑ [293], [295] and his Honour's conclusion on the first question in relation to each of the other accused who were convicted.
As to the second question arising from s 272, the primary judge repeated 'everything [he had] just mentioned in answer to [the first] question' in relation to DVH [273]. His Honour added that, on a separate consideration of DVH's case, he made 'the same findings on [the second] question … for DVH as [he] did in the case of JR' [274]. See, in relation to JR, [257] ‑ [260] of his Honour's reasons, which I have reproduced at [54] above.
The primary judge's further conclusion on the second question in relation to each of the accused who were convicted
The primary judge reached the following further conclusion on the second question in relation to each of the accused who were convicted:
[C]onsidering each defendant's case separately by taking into account my answers to questions 1 and 2 for each of them, but only in their own case, and then adding the factor that each of them was in the company of three others, I arrive at the same conclusion for each and every one of them. That is, that his threatening and intimidating behaviour was of such a high level of seriousness that it would have instilled in Mr Litchfield an extreme level of fear such that it caused him to run away as fast as he could and to decide that going over the wall was both necessary and reasonable [293].
The primary judge's reasons: the third question arising from s 272
Next, the primary judge dealt with the third question arising from s 272, namely did the act (referred to in the second question) result in Mr Litchfield's death?
The State adduced extensive medical evidence at the trial. The medical experts gave evidence that Mr Litchfield had suffered a traumatic brain injury. The primary judge commented that there 'was really no issue taken by any party at the hearing on the cause of death in the medical sense' [287]. His Honour was satisfied beyond reasonable doubt that 'Mr Litchfield's traumatic brain injury which caused his death was caused solely by him hitting the left side of his head on the bitumen surface of the car park when he fell after going over the wall' [287]. His death was not 'caused or contributed [to] by any punching or kicking' [287].
The critical issue for the primary judge was whether 'the State has proved beyond reasonable doubt that there is causation in the legal sense such that a person should be criminally liable' [287].
The primary judge said there was 'a circumstance common to each … of [JR, EW, TB and DVH]', namely 'that he chased Mr Litchfield in the company of three others' [292]. In his Honour's view, '[o]utnumbering Mr Litchfield to that extent is … particularly significant' [292]. A little later his Honour said:
Mr Litchfield had abrasions on four toes of one foot and there was a blood stain of Mr Litchfield on the top of the wall about where he went over. He may have tripped on the top of the wall as he went over. In my view, whether he tripped or not when he went over the wall does not matter on causation at all [294].
The primary judge's ultimate conclusion on causation
The primary judge was satisfied beyond reasonable doubt that the State had established causation in its case against each of JR, EW, TB and DVH [295].
The primary judge's reasons: s 279(1)(c) and s 23B(2) of the Code
At the trial the State relied on s 279(1)(c) of the Code. By that provision, a person is guilty of murder if the person 'unlawfully kills' another person and the death is caused by means of 'an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life'.
The primary judge noted that a killing is unlawful if it is not authorised, justified or excused by law [297].
The primary judge then referred to s 23B(2) of the Code, which provides that a person is not criminally responsible for 'an event which occurs by accident'.
At the trial each of JR, EW, TB and DVH sought to invoke s 23B(2). The primary judge said that the State could disprove accident 'if it proves either that, subjectively, the accused intended or foresaw the event in question as a possible outcome or that, objectively, the event would reasonably have been foreseen by an ordinary person as a possible outcome (excluding, [in] each case, possibilities that are no more than remote and speculative)' [299]. His Honour then said that, in each case, 'the event', in the context of accident, was Mr Litchfield's death [299]. The event was not 'the way or mechanism of Mr Litchfield's death' [299].
Next, the primary judge summarised the State's case against each accused based on s 279(1)(c) and s 23B(2):
In each case, the State does not assert that the particular defendant intended to kill Mr Litchfield. It is asserted that he foresaw death. Further and anyway, the State asserts that objectively, the death of Mr Litchfield would reasonably have been foreseen by an ordinary person as a possible outcome excluding possibilities that are no more than remote and speculative. When considering subjectively what the particular accused foresaw and objectively whether Mr Litchfield's death would reasonably have been foreseen by an ordinary person as a possible outcome excluding possibilities that are no more than remote and speculative, it is necessary to take into account the age and knowledge of the particular accused [300].
The primary judge's reasons: accident in relation to each of the accused
The primary judge found in the case of each accused that, objectively, Mr Litchfield's death would reasonably have been foreseen by an ordinary person of the accused's age as a possible outcome, excluding possibilities that were no more than remote and speculative [310], [316], [323], [329]. His Honour was not satisfied beyond reasonable doubt that, subjectively, any of the accused foresaw Mr Litchfield's death [307], [313], [320], [326].
The primary judge made the following comments about Mr Litchfield's intoxication:
The hospital did a blood alcohol test which returned a reading of .134 percent. I do not know when the test was taken or whether it was contaminated or the result was distorted in any way. I just do not know what I can properly make of it and so I put it aside when considering the case of each defendant. Anyway, it is the particular defendant's knowledge of Mr Litchfield's condition which is relevant [302].
A little later in his reasons, the primary judge said that the four accused who were convicted had engaged in threatening and intimidating behaviour against Mr Litchfield and:
Being outnumbered to that extent and in those circumstances would have been extremely frightening. Further to that, being chased by four boys would cause a person to run as fast as possible [309(6)]. (emphasis added)
I am satisfied, on my examination of the trial record (including the CCTV footage) and the primary judge's reasons, that his Honour was entitled to find that 'the circumstances' caused Mr Litchfield to run 'as fast as he could'. I am unable to detect any material error in his Honour's approach to fact‑finding or in his Honour's ultimate conclusion as to the speed at which Mr Litchfield ran.
I do not accept the assertion made on behalf of TB that it was necessary for the primary judge to be satisfied beyond reasonable doubt that Mr Litchfield was running 'as fast as he could'. His Honour's conclusion as to the speed at which Mr Litchfield was running (as distinct from the finding that he was running) was not, in my opinion, an indispensable link in the chain of reasoning towards guilt.
In any event, I am satisfied on my examination of the trial record (including the CCTV footage), in combination with the primary judge's findings of fact (which are either unchallenged or unsuccessfully challenged), that the only conclusion reasonably open on the evidence was that 'the circumstances' did in fact cause Mr Litchfield to run 'as fast as he could'. In other words, that fact was proved beyond reasonable doubt.
I turn now to counsel for TB's contention that the primary judge took into account 'inadmissible material', namely that 'death from brain injury caused by falling was a topic that has been given a lot of attention in the community over the last few years'.
The primary judge held in relation to each of the four accused who were convicted and in the context of his Honour's evaluation of the defence of accident:
I think that ordinary young people of [the accused's] age know that if a person falls over and hits his or her head on a hard surface, then they could sustain a brain injury and that brain injury could result in death. It is a topic that has been given a lot of attention in our community over the last few years [309(9)].
In Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228, the appellant was convicted of murder after a trial in the Supreme Court of Tasmania. The victim died from blood loss caused by a single knife wound to the neck and upper chest. The appellant, who was aged 21, inflicted the wound in the course of an altercation with the deceased about a packet of cigarettes. By s 157(1)(c) of the Criminal Code (Tas), 'culpable homicide' was murder if committed 'by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person'. The appellant's record of interview with police contained an admission that he realised that stabbing somebody in the upper part of the body might kill a person, but his evidence was that he was not sure where he hit the deceased with the knife. The trial judge instructed the jury that there was no evidence that the appellant knew 'that what he was doing was likely to cause death'. He did not direct the jury how to determine the appellant's state of knowledge nor did defence counsel seek such a direction. The Court of Criminal Appeal dismissed the appellant's appeal and his further appeal to the High Court was also dismissed. The High Court held that the appellant's state of knowledge could be proved by inference and that the trial judge was not obliged to direct the jury how it might determine his state of knowledge. Gaudron and McHugh JJ said:
Moreover, knowledge of the circumstances may often be inferred without proof of additional facts. Some or all of the circumstances may be so well known in a community or to a section of the community of which the accused is a member that it is open to a jury to conclude beyond a reasonable doubt that the accused knew of those circumstances. If a fact or circumstance is so well known that no reasonable person in the section or community would dispute it, a jury may safely infer that the accused knew it unless any denial by him raises a reasonable doubt about his or her knowledge. What facts or circumstances fall into this category will vary from one era to another and from one community to another. The category of such facts and circumstances will be as wide as the common experience of the relevant community of which the accused is a member and will expand as the frontiers of that community's general knowledge expands.
No doubt the category is narrower than the list of matters of which a court can take judicial notice. A judge called on to take judicial notice of a fact may have regard to any fact or matter that is within the knowledge of 'every well-informed person in Australia' (Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 806, per Evatt J. See also Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 196, per Dixon J). Furthermore, in an appropriate case, the judge may cause 'inquiries to be made by himself for his own information from sources to which it is proper for him to refer' (Commonwealth Shipping Representative v Peninsular & Oriental Branch Service [1923] AC 191 at 212, per Lord Sumner). When the issue is whether, in the absence of direct evidence, the jury can infer that the accused knew a particular fact or circumstance, however, the relevant community is that to which the accused belongs. The relevant knowledge of that community may be narrower or wider than that of well informed persons in Australia. If the accused is a doctor, for example, and the charge poses a medical issue, the Crown may prove the accused's knowledge by proving a fact or circumstance which no qualified practitioner could reasonably dispute. On the other hand, if the accused is a poorly educated youth in a remote area, the relevant body of knowledge will be that of youths of that class and may be much narrower than that of the general community [13] ‑ [14].
In the present case, counsel for the State submitted that 'an ordinary young person of [the age of TB and DVH] would know that a fall to the ground, in the circumstances of this case (including running speed, the intoxication of the runner [Mr Litchfield] and the presence of a hard surface) may result in brain injury and death'. According to counsel, 'it is a matter that can be fairly said to be so well known to the community generally, and to a subset of the community consisting of young people of [TB's and DVH's age], [that it] requires no further elaboration'.
Also, counsel for the State submitted that:
(a)in the first sentence of the impugned paragraph [309(9)], the primary judge was 'clearly cognisant of the requirement that he assess what "ordinary young people of [TB's and DVH's] age" know, as opposed to that known by an ordinary person (that is, an ordinary adult)'; and
(b)in the second sentence of the impugned paragraph [309(9)], his Honour was referring to the knowledge of the community generally, and not the subset of young people identified in the first sentence.
Counsel submitted that the second sentence was 'merely an observation on the topicality of this issue in the community in recent years' and the observation did not 'inform the conclusion expressed in the first sentence about young people in particular rather than the community generally'.
I am not persuaded that counsel for the State's submissions are correct.
The primary judge said, at [308], that he turned 'to consider objectively, whether death would reasonably have been foreseen by an ordinary person applying the legal test' to which he had referred. His Honour then said that an 'ordinary person' is 'also one who is sober, as young as [the accused], and possessed with the knowledge that [the accused] had at the time' [308]. Next, his Honour said, at [309], that the nine factors he proceeded to enumerate in relation to JR were, in combination, 'relevant to this consideration'. The nine specified factors included the impugned paragraph [309(9)]. His Honour concluded, objectively, after considering a variety of factors in relation to each of TB and DVH, including factor no 9 in the impugned paragraph [309(9)], that Mr Litchfield's death would reasonably have been foreseen by an ordinary sober person of TB's and DVH's age as a possible outcome, excluding possibilities that were no more than remote and speculative [323], [329].
In my opinion, on a fair reading of the impugned paragraph [309(9)] in the context of related passages in the primary judge's reasons, the second sentence of the impugned paragraph did inform the conclusion that the primary judge expressed in the first sentence. I consider that his Honour, in concluding that 'ordinary [sober] young people of [the accused's] age know that if a person falls over and hits his or her head on a hard surface, then they could sustain a brain injury and that brain injury could result in death', took into account his Honour's view that the scenario he described was 'a topic that has been given a lot of attention in our community over the last few years'. It follows, by necessary implication, that his Honour thought the community within which the topic had received a lot of attention included the subset of ordinary sober young people of TB's and DVH's age.
In my opinion, there is a material error in the primary judge's process of reasoning on this point. First, the 'topic that has been given a lot of attention in our community over the last few years' is the so‑called 'one punch death' phenomenon. This scenario involves a person being punched or otherwise struck on the face or head, consequently falling and hitting his or her head on a hard surface, and suffering a brain injury which results in death. The phenomenon is materially different from the scenario which occurred in relation to Mr Litchfield; namely a person, adversely affected by alcohol, who is chased after having been assaulted and harassed; who has an extreme level of fear; who runs at speed, at night and in the locality I have described; who falls (perhaps after tripping); who suffers a brain injury upon striking his head on a hard surface; and who dies from the injury. Secondly, it was not reasonably open to his Honour, as the tribunal of fact, to infer, on the facts and in the circumstances established by the evidence, that the scenario which occurred in relation to Mr Litchfield would be known by ordinary sober young people, of TB's and DVH's age, and with their knowledge at the time of those facts and circumstances.
I turn now to DVH's particulars of ground 2.
As to particular (a), counsel for DVH submitted in substance that an ordinary sober young person of DVH's age would have been unable to assess the impact of Mr Litchfield's intoxication on his mobility and coordination and, accordingly, the primary judge erred in taking into account factors no 2, 4, 5 and 6. See [309] read with [328] of his Honour's reasons.
The primary judge found, on the basis of JJW's evidence, that Mr Litchfield was 'staggering'. His Honour said that this feature of Mr Litchfield's gait would have been evident to DVH. See [309(2)] read with [328].
The primary judge also found, on the basis of Mr Dawson's evidence, that Mr Litchfield 'looked like he was stumbling when [Mr Dawson] saw him on the road and pavement on the south side of Pinjarra Road'. His Honour said that, whatever the reason or reasons for Mr Litchfield stumbling, 'whether it be because of intoxication or the assault by DVH or both, that is the fact of the matter', and DVH would have observed it. See [309(4)] read with [328].
I am not persuaded that the primary judge erred in deciding in effect that an ordinary sober 14 or 15‑year‑old child is capable of assessing the effect of alcohol intoxication on an adult's mobility and coordination.
There is no merit in particular (a).
As to particular (b), counsel for DVH submitted in substance that the primary judge erred by failing to take into account, when assessing what a reasonable person would have foreseen, that DVH was a child.
It is plain from the primary judge's reasons that, in assessing reasonable foreseeability on an objective basis, his Honour expressly took into account that each of DVH and the other accused was a child. After evaluating the factors relevant to the defence of accident and DVH, his Honour concluded:
I find that objectively, considering all of these factors in combination, the death of Mr Litchfield would reasonably have been foreseen by an ordinary person of DVH's age as a possible outcome, excluding possibilities that are no more than remote and speculative [329]. (emphasis added)
This conclusion was reinforced by the primary judge's misapprehension, at the trial and when he published his reasons, that at the material time (namely 17 March 2013) DVH had recently had his 14th birthday. As I have mentioned, the misapprehension was corrected at the sentencing hearing. It was established then that at the material time DVH had in fact recently had his 15th birthday. If death would reasonably have been foreseen by an ordinary sober 14‑year‑old child, it follows, with at least arguably greater force, that death would reasonably have been foreseen by an ordinary sober 15‑year‑old child.
There is no merit in particular (b).
As to particular (c), counsel for DVH submitted in substance that the primary judge erred in finding that DVH was 'likely more mature than his age would suggest' [325].
This finding is irrelevant to the primary judge's ultimate conclusion in relation to the defence of accident. His Honour made the finding in the course of considering whether, subjectively, DVH actually foresaw death. As I have mentioned, his Honour was not satisfied beyond reasonable doubt that this was the case [326]. The finding was not relevant to his Honour's conclusion that, objectively, an ordinary sober young person of DVH's age would reasonably have foreseen death as a possible outcome [328] ‑ [329].
In any event, as I have mentioned, at the trial and when he published his reasons the primary judge was under the misapprehension that DVH had recently had his 14th birthday whereas in fact he had recently had his 15th birthday. This misapprehension is consistent with his Honour's finding that DVH was 'likely more mature than his age would suggest'.
There is no merit in particular (c).
As to particular (d), counsel for DVH submitted in substance that the primary judge erred in finding that DVH knew Mr Litchfield was 'extremely frightened' [325].
As with particular (c), this finding is irrelevant to the primary judge's ultimate conclusion in relation to the defence of accident. His Honour made the finding in the course of considering whether, subjectively, DVH actually foresaw death. As I have mentioned, his Honour was not satisfied beyond reasonable doubt that this was the case [326]. The finding was not relevant to his Honour's conclusion that, objectively, an ordinary sober young person of DVH's age would reasonably have foreseen death as a possible outcome [328] ‑ [329].
There is no merit in particular (d).
As to particular (g), counsel for DVH submitted in substance that the primary judge erred in finding that the outnumbering of Mr Litchfield by the accused who were convicted, in the context of the threatening and intimidating behaviour that had been engaged in against him, would have been 'extremely frightening' [309(6)].
In my opinion, on a proper understanding of the relevant evidence and the primary judge's relevant findings of fact, his Honour was entitled to infer that, objectively, an ordinary sober young person of DVH's age would have known that, in the circumstances, Mr Litchfield would have been extremely frightened. His Honour did not make any material error in his approach to the drawing of this inference and, on my examination of the trial record (including the CCTV footage), the inference was, in the circumstances, reasonably open and correctly drawn.
There is no merit in particular (g).
As to particular (e), counsel for DVH submitted in substance that the primary judge erred in finding that DVH knew, at the material time, about 'concussion and … internal bleeding of the brain' [325].
As with particulars (c) and (d), this finding is irrelevant to the primary judge's ultimate conclusion in relation to the defence of accident. His Honour made the finding in the course of considering whether, subjectively, DVH actually foresaw death. As I have mentioned, his Honour was not satisfied beyond reasonable doubt that this was the case [326]. The finding was not relevant to his Honour's conclusion that, objectively, an ordinary sober young person of DVH's age would reasonably have foreseen death as a possible outcome [328] ‑ [329].
There is no merit in particular (e).
As to particular (f), counsel for DVH submitted in substance that the primary judge erred in taking into account publicity about traumatic brain injuries, whether DVH was actually aware of such publicity or whether it could be attributed to the 'ordinary child'.
Particular (f) mirrors, in substance, counsel for TB's contention that the primary judge took into account 'inadmissible material', namely that 'death from brain injury caused by falling was a topic that has been given a lot of attention in the community over the last few years'. Generally for the reasons I have given in dealing with counsel for TB's contention, I am satisfied that particular (f) has been made out.
As to particular (h), counsel for DVH submitted in substance that the primary judge erred by attributing to an ordinary sober young person of DVH's age knowledge of the wall over which Mr Litchfield travelled and the environment leading up to the wall.
The primary judge found, correctly, that when the incident between the accused who were convicted and Mr Litchfield occurred:
(a)the sun had gone down and it was dark [309(8)];
(b)although visibility in the area was improved by street lights and the headlights of motor vehicles, the lighting would have been uneven [309(8)];
(c)visibility was materially reduced [309(8)]; and
(d)the environment in the vicinity in which the incident occurred included hard bitumen and paved surfaces, kerbing, a major four‑lane road, an uphill or downhill gradient and different levels [309(7)].
All of those findings were plainly correct.
The primary judge did not make a finding that an ordinary sober young person of DVH's age would have specific knowledge of the wall. Rather, his Honour's findings related in essence to the built form of the environment in the vicinity of, including leading up to, the wall.
I am satisfied that all of the matters the subject of his Honour's findings about the environment would have been readily apparent to an ordinary sober young person of DVH's age.
There is no merit in particular (h).
As to particular (i), counsel for DVH submitted in substance that the primary judge erred in failing to address the issue of reasonable foreseeability according to what would have been present in the mind of an ordinary sober young person of DVH's age who was acting in the circumstances, including with 'the usual limited time for assessing probabilities'.
Particular (i) mirrors, in substance, counsel for TB's contention that the primary judge erred by failing to address the issue of 'reasonable foreseeability' according to what would be present in the mind of an ordinary person acting in the circumstances with 'the usual limited time for assessing probabilities'. Generally for the reasons I have given in dealing with counsel for TB's contention, there is no merit in particular (i).
As to particular (j), counsel for DVH submitted in substance that the primary judge erred in taking into account his finding that Mr Litchfield was dazed by a punch when he was chased by DVH and the other accused who were convicted, when the evidence did not support a finding that DVH knew that Mr Litchfield was dazed.
The primary judge found that DVH had punched Mr Litchfield and this caused Mr Litchfield to stagger into the trees [257], [262]; after Mr Litchfield was punched by DVH he was on the ground for 30 to 40 seconds before getting up [309(3)]; when Mr Litchfield returned to the northern side of Pinjarra Road, DVH grabbed him and dragged him back [262]; and Mr Litchfield was dazed by DVH's punch [309(3)].
As with particular (g), on a proper understanding of the relevant evidence and the primary judge's relevant findings of fact, his Honour was entitled to infer that, objectively, an ordinary sober young person of DVH's age would have known that, in the circumstances, Mr Litchfield would have been dazed. His Honour did not make any material error in his approach to the drawing of this inference and, on my examination of the trial record (including the CCTV footage), the inference was, in the circumstances, reasonably open and correctly drawn.
There is no merit in particular (j).
Particular (k) mirrors, in substance, counsel for TB's contention that the primary judge erred by concluding that 'the circumstances' caused Mr Litchfield to run 'as fast as he could'. Generally for the reasons I have given in dealing with counsel for TB's contention, I am satisfied that particular (k) is without merit.
I turn now to consider whether the primary judge erred, as alleged on behalf of TB and DVH, in his ultimate conclusion that the killing of Mr Litchfield was not excused by law in that his death was not an event which occurred by accident.
In the present case, the State did not allege at the trial, in the context of accident, that any of the accused who were convicted subjectively intended the event in question as a possible outcome of their conduct.
The State sought to disprove accident by proving beyond reasonable doubt that, subjectively, each of the accused foresaw the event in question as a possible outcome of their conduct; alternatively, that, objectively, the event would reasonably have been foreseen by an ordinary sober person (of the age of the accused and with his knowledge of the relevant facts and circumstances) as a possible outcome of the conduct of the accused (excluding, in each case, possibilities that were no more than remote and speculative).
The relevant 'event', for the purposes of the defence of accident, was Mr Litchfield's death.
The relevant conduct of each of TB and DVH, for the purposes of the defence of accident, was his conduct in threatening and intimidating Mr Litchfield by chasing him in the context of the relevant background facts and circumstances, including DVH having previously assaulted Mr Litchfield.
The primary judge was not satisfied beyond reasonable doubt that, subjectively, either TB or DVH foresaw Mr Litchfield's death as a possible outcome of his conduct (excluding possibilities that were no more than remote and speculative) [320], [326]. His Honour's conclusion in that respect is not challenged by the State in the appeals.
The critical point is whether the primary judge erred in concluding that the State had disproved accident by proving beyond reasonable doubt that, objectively, Mr Litchfield's death would reasonably have been foreseen by an ordinary sober person (of the age of each of TB and DVH and with his knowledge of the relevant facts and circumstances) as a possible outcome of his conduct (excluding possibilities that were no more than remote and speculative).
At the material time (namely 17 March 2013), TB was aged 14 years 2 months and DVH had recently had his 15th birthday.
In my opinion, ordinary sober young people of the age of each of TB and DVH, and in the position of each of TB and DVH, would have known the following facts and circumstances when each of them began chasing Mr Litchfield:
(a)Mr Litchfield was, immediately before the beginning of the chase, staggering, stumbling and afraid.
(b)Mr Litchfield was dazed and affected by alcohol, and those matters, in combination, adversely affected his mobility and coordination.
(c)It was necessary for Mr Litchfield to run as fast as possible with a view to avoiding being assaulted again by one or more of the members of the appellants' group.
(d)The risk to Mr Litchfield while he was running as fast as possible was increased by Mr Litchfield being dazed and affected by alcohol.
(e)The risk to Mr Litchfield while he was running as fast as possible was also increased by the character of the environment in the vicinity, namely:
(i)reduced visibility in that the chase began at night;
(ii)uneven lighting with the consequence that visibility was materially reduced;
(iii)the proximity of a major four‑lane road with vehicles travelling on the road;
(iv)the presence of hard surfaces, including bitumen roads and car parks and concrete footpaths and kerbing; and
(v)the slope or gradient of the road and abutting footpaths and the land on which improvements were constructed.
However, the precise degree to which Mr Litchfield was dazed and the precise degree to which he was affected by alcohol would not have been known to ordinary sober young people of the age of each of TB and DVH, and in the position of each of TB and DVH. Similarly, the existence of the wall in question and the fact that the level of the Jaycar car park was about 1.19 m higher than the level of the Taubmans car park would not have been known.
It must be borne firmly in mind that:
(a)the threats and intimidation of each of TB and DVH comprised his conduct in chasing Mr Litchfield in the context of his knowledge of the facts and circumstances I have enumerated;
(b)the chase started when Mr Litchfield began running at speed in a westerly direction on the northern side of Pinjarra Road (after he had got up from the row of bushes, run onto Pinjarra Road and returned to the northern side);
(c)the chase ended when Mr Litchfield went over the wall while fleeing in a westerly direction; and
(d)Mr Litchfield did not run along Pinjarra Road or the abutting footpath; rather, he veered into the Jaycar car park, which was shared by the businesses of Kings Park Fashion and Jaycar, whose premises abutted Taubmans.
It must also be borne firmly in mind that children (in particular, those aged 14 or 15) are materially less able than adults to appreciate the nature and extent of risks, including risks to personal safety.
In my opinion, ordinary sober young people of the age of each of TB and DVH, and with his knowledge of the relevant facts and circumstances, would reasonably have foreseen, during the period after the beginning and before the end of the chase, that Mr Litchfield may have been injured during the chase.
However, it was not open to the primary judge to be satisfied beyond reasonable doubt that ordinary sober young people of the age of each of TB and DVH, and with his knowledge of the relevant facts and circumstances, would reasonably have foreseen, during any part of the period after the beginning and before the end of the chase, that Mr Litchfield's death was a possible outcome of TB's or DVH's conduct in chasing Mr Litchfield (excluding possibilities that were no more than remote and speculative).
TB's and DVH's cases in relation to the second issue have been made out.
The third issue: verdict of guilty unreasonable and cannot be supported having regard to the evidence: TB's and DVH's submissions
Counsel for TB submitted that if TB was successful on the second issue then, ordinarily, a new trial would be ordered on the charge of manslaughter. However, counsel submitted that, in the present case, the evidence did not permit a conclusion beyond reasonable doubt that Mr Litchfield's death was reasonably foreseeable and, consequently, a new trial for manslaughter should not be ordered.
Counsel for DVH's submissions were consistent with and developed DVH's particulars of ground 3.
The third issue: verdict of guilty unreasonable and cannot be supported having regard to the evidence: applicable legal principles
In Mack v The State of Western Australia [2014] WASCA 207, I summarised (Martin CJ & Mazza JA agreeing) the principles to be applied by an appellate court in determining whether a verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported [141] ‑ [147]. It is unnecessary to repeat the relevant principles.
The third issue: verdict of guilty unreasonable and cannot be supported having regard to the evidence: its merits
The submissions made on behalf of TB and DVH in relation to the third issue repeated in substance the submissions made on their behalf in relation to the first and second issues.
For the reasons I have given in the context of the second issue, the primary judge erred in concluding that the State had disproved accident by proving beyond reasonable doubt that, objectively, Mr Litchfield's death would reasonably have been foreseen by ordinary sober young people (of the age of each of TB and DVH and with his knowledge of the relevant facts and circumstances) as a possible outcome of his conduct (excluding possibilities that were no more than remote and speculative).
TB's and DVH's cases in relation to the third issue have been made out.
The appropriate orders that should be made in the appeals
Section 30(5) of the Criminal Appeals Act 2004 (WA) applies in the case of an appeal against a conviction by an offender. It reads, relevantly:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.
Section 281 of the Code reads:
(1)If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 10 years.
(2)A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.
The offence created by s 281 (generally known as unlawful assault causing death) is specified in s 280 of the Code as an alternative offence to manslaughter.
I am satisfied beyond reasonable doubt that:
(a)the threats and intimidation of TB and DVH, as found by the primary judge, constituted an 'unlawful assault' of Mr Litchfield; and
(b)generally for the reasons I have given in dealing with the first issue, Mr Litchfield died 'as a direct or indirect result' (or consequence) of the assault,
within s 281(1).
By s 281(2), it is irrelevant that neither TB nor DVH intended or foresaw Mr Litchfield's death, and it is also irrelevant that his death was not reasonably foreseeable by ordinary sober young people of the age of each of TB and DVH and with his knowledge of the relevant facts and circumstances.
I would make orders as follows:
(a)As to TB's appeal, leave to appeal should be granted on ground 2, the appeal should be allowed, the judgment of conviction for manslaughter should be set aside and a judgment of conviction for unlawful assault causing death, contrary to s 281 of the Code, should be entered.
(b)As to DVH's appeal, leave to appeal should be granted on grounds 1 and 3, the appeal should be allowed, the judgment of conviction for manslaughter should be set aside and a judgment of conviction for unlawful assault causing death, contrary to s 281 of the Code, should be entered.
The sentencing of TB and DVH for unlawful assault causing death
This court has the material necessary to sentence TB and DVH.
I have read:
(a)the primary judge's findings of fact in his reasons for decision; and
(b)his Honour's findings of fact in his sentencing remarks,
and have taken them into account to the extent that the findings have not been challenged or successfully challenged and to the extent that they are relevant to the offence created by s 281 of the Code.
On 6 May 2015, this court granted each party liberty to file and serve supplementary submissions in relation to the possible sentencing of TB and DVH by this court for the offence of unlawful assault causing death. Subsequently, submissions were filed and served pursuant to that order. I have read and taken the submissions into account.
The maximum penalty for the offence is 10 years' imprisonment.
It appears that the only appellate case where a sentence for unlawful assault causing death has been considered is The State of Western Australia v JWRL [2010] WASCA 179. Plainly, one appellate decision does not establish a sentencing range. In any event, the moral culpability of the offender in JWRL was substantially less than the moral culpability of TB and DVH.
The principles applicable to the sentencing of juveniles were summarised by Mazza JA (Buss & Newnes JJA agreeing) in DC v The State of Western Australia [2014] WASCA 121 [43] ‑ [47], [50].
After taking into account the maximum penalty, the facts and circumstances of the offence, the principles applicable to the sentencing of juveniles and all other relevant sentencing factors (including matters of mitigation), and after considering the position of TB and DVH separately, I am satisfied that the only appropriate sentencing disposition is a term of detention to be served immediately. I consider that the seriousness of the offending precludes the matter being disposed of in any other way.
After taking into account all relevant sentencing factors (including matters of mitigation), I would sentence TB to detention for 2 years and DVH to detention for 2 years 8 months. Pursuant to s 121 of the Young Offenders Act 1994 (WA), each of them is to remain in custody for a minimum period of 50% of the term to which he is sentenced before he can be released under a supervised release order. TB's period of detention is to be backdated to 27 March 2013, being the date on which he was taken into custody in connection with Mr Litchfield's death. DVH's period of detention is to be backdated to 15 May 2013. Although DVH was initially taken into custody, in connection with Mr Litchfield's death, on 27 March 2013, the backdating must take into account the period for which DVH was released on bail pending the determination of his appeal.
The period of detention I would impose on DVH is longer than the period of detention I would impose on TB because of DVH's greater moral culpability in relation to the offending (in particular, as the primary judge found, DVH was 'the instigator' and he committed 'serious acts against Mr Litchfield' in the period before the commencement of the chase: [229], ts 1430) and because DVH was older than TB.
MAZZA JA: I agree with Buss JA.
CHANEY J: I agree with Buss JA.
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