The State of Western Australia v Boag - [2021] WASC 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BOAG [2021] WASC 49
CORAM:   CORBOY J
HEARD:   18 - 31 AUGUST, 1 - 4 SEPTEMBER & 22 ‑ 27 OCTOBER 2020
DELIVERED          :   26 FEBRUARY 2021
FILE NO/S:   INS 47 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROSS JAMES BOAG
First Accused
LEROY DANIEL SMITH
Second Accused
LUCAS JAMES YARRAN
Third Accused

Catchwords:

Criminal law - Trial by judge alone - Unlawful killing - Section 272 of the Criminal Code (WA) - Whether the accused threatened or intimidated the deceased - Whether the deceased's act of opening the passenger door of a moving vehicle was reasonable and proportionate - Whether threats and intimidation caused the deceased to open the passenger door of a moving vehicle - Whether the deceased's death resulted from her act - Whether the deceased's death was an accidental event

Legislation:

Criminal Code (WA), s 23B, s 272, s 280
Criminal Procedure Act 2004 (WA), s 118, s 119, s 120

Result:

Verdicts of guilty on the charge that the accused unlawfully killed Peta Lynette Fairhead and a judgment of conviction entered against each accused on count 7 of the indictment

Category: B

Representation:

Counsel:

Applicant	:	Ms L E Christian SC and Ms R J Mitchell
First Accused	:	Mr A O Karstaedt
Second Accused	:	Mr J A Davies & Ms S A Auburn
Third Accused	:	Mr S D Freitag SC and Ms A N Blackburn

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
First Accused	:	Anthony Karstaedt
Second Accused	:	Jonathan A Davies
Third Accused	:	Simon Freitag SC

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.
Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419.
Campbell v The Queen [1981] WAR 286.
Director of Public Prosecutions v Daley [1980] AC 237.
Green v The Queen (Unreported, WASCA, Library No 950592, 8 November 1995).
Hone v The State of Western Australia [2007] WASCA 283; (2007) 170 A Crim R 138.
HS v Lawford [2018] WASC 257.
Jeffery v The State of Western Australia [2009] WASCA 133.
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545.
Matthews v R [1992] QCA 462; [1993] 2 Qd R 316.
Meller v Low (2000) 48 NSWLR 517.
Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475.
R v Andrews [2000] NSWCCA 310.
R v Blaue [1975] 1 WLR 1411.
R v Cato [1976] 1 WLR 110.
R v Grimes and Lee (1894) 15 LR NSW.
R v Manton [2002] NSWCCA 316; (2002) 132 A Crim R 249.
R v Moffat [2000] NSWCCA 174; (2000) 112 A Crim R 201.
R v Pagett [1983] 76 Cr App R 279.
R v Roberts (1971) 56 Cr App R 95.
R v Williams and Davis (1992) 95 C r App R1.
Reynolds v The Queen (2015) 249 A Crim R 208.
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 625.
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
Shepherd v The Queen (1990) 170 CLR 573.
TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297.
The Queen v Aidid [2010] VSCA 56.
Tracey v The Queen [1999] WASCA 77; (1999) 20 WAR 555.
WS v Gardin [2015] WASC 97.
Yarran v The State of Western Australia [2019] WASCA 159.

CORBOY J:

PART A: THE CHARGE, THE VERDICTS AND AN OVERVIEW

The charge to be tried

The accused were jointly charged by indictment that:
(1)On 3 August 2016, at Ridgewood, they stole from Cody James Joseph Watson, with violence and in circumstances of aggravation, money, a mobile telephone, methylamphetamine and a silver neck chain, the property of Mr Watson
And that they were armed with offensive weapons namely, a machete, a baseball bat and a knife
And that they were in company with each other and another
And that they did bodily harm to Mr Watson.
(2)On the same date and at the same place as in count (1), the accused and Hannah Standing stole from William James Wilton, with violence and in circumstances of aggravation, money, a mobile telephone, methylamphetamine and a bracelet, the property of Mr Wilton
And that they and Ms Standing were armed with offensive weapons namely, a machete, a baseball bat and a knife
And that they and Ms Standing were in company with each other
And that they and Ms Standing did bodily harm to Mr Wilton.
(3)On the same date and at the same place as in count (1), the accused and Ms Standing stole from Peta Lynette Fairhead, with threats of violence and in circumstances of aggravation, a mobile telephone, a handbag and a motor vehicle key, the property of Ms Fairhead
And that they and Ms Standing were armed with offensive weapons namely, a machete, a baseball bat and a knife
And that they and Ms Standing were in company with each other.
(4)On the same date as in count (1), at Ridgewood and elsewhere, each of the accused unlawfully detained Mr Watson.
(5)On the same date and at the same place as in count (4), the accused unlawfully detained Mr Wilton.
(6)On the same date and at the same place as in count (4), the accused unlawfully detained Ms Fairhead.
(7)On the same date as in count (1), at Joondalup, the accused unlawfully killed Ms Fairhead.
On 21 March 2018, the accused were convicted on each count following a joint trial before a judge and jury.
The accused appealed from their conviction for the unlawful killing of Ms Fairhead. They did not appeal from their conviction on the remaining counts. On 17 October 2019, the Court of Appeal allowed the appeal and ordered a new trial: Yarran v The State of Western Australia.[1]
[1] Yarran v The State of Western Australia [2019] WASCA 159.
On 27 July 2020, McGrath J allowed an application by each accused under s 118 of the Criminal Procedure Act 2004 (WA) (CPA) for trial by judge alone. The trial was conducted between 18 ‑ 31 August, 1 ‑ 4 September and 22 ‑ 27 October 2020.
The offence of unlawful killing (manslaughter) is a crime by s 280 of the Criminal Code. An accused person may be found not guilty of a charge alleged by an indictment but guilty of an alternative offence notwithstanding that the alternative offence is not pleaded on the indictment: s 10A and s 10B of the Code. Although s 280 provides for various alternative offences, the parties did not submit that an alternative offence was raised by the evidence.

The verdicts and judgments

I find each of the accused guilty of the charge that on 3 August 2016, at Joondalup, they unlawfully killed Ms Fairhead.
A judgment of conviction against each of the accused will be entered on count 7 of the indictment.
The findings of fact I made, the principles of law I applied, and the process of reasoning by which I reached my verdicts are stated in the reasons that follow.

Trial by judge alone

The conduct of a trial by a judge sitting alone is governed by pt 4, div 7 CPA. Relevantly, s 119(1) provides that in a trial by judge alone the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. Section 119(3) further provides:
If any written or other law -
(a)requires information or a warning or instruction to be given to the jury in certain circumstances; or
(b)prohibits a warning from being given to a jury in certain circumstances,
the judge in a trial by a judge alone must take the requirement or prohibition into account if those circumstances arise in the course of the trial.
Section 120 of the CPA states:
(1)In a trial by a judge alone -
(a)the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b)any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
(2)The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.

The obligation to give reasons

In Riley v The State of Western Australia,[2] Steytler P explained the nature of the obligation to provide reasons in a trial by judge alone:
While it is true that overly elaborate reasons are not required from a trial judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 282 - 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson (1999) 21 WAR 226 at 248 [73] - [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66 per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 ‑ 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 ‑ 163, per Malcolm CJ, and Mount Lawley, above, at 282 ‑ 283.[3]
[2] Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 625.
[3] Riley v The State of Western Australia [32] ‑ [33]. The passage reproduced above from Riley v The State of Western Australia was cited with approval by Mitchell J (as his Honour then was) in WS v Gardin [2015] WASC 97. Jenkins J followed the observations of Mitchell J in WS v Gardin in HS v Lawford [2018] WASC 257.
In AK v The State of Western Australia,[4] the appellant was convicted following a trial conducted under the Children's Court of Western Australia Act 1988 (WA) by a judge sitting without a jury. It was not in issue that his Honour was bound by s 119 and s 120 CPA. The trial judge's reasons were delivered ex temporaneously and it was accepted in the Court of Appeal that the reasons did not satisfy the requirements of s 120(2) of the CPA.
[4] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.
That finding was not challenged in the High Court. However, in their joint judgment, Gummow and Hayne JJ observed that the effect of s 120(2) CPA was ordinarily to require a trial judge to identify and record the elements of the offence in question and which of those elements were in issue. It was also necessary that the reasons contained a statement of the principles of law that had been applied and the findings of fact that were made and disclosed 'the reasoning process linking them and justifying the [findings of fact] and ultimately, the verdict that is reached'. Their Honours noted that the trial judge had referred to the relevant standard of proof but 'nowhere in the reasons for judgment did the trial judge articulate how the link was made between the legal principle requiring proof beyond reasonable doubt and the findings of fact that the appellant had touched the complainant in the manner alleged'. The trial judge had stated that he was satisfied beyond a reasonable doubt that the appellant had touched the complainant in the manner alleged but he did not state the process of reasoning by which he had reached that conclusion.[5]
[5] AK v The State of Western Australia [44] ‑ [46] and see the observations of Heydon J at [85].

An overview

At approximately 3.00 am on 3 August 2016, two security personnel at the Joondalup Health Campus, Mr Liva Mani and Mr Matthew Arai, went to the main entrance of the Joondalup Hospital and found the deceased, Ms Peta Fairhead, lying on the road adjacent to the entrance. She was unconscious, possibly dead. A medical emergency team attempted unsuccessfully to revive her.
Dr Judith McCreath performed the post‑mortem examination of Ms Fairhead. She concluded that Ms Fairhead had died from head injuries. Dr McCreath's conclusion that Ms Fairhead's head injuries were the 'medical' cause of death was not in issue.
Cody Watson and William Wilton had known each other for several years prior to August 2016. Mr Watson stated he had known Mr Wilton for eight or nine years; Mr Wilton said he thought he had known Mr Watson for about five years.[6]
[6] ts 1554 (Watson); ts 1843 (Wilton).
Mr Watson agreed that, as at August 2016, he was addicted to methylamphetamine. It was apparent from the evidence that Mr Wilton also routinely consumed methylamphetamine at that time.
Mr Wilton stated he had known Ms Fairhead for 'maybe a couple of months, a year'. He had met her on a dating site, 'Plenty of Fish'. He did not date Ms Fairhead but they became friends and he started organising drugs for her.[7] Mr Watson also knew Ms Fairhead.
[7] ts 1843.
Ms Fairhead had been in a relationship with Te Keepa Aperehana Rimutai Brown for about four to six weeks prior to 2 August 2016. She had been living with Mr Brown at the house of Mr Brown's parents until about 1 August. Mr Brown gave evidence that his father had asked Ms Fairhead to leave the house on that day.[8]
[8] ts 2218.
At about 7:50 pm on 2 August 2016, Ms Fairhead contacted Mr Wilton by phone. She also sent him a coded Facebook message in which she indicated she was seeking methylamphetamine. They agreed to meet.
Mr Wilton was with Mr Watson when he spoke to Ms Fairhead. Mr Watson and Mr Wilton had met earlier that afternoon in Armadale. They smoked methylamphetamine and then travelled by train to Cannington. They went to the house of an acquaintance, where they acquired and smoked more methylamphetamine. They then met Ms Fairhead.
Ms Fairhead was driving her car, a Toyota Prado (the Prado) and the three of them went '4-wheel driving'. Mr Watson, Mr Wilton and Ms Fairhead consumed methylamphetamine during this time.
Mr Watson had exchanged text and Facebook messages with Hannah Standing from, at least, 1 August 2016.[9] He exchanged messages and spoke to her while 4-wheel driving with Mr Wilton and Ms Fairhead.
[9] Exhibits 5, 6, 22 and 23.
At about 11.45 pm, 2 August, Mr Watson sent a text message to Ms Standing asking for her address. Further messages were exchanged, including a text in which Ms Standing advised Mr Watson that she was at 41 Hinchinbrook Avenue, Ridgewood (the Hinchinbrook House). Ms Fairhead agreed to drive Mr Watson to the Hinchinbrook House. They arrived at around 1.50 am on 3 August.
Mr Watson had not previously met Ms Standing. However, he thought she had agreed to meet him so that he could sell her methylamphetamine and possibly, have sex.
Ms Fairhead spoke by phone with Mr Brown while 4-wheel driving and most likely, while driving to the Hinchinbrook House. They argued during the calls and Ms Fairhead was visibly distressed.
The accused, Ms Standing, Georgia McEwan and a friend of Ms Standing, who was only identified by text messages retrieved from Ms Standing's mobile phone as 'Nanna', were at the Hinchinbrook House when Ms Standing was communicating with Mr Watson. As a result of the messages exchanged between Mr Watson and Ms Standing, the accused expected that Mr Watson would bring a significant amount of methylamphetamine to the Hinchinbrook House. They planned to rob him of the drug when he arrived.
Ms Standing and Nanna were outside at the front of the house when Mr Watson, Mr Wilton and Ms Fairhead arrived. Mr Watson got out of the Prado and went to hug Ms Standing. As he did so, a knife he had attempted to conceal dropped from his pants. Ms Standing alerted the accused. They came out of the house armed with baseball bats and a machete. Mr Watson handed the knife to the accused.
Mr Watson, Mr Wilton and Ms Fairhead entered the Hinchinbrook House. There were some differences in the evidence about what occurred after they entered but it was not in issue that Mr Watson, Mr Wilton and Ms Fairhead were robbed while in the house. The robberies involved actual and threatened violence and were the subject of counts 1 ‑ 3 on the indictment.
Mr Watson and Mr Wilton stated that they, and Ms Fairhead, were threatened with further violence after they were robbed. They alleged that Mr Yarran stole the key for the Prado from Ms Fairhead and that Ms Fairhead, and they, were forced into the vehicle by the accused.
That evidence was disputed by the accused. It was put to Mr Watson and Mr Wilton that they, and Ms Fairhead, were not threatened or subjected to actual violence after they were robbed; that Ms Fairhead voluntarily gave the keys for the Prado to Mr Yarran; and that it was agreed between the accused and Mr Watson, Mr Wilton and Ms Fairhead that they would travel in the Prado to a place where more methylamphetamine could be obtained.
The accused, Mr Watson, Mr Wilton and Ms Fairhead left the Hinchinbrook House in the Prado. Mr Yarran was driving. Ms Fairhead was sitting in the front passenger seat; Mr Wilton, Mr Boag and Mr Smith were sitting in the rear passenger seats; and Mr Watson was in the luggage compartment behind the rear seats.
What happened in the Prado after the accused, Mr Watson, Mr Wilton and Ms Fairhead left the Hinchinbrook House was a significant issue in the trial. However, it was not in issue that, at a point that was not precisely identified but while the Prado was still moving and while she was not wearing a seatbelt, Ms Fairhead deliberately opened the front passenger door. She then left the vehicle - the accused alleged that she deliberately pushed herself out of, or jumped from, the vehicle. She suffered multiple injuries which I found were caused by her striking the road.
Mr Yarran turned the Prado around and returned to where Ms Fairhead was lying on the road. She was carried into the vehicle and driven to the Joondalup Health Campus. She was left on the side of the road adjacent to the entrance to the Emergency Department at Joondalup Hospital. CCTV film seized from the Joondalup Health Campus indicated that this was at about 2:55 am.
The accused, Mr Watson and Mr Wilton drove away from the Campus. Eventually, Mr Yarran drove the Prado to an area of bush off Pipidinny Road, Eglinton. An attempt was made to remove forensic evidence that might link the accused to the vehicle. Mr Yarran then contacted Ms McEwan, who was still at the Hinchinbrook House, and asked that she collect the accused from Pipidinny Road.
Mr Watson and Mr Wilton left the Prado after the accused had been collected by Ms McEwan. They eventually made their way home.
Mr Smith and Mr Yarran were arrested on 4 August 2016. Mr Boag was arrested on 8 August. Mr Smith participated in an electronically recorded interview in which he initially denied any involvement in, or knowledge of, the circumstances in which Ms Fairhead died. He subsequently asked to participate in a further recorded interview in which he made some admissions, including that he was present in the Prado when Ms Fairhead opened the passenger door and either deliberately left or unintentionally fell from the vehicle. Mr Smith made further admissions in a recorded conversation with his parents while in custody.
Mr Yarran also participated in an electronically recorded interview. It was said to contain 'mixed' statements. However, no admission of any consequence was made by Mr Yarran.

My task

My task was to assess the evidence to determine which parts I accepted as being truthful and reliable; to decide the facts according to the evidence I accepted; to apply the law to the facts as found; and, by following that process, to separately determine whether I was satisfied that the State had proven beyond a reasonable doubt the charge alleged against each of the accused.
I was required to deliver true verdicts according to the evidence. I had to assess all of the evidence; my findings of fact and verdicts had to be based solely on the evidence presented in the trial; and I was required to assess the evidence and make my findings objectively and impartially. Sympathy, prejudice, sentiment or emotion could not play any part in my reasoning.

I was not required to accept or reject the whole of a witness's evidence; part of a witness's evidence could be accepted and other parts rejected. I was not permitted to guess or speculate about matters that were not in evidence. That was a direction I was required to apply throughout my deliberations but, in particular, I could not speculate about what evidence might have been given by a person who was not called to testify or about what a witness might have said if they had been asked a question which, in fact, they were not asked. Theories that were not supported by the evidence were to be disregarded.

The State's case in summary and the issues raised by the accused

The State alleged that the accused threatened and intimidated Ms Fairhead for some time, including while she was travelling in the Prado with the accused, Mr Watson and Mr Wilton; that as a result of the threats and intimidation, Ms Fairhead deliberately opened the door of the vehicle while it was moving; that she either fell or jumped from the vehicle; and that she sustained head injuries in the fall that were the immediate cause of her death.[10]
[10] ts 1448 (opening address by the prosecutor, Ms Christian SC).
The State relied on s 272 of the Code to prove that the accused caused the death of Ms Fairhead. That section 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 State's case was that:
(a)the accused threatened Ms Fairhead or committed acts that intimidated her;
(b)the threats and acts of intimidation caused Ms Fairhead to deliberately open the front passenger door of the Prado – that is, Ms Fairhead's act for the purpose of s 272 was her act of deliberately opening the car door;
(c)Ms Fairhead's act of opening the car door resulted in her death - she fell from the Prado while it was moving and while she was not wearing a seatbelt and sustained fatal injuries in the fall;
(d)each of the accused did an act that constituted the offence (made a threat and/or did an act or acts that intimidated Ms Fairhead) so that each accused was guilty of the unlawful killing of Ms Fairhead as a principal offender - albeit that the accused acted together when they threatened and/or intimidated Ms Fairhead and it was the combined effect of their acts that, on the State's case, caused Ms Fairhead to open the car door;[11]
(e)the killing of Ms Fairhead was unlawful - that is, it was not authorised, justified or excused by law.
[11] Section 7(a) Criminal Code.
The State was required to prove each of those matters beyond a reasonable doubt to prove that the accused were guilty of the unlawful killing of Ms Fairhead.
The accused were not required to prove anything in the trial. They did not make any admissions under s 32 of the Evidence Act 1906 (WA) (and they were not required to make admissions). However, the accused referred to evidence that Ms Fairhead had a history of depression and anxiety, including reporting suicidal thoughts; that she had been distressed by her personal circumstances; and that she had consumed methylamphetamine during the evening of 2 August 2016. It was submitted that the evidence could not exclude, as a reasonable possibility, that she had deliberately opened the door of the Prado and pushed herself out of, or jumped from, the Prado either as a suicidal act or as a reckless act induced by methylamphetamine intoxication. Put that way, the submission was to the effect that the State could not prove beyond a reasonable doubt that Ms Fairhead's act of opening the door of the Prado was the result of any threat or intimidation by the accused as it was reasonably possible she had chosen to deliberately leave the vehicle for some other reason. It was further and alternatively submitted that the State had failed to prove that any threats or acts of intimidation by the accused were a substantial or significant cause of Ms Fairhead's act of opening the passenger door of the Prado given the other possible causes ‑ her personal circumstances and medical history and the effects of methylamphetamine use.
There were further and separate issues raised by the evidence and the submissions made on behalf of the accused:
(a)whether Ms Fairhead's act in opening the front passenger door of the Prado, while not wearing a seatbelt and while the vehicle was moving, was a reasonable and proportionate response to any threats or intimidation by the accused;
(b)whether the State had failed to prove causation for the purpose of s 272 of the Code after taking into account Ms Fairhead's response;
(c)whether the State had proven that Ms Fairhead's death was not an event that had occurred by accident (s 23B of the Code).
Those issues were raised on the State's case by the nature of the act that was alleged for the purpose of s 272 – Ms Fairhead's act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving. In addition, there were issues to be decided about the alleged conduct of the accused and whether their conduct constituted threats and/or acts of intimidation.
The State did not allege that Ms Fairhead deliberately pushed herself out of, or jumped from, the Prado at the point when she left the vehicle. The State alleged that Ms Fairhead's act of opening the passenger door was preparatory to her escaping from the accused by leaving the Prado. However, the State left open the possibility that she had not intended to escape at the moment when she, in fact, left the vehicle – that is, she may have unintentionally left the Prado at that moment even though she had intended to leave the vehicle at some point after opening the passenger door. In particular, the State submitted that it was open to find that Ms Fairhead had intended to leave the Prado in a 'controlled manner' but had been prevented from doing so as a result of Mr Yarran attempting to grab her immediately before she left the vehicle.
As mentioned, the accused accepted that Ms Fairhead deliberately opened the front passenger door of the Prado while the vehicle was moving and while she was not wearing a seatbelt. They submitted that she did so in order to commit suicide by throwing herself out of the vehicle or that she did so under the influence of methylamphetamine. They also submitted that:
(a)the act of opening the door while the Prado was moving and while not wearing a seatbelt was an unreasonable or disproportionate response to any threats or acts of intimidation by the accused;
(b)a finding that the act of opening the passenger door was an unreasonable or disproportionate response was relevant to whether the State had proven that any threats or acts of intimidation by the accused were a substantial or significant cause of the act;
(c)the act of opening the door, in circumstances in which the Prado was moving and Ms Fairhead was not wearing a seatbelt, was such an unreasonable or disproportionate response that I could not be satisfied beyond a reasonable doubt that any threats or acts of intimidation by the accused were a substantial or significant cause of Ms Fairhead's act.
Mr Karstaedt (counsel for Mr Boag) submitted that a central issue in the case was whether the State had proven beyond a reasonable doubt that Ms Fairhead's death was not an accident within the meaning of s 23B of the Code.[12] The interaction between s 23B and s 272 of the Code was considered by the Court of Appeal in Yarran. It will be necessary to consider the judgments of the Court of Appeal in that case later.
[12] The section is reproduced in full in Part D of the reasons.
It was also submitted by Mr Karstaedt that the State was required to prove that Mr Boag made a threat or committed an act of intimidation which was, in itself, a significant or substantial cause of Ms Fairhead's act of opening the door of the Prado – that is, Mr Boag could only be guilty of the unlawful killing of Ms Fairhead if he did an act (made a threat or committed an act of intimidation) which was a significant or substantial cause of Ms Fairhead's act. As against each accused, the State could not rely on the combined effect of the threats and acts of intimidation found to have been made by all of the accused to prove causation.
In the reasons that follow, the word 'leave' is used neutrally to describe the movement of Ms Fairhead's body from the Prado to the ground. The word, and its derivatives, are not intended to convey anything about whether Ms Fairhead deliberately or unintentionally exited the vehicle.

Separate cases against each accused

Although the accused were jointly charged and tried, the State brought, and was required by law to bring, a separate case against each accused. There was, in effect, three trials conducted before me.
That meant it was necessary to separately consider and decide whether the State had proven the guilt of each accused so that:
(a) the State's case against an accused could only be determined on evidence that was admissible against that accused;
(b) there could be different verdicts as between each accused – a verdict of not guilty or guilty in respect of one accused did not dictate that the same verdict had to be returned for the other accused.

The evidence

The witnesses called by the State

The State called the following witnesses:
(1)Georgia McEwan - Ms McEwan was at the Hinchinbrook House during the nights of 2 ‑ 3 August 2016.
(2)Cody James Joseph Watson.
(3)Gary Trevor Smith - Mr Smith is the father of the accused, Leroy Daniel Smith.
(4)Simon John Bowen - Detective Sergeant Bowen was attached to the Major Crime Squad in August 2016. He was present when Mr Watson attended the Forrestfield Police Station on 3 August 2016 in connection with the death of Ms Fairhead and when Mr Watson subsequently gave a statement to the police.
(5)Liva Taulapapa Mani ‑ Mr Mani was employed as a security guard at the Joondalup Hospital. He located Ms Fairhead lying outside the entrance to the Hospital after she had been left there by the accused, Mr Watson and Mr Wilton.
(6)Matthew Parua Reremoana Arai ‑ Mr Arai was also employed as a security officer at the Joondalup Hospital and was working with Mr Mani when they found Ms Fairhead lying on the ground outside the entrance to the Joondalup Hospital.
(7)Jason Paul Hutchinson ‑ Detective Sergeant Hutchinson was attached to the Major Crime Squad in August 2016. He attended Joondalup Hospital after Ms Fairhead had been admitted and following her death. He also conducted a forensic examination of the Hinchinbrook House on 5 August 2016.
(8)Cameron Phillip Auckland ‑ Detective Senior Constable Auckland was attached to the Major Crime Squad in August 2016. He was the Intelligence Manager for the investigation undertaken by the Major Crime Squad into the death of Ms Fairhead.
(9)William James Wilton.
(10)Jacqueline Ann Shortland ‑ Ms Shortland spoke to Mr Watson and Mr Wilton at approximately 6:45 am on 3 August 2016. She was waiting at a bus stop on Marmion Avenue, Eglinton when she was approached by Mr Watson and Mr Wilton seeking directions about travelling to Perth.
(11)Brian Frederick Kirby ‑ Detective Constable Kirby was attached to the North-West Metropolitan Police District in August 2016. He was dispatched to the Joondalup Health Campus shortly after Ms Fairhead was found lying outside the entrance to the Joondalup Hospital.
(12)Nicholas Raymond Lamb ‑ Mr Lamb discovered the Prado on a track near Pipidinny Road, Eglinton while 4-wheel driving late on the afternoon of 3 August 2016.
(13)Nial Andrew Baron ‑ Mr Baron is a firefighter who with others attended a small fire in the middle of Mather Drive, Flynn Industrial Estate, Neerabup.
(14)Marika Louise Roderick ‑ Detective Constable Roderick was attached to the Joondalup Detectives Office in August 2016. She attended the small fire on Mather Drive, Neerabup. She seized a number of items that had been damaged by the fire.
(15)Adrian Ross Maughan ‑ Sergeant Maughan was attached to the Major Crime Squad in August 2016. He spoke to Ms McEwan on 4 August 2016. He also attended part of the autopsy performed by Dr McCreath.
(16)Leigh Thomas McKnight ‑ Detective Senior Constable McKnight was attached to the Major Crime Squad in August 2016. He took a statement from Mr Watson at the Joondalup Police Station on 3/4 August 2016.
(17)Cameron McLeod McLetchie ‑ Detective Senior Constable McLetchie was attached to the Joondalup Detectives Office in August 2016. He arrested Ms Standing on 4 August 2016 and seized her mobile phone. He also seized personal items belonging to Mr Smith and a baseball bat from the residence of Mr Smith's parents.
(18)Stephen Michael Ryan ‑ Detective Senior Constable Ryan was attached to the Joondalup Detectives Office in August 2016. He attended the scene of the small fire in Mather Drive, Neerabup with Detective Constable Roderick and he and another police officer arrested Mr Smith and Mr Yarran on the afternoon of 4 August 2016.
(19)Peter John Maher ‑ Senior Constable Maher was attached to the Forensic Division of the North‑West Metropolitan Police District in August 2016. He located various items while searching storm drains along Amesbury Loop, Butler.
(20)Adam Hugh Gordon Jenkins ‑ Senior Constable Jenkins is a mobile device specialist, attached to Technology Crime Services which forms part of the Forensic Division of the Western Australian Police. He downloaded various mobile phones that were seized in the course of the investigation into Ms Fairhead's death.
(21)Vanessa Monique Benci ‑ Senior Constable Benci was attached to Forensic Field Operations, Major Crime Squad in August 2016. She conducted a forensic examination of the Prado.
(22)Calum McLeod ‑ Mr McLeod is the Support Services Manager at the Joondalup Health Campus. He provided evidence concerning the layout of the health campus.
(23)Stephen John Barnes ‑ Senior Constable Barnes is attached to Forensic Field Operations, Crime Scene Investigation. He attended the Joondalup Health Campus on 3 August 2016 for the purpose of a forensic examination.
(24)Dale Patricia O'Meara ‑ Senior Constable O'Meara was attached to Forensic Field Operations in August 2016. She is a bloodstain pattern analyst.
(25)James Augustine McStravick ‑ Senior Constable McStravick is attached to the Fingerprint Bureau, Forensic Division. He forensically examined various items seized from the Prado.
(26)Richard Michael Russell ‑ Senior Constable Russell is attached to the Forensic Division and took photographs of Mr Wilton on 4 August 2016.
(27)Hayley Ann Burke ‑ Senior Constable Burke was attached to the Crime Scene Unit, Forensic Field Operations in August 2016. She was involved in a forensic examination of the Prado after it had been found on a bush track off Pipidinny Road, Eglinton.
(28)Miranda Rose Cook ‑ Senior Constable Cook is a forensic police officer who examined the Prado after it had been taken to the Midland forensic facility.
(29)Laura Kathryn Hyde ‑ Senior Constable Hyde is a forensic police officer who conducted a forensic examination of the Prado.
(30)Paul Venn Morgan ‑ Senior Constable Morgan was attached to the Forensic Division in August 2016. He was involved in a forensic examination of areas of interest in Amesbury Loop, Butler.
(31)David Laurence Walker ‑ Senior Constable Walker is attached to the Fingerprint Bureau, Forensic Division. He identified a palm print located on Ms McEwan's motor vehicle as that of Mr Yarran.
(32)Shane Edwards Osborne ‑ Senior Constable Osborne is attached to the Major Crash Section of the Western Australian Police. He examined the Prado.
(33)Judith Ann McCreath ‑ Dr McCreath is a Forensic Pathologist. She conducted the post-mortem examination of Ms Fairhead's body.
(34)Sarah Nicole McCabe ‑ Ms McCabe is employed by the ChemCentre as a Forensic Scientist. She analysed blood and urine samples taken post-mortem from Ms Fairhead.
(35)Fiona Orr Baxter ‑ Dr Baxter is a Forensic Scientist employed by PathWest. She gave evidence about DNA analysis of samples taken from various seized items.
(36)Te Keepa Aperehana Rimutai Brown ‑ Mr Brown was in a relationship with Ms Fairhead prior to her death.
(37)Matthew John Bower ‑ Detective Constable Bower obtained CCTV film from a bus on which Mr Smith and Mr Yarran were travelling when they were arrested.
(38)Gary William Trueland ‑ Mr Trueland provided CCTV film taken from a surveillance camera located at 1 Shelburne Gardens, Ridgewood – a house located diagonally opposite to the Hinchinbrook House.
(39)Andrew Victor Dueman ‑ Officer Dueman was a police officer stationed at the Rockingham Police Station as at August 2016. He spoke to Ms Fairhead on 2 August 2016 at the station.
(40)Nathan John Carbone ‑ Detective Sergeant Carbone was attached to the Major Crime Squad in August 2016. He was initially appointed Witness Manager in the investigation into the death of Ms Fairhead. He was then appointed the Investigating Officer in December 2016.
(41)Joel Stuart Mackenzie ‑ Constable Mackenzie is attached to the Police Air Wing. He and others were tasked to search by helicopter for the Prado on 3 August 2016. He observed the Prado in bush near Pipidinny Road.

The witnesses called by the accused

Consistent with the onus that always rests on the State, the accused were not obliged to give or call evidence. Their right to silence applied before and during the trial.
Each of the accused elected not to give evidence and Mr Yarran elected not to call evidence. However, Mr Boag and Mr Smith elected to call evidence: Mr Boag called Dr Robertson and Mr Smith called Dr Walton. Dr Robertson is a pharmacologist and forensic toxicologist. Dr Walton is a consultant psychiatrist.
There are principles of law that must be applied according to the elections made by the accused. Those principles are stated later in the reasons.

What was the evidence

The evidence consisted of what I heard from the witnesses - what they said - and the exhibits that were received. I could take into account a witness' demeanour while giving evidence in assessing their credibility.
The evidence also included statements that were read into evidence by consent. The statements made by the following witnesses were read into evidence as part of the State's case:
(1)      Matthew Parua Reremoana Arai;
(2)      Brian Frederick Kirby;
(3)      Brodie Hunter;
(4)      Joel Stuart Mackenzie;
(5)      Matthew John Bower;
(6)      Gary William Trueland.
Further, the evidence of Andrew Victor Dueman given at the first trial was read into evidence by consent as part of the State's case.

The evidence in the State's case against each accused

An out of court statement made by an accused, if admissible, is only evidence in the State's case against that accused. Evidence of the statement is not admissible in the State's case against a co‑accused. In this trial that meant:
(a)the electronically recorded interviews conducted by detectives with Mr Smith;[13]
(b)the recorded conversation between Mr Smith and his parents on 28 August 2016,[14]
was only evidence in the State's case against him and was not evidence in the separate cases against Mr Yarran and Mr Boag.
[13] Exhibits 14 and 15.
[14] Exhibit 43.
As previously mentioned, Mr Yarran participated in an electronically recorded interview with detectives on 4 August 2016. The DVD containing the recording was tendered in evidence without objection as part of the State's case against Mr Yarran.[15] It was not admissible against Mr Boag or Mr Smith.
[15] Exhibit 37. There were no items marked as exhibit 37 through an oversight. This was the second exhibit marked with that number. The record will be amended to show Mr Yarran's record of interview as exhibit 37A.

Any admission made by Mr Yarran in the interview – for example, that he resided at the Hinchinbrook House – was of negligible significance. As Ms Christian SC submitted, Mr Yarran lied in the interview about his whereabouts on the night of 2/3 August 2016. However, the State did not rely on the lies as lies told out of a consciousness of guilt and Mr Yarran elected not to give evidence.[16] Accordingly, the statements made by Mr Yarran in his recorded interview played no part in my fact finding.
[16] ts 2579 ‑ 2580.

Expert evidence

Ordinarily, witnesses can only give evidence of their personal experiences - that is, things they perceived with their senses. They may also give evidence about their state of mind where relevant.
Generally, witnesses are not allowed to give evidence about their opinions or conclusions. However, a witness who has specialist knowledge of a subject through training, study or experience may express an opinion on matters within their area of expertise.
In this case, several witnesses gave evidence of their opinions and conclusions on matters that fell within their expertise. Dr McCreath; Ms McCabe; Dr Baxter; Senior Constable Jenkins; Senior Constable O'Meara and Senior Constable Walker were expert witnesses called by the State. As previously noted, Mr Boag called Dr Robertson and Mr Smith called Dr Walton.
The fact that a witness possesses specialist knowledge about a subject does not mean that their evidence must be accepted. Expert evidence is like all evidence received in a trial; any part of the evidence, including the opinions expressed by an expert, may be accepted or rejected.
It was accepted that the expert witnesses called by the State were qualified to give evidence of their opinions and conclusions. The methodology and techniques they employed, how they reasoned to their opinions and their impartiality were not in issue. Cross‑examination was directed to clarifying or qualifying their evidence. Given that approach, there had to be a good reason to reject their opinions and conclusions - for example, that the evidence was inherently implausible or inconsistent with other evidence that had been accepted as truthful and reliable.[17] However, the weight given to the expert evidence, when considered with other evidence, was a matter for me to determine.
[17] See Hone v The State of Western Australia [2007] WASCA 283; (2007) 170 A Crim R 138.
It was also accepted that Dr Walton and Dr Robertson were qualified to give evidence of their opinions and conclusions. However, Ms Christian contested aspects of their opinions – in particular, the basis upon which they were formed.

The convictions on counts 1 - 6

In Bennett v The State of Western Australia,[18] Martin CJ (with whom Mazza JA agreed) held that a conviction may provide evidence of the essential facts constituting the subject offence. A similar conclusion was reached by Buss JA (as his Honour then was). As part of his judgment, Buss JA extensively reviewed authorities on whether a judgment of acquittal or conviction is incontrovertible as between the same parties. His Honour formulated a number of propositions based on his review of High Court authorities and legal writings, including that:
(a)the doctrine of res judicata applies in criminal proceedings;
(b)res judicata is applicable to a judgment of acquittal and a judgment of conviction entered by a court of competent jurisdiction after a plea of guilty or following a trial;
(c)a judgment of acquittal or conviction binds the parties to the criminal proceedings in which the judgment was entered - that is, the accused and the State or the Crown (as the case may be);
(d)res judicata requires that, as between the accused and the State or the Crown, the judgment of acquittal or conviction is incontrovertible unless and until it has been set aside or quashed by a court of competent jurisdiction;
(e)in the case of a judgment of conviction, the matters which are incontrovertible between the accused and the State or the Crown are the fact of the conviction and the material facts comprising the elements of the subject offence;
(f)the fact of the conviction may be proved under s 47 of the Evidence Act 1906 (WA);
(g)the material facts comprising the elements of the offence may be proved by tendering the relevant part of the record of the earlier proceedings; proof of the fact of the conviction may also constitute some evidence of those material facts;
(h)if any other facts or circumstances relating to the previous conviction are admissible in evidence in a later criminal trial (for example, as 'propensity evidence'), then those facts or circumstances must be proved in the ordinary way.
[18] Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419.
The State did not seek to rely on the conviction of the accused on counts 1 ‑ 6 to prove any facts in its (separate) case(s) on count 7. Further, the State did not seek to formally prove the conviction of the accused by following the procedure prescribed by s 47 of the Evidence Act. However, that hardly seemed necessary in circumstances where a re‑trial had been ordered on one count of an indictment in respect of which judgments of conviction had been entered on the remaining counts. In any event, the State and the accused conducted the trial effectively on the basis that the conviction of the accused on counts 1 ‑ 6 was incontrovertible.
However, that had little impact on my fact finding. For example, an issue that had to be determined was whether Ms Fairhead still had her phone when she was in the Prado after leaving the Hinchinbrook House. The accused were convicted on a charge that alleged that Ms Fairhead was robbed of her phone and other items of property. However, the jury could have found the accused guilty of that charge without being satisfied beyond a reasonable doubt that they had stolen Ms Fairhead's phone (or without being required to make a finding as to when the phone was taken if they found it had been stolen).
A similar issue concerned whether the accused forced Mr Watson, Mr Wilton and Ms Fairhead into the Prado on leaving the Hinchinbrook House. The accused were convicted of depriving Mr Watson, Mr Wilton and Ms Fairhead of their liberty. However, that did not prevent the accused from contesting the State's allegation that they forced Mr Watson, Mr Wilton and Ms Fairhead into the vehicle. There were other acts by the accused that could have been found by the jury in returning a verdict of guilty on counts 4 ‑ 6.

PART B: THE FUNDAMENTAL PRINCIPLES

The burden of proof

Any person who stands trial for a criminal offence is presumed to be innocent; he or she is presumed to be innocent not just before the trial but throughout the trial. Consequently, the accused were presumed to be innocent of the charge alleged against them and the presumption of innocence applied throughout my deliberations until verdicts were reached.
It followed that the State had the onus of proving the guilt of the accused. The State carried that onus throughout the trial. The accused were not required to prove anything; there was no onus on them to establish any fact, let alone to prove their innocence.

The standard of proof

The State could only establish the guilt of each accused by proving he was guilty of the charge alleged beyond a reasonable doubt. Beyond a reasonable doubt is a high standard; it is the highest standard known to the law. Each accused was entitled to the benefit of any reasonable doubt I had about his guilt after considering all of the evidence that was admissible against him. I was bound to find the accused whose case I was considering not guilty if I was left with a reasonable doubt as to his guilt; I would find him guilty if I was left with no reasonable doubt.
Those fundamental principles - that the accused were presumed to be innocent of the charge alleged against them; that the State carried the onus of proving their guilt; and that the State was required to prove their guilt beyond a reasonable doubt before they could be convicted of the charge - governed all of my deliberations, including in determining whether to draw any inference that was adverse to the accused on an issue that the State was required to prove and in considering the effect of the evidence that was called by Mr Boag and Mr Smith.

The election by the accused

As .noted, the accused were not required to give or call evidence. They were presumed to be innocent and were not required to prove anything in this trial.
The fact that the accused elected not to give evidence was not evidence against them. It did not constitute an admission of guilt by conduct and no inference could be drawn against them from the fact that they exercised their right not to give evidence.
The fact that the accused did not give evidence could not have been used to fill any gaps in the evidence presented by the State. It proved nothing and was not considered in deciding whether the State had proven the guilt of each accused beyond a reasonable doubt. Further, the fact that Mr Smith and Mr Boag elected to call evidence did not detract from or alter the fundamental principles to which I have referred and which give effect to the presumption of innocence.
This was not a case in which the accused had to be acquitted if the evidence of either Dr Walton and/or Dr Robertson was accepted. Their evidence was added to the evidence adduced by the State and formed part of the whole of the evidence that was considered in determining whether the State had proved the guilt of the accused beyond a reasonable doubt. It was on the whole of the evidence that I had to be satisfied that the State had proved the charge alleged against the accused before they could be found guilty of the charge.[19]
[19] It would have been necessary for me to put their evidence to one side if it had been rejected. The question then would have been whether the State had proven the guilt of the accused on evidence that I had accepted as being truthful and reliable.
I did not accept parts of Mr Smith's record of interview and the account he gave to his parents of what occurred before Ms Fairhead left the Prado. I set those part of his out of court statements that were rejected to one side and, in respect of the State's case against him, I determined whether the State had proven his guilt beyond a reasonable doubt on evidence that I accepted as being truthful and reliable.

Inferences

The State's case required me to draw inferences that were adverse to the accused: most importantly, that the threats and acts of intimidation caused Ms Fairhead to open the front passenger door of the Prado; that Ms Fairhead's death was a result of her act and that her death was not an accidental event. I was required to make findings about Ms Fairhead's state of mind and that of the accused. Obviously, that required me to also draw inferences.
An inference can only be drawn from facts found to have been proven; that is, an inference can only be drawn from evidence that has been accepted as truthful and reliable. As the State must prove the guilt of an accused person beyond a reasonable doubt, an inference on an 'essential' matter on which the State carries the burden of proof (that is, on an element of the offence or on a matter that is essential to a finding of guilt) can only be drawn against an accused person if it is the only reasonable inference available on facts that have been proven. Further, the State must exclude, on a consideration of the whole of the evidence, any reasonable inference - any reasonable conclusion or explanation - that is consistent with the innocence of an accused person. That is because an accused person is entitled to the benefit of any reasonable doubt raised by the evidence.
Speculation or conjecture must be avoided in drawing an inference against an accused person or in reaching a conclusion of guilt. However, it is not necessary that a fact be proven beyond a reasonable doubt before it can be used for the purpose of drawing an inference; it is sufficient that the fact is established by evidence that is accepted as being truthful and reliable. That is subject to one exception. In addition to proof of the elements of an offence, there may be a fact that is essential in reasoning to a finding of guilt; that is, without proof of that fact, the trier of fact would not be prepared to find an accused person guilty. If there is such a fact, that fact must also be proven beyond a reasonable doubt.[20] That logically follows from the onus that the State carries in every criminal trial.

PART C: THE EVIDENCE RELIED ON BY THE STATE

[20] See Shepherd v The Queen (1990) 170 CLR 573.

Events prior to arriving at the Hinchinbrook House

Mr Watson and Mr Wilton meet

Mr Watson and Mr Wilton stated that they met sometime on the afternoon of 2 August 2016 in Armadale. Mr Watson had been on a methylamphetamine 'bender' for three or four days prior to 2 August. He had not slept during that time and had consumed methylamphetamine prior to meeting Mr Wilton.[21] Mr Wilton could not recall using methylamphetamine before meeting Mr Watson but he had smoked cannabis.[22] Mr Watson thought that they met at about 5:30 ‑ 6:00 pm.[23]
[21] ts 1580; 1662 ‑ 1663; 1672.
[22] ts 1867.
[23] ts 1555.
Mr Watson had with him a backpack, methylamphetamine, a pipe, a blow torch and a knife when he met Mr Wilton. The knife had a brown handle with wolves along the blade. He thought he had between 0.5 gm and 1.0 gm of methylamphetamine.[24]
[24] ts 1555; 1674.
Mr Watson and Mr Wilton smoked methylamphetamine near the Armadale train station and then caught a train to Cannington. They went to the house of a friend of Mr Wilton (referred to in the evidence as 'Julia's house') where they purchased and smoked more methylamphetamine. Both Mr Watson and Mr Wilton thought they purchased about a gram.[25]

Ms Fairhead contacts Mr Wilton

[25] ts 1556; 1682 (Watson); ts 1844 ‑ 1845 (Wilton).

Mr Wilton stated in his evidence‑in‑chief that he was contacted by Ms Fairhead shortly after meeting with Mr Watson. He received a message that Ms Fairhead had argued with her partner and needed a friend.[26]
[26] ts 1844.
In cross‑examination, Mr Wilton agreed that:
(a)He had received a coded Facebook message from Ms Fairhead indicating she wished to obtain methylamphetamine.[27]
(b)Ms Fairhead then spoke to him by phone. She stated she wanted to see him and told him that she was having some issues with her partner. She said her partner had been violent towards her - he had hit her.[28]
(c)Ms Fairhead also said that she had left her accommodation - Mr Wilton did not know whether she had been forced to leave or just could not remain where she was living.[29]
[27] ts 1868.
[28] ts 1869.
[29] ts 1870 ‑ 1871.
Mr Wilton was also cross‑examined about a statement he provided to the police on 4 August 2016. He said in the statement that Ms Fairhead told him her partner had tried to run her over at one time.[30]
[30] ts 1870.
Mr Brown gave evidence about his relationship with Ms Fairhead, including that he had been served with a police order on 24 July 2016 preventing him from having contact with her for 24 hours and that he was subsequently convicted of breaching the order.[31] However, it was not put to Mr Brown that he had hit Ms Fairhead or attempted to run her over; indeed, his evidence was that Ms Fairhead was asked to leave his parent's house after producing a knife during an argument.[32]

Mr Watson and Mr Wilton meet with Ms Fairhead

[31] ts 2224 ‑ 2225.

[32] ts 2218.

An arrangement was made for Ms Fairhead to pick up Mr Watson and Mr Wilton in the Prado. Mr Wilton thought that they were collected by Ms Fairhead near McDonalds, Cannington at about 8.00 pm, 2 August. Mr Watson did not give evidence about when they were collected by Ms Fairhead but he thought that they were picked up from the house in Cannington where they had smoked and purchased methylamphetamine.[33]
[33] ts 1556 (Watson); ts 1845 (Wilton).
Mr Watson and Mr Wilton stated that they then went 4-wheel driving somewhere in the hills. They consumed methylamphetamine - Mr Watson and Mr Wilton smoked methylamphetamine and Ms Fairhead injected the drug.[34] Mr Watson estimated that the three of them consumed approximately five points of methylamphetamine between leaving the house in Cannington and arriving at the Hinchinbrook House.[35] Ms Fairhead mixed the drug with water before injecting it.[36]
[34] ts 1557.
[35] ts 1583. See also at 1684 ‑ 1687.
[36] ts 1686.
Mr Watson described Ms Fairhead's use of methylamphetamine as 'recreational' (he described himself as a 'heavy user').[37] She had used the drug on previous occasions he had been with her but not on every occasion. He could not remember her previously injecting the drug but he could not be certain.
[37] ts 1620 ‑ 1621.
In cross‑examination, Mr Wilton agreed that he had smoked methylamphetamine with Ms Fairhead 'in the past on a couple of occasions'.[38] There was a further exchange about his use of drugs with Ms Fairhead:[39]
And you'd also on a number of occasions used - used drugs with Peta, is that right? - - - Yes.
In fact, probably about half the time that you met up with her, half the occasions that you met up with Peta - - - ? - - - Yeah, about that.
- - - You'd use drugs with her, is that right? - - - Approximately, yeah.
Yes. And on a couple of prior occasions at least Peta has asked you to look out for meth for her, is that right? - - - Yes.
And in fact she asked you to go and get some meth for her, is that right? - - - Yes.
Perhaps three different occasions? - - - Yes.
[38] ts 1876.
[39] ts 1898.
Mr Wilton was again cross‑examined about this matter later in his evidence. He denied that he understood Ms Fairhead contacted him when she needed methylamphetamine. He confirmed he had provided methylamphetamine to her 'maybe three or four times'; different quantities were supplied each time. He was not certain how often Ms Fairhead used methylamphetamine but it was not every time he had seen her. On occasions, she smoked methylamphetamine and once or twice she had injected the drug.[40]
[40] ts 1915 ‑ 1916.
According to Mr Watson, Ms Fairhead said she had been living in her car for a few days because of problems with her partner. She apologised for the car being messy - there were suitcases and clothing in the back of the car.[41]
[41] ts 1585; 1643.
Mr Watson described Ms Fairhead as normally 'a happy go lucky, bubbly person to be around'. However, she was upset when Mr Wilton and he met her on the evening of 2 August.[42] She said she had argued with her partner and was missing her children - Mr Watson thought that Ms Fairhead's children had been 'taken off her'.[43] He also thought that Ms Fairhead was still 'down' after she had injected methylamphetamine.[44]
[42] ts 1570.
[43] ts 1585; 1642. See also the summary of the evidence given by Mr Brown on this aspect later in the reasons.
[44] ts 1623.
Mr Wilton described Ms Fairhead's state of mind on 2 August as 'a little bit upset about what had gone on between her and her partner'. He agreed she came across as being 'a bit down' but she 'calmed down a little bit more' after injecting methylamphetamine while they were 4-wheel driving.[45] He did not recall Ms Fairhead saying anything about having her children taken away from her,[46] but she was sobbing at some point.[47] He agreed that Ms Fairhead was normally a 'lively, bubbly sort of person'.[48]

Ms Fairhead's contact with Mr Brown

[45] ts 1876; 1899.

[46] ts 1876 ‑ 1877.

[47] ts 1902.

[48] ts 1876; 1899.

It was not in issue that Ms Fairhead exchanged messages and spoke to Mr Brown by phone while she was 4‑wheel driving with Mr Watson and Mr Wilton (and possibly, while they were travelling to the Hinchinbrook House). Mr Watson and Mr Wilton stated that there were multiple phone calls.[49]
[49] ts 1657 (Watson).

Mr Watson stated he could not hear what was said but agreed that Ms Fairhead was arguing with someone over the phone and he could hear yelling.[50] Ms Fairhead appeared to be 'a bit angry'[51] and upset. However, Mr Watson could not recall her crying.[52]
[50] ts 1590.
[51] ts 1657.
[52] ts 1684.
Mr Wilton said that the phone was on speaker at one point because Ms Fairhead asked him to speak to Mr Brown. He stated he could hear Ms Fairhead's partner yelling during the phone calls. At one point, Ms Fairhead had tears running down her face, although 'she didn't like ball her eyes out'.[53]
[53] ts 1877. See also at ts 1908.
Mr Brown was asked by Ms Christian whether he had contact with Ms Fairhead after Mr Brown's father asked Ms Fairhead to leave his house. Mr Brown replied:[54]
I remember I - I texted her. I can't remember - because I lost my phone, it was broken and it was lost after that. I can't remember. But I remember texting her just to make sure, you know, as (indistinct). I just wanted to make sure she was okay that night and there was - there was a phone call where she had answered and I - I asked her if she's okay. And there was two (indistinct) in the car, I don't know who they were but they were like getting real abusive over the phone towards me, you know stuff like that. And then that's all I remember was hearing her last talk, conversation.
[54] ts 2219.
Mr Brown was then asked whether he could remember anything that Ms Fairhead had said in the conversation. He replied:[55]
All I remember was that she said something that wasn't very nice. She said something and there she was with two fellows and she was with a new partner. It was kind of trying to break me because, you know, when you break up you don't just jump into a relationship straight away, well, I don't, really. I kind of - kind of found that not right to me. That's all I remember there. She's with a new man, yeah, I can't quite remember what - what she said to me that night.
[55] ts 2219.
Mr Brown was asked further questions about his conversations with Ms Fairhead on the night of 2 August by Mr Yarran's counsel, Mr Freitag SC:[56]
[56] ts 2230. That evidence was consistent with medical reports concerning Ms Fairhead that were received into evidence as exhibit 44.
And she took a bunch of clothes and suitcases and things in the back of her car, her Prado. Is that right? - - - Yeah, that's right. She took a few things.
And at the time when she left the house did you know whether she had anywhere else to go or did you think she was going to be living in her car at that stage? - - - What came to mind, I - I just remember she - when she had left she said "I'm going to go back to" - she said, "I'm going back up to the farm", which was Quairading. I think it's her mum's or to her husband.
All right. But then you started speaking to her during the day and she was up driving around with two other blokes, is that right? - - - Yeah, yeah, that's right.
So she hadn't gone home? - - - That's right, so it kind of got me like, like confused, like when she said - - -
Yes. That's all right? - - - That she was going back up to Quairading.
Yes? - - - I was, I was quite, I was quite worried at the time when, when those two fellows answered the phone because they were getting smart, you know, it was just - I couldn't bear with it, eh.
So it was pretty unhappy conversations between you and Peta when she was in the car? - - - Yeah.
Were you a bit upset with each other? - - - She was, she was, she was like a match on fire, arcing me up, trying to arc me up and say "I'm with another guy, I'm done with you", stuff like that.
Yes. You said she was like a match on fire. Was there a bit of yelling by her? - - - Yeah, there was a bit of yelling and from me, too. I was yelling. I told her, you know, you can get buggered and stuff like that, you know, you told me you were going back to Quairading. I just remember just saying a bit of - a bit of stuff like that.
And she said some nasty things to you and you said some things back to her, is that fair? - - - Yeah, yeah.
Was she crying? Could you hear her crying on the phone when she was with those two fellows? - - - No. Like they were all in a happy mood, they were all happy like rubbing it in, into me. It was not good. It was a bit unfair at the time when she made that phone call.
The reference in that exchange to Quairading was to where Ms Fairhead had lived some time prior to meeting Mr Brown. According to Mr Brown, Ms Fairhead was married with three children who were living with Ms Fairhead's husband in Quairading.[57] He agreed that he had said in his statement that Ms Fairhead had 'some mental health issues' for which she had been prescribed antidepressants.[58] He also agreed that 'in the weeks that [he] knew her', Ms Fairhead's behaviour changed in that she became more 'full on'; 'she was not herself' but he could not remember Ms Fairhead ever talking about ending her life.[59]
[57] ts 2221; 2230.
[58] ts 2223.
[59] ts 2246 ‑ 2247.
Mr Brown agreed that he was upset by the calls with Ms Fairhead and that he had subsequently smashed his phone because of what had been said.[60]

Ms Fairhead's phone records

[60] ts 2237.

Detective Sergeant Carbone was the investigating officer for the investigation into the death of Ms Fairhead. He produced, among other things, a schedule of phone records for Ms Fairhead's phone for 2 and 3 August 2016.[61] The schedule disclosed that:
(a)Ms Fairhead first contacted Mr Wilton by phone at 7:33 pm on 2 August. She sent a text message to him at 7:51; she sent a text message and made calls between 8:46 and 9:17 pm.
(b)Mr Brown made a number of calls and sent text messages to Ms Fairhead between 7:35 pm and 7:46 pm, 2 August. He made further calls and sent text messages between 9:44 and 9:46 pm.
(c)Ms Fairhead called Mr Brown and sent text messages between 0:35 am and 1:32 am on 3 August. The last call was made by Ms Fairhead at 1:32 am. The calls were reasonably long - approximately 5 ‑ 6 minutes; 8 minutes; 3 ‑ 4 minutes; and 15 minutes (the last call).

Senior Constable Dueman

[61] Exhibit 42. I inferred that the schedule was compiled from data obtained from Ms Fairhead’s mobile service provider.

Senior Constable Dueman gave evidence at the first trial. His evidence in that trial was read into evidence in this trial.
Senior Constable Dueman stated that he was on duty at the front counter of the Rockingham Police station on 2 August 2016. Ms Fairhead presented at the counter. He recognised her as he had previously met her on or about 24 July 2016.
On 2 August 2016, Senior Constable Dueman made an incident report in relation to a complaint made by Ms Fairhead about Mr Brown. According to the incident report, Ms Fairhead alleged that Mr Brown had sprayed Ms Fairhead's face with disinfectant, claiming to have done so as a joke. Ms Fairhead reacted and confronted Mr Brown and he grabbed her forcibly and threw her away from her car. Ms Fairhead attempted to get into the car and Mr Brown grabbed the keys from the ignition causing Ms Fairhead to fall backwards onto the kerb. The incident report described the injuries sustained by Ms Fairhead as minor.[62]
[62] ts 2253 ‑ 2256.
Senior Constable Dueman stated that Ms Fairhead appeared to be upset, agitated and 'someone that just wants to get this over and done with quickly'. He suggested that Ms Fairhead attend hospital but 'I got the opinion that she was ok and just couldn't be bothered. She said that wouldn't be necessary'.[63] Senior Constable Dueman said he also had a conversation with Ms Fairhead about her choice of partners and she stated words to the effect that 'maybe I need to go away for a few days. I've got some friends in Joondalup. Maybe I'll just go there'.[64] In cross‑examination, Senior Constable Dueman confirmed that Ms Fairhead had been crying - 'I wouldn't call it that she was crying, but more shedding a tear'.[65]
[63] ts 2256.
[64] ts 2257.
[65] ts 2258.
Senior Constable Dueman stated that he first met Ms Fairhead on 24 July 2016 when another police officer was dealing with her over a family domestic violence incident between herself and Mr Brown. He assisted with serving a temporary violence restraining order on Mr Brown at a shopping centre. Ms Fairhead was very upset when he met her that day. Senior Constable Dueman did not know why the temporary violence restraining order had been obtained. However, a report of the incident stated that Ms Fairhead had complained that she and Mr Brown had an argument during which Mr Brown pushed her out of a bed. He then took her car keys and drove off in her car. Subsequently, Mr Brown allegedly drove the vehicle towards Ms Fairhead before driving off.[66]
[66] ts 2260 ‑ 2261.
The incident report made on 2 August 2016 contained answers to what I inferred were questions that police are directed to ask family violence complainants. Senior Constable Dueman has stated that she had attempted in the previous 12 months to leave Mr Brown; that she was geographically isolated from family and friends and that Mr Brown had been previously violent towards her. She also complained that Mr Brown had been jealous and controlling, had strangled her while they were having sex and harassed her by text messages.[67]
[67] ts 2264 ‑ 2265.
In re‑examination, Senior Constable Dueman stated that Ms Fairhead did not want a violence restraining order to issue on 2 August 2016. The incident report recorded she did not consent to an order and that 'no safety concerns of involved persons'. The report recorded that Ms Fairhead denied she was frightened or that any abuse by Mr Brown had escalated. She stated that Mr Brown had not previously used weapons or objects to her hurt her and she gave no details of any way in which Mr Brown may have attempted to control her.[68]
[68] ts 2269 ‑ 2271.
The evidence of Senior Constable Dueman was read after Mr Brown had given evidence but, of course, what Senior Constable Dueman stated in the first trial was known to counsel for the accused at the time that they cross‑examined Mr Brown. Mr Brown was not cross‑examined on the allegations made by Ms Fairhead to Senior Constable Dueman or on what was recorded in the incident reports made on 24 July and 2 August 2016. Rather, the cross‑examination of Mr Brown on this aspect was confined to a statement of material facts that was read to the court when Mr Brown pleaded guilty to breaching the violence restraining order by sending numerous text messages and making a number of phone calls to Ms Fairhead during the term of the order.[69]

Mr Watson contacts Ms Standing

[69] ts 2226 ‑ 2228.

Mr Watson contacted Ms Standing by text while 4-wheel driving with Ms Fairhead and Mr Wilton. He had not met Ms Standing but had previously exchanged text and Facebook messages with her.
Exhibit 5 contained information extracted from Mr Watson's mobile phone. That information indicated that Mr Watson first tried to speak with Ms Standing on the night of 2 August 2016 at about 11:44 pm. It appeared that he first spoke to someone who was using Ms Standing's mobile phone at about 12:19 am, 3 August. Mr Watson stated that he spoke to Ms Standing by phone that night and exchanged text messages. I accepted that evidence.
Mr Watson identified various thumbnails that were extracted from his phone as images that he received from or sent to Ms Standing.[70] The thumbnails included pictures of bags of methylamphetamine and separate photographs of Ms Standing. The thumbnails formed part of the data downloaded from Mr Watson's mobile phone (exhibit 5).
[70]ts 1571 and following; exhibit 5
Exhibit 22 summarised data downloaded from Ms Standing's mobile phone. Senior Constable Jenkins gave evidence about downloading data from the mobile phones of Mr Watson and Ms Standing. The evidence is referred to later in the reasons. However, exhibits 5 and 22, together with Mr Watson's evidence, established that:
(a)Mr Watson photographed bags of methylamphetamine using his mobile phone - the images were apparently created on 30 July, 2016;
(b)the photographs were sent to Ms Standing's mobile phone at 10:56 pm, 2 August and 1:40 am, 3 August.
I made findings to that effect.
Exhibit 6 was a summary of text messages retrieved from Mr Watson's phone.[71] Exhibit 23 was also a summary of text messages - retrieved from Ms Standing's mobile phone. The text messages summarised in the exhibits indicated that:
(a)Mr Watson exchanged text messages with Ms Standing on the night of 1 August 2016. The first message suggested that, as Mr Watson testified, he had been in contact with Ms Standing prior to that date.
(b)Mr Watson sent a text message to Ms Standing at about 11:45 pm on 2 August 2016 asking for her address. Ms Standing replied at about 12:14 am inquiring whether Mr Watson would come to her. Further text messages were exchanged in which Ms Standing provided the address for the Hinchinbrook House in a text sent at about 12:33 am.
(c)Mr Watson inquired about who Ms Standing was with and Ms Standing replied that she was with her cousin.
(d)There was a flirtatious element to the messages exchanged prior to Mr Watson arriving at the Hinchinbrook House.
[71] I found that the phone was a 'HTC' phone which was located by police officers at a site in Mather Drive.
Ms Fairhead agreed to drive Mr Watson to the Hinchinbrook House to meet Ms Standing. Mr Watson continued to text Ms Standing as Ms Fairhead drove to the house. She asked whether he had methylamphetamine with him.[72] Mr Watson thought that he had about 1.5 mg of methylamphetamine when he arrived at the house. He had not discussed with Ms Standing how much methylamphetamine he would sell her.
[72] ts 1558; 1613 ‑ 1614.
Mr Watson agreed in cross‑examination that there were three reasons why he wanted to meet with Ms Standing - he wanted to smoke methylamphetamine with her; he wanted to sell her methylamphetamine; and he wanted to have sex with her. [73]

Ms McEwan

[73] ts 1613 ‑ 1614. And see Mr Wilton's evidence at ts 1917.

Ms McEwan stated that she had grown up knowing Mr Yarran; she described him as a 'friend of a friend'. She met Mr Smith for the first time during the morning of 2 August 2016 when she went to the Hinchinbrook House. Mr Smith invited her to return later that day so he could borrow a crack pipe. She agreed and returned to the Hinchinbrook House between about 5.30 pm and 6.00 pm. The accused, Ms Standing and her friend, Nanna, were at the house when she returned.
Ms McEwan stated that she may have smoked methylamphetamine while at the house that evening but she did not see anyone else using methylamphetamine in her presence 'at that time'. However, at some point in the night, Mr Smith asked whether those present knew 'anyone we can roll for gear?' Ms Standing indicated she knew someone and she made a phone call and sent text messages.[74]
[74] ts 1469.

Arriving at the Hinchinbrook House

Mr Watson's evidence

Mr Watson stated that it took 'half-an-hour, 45 minutes. Maybe an hour' to drive to the Hinchinbrook House after the address had been provided by Ms Standing.[75] As previously noted, exhibit 6 indicated that Ms Standing sent the address of the Hinchinbrook House to Mr Watson at about 12:33 am. Exhibits 6 and 23 recorded that Mr Watson and Ms Standing exchanged further messages, including messages sent by Mr Watson in which he asked Ms Standing to 'come out front' (sent at about 1:47 am) and advised that he had 'just turned it on the street' (sent at about 1:50 am).
[75] ts 1558.
Reference is made later to CCTV film that was obtained from a house at 1 Shelburne Gardens, Ridgewood. The CCTV captured the Prado arriving at the Hinchinbrook House. According to the camera's clock, the vehicle arrived at about 1:51:40.
Mr Watson agreed he had 'used a bit more meth than [he] ordinarily would that night' as he was having a good time. He thought there might be 'a bit of a party' at the 'Ridgewood house' and he wanted to see Ms Standing.[76] Nevertheless, he asked Ms Fairhead to drive once past the house because 'at that point on the way up there, my guts was telling me something wrong was going to happen. So I just wanted to get in and get out in case something did happen'.[77]
[76] ts 1688.
[77] ts 1691.
Each of the accused were at the Hinchinbrook House when Mr Watson, Mr Wilton and Ms Fairhead arrived. It was not in issue that Ms Standing, Ms McEwan and 'Nanna' were also at the house. According to Mr Watson, Ms Standing and Nanna were standing outside at the front of the house as Mr Watson, Mr Wilton and Ms Fairhead arrived.
Ms Fairhead drove the Prado onto the front lawn and parked. Mr Watson stated that he armed himself with a knife before leaving the Prado; he placed the knife under his trousers 'down the side of - like on my leg'.[78] He approached and hugged Ms Standing and as he did so, the knife fell from where it was hidden in his trousers. Ms Standing's mobile phone records showed that she sent two messages to 'Nanna' at 1:52:21 and 1:51:22: 'Go in he's got a knife' and 'Tell them'.
[78] ts 1559.
Mr Watson stated he ran back to the Prado after the knife dropped to the ground. Moments later, three men came out of the house. It was not in issue that the three men were the accused. According to Mr Watson, Mr Wilton and Ms Fairhead had left the Prado by this time.
Mr Watson initially said the men were armed with baseball bats and machetes. His evidence continued:[79]
All right. So you've mentioned baseball bats and machetes and – did you say three men? - - - Yes.
Are you able to describe any of them? - - - One was sort of built, orange hair, just your normal people I guess.
Did he have a weapon? - - - Yes.
What was it? - - - They – all three of them had – at that point I think they had baseball bats.
…
You've mentioned a – a machete, at what point did you see a machete? - - - When we were in the house.
[79] ts 1559 ‑ 1560.
Asked what then happened, Mr Watson said:
Hannah has said to them - must have told them that I'd had a knife. And they told us where's - asked where the weapons were. I said I put it - the knife back in the car. And they played out - like, they had just - the house had - all smashed up and played paranoid. And said, 'well, youse are all right.' And then we all come inside.[80]
[80] ts 1560.
In cross‑examination, Mr Watson agreed that the accused demanded to know where his knife was immediately on coming out of the house to confront him.[81] He said he was hit on the back of the leg with a baseball bat. He could not recall whether he put the knife back in the Prado after it fell to the ground or whether he 'put it on' him.[82] However, he agreed that it 'sounded familiar' that he had handed over his knife to the accused while outside the house and that he had done so when one of the accused had demanded to know where his knife was.[83] He said later in cross‑examination that he had surrendered his knife to show that he did not intend to cause trouble.[84]
[81] ts 1586.
[82] ts 1590.
[83] ts 1590 ‑ 1591.
[84] ts 1696.
Mr Watson said that Mr Wilton also handed over a machete. He thought Mr Wilton handed the machete to Mr Yarran while they were still outside the house. He knew that Mr Wilton had a machete in the Prado.[85] Mr Watson agreed that the situation was 'threatening' and 'intimidating' when the accused first came out of the house.[86]
[85] ts 1616.
[86] ts 1591.
Mr Yarran had then said something that left Mr Watson with the impression that Mr Yarran was 'a bit paranoid' because the Hinchinbrook House had been previously smashed up.[87] Mr Watson accepted Mr Yarran's explanation for what had occurred and agreed to go inside after handing over his knife. He shook hands with Mr Yarran. He was 'still a little bit cautious' but he agreed that 'the whole thing got smoothed over at that point'.[88]

I was satisfied beyond a reasonable doubt that:
(a)the accused made the threats and committed the acts of intimidation to which I have referred in this section of the reason - each accused made threats and did acts that were intimidating and were a party to the threats and acts of the other accused; the accused were acting in concert;
(b)the accused intended that their conduct as found in this section to be threatening and that their conduct was intimidating;
(c)Ms Fairhead was threatened and intimidated by the threats made by the accused and their acts of intimidation;
(d)Ms Fairhead was fearful as a result of the threats and intimidation by the accused and her fear was a natural and intended consequence.

Were the threats and intimidation a cause of Ms Fairhead's act?

The circumstances in which Ms Fairhead acted

There were other findings I made which I considered to be relevant in determining whether the State had proved beyond a reasonable doubt that the threats and acts of intimidation by the accused were a cause, and a substantial or significant cause, of Ms Fairhead's act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving:
(a)Ms Standing informed Mr Watson that the only other person at the Hinchinbrook House was her cousin - I inferred that Mr Watson, Mr Wilton and Ms Fairhead did not know that the accused were at the house notwithstanding Mr Watson's concern that he was being 'set up'.
(b)Ms Fairhead knew that Mr Watson and Mr Wilton had handed their knives to the accused. There was no evidence that she knew Mr Wilton might have had a second knife. I found that Mr Wilton did not produce or attempt to produce another knife if he did have a second knife.
(c)Ms Fairhead did not have a mobile phone after it was taken by the accused and she knew that the accused had also taken the mobile phones of Mr Watson and Mr Wilton.
(d)Neither Mr Watson nor Mr Wilton had been able to resist any of the demands made by the accused.
(e)Ms Fairhead was in the Hinchinbrook House for about 40 minutes.
(f)Ms Fairhead opened the passenger door shortly after the Prado left the Hinchinbrook House.
(g)Ms Fairhead reached for and grabbed the machete after opening the passenger door and before she left the Prado.

Other reasonable possibilities?

The first issue to be determined was whether the State had proved beyond a reasonable doubt that the threats and intimidation by the accused was a cause of Ms Fairhead's act. That was a different - and anterior - issue to whether the threats and intimidation were a substantial or significant cause of the act.
It was submitted on behalf of the accused that I should find that the State had not proven beyond a reasonable doubt that their threats and intimidation were a cause of Ms Fairhead's act because I should find, in fact, that there were other reasons why Ms Fairhead opened the passenger door of the Prado - either that she had decided to commit suicide because of her personal circumstances and 'considerable emotional turmoil' or she because she did a reckless act induced by methylamphetamine intoxication. I did not accept that submission. Rather, I was satisfied beyond a reasonable doubt that the threats and intimidation were a cause of Ms Fairhead's act.
I was satisfied beyond a reasonable doubt that Ms Fairhead did not open the passenger door of the Prado while the vehicle was moving and while she was not wearing a seatbelt because she had made a conscious decision to commit suicide because of her personal circumstances - by which I meant her medical history and personality profile as disclosed by her medical history; the evidence given by Dr Walton about Ms Fairhead's possible 'emotional turmoil' as revealed in the incident that occurred at the house of Mr Brown's parents; the distress caused by her arguments with Mr Brown; the stress of living out of her car; and the fact that she was missing her children. I made that finding having regard to the following matters:
(a)Although Ms Fairhead had reported suicidal thoughts in the past, she had not acted on those thoughts and there was no evidence that she had previously committed an act of self‑harm.
(b)Ms Fairhead's risk of suicide was consistently assessed as low by medical practitioners. Although Ms Fairhead expressed some suicidal ideation in June 2016, she was assessed as wishing to control her behaviour and being capable of doing so.
(c)Dr Walton considered that, as at August 2016, Ms Fairhead's risk of suicide was low.
(d)Ms Fairhead had been prescribed Paroxetine since, at least, 2015. Accordingly, she was not a 'new' user of the drug and she did not fall within the category of users for whom there could be an elevated risk of suicide.
(e)As at August 2016, Ms Fairhead was taking therapeutic doses of Paroxetine in accordance with her prescription. The drug is an antidepressant. Her use of the drug since 2015 indicated that she had found it beneficial.
(f)Mr Watson and Mr Wilton described Ms Fairhead's emotional state as being 'a bit low', 'not her usual bubbly self', but they gave no evidence to the effect that Ms Fairhead had expressed any thoughts of suicide or self‑harm after meeting with them on the evening of 2 August 2016 or that she said anything that might have suggested she was entertaining such thoughts prior to arriving at the Hinchinbrook House. I found that she was angry and stressed by the phone calls with Mr Brown - she had argued with him; they had yelled at each other and she had taunted him by saying things that were 'not very nice'. I also found that she was distressed by her personal circumstances. However, there was nothing in the evidence to suggest Ms Fairhead was contemplating suicide prior to her arrival at the Hinchinbrook House. Mr Watson and Mr Wilton did not give evidence to the effect that Ms Fairhead was behaving erratically or hysterically or that she was excessively agitated. She was crying or sobbing at times but not 'balling her eyes out'.
(g)There was also nothing in Senior Constable Dueman's evidence to suggest that Ms Fairhead was so distressed when he spoke to her on the afternoon of 2 August that she was harbouring thoughts of suicide or serious self‑harm or that she might later that night entertain such thoughts. She was upset but she did not express any fear for her safety or say anything that might indicate she was a risk to herself.
(h)There was a significant change in Ms Fairhead's emotional state as a result of the events that occurred after she arrived at the Hinchinbrook House. I found that Ms Fairhead was frightened and stressed - she was, as Ms McEwan stated, 'petrified' and 'hysterical'. Ms Fairhead's behaviour and demeanour coincided with the conduct of the accused and the events that occurred inside the Hinchinbrook House. That was not, in my view, a mere coincidence having regard to my findings about what occurred after Ms Fairhead arrived at the Hinchinbrook House - the findings I made about the threats and intimidation by the accused and their effect on Ms Fairhead.
(i)Ms Fairhead opened the passenger door of the Prado shortly after the events that had occurred on, and from, her arrival at the Hinchinbrook House.
(j)The finding that Ms Fairhead grabbed the machete after opening the passenger door of the Prado was inconsistent with a decision to commit suicide - grabbing the machete would have been a meaningless act if Ms Fairhead had decided to harm herself by throwing herself out of the vehicle.
(k)There was no certainty that Ms Fairhead would die if she threw herself out of the Prado, even though it was moving.
(l)Mr Wilton's evidence that Ms Fairhead said words to the effect 'I can't be here now' immediately before leaving the Prado and my finding as to what was conveyed by those words.
Ms Christian criticised the basis upon which Dr Walton was asked to express his opinions - to opine about whether Ms Fairhead's act may have been caused by a decision to commit suicide or by methylamphetamine intoxication without regard to the events that had occurred after Ms Fairhead arrived at the Hinchinbrook House. However, there was no reasonable basis on which he could be otherwise instructed - he could not be asked to make assumptions about the conduct of the accused given their right to silence and the onus that the State bears at all times. Nevertheless, it meant that Dr Walton's opinions were necessarily limited; they were expressed in a factual context that was significantly incomplete.
However, I noted that, on balance, Dr Walton considered that Ms Fairhead's act was more likely explained as a reckless act induced by methylamphetamine intoxication than by a conscious decision to commit suicide. I also considered that there was force in Dr Walton's observation that the consequences of Ms Fairhead's actions may not have been 'at the forefront of her mind'. I found that it was likely that Ms Fairhead did not fully consider the consequences of leaving the Prado when she opened the passenger door. However, I found that any failure by Ms Fairhead to fully comprehend the consequences of opening the passenger door, while not wearing a seatbelt and while the Prado was moving, was the product of fear and panic caused by the threats made by the accused and their acts of intimidation.
It is convenient to also state at this point that I was satisfied beyond a reasonable doubt that Ms Fairhead did not decide to commit suicide when she opened the passenger door of the Prado for any reason - in particular, she had not made a conscious decision to commit suicide because of the threats and intimidation by the accused. I made that finding having regard to:
(a)The risk of Ms Fairhead committing suicide had always been assessed as low and she had never acted on any thoughts of suicide in stressful situations but rather, had sought to find ways of coping.
(b)All of the matters from which I found that Ms Fairhead did not open the passenger door of the Prado because she had decided to commit suicide because of her personal circumstances - excluding those matters concerning the change in her behaviour after arriving at the Hinchinbrook House. I placed particular weight on my findings:
(i)that Ms Fairhead grabbed the machete after opening the passenger door of the Prado - I considered that she grabbed the machete because she wanted to protect herself on leaving the Prado and to disarm the accused to the extent that it was possible for her to do so;
(ii)about what Ms Fairhead said immediately before leaving the Prado;
(iii)that it was not inevitable that Ms Fairhead would die as a result of leaving the Prado while it was moving;
(iv)that it was likely Ms Fairhead did not fully consider the consequences of her act of opening the passenger door of the Prado and leaving the vehicle while it was moving;
(v)about Dr Walton's opinion that the risk of Ms Fairhead committing suicide was low.
I was satisfied beyond a reasonable doubt that the possibility that Ms Fairhead made a conscious decision to commit suicide when she opened the door of the Prado could be excluded as a cause of her act.
I found that:
(a)The concentrations of methylamphetamine and amphetamine in Ms Fairhead's post-mortem blood samples were high for recreational use. The concentrations established that Ms Fairhead would have been effected by her ingestion of methylamphetamine at some time after using the drug. However, the concentrations did not, and could not, establish that Ms Fairhead was experiencing a specific effect from using methylamphetamine at any particular time. It was also not possible to determine the effect that ingestion of the drug may have had on her mental and emotional state from the evidence of Dr Robertson and Dr Walton about the use and effect of methylamphetamine generally.
(b)There was no evidence that Ms Fairhead was experiencing any particular effects from ingesting methylamphetamine - either prior to arriving at the Hinchinbrook House or while she was at the house. There was no evidence that she was hallucinating at any time or that she was experiencing symptoms of psychosis. She did not behave erratically or irrationally. She did not engage in risky behaviour; rather, she responded to the events that occurred after arriving at the Hinchinbrook House in a way that was consistent with being fearful. She was compliant with the demands made by the accused and her behaviour was appropriate and rational in the circumstances.
(c)There was no evidence that Ms Fairhead was on or had been on a 'high intensive binge' or that she was a chronic user of methylamphetamine.
I was satisfied beyond a reasonable doubt that, as a matter of objective fact, methylamphetamine intoxication was not the sole cause of Ms Fairhead's act of opening the passenger door of the Prado. That is, I was satisfied that the evidence, and the findings I made, excluded as a reasonable possibility that the only explanation for Ms Fairhead's act was that it was a reckless act induced by the effects of methylamphetamine.

The threats and intimidation were a cause of Ms Fairhead's act

I was satisfied beyond a reasonable doubt that, as a matter of objective fact, the threats and acts of intimidation by the accused were a cause of Ms Fairhead's act of opening the passenger door of the Prado while the vehicle was moving and while she was not wearing a seatbelt. I was satisfied about those matters beyond a reasonable doubt having regard to:
(a)The findings I made about the threats and acts of intimidation - the nature of the threats and acts of intimidation by the accused and their duration and repetition. The threats and acts of intimidation involved actual and threatened violence and weapons; they commenced almost immediately after Mr Watson, Mr Wilton and Ms Fairhead arrived at the Hinchinbrook House; and they continued after Mr Watson, Mr Wilton and Ms Fairhead were robbed. The threats and intimidation continued up to the point when Ms Fairhead left the Prado (the accused were still armed and all present in the Prado; Ms Fairhead had not been told what the accused planned to do with her; Mr Wilton was sitting with Mr Smith and Mr Boag and Mr Watson was in the rear luggage compartment).
(b)The short time that had elapsed between when Ms Fairhead was forced into the Prado and when she opened the passenger door.
(c)The circumstances in which Ms Fairhead opened the passenger door. She was in a confined space; the accused were armed; she had no means of communicating with anyone; Mr Watson and Mr Wilton had no weapons or phones to her knowledge and they had not been able to resist the accused up to that point; and Ms Fairhead did not know what the accused intended to do with her - she did not know how the night might end.
(d)The findings I made that Ms Fairhead was threatened and intimidated by the conduct of the accused from when she arrived at the Hinchinbrook House until when she left the Prado.
(e)The findings I made that Ms Fairhead was frightened, and visibly so, by the threats and acts of intimidation by the accused.

Were the threats and intimidation a substantial cause of Ms Fairhead's act?

Was Ms Fairhead's act reasonable and proportionate?

I found that Ms Fairhead's act of opening the passenger door of the Prado while the vehicle was moving and while she was not wearing a seatbelt was, viewed objectively, reasonable and proportionate. It was not necessary that I be satisfied about that matter beyond a reasonable doubt – the question on which I had to be satisfied beyond a reasonable doubt was whether the threats and intimidation by the accused were a substantial or significant cause of Ms Fairhead's act. A finding about the reasonableness and proportionality of the act (one way or the other) was a matter to be taken into account in deciding whether the State had proved causation for the purpose of s 272 of the Code. Nevertheless, I was satisfied beyond a reasonable doubt that, viewed objectively, Ms Fairhead's act in opening the passenger door was, in all the circumstances, a reasonable and proportionate response to the threats and intimidation by the accused.
I made that finding having regard to the findings I made about the threats and intimidation by the accused - their nature, duration and repetition. Viewed objectively, the threats and acts of intimidation were likely to induce considerable fear, stress and panic.
I took into account the circumstances in which Ms Fairhead acted. The threats and acts of intimidation were persistent - the accused had engaged in a course of threatening and intimidating conduct for more than 40 minutes before Ms Fairhead opened the passenger door of the Prado. At that point, Ms Fairhead was in a confined space; the accused were armed, including with a machete that had been used to strike Mr Watson and threaten Mr Wilton; Ms Fairhead had no means of protecting herself; she had no phone; Mr Watson and Mr Wilton had surrendered their weapons and had not been able to resist the accused; the accused had not told Ms Fairhead what they intended to do with her.
I also took into account my direction to the effect that it might be expected that a person in Ms Fairhead's position would not necessarily make sound or carefully reasoned decisions while fearing for her safety.
I did not take into account as a relevant circumstance that Ms Fairhead had ingested methylamphetamine - I did not ask myself whether her act was the reasonable and proportionate act of someone who had used methylamphetamine. I considered that Ms Fairhead's act, viewed objectively, was a reasonable and proportionate response of someone who was sober ('straight') and who had been subjected to the threats made, and acts of intimidation committed, by the accused and the fear likely to be induced by those threats and acts.
I would have found that Ms Fairhead's act was also a reasonable and proportionate response to the conduct of the accused if I could have taken into account the fact that she had consumed methylamphetamine.

The threats and intimidation were a substantial cause of Ms Fairhead's act

I was satisfied beyond a reasonable doubt that, as an objective fact, the threats and acts of intimidation by the accused were, in substance, a cause of Ms Fairhead's act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving - that is, the threats and intimidation by the accused were a substantial or significant cause of Ms Fairhead's act.
I was satisfied that the threats and intimidation were a substantial or significant cause of Ms Fairhead's act having regard to:
(a)the findings I made about the nature, duration and repetition of the threats and intimidation;
(b)the time between when the threats and acts of intimidation occurred at the Hinchinbrook House and when Ms Fairhead opened the passenger door of the Prado;
(c)my finding that Ms Fairhead continued to be threatened and intimidated while she was in the Prado;
(d)the fear that the threats and intimidation were likely to, and did in fact, induce;
(e)my findings about the circumstances in which Ms Fairhead acted;
(f)my finding that Ms Fairhead's act was a reasonable and proportionate response to the threats and intimidation by the accused.
It was not necessary that the threats and intimidation by the accused were the sole cause of Ms Fairhead's act. It was possible that Ms Fairhead's emotional state and her ingestion of methylamphetamine contributed to the fear she experienced as a result of the threats and intimidation by the accused and, in that way, they were factors that contributed to Ms Fairhead's act. It was also possible that Ms Fairhead's earlier ingestion of methylamphetamine affected her capacity to make fully considered judgments. If so, I was satisfied beyond a reasonable doubt that the threats and intimidation by the accused were the substantial - indeed, the principal - cause of Ms Fairhead's fear and her act of opening the passenger door of the Prado while the vehicle was moving and while she was not wearing a seatbelt. I was satisfied about that matter beyond a reasonable doubt on all the findings that I made and evidence I accepted, including the findings I made about the effect of Ms Fairhead's consumption of methylamphetamine.

In my view, the connection between the threats and the intimidation by the accused and Ms Fairhead's act of opening the passenger door of the Prado was so clearly established, and so immediate, that I would have found that the threats and intimidation were a substantial cause of Ms Fairhead's act even if I had found that the act was, viewed objectively, unreasonable and disproportionate.
Finally, I considered that the findings I made reflected the application of common sense to the facts as found. I appreciated, in making my findings, that I was attributing legal responsibility in a criminal matter.

Was Ms Fairhead's death a result of her act?

I was satisfied beyond a reasonable doubt that Ms Fairhead's death was a result of her act of opening the passenger door of the Prado while the vehicle was moving and while she was not wearing a seatbelt. I reached that conclusion having regard to the findings I made about:
(a) Dr McCreath's evidence;
(b)the circumstances in which Ms Fairhead sustained her fatal injuries;
(c)the evidence of Mr Watson and Mr Wilton about the nature and extent of Ms Fairhead's injuries and the forensic evidence concerning the blood staining and biological material found on the exterior and in the interior of the Prado.
I found that Ms Fairhead's head struck the road on her falling from the vehicle; the force of striking the road caused a significant head injury; and Ms Fairhead's head injury was the medical cause of her death. I further found that Ms Fairhead's head was not struck by the rear wheel of the Prado (which would, in any event, have been a consequence of her act) nor was it struck by another vehicle while she was lying on the road immediately after she left the vehicle or while she was lying outside the entrance to the Emergency Department at the Joondalup Hospital. I was satisfied about those matters beyond a reasonable doubt.

The second element - unlawful

I was satisfied beyond a reasonable doubt that Ms Fairhead's death was not an event that occurred by accident for the purpose of s 23B of the Code. I found that Ms Fairhead's death was not subjectively intended or foreseen by the accused. However, I was satisfied beyond a reasonable doubt that an ordinary person in the position of each of the accused would reasonably have foreseen that the death of Ms Fairhead was a possible (and not remote or speculative) consequence of:
(a)the threats and intimidation by the accused and Ms Fairhead's act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving;
(b)further or alternatively, Ms Fairhead's act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving;
(c)further or alternatively, the threats and intimidation by the accused.
In making those findings I took into account the age of each accused and their separate knowledge of the threats and acts of intimidation to which I found Ms Fairhead was subjected. Mr Yarran was involved in, or had knowledge of, each threat and act of intimidation that I found had been proved beyond a reasonable doubt. Mr Smith and Mr Boag were involved in or had knowledge of each threat and act of intimidation apart from Mr Yarran's instruction to Ms McEwan that she was to strip search Ms Fairhead. The fact that they did not know about that threat and act of intimidation was taken into account but I found it made no difference to the conclusions I reached.
I found that an ordinary person in the position of the accused would have considered the following matters in determining whether Ms Fairhead's death was a reasonably foreseeable consequence of her act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving:
(a)the risk that she might unintentionally fall from the vehicle;
(b)the risk that she might not be able to make a controlled exit from the vehicle;
(c)the risk that she might hit her head on the road with considerable force;
(d)the likely nature of any head injury that Ms Fairhead might sustain if she hit her head on the road;
(e)the risk that she might be run over by the rear wheel of the Prado;
(f)the likely nature of any injury that Ms Fairhead might sustain if she was struck by the rear wheel of the Prado;
(g)the possibility that any injury sustained by Ms Fairhead might be life threatening.
I was satisfied beyond a reasonable doubt that Ms Fairhead's death was a reasonably foreseeable consequence of her act of opening the door of the Prado while not wearing a seatbelt and while the vehicle was moving having regard to those considerations. Ms Fairhead's death was not a surprising outcome of her act when those matters are considered.
I found that an ordinary person in the position of the accused would have considered the following matters in determining whether Ms Fairhead's death was a reasonably foreseeable consequence of the threats and intimidation by the accused and Ms Fairhead's act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving:
(a)the nature of the threats and intimidation, including their duration and repetition;
(b)the fact that the threats and intimidation continued while Ms Fairhead was travelling in the Prado;
(c)the knowledge of each accused of the threats and intimidation to which Ms Fairhead had been subjected;
(d)the fear and panic that was likely to be induced by the threats and intimidation as viewed by the hypothetical ordinary person in the position of the accused;
(e)the accused's knowledge of Ms Fairhead's fear - the extent to which it would have been apparent to the accused from her behaviour and demeanour that Ms Fairhead was in fear and panicking in the Prado and had been in fear earlier at the Hinchinbrook House;
(f)the circumstances in which Ms Fairhead acted, including the reasonableness and proportionality of her response;
(g)the risks and possibilities associated with Ms Fairhead's act (as identified above).
Having regard to the findings that I made about each of those matters, I was satisfied beyond a doubt that Ms Fairhead's death was a reasonably foreseeable consequence of the threats and intimidation by the accused and her act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving. Again, Ms Fairhead's death was not a surprising outcome of her act when those matters are considered against the findings I made.
I found that an ordinary person in the position of the accused would have considered the following matters in determining whether Ms Fairhead's death was a reasonably foreseeable consequence of the threats and intimidation by the accused:
(a)all of the considerations identified in paragraphs [575] (a) ‑ (f) above;
(b)the possibility that Ms Fairhead would seek to escape from the Prado while it was moving or do some other act of a similar nature;
(c)the risk that Ms Fairhead might sustain an injury of the kind that she sustained (a traumatic head injury) if she sought to escape from the Prado while it was moving or do some other act of a similar nature.
In addition to the findings I made about the nature of the threats and intimidation by the accused; the knowledge of the accused; and the view that an ordinary person in the positon of the accused would take of the fear that the threats and acts of the accused were likely to induce, I found that an ordinary person in the position of the accused would reasonably have foreseen that:
(a)it was possible that Ms Fairhead might 'take her chances' by trying to escape from the Prado in response to the threats and intimidation by the accused (a real possibility that was more than merely speculative or remote); and
(b)Ms Fairhead might suffer significant and life endangering injury in doing so (again, a real possibility that was more than merely speculative or remote).
In making the first of those findings, I took into account the submissions made on behalf of the accused that Mr Watson and Mr Wilton were surprised and shocked by Ms Fairhead's act. No doubt the suddenness of Ms Fairhead's act and the nature of the act was (subjectively) surprising to Mr Watson and Mr Wilton when it actually happened; their shock may have also reflected their knowledge of the outcome. They were giving evidence about their personal response to something they did not do and which they knew, with hindsight, they would not do. However, that does not mean that the ordinary person, considering all of the relevant circumstances, would not have found that it was reasonably foreseeable that Ms Fairhead would seek to escape even though the Prado was moving.
I was satisfied beyond a doubt that Ms Fairhead's death was a reasonably foreseeable consequence of the threats and intimidation by the accused having regard to the findings I made. Again, Ms Fairhead's death was not a surprising outcome of the threats and intimidation in all the relevant circumstances.
I did not consider that the personal characteristics of any of the accused, including their age and capacity to comprehend the likely effect of their conduct, affected those findings.
Finally, it follows from the findings I made that I would have been satisfied that:
(a)Ms Fairhead's act in opening the door of the Prado, while not wearing a seatbelt and while the vehicle was moving, was not an event that occurred by accident; and
(b)Ms Fairhead's death was not an event that occurred by accident,
if I had been required to apply s 272 and s 23B of the Code according to the construction adopted by Buss P in Yarran. I would have been satisfied beyond a reasonable doubt that:
(a)an ordinary person in the position of the accused would have found that Ms Fairhead's act of opening the passenger door of the Prado while not wearing a seatbelt and while the vehicle was moving was a reasonably foreseeable consequence of the threats and intimidation by the accused;
(b)an ordinary person in the position of the accused would have found that Ms Fairhead's death was a reasonably foreseeable consequence of her act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
26 FEBRUARY 2021