The State of Western Australia v Newton [No 3]
[2020] WASC 319
•4 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NEWTON [No 3] [2020] WASC 319
CORAM: CORBOY J
HEARD: 8 - 24 JUNE 2020
DELIVERED : 4 SEPTEMBER 2020
FILE NO/S: INS 246 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
SHAWN ADAM NEWTON
Accused
Catchwords:
Criminal law - Trial by judge alone - Unlawful detention - Threat with intent to compel - Murder - Causation - Whether evidence of principal prosecution witness accepted beyond a reasonable doubt - Propensity evidence - Alibi evidence
Legislation:
Criminal Code (WA), s 10A, s 10B, s 23A, s 268, s 270, s 277, s 279, s 332, s 333, s 338A, s 338B
Criminal Procedure Act 2004 (WA), s 118, s 119, s 120
Evidence Act 1906 (WA), s 31A, s 32, s 50, s 106R, s 121
Result:
Verdicts of guilty on each charge on the indictment and judgment of conviction entered
Category: B
Representation:
Counsel:
| Prosecution | : | Mr J C Whalley SC & Mr R F Owen |
| Accused | : | Mr S B Watters & Ms A M Taylor |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Kate King Legal |
Case(s) referred to in decision(s):
ASIC v Rich [2004] NSWSC 467
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
BG v The State of Western Australia [2005] WASCA 45
Browne v Dunn (1893) 6 R 67 HL
Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334
Campbell v The Queen [1981] WAR 286
Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304
Green v The Queen (Unreported, WASCA, Library No 950592, 8 November 1995)
Hone v The State of Western Australia [2007] WASCA 283
HS v Lawford [2018] WASC 257
Jeffery v The State of Western Australia [2009] WASCA 133
Johnston v The State of Western Austrealia [2012] WASCA 98
K v The State of Western Australia [2010] WASCA 157
Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
Lazarevic v The State of Western Australia [2007] WASCA 156
Macartney v The Queen [2006] WASCA 29
Merrey v The State of Western Australia [2010] WASCA 62
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Penny v The Queen [2002] WASCA 235
Plomp v The Queen [1963] 110 CLR 234
R v Awang [2004] QCA 152; [2004] 2 Qd R 672
R v Birks (1990) 19 NSWLR 677
R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150
R v Manunta (1989) 54 SASR 17
R v Ping [2005] QCA 472
Reppas v The Queen (1998) 20 WAR 178
Riley v State of Western Australia [2005] WASCA 190
Royall v The Queen (1991) 172 CLR 378
Shepherd v The Queen (1990) 170 CLR 573
The State of Western Australia v Bell [No 3] [2014] WASC 341
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Newton [2020] WASC 9
The State of Western Australia v Noble [2006] WASC 79
Thomas v Van Den Yssel (1976) 14 SASR 205
Tracey v The Queen [1999] WASCA 77; (1999) 20 WAR 555
Willmot v The Queen [No 2] [1985] 2 Qd R 413
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
WS v Gardin [2015] WASC 97
Table of Contents
PART A: THE CHARGES, THE VERDICTS AND THE REASONS
The charges
The verdicts and judgments
Trial by judge alone
A brief overview
My task
The obligation to give reasons
The incident between the accused and Ms Gascoigne's father
PART B: THE EVIDENCE RECEIVED IN THE TRIAL
The witnesses called by the State
The witnesses called by the accused
What was the evidence
Expert evidence
Special witness
The taking of Mr Barr's evidence
PART C: WHAT THE STATE MUST PROVE
Count 1 - deprivation of liberty
The elements
The relevant legal principles
Count 2 - making a threat with intent to compel an act
The elements
The relevant legal principles
Count 3 - murder
The elements
The relevant legal principles
Causation
Intention
Unlawful
Section 279(1)(c)
The fundamental principles
The burden of proof
The standard of proof
The accused's election
Inferences
PART D: CAUSATION
The state of Ms Gascoigne's body
Dr White's post‑mortem observations
Dr White's opinion on the cause of Ms Gascoigne's death
Dr Fabian
Professor Joyce
Findings on causation deferred
PART E: RELATIONSHIPS
Mr Barr's evidence on the relevant relationships
Mr Barr's evidence on his relationship with Ms Gascoigne
Evidence‑in‑chief
Cross‑examination
Findings on Mr Barr's evidence about his relationship with Ms Gascoigne
Mr Barr's evidence on his relationship with the accused
Evidence‑in‑chief
Cross‑examination
The accused's evidence on the relevant relationships
The accused's relationship with Ms Gascoigne
Evidence‑in‑chief
Cross‑examination
Findings on the relationship between the accused and Ms Gascoigne
The accused's relationship with Mr Barr
Evidence‑in‑chief
Cross‑examination
Findings on the relationships between Mr Barr and the accused
Findings on incidents between Mr Barr and the accused
Ms Calvert's evidence
Findings on Ms Calvert's evidence
PART F: FRIDAY, 14 AND SATURDAY, 15 JULY 2017
Mr Barr's evidence on events until about 7.00 pm Friday, 14 July
Mr Barr's laptop
Findings on the use of Mr Barr's laptop
The evidence of Mr Barr's co-workers
Findings on the evidence of Mr Barr's co-workers
The evidence of Mr Barr's neighbours
Findings on the evidence of Mr Barr's neighbours
Mr Barr's evidence about the alleged circumstances of Ms Gascoigne's death
Further aspects of the cross‑examination of Mr Barr on the circumstances of Ms Gascoigne's death
Findings on Mr Barr's evidence about the circumstances of Ms Gascoigne's death
Mr Barr's evidence about leaving the unit with Ms Gascoigne's body
Findings on Mr Barr's evidence about leaving the unit with Ms Gascoigne's body
Mr Barr at the Accident Scene
Mr Barr's arrival
Exchanges with Mr Barr at the Accident Scene
Mr Barr's possible destination
Findings about Mr Barr at the Accident Scene
The accused's evidence
Evidence‑in‑chief
Cross‑examination
Mr O'Neill's evidence
Evidence‑in‑chief
Cross‑examination
The Arunta call
PART G: THE INVESTIGATION INTO MS GASCOIGNE'S DEATH
The accused's arrest
Findings on the accused's arrest at the Northshore Tavern
Forensic investigations at the Accident Scene
Findings on Senior Constable Burke's evidence
The search of Mr Barr's car
Findings on Ms Aldridge's evidence
Fingerprint analysis
The accused's evidence on the clingwrap
The black tape
Forensic analysis
The accused's evidence - the surfboard
Findings on the clingwrap and black tape
The number plates
Mr Barr's vehicle
The Ford Falcon utility
The incident on 4 July 2017
Pinnaroo Cemetery
The incident on 7 July 2017
The accused's evidence
Findings about registration number plates
The St Ives Loop CCTV film
Dr Smith's evidence
DNA evidence
PART H: OTHER EVIDENCE
The 22 June 2017 incident
Findings on the 22 June 2017 incident
Ms Hyland's evidence
Findings on the evidence of Ms Hyland
PART I: FINDINGS ON THE FIRST ELEMENT OF THE OFFENCE OF MURDER
Some preliminary comments
Findings on the first element of the offence of murder
Findings on the state of Ms Gascoigne's body
Findings on Dr White's post-mortem observations
Findings on Dr Fabian's evidence
Findings on Professor Joyce's evidence
Findings on Dr White's opinion on the causes of Ms Gascoigne's death
Findings on the acts that caused Ms Gascoigne's death
Has the State proven that the accused did the acts that caused Ms Gascoigne's death?
Some findings about the surrounding circumstances
The way in which Mr Barr gave evidence
Did Mr Barr 'control' Ms Gascoigne?
The allegation that Mr Barr had a motive to kill Ms Gascoigne
The allegation that Mr Barr sexually assaulted Ms Gascoigne
Mr Barr's antecedents
Findings on the State's submissions on corroboration
Ms Calvert's evidence
Number plates
The St Ives Loop CCTV film
Mr Barr's decision to stop at the Accident Scene
Forensic evidence – the tape
Forensic evidence – the clingwrap
The orange handled object
Ms Hyland's evidence - the alleged propensity
Senior Constable McMullin's evidence and the Comanchero sweatshirt
Other parts of the State's case
The DNA evidence
Did Mr Barr stop before arriving at the Accident Scene?
Further corroboration of Mr Barr's evidence
Motive
Findings on the accused's evidence
The manner in which the accused gave evidence
Findings about the accused's evidence already made
The accused's evidence on his relationship with Ms Gascoigne
The alibi notice
The statutory requirement to give notice
The notice given by the accused and the failure to give a further notice
The effect of the alibi evidence
Whether the alibi was plausible
Mr O'Neill's evidence and the Arunta call
The accused's explanation for the false alibi notice
Implausibility
Findings on the accused's evidence
Other submissions on behalf of the accused
The cleaning of Mr Barr's bedroom
The bottle of bleach
Mr Barr's vehicle at the front of Unit 7
The 'rollies' at the Accident Scene
The baseball cap as a disguise
The 'evidence genie'
Mr Barr's knowledge of the prosecution evidence
PART J: FINDINGS ON THE REMAINING ELEMENTS OF MURDER
Unlawful
Intention
PART K: FINDINGS ON COUNTS 1 AND 2
Count 2
CORBOY J:
PART A: THE CHARGES, THE VERDICTS AND THE REASONS
The charges
The accused[1] was charged by indictment that:
(1)On 14 July 2017, at Scarborough, he unlawfully detained Gavin Michael Barr.
(2)On 14 July 2017, at Scarborough, he made a threat with intent to compel Gavin Michael Barr to do an act he was lawfully entitled to abstain from doing.
(3)On about 14 July 2017, at Scarborough or elsewhere in Western Australia, he murdered Rebecca Jane Gascoigne.
[1] The expression 'the accused' is the usual way a person charged with a criminal offence is referred to in a criminal trial. The use of the term to refer to Mr Newton does not imply that he is guilty of the offences with which he was charged.
The accused pleaded not guilty to each charge. On 27 May 2020, I allowed an application under s 118 of the Criminal Procedure Act 2004 (WA) (CPA) for trial by judge alone. The trial was conducted between 8 and 24 June 2020.
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 in the indictment: s 10A and s 10B of the Criminal Code (WA).
The unlawful detention of a person (count 1) is a crime by s 333 of the Criminal Code. There is no alternative offence available to a charge made under that section.
To make a threat with the intention of compelling a person to do an act that the person is lawfully entitled to abstain from doing (count 2) is a crime by s 338A of the Code. Section 338B creates an offence of making a threat to do anything mentioned in s 338A. It is an alternative offence to s 338A. Neither party submitted I should find the accused guilty of the alternative offence created by s 338B if I found him not guilty of the charge alleged in count 2 of the indictment. The position adopted by the parties is not determinative. However, it was not necessary to consider whether the accused was guilty of an alternative offence under s 338B.
Murder (count 3) is a crime by s 277 and s 279 of the Criminal Code. There are several alternative offences to the crime of murder - most obviously, unlawful killing (manslaughter). Again, it was not submitted by either party that I should find the accused guilty of the alternative offence of manslaughter if I found him not guilty of the charge of murder.
As will be apparent from the reasons that follow, the parties' position on the possibility of alternative verdicts reflected the evidence and issues that were properly raised in the trial.
The verdicts and judgments
I find the accused guilty of the charges:
(a)that on 14 July 2017, at Scarborough, he unlawfully detained Gavin Michael Barr;
(b)and that on 14 July 2017, at Scarborough, he made a threat with intent to compel Gavin Michael Barr to do an act he was lawfully entitled to abstain from doing;
(c)and that on about 14 July 2017, at Scarborough or elsewhere in Western Australia, he murdered Rebecca Jane Gascoigne.
A judgment of conviction will be entered on each count of the indictment.
What follows are the findings of fact that I made, the principles of law that I applied and the process of reasoning that I followed to reach each verdict.
Trial by judge alone
The conduct of a trial by a judge sitting alone is governed by div 7, pt 4 of the 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.
It will be necessary to say something further about the requirement imposed by s 120(2) in light of the issues that were decided to reach my verdicts. It is sufficient for now to emphasise that s 120(2) requires more than a recitation of the relevant legal principles; it is necessary to explain how those principles have been applied to the facts as found to reason to a verdict.
A brief overview
Shortly after midnight on 15 July 2017, a vehicle driven by Mr Gavin Barr stopped in the southbound emergency lane on the Mitchell Freeway at a point where police and paramedics were attending an accident that had occurred earlier that night (the Accident Scene). Mr Barr could be heard shouting words to the effect 'she's in the boot' as his vehicle approached. He repeated those words when he got out of the car. He was apparently distressed.
Police found the body of Ms Gascoigne wrapped in a rug when they opened the boot of Mr Barr's vehicle. Her hands and ankles were bound, a sock had been placed in her mouth, her head was wrapped in clingwrap, a plastic bag had been placed over her head and the bag had been secured around her neck with tape. Her jeans were down to her knees.
Dr White conducted a post‑mortem examination of Ms Gascoigne's body. She concluded in her report to the Coroner that the cause of Ms Gascoigne's death was 'asphyxia in a woman with a traumatic brain injury and drug affect'.
The State alleged that the accused murdered Ms Gascoigne sometime after about 7.00 pm on Friday, 14 July 2017 at a home unit she occupied with Mr Barr. The unit was Unit 7, 51 Abbett Street, Scarborough (Unit 7). It was leased by Mr Barr.
The State further alleged that:
(a)the accused murdered Ms Gascoigne by binding her wrists and ankles, gagging and assaulting her and wrapping and covering her head with plastic;
(b)Mr Barr was present when the accused murdered Ms Gascoigne;
(c)the accused threatened Mr Barr and, by doing so, forced him to lie on the floor with his hands under his body while the accused assaulted, gagged, wrapped and bound Ms Gascoigne (count 1);
(d)the accused also forced Mr Barr to assist in cleaning up Unit 7, to load Ms Gascoigne's body into the boot of Mr Barr's car and to travel with the accused to a beach carpark in Kallaroo (count 2);
(e)Mr Barr managed to escape in his car while the accused was making a phone call at the beach carpark; Ms Gascoigne's body was still in the boot of the car when Mr Barr escaped; and
(f)Mr Barr was driving to a police station in the city when he saw the police and paramedics at the Accident Scene (which was at the Cedric Street on-ramp to the Mitchell Freeway, close to where the on-ramp joins the Freeway).
There was no onus on the accused to prove anything in the trial; it was for the State to prove beyond a reasonable doubt his guilt of each of the charges alleged against him. However, the accused gave evidence that he was not at Unit 7 when, on the State's case, Ms Gascoigne was killed. Rather, he had been picked up from near Unit 7 earlier that afternoon by Mr Liam O'Neill and had spent the rest of the afternoon and night at Mr O'Neill's house. Mr O'Neill was called as a witness to corroborate the accused's alibi evidence.
As the accused carried no onus, he was not required to offer any explanation about the circumstances in which Ms Gascoigne had died. However, he alleged that Mr Barr had killed Ms Gascoigne after sexually assaulting her. It was also submitted that Ms Gascoigne may have died from opioid intoxication.
The State's case rested substantially on the testimony of Mr Barr. His evidence described, in effect, a single event during which the accused committed each of the offences alleged by the indictment. Consequently, the State accepted that I had to be satisfied of the truthfulness and reliability of 'key aspects' of Mr Barr's evidence beyond a reasonable doubt to find the accused guilty on each count.[2] Further, the parties accepted that it would be inconsistent with the evidence, and the way in which the issues had been defined and contested, for different verdicts to be delivered across the three counts. That was so notwithstanding that it is necessary to separately consider each charge alleged against an accused person where an indictment contains multiple counts. Notwithstanding the parties' position, I separately considered each charge alleged against the accused to determine whether the charge had been proven beyond a reasonable doubt.
[2] ts 1109.
My task
My task was to assess the evidence to determine what parts I accepted as truthful and reliable; to decide the facts according to so much of the evidence as 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 each charge alleged against 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; parts 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 obligation to give reasons
Ordinarily, it would not be necessary to comment further on the obligation imposed by s 119 of the CPA. However, it is relevant to note the observations of Steytler P in Riley v State of Western Australia[3] on the extent of the obligation to provide reasons in a trial by judge alone given the issues that were considered and determined in this case. His Honour stated:
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, 387 ‑ 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 ‑ 163, per Malcolm CJ, and Mount Lawley above at 282 ‑ 283.
What his Honour did, in this case, was to say, at [58] of his reasons, that he accepted the evidence of the State. What he did not say, in that paragraph, was why he did so, where that evidence conflicted with the evidence advanced on behalf of the appellant.[4]
[3] Riley v State of Western Australia [2005] WASCA 190.
[4] Riley v 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 Western Australia,[5] the appellant was convicted following a trial conducted under the Children's Court of Western Australia Act 1988 by a judge sitting without a jury. It was not in issue that his Honour was bound by s 119 and s 120 of the 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.
[5] AK v 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) of the 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.[6]
[6] AK v Western Australia [44] ‑ [46] and see the observations of Heydon J at [85].
The incident between the accused and Ms Gascoigne's father
There was an incident that occurred during the trial that should be mentioned. Ms Gascoigne's father was present for much of the trial. As the court was about to rise at the completion of the hearing on 10 June 2020, an incident occurred in which, in effect, Mr Gascoigne alleged the accused had directed an expletive at him. There was an outburst that resulted in Mr Gascoigne being escorted from the court by security officers. I made it clear the next morning that Mr Gascoigne was permitted to continue observing the trial provided he did not interfere with its proper conduct.
I mention the incident only to clarify that it was ignored in determining the State's case against the accused. As Kirby P (as his Honour then was) explained in Government Insurance Office of NSW v Bailey,[7] a decision‑maker sitting in a court room is not blinkered but observes 'the drama which is played out in the well of the court room'. There may be occasions in which the demeanour of a party/witness not giving evidence may be relevant to the assessment of that party/witness's evidence. Defence counsel are well aware that the demeanour of their client as he or she sits in the dock can be observed by a jury throughout a trial. However, I did not take into account what occurred in assessing the credit of the accused or in determining any issue in this case.
PART B: THE EVIDENCE RECEIVED IN THE TRIAL
[7] Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304, 313 ‑ 314.
The witnesses called by the State
The State called the following witnesses:
(1)Gavin Michael Barr.
(2)David Glen Moore, Leah Ellen Daly, William John Stock, Clay James Thomas, Lucilla Joy Grainger, Robert Dariusz Adamczyk, - police officers who attended the Accident Scene sometime prior to about 12.45 am on 15 July 2017.
(3)Declan William O'Neill, Timothy Atlee Dawson, Jessica Bourke, Rhys John Worth, Sarah MacConnell - paramedics and ambulance officers who attended the Accident Scene.
(4)Thomas Fryer, Erin Dawn Lumley, Benjamin John Marshall, William Sumet Gilbert Beyfus, William James Gregory Kemp, Hayley Ann Burke, Daniel James Saletogia Hunuki - police officers who attended the Accident Scene after Mr Barr had stopped with Ms Gascoigne's body in the boot of his car.
(5)Matthew James Price, Brian William Shedden, Susan Popiel, Tashwhille Duwayne Eksteen - police officers who attended Unit 7 on 15 and 16 July 2017 to secure the unit and to assist in a search and forensic examination.
(6)Marvin Harvey Thompson - forensic investigation police officer who attended Unit 7 on 4 August 2017.
(7)Craig Dewer - gave evidence about an incident that occurred in the Pinnaroo Cemetery on 7 July 2017.
(8)Tim Vernede, Lee John Walker, Jay Lawrence Anderson - manager and storemen at a warehouse operated by L'Oreal Australia in July 2017. Mr Barr worked at the warehouse as at July 2017.
(9)Brendan Scott O'Keefe, Alec Raymond Billy Ingram, Wendy Miranda Noone - police officers who attended the Northshore Tavern on 24 July 2017 to arrest the accused.
(10)Jessica Lauren Securo - police officer who photographed items seized from the accused following his arrest on 24 July 2017.
(11)Jennifer Aldridge, Roy McLennan Begg, Ian William Cornthwaite and Christopher John Chang - police officers who examined Mr Barr's vehicle after 15 July 2017.
(12)Michelle Julie Hayes - forensic scientist who photographed a number of exhibits provided by the police and examined the exhibits for fluids. Ms Hayes also attended the post-mortem examination of Ms Gascoigne with Senior Constable Eksteen.
(13)Kynan Rhys Fuller - forensic scientist who gave evidence about DNA testing conducted by PathWest on exhibits provided by the police.
(14)Luke Francis McMullin - police officer who spoke to the accused on 22 June 2017 following a traffic incident.
(15)Skye Louanne Calvert - Ms Gascoigne's daughter.
(16)Michelle Lorraine Hyland - former partner of the accused.
(17)Ryan William Morehead - police officer who gave evidence of an incident on 4 July 2017 involving the accused. The incident occurred in the carpark of the St George Hotel, Innaloo.
(18)Matthew John Surman - police officer who had obtained CCTV film taken at the entrance to the Pinnaroo Cemetery on 7 July 2017. He was also with Detective Senior Constable Morehead on 4 July 2017 at the carpark of the St George Hotel.
(19)Jason Stuart and Bradley James Honner - forensic investigation officers who gave evidence about fingerprint examinations and analysis of items seized by the police during the investigation into Ms Gascoigne's death.
(20)Professor David Anthony Joyce - medical practitioner specialising in clinical pharmacology and toxicology who gave expert evidence about the effect of morphine and other drugs found in post‑mortem blood samples taken from Ms Gascoigne.
(21)Dr Debbie Ann Smith - medical practitioner employed by the Sexual Assault Resource Centre who conducted a post-mortem examination of Ms Gascoigne's body.
(22)Dr Victoria Anne Fabian - neuropathologist who conducted a post‑mortem examination of Ms Gascoigne's brain.
(23)Dr Jodie White - forensic pathologist who conducted a post-mortem examination of Ms Gascoigne and provided an opinion on the cause of Ms Gascoigne's death.
(24)John Geoffrey Dorrington - police officer who was responsible for the investigation into the death of Ms Gascoigne.
The witnesses called by the accused
The accused elected to give and to call evidence. He was not required to do so. He was not required to prove anything in this case. His right to silence applied both before and during the trial.
There were further principles of law that I was required to apply in considering the effect of the accused's evidence. Those principles are stated later in these reasons. They reflect the onus that the State always carries in a criminal trial.
The witnesses called by the accused were:
(1)Rhy James Morris, Gabriella Mona and Margherita Santini - occupants of units in the same complex as Unit 7.
(2)Liam Robert Matthew O'Neill - gave evidence that the accused was with him during the afternoon and night of 14 July 2017.
What was the evidence
The evidence consisted of what I heard from the witnesses - what they said - and the exhibits that were received. The evidence also included:
(a)a statement made by Paul John Sawyer that was read in by consent as part of the State's case. Mr Sawyer's statement concerned an incident that occurred at the Northshore Tavern shortly prior to the accused's arrest at the tavern;
(b)a statement of agreed facts that was received and marked as exhibit 30. The agreed statement recorded the facts on which the accused was convicted for offences committed against his former partner, Ms Hyland. The principles of law that I applied in considering the effect of Ms Hyland's evidence are stated later in the reasons; and
(c)two admissions made by the accused pursuant to s 32 of the Evidence Act 1906 (WA) which were received and marked as exhibits 55 and 58.
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: Mr Fuller; Professor Joyce; Senior Constable Stuart; Senior Constable Honner; Dr White; Dr Fabian and Dr Smith. The expert witnesses were called by the State.
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; it is open to accept or reject any part of the evidence, including the opinions expressed by an expert.
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 would need to be a good reason to reject the opinions and conclusions expressed by the expert witnesses - for example, that the evidence was inherently implausible or inconsistent with other evidence that had been accepted as truthful and reliable.[8] However, the weight to be given to the expert evidence, when considered with other evidence, was a matter for me to determine.
[8] See Hone v The State of Western Australia [2007] WASCA 283.
There were issues arising out of the expert evidence that were contentious: whether it was reasonably possible that Ms Gascoigne had died from morphine intoxication and whether it was possible that Ms Gascoigne had been sexually assaulted by Mr Barr shortly prior to her death. Those issues were determined by considering the facts that were found as well as the relevant expert evidence.
Special witness
Ms Gascoigne's daughter, Ms Skye Calvert, was declared a special witness pursuant to s 106R of the Evidence Act 1906 (WA). She gave evidence from a special room using a video link. That is a common practice in criminal proceedings in Western Australia (and see the next section). No adverse inference was drawn against the accused because Ms Calvert was declared a special witness.
The taking of Mr Barr's evidence
Mr Barr now resides in Victoria. There were significant restrictions on interstate travel at the time he gave evidence due to the COVID‑19 pandemic. The accused consented to Mr Barr giving evidence by video link to facilitate a trial despite the restrictions imposed by the pandemic.
It is common in civil and criminal trials in this State for evidence to be taken by audio-visual link. Section 121(2) of the Evidence Act provides that, subject to s 121(2a), the court may direct that evidence be given by video link if satisfied that a link is available. Section 121(2a) states that the court cannot direct that evidence be given by video link if satisfied that such a direction would not be in the interests of justice.
In ASIC v Rich,[9] Austin J noted two approaches to the exercise of a discretion to permit evidence by video link. One line of cases generally favoured the use of audio-visual evidence, while the other line took a more cautious approach. His Honour noted:
Apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audio visual facilities for centrally important evidence, the assessment of credit where evidence is given by audio visual link, difficulties raised by the use of documents for cross‑examination in audio visual evidence, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties posed by the use of audio visual facilities where the cross‑examination is lengthy.[10]
[9] ASIC v Rich [2004] NSWSC 467; 49 ACSR 578 .
[10] ASIC v Rich [19].
Audio‑visual and in‑court technology has improved considerably since Austin J made those observations. There is now no difficulty in documents being shown to a witness giving evidence by audio‑visual link using the court's technology and time delays in transmissions are ordinarily not significant.
Mr Barr gave evidence while seated behind a table. However, the positioning of the camera frequently captured the whole of Mr Barr's body so that the use of the video link facilitated, rather than hindered, an assessment of his body language when compared to the constraints imposed by a witness box (insofar as body language might be considered to be relevant to the assessment of a witness's credibility). Counsel for the parties did not suggest that their ability to make submissions on Mr Barr's demeanour was impeded by use of the audio‑visual link. Indeed, Mr Watters' submissions seemingly reflected aspects of Mr Barr's body language that would not have been so apparent had he been sitting in the witness box.
I did not consider that the opportunity to assess Mr Barr's evidence was adversely affected by use of an audio‑visual link. In my view, the advantage enjoyed by a trial judge in assessing the credibility of witnesses who testify in a trial - 'the clues to veracity that are supplied by tone of voice, hesitation, body language and other nonverbal expression'[11] - is not lost when a witness gives evidence by audio‑visual link. Further, I agree with the observations of McKechnie J in The State of Western Australia v Bell [No 3][12] about the need to exercise care in assessing the credibility of a witness's evidence by non‑verbal cues:
The manner in which a witness gives evidence can on occasions be a guide to credibility and reliability, though care must be taken not to read too much into a witness's demeanour. Some witnesses may present confidently in a setting in which they are familiar. For other witnesses, court is a forbidding place evoking nervousness.
Some witnesses may lie with bravado. Others may speak the truth with eyes downcast and hesitation.
PART C: WHAT THE STATE MUST PROVE
[11] Cross on Evidence (11th Aust ed, 2017) [11150], citing Posner RA, Reflections on Judging (2013) 213.
[12] The State of Western Australia v Bell [No 3] [2014] WASC 341 [19] ‑ [20].
Count 1 - deprivation of liberty
The elements
Section 332(1) of the Criminal Code states that a person who deprives another person of personal liberty by, among other things, confining or detaining the other person in any place or in any other manner is said to detain that other person. Section 333 of the Code provides that any person who unlawfully detains another person is guilty of a crime.
The elements of the offence created by s 333 that the State must prove beyond a reasonable doubt are that:
(a)the accused confined or detained Mr Barr in a place or in some other manner;
(b)Mr Barr was confined or detained against his will; and
(c)the confinement or detention of Mr Barr was unlawful.
The relevant legal principles
In R v Awang,[13] the appellant was convicted of deprivation of liberty under the Queensland Code equivalent of s 333 (s 355 of the Criminal Code (Qld)). Williams JA observed in relation to the offence:
There is little authority as to what in law constitutes deprivation of liberty ... There was no such offence at common law; the common law recognised offences of kidnapping and false imprisonment (the latter being both a crime and a tort). The original Griffith Code provided for offences of kidnapping and deprivation of liberty, though kidnapping initially was defined differently. In the original Code kidnapping was limited to the circumstance where a person was forcibly taken or detained with intent to compel the person detained to work against his will. In the light of that it could be said that the offence of deprivation of liberty was complimentary to the offence of kidnapping; the former involving a specific intent whereas the latter did not.
Regardless of that history it is the language of s 355 which must define the elements of the offence …
The terms 'confines', 'detains', 'deprives' and 'liberty' should each be given their ordinary and natural meaning. The most apposite meaning of 'liberty' found in the Oxford English Dictionary is: 'The condition of being able to act in any desired way without restraint; power to do as one likes'. Again one finds in the dictionary 'deprive' defined as including the denial of enjoyment of something, and 'detain' has a variety of meanings including 'keep in confinement', 'hold back, delay, stop'.
Essentially it will always be a question of fact for the jury whether there has been conduct on the part of an accused person which deprives another of that person's liberty. It is not possible to provide a simple, all inclusive definition of the offence.
[13] R v Awang [2004] QCA 152; [2004] 2 Qd R 672 [19] ‑ [22].
In Reppas v The Queen,[14] the appellant was convicted of deprivation of liberty but acquitted of charges of indecent assault. The complainant purchased food from the appellant who operated a takeaway food shop. As the complainant was about to depart the shop, the appellant kissed her and took hold of her right wrist and pulled her into a room at the rear of the shop. She was forced to sit in a chair. She wanted to leave the room but was unable to do so because the appellant blocked her way. She pleaded to be able to go; she was too terrified to scream or cry out. Eventually, she was allowed to leave the room. Justice Murray observed that '[o]n that account it can be seen that the alleged unlawful detention commenced when the appellant was said to have taken her forcefully into the back room and it continued until she was allowed to leave that room'.[15]
[14] Reppas v The Queen (1998) 20 WAR 178.
[15] Reppas v The Queen (180).
The fact that the unlawful detention of the victim in Reppas continued in the back room illustrates that the use of physical force to detain a victim is not a necessary component of the offence. The subjective state of mind of the person allegedly detained is relevant to proof of the offence. That is because unlawful detention involves confining or detaining someone against their will: BG v The State of Western Australia.[16] In the circumstances of this case, the State was required to prove beyond a reasonable doubt that the accused made threats which confined Mr Barr against his will by forcing him to lie on the floor with his hands under his body.
[16] BG v The State of Western Australia [2005] WASCA 45 [79] (Malcolm CJ).
Count 2 - making a threat with intent to compel an act
The elements
Section 338A(d) of the Criminal Code states that any person who makes a threat with intent to compel the doing of an act by a person who is lawfully entitled to abstain from doing that act is guilty of a crime.
The elements of the offence created by s 338A(d) that the State must prove beyond a reasonable doubt are that:
(a)the accused made a threat to Mr Barr;
(b)the accused made the threat with the intention of compelling Mr Barr to do an act; and
(c)Mr Barr was lawfully entitled to abstain from doing the act.
The relevant legal principles
In Tracey v R[17] Kennedy J stated:
A useful, frequently cited definition of the expression 'threat' is to be found in the judgment of Lush J in Wood v Bowron (1866) LR 2 QB 21 at 30 …
Lush J said:
'After the decisions that have been given upon this statute, it is too late to say that the word 'threat' is limited to the declaration of an intention to do those acts with which it stands in intimate connection, viz acts of violence to the property or person of another. The cases that have been decided show that the word must have a wider sense; namely, a threat by act or words of doing some injury to another person. But I apprehend that it is the very essence of a threat that it should be made for the purpose of intimidating or overcoming the will of the person to whom it is addressed.'
[17] Tracey v The Queen [1999] WASCA 77; (1999) 20 WAR 555 [11].
The appellant in Green v The Queen[18] was convicted of making a threat to unlawfully kill two police officers. On the question of what constituted making a threat, Ipp J (with whom Franklyn and Anderson JJ agreed) said:
It is no part of the offence that the person who is making the threat should possess an intention to carry out the threat: Spiteri v The Queen, unreported CCA SCt of WA; Library No 930209; 8 April 1993. That is to say, the subjective intention of the person making the threat is irrelevant. …
The words in s 338B 'makes a threat' are equivalent to 'threaten'. The Oxford English Dictionary defines 'threaten' relevantly as, 'To declare one's intention of inflicting'. Therefore, the words used, when objectively construed, must constitute a declaration of an intention to kill. Accordingly, while there should be no inquiry into the subjective intention of the person alleged to have made a threat, the words alleged to constitute a threat must constitute, objectively speaking, a declaration of an intention to kill.
The meaning of words may depend on the circumstances in which they are used, and any task of construction will ordinarily involve an examination of those circumstances. As Hodgson J said in Williams (1987) Cr App R 299 at 300: 'Words which, on their plain meaning, amount to a threat to kill, are frequently made in jest or temper in context where they are not intended to be taken seriously'.[19]
[18] Green v The Queen (Unreported, WASCA, Library No 950592, 8 November 1995).
[19] Green v The Queen (8).
In Jeffery v The State of Western Australia,[20] Miller JA referred with approval to the observations of the Court of Criminal Appeal in Green. In relation to the offence of threatening to kill, his Honour stated that the essence of the offence was that there must be a threat and the threat, when viewed objectively, must declare an intention to kill. An objective view required the words used, and the circumstances in which they were spoken, to be assessed.
[20] Jeffery v The State of Western Australia [2009] WASCA 133.
In Penny v The Queen,[21] Murray J (with whom Wallwork and Steytler JJ agreed) observed:
In the case of the offence defined by s 338B, it would be necessary to prove that the statement or conduct was deliberately performed: Criminal Code s 23, but it would not be necessary to prove that the offender intended to carry out the threat. However, there is a mental element in the offence which flows from the requirement that the willed act of making a threat, by word or deed or both, necessarily involves an intent or purpose to intimidate or overcome the will of the person to whom the threatening behaviour is directed: Tracey v The Queen … In other words, one does not make a threat by saying or doing something which in fact is of an intimidatory or overbearing character unless one means what is said or done to have that character - to be a threat.
[21] Penny v The Queen [2002] WASCA 235 [8].
I am bound by what was said by the Court of Appeal in Penny but, in passing, I query whether there is any intentional or purposive element to the characterisation of words or conduct as threats or intimidation under the Criminal Code. Arguably, what the State must prove is that the accused deliberately spoke words or engaged in conduct that, viewed objectively, constituted a threat or intimidation without the need to also prove that the accused intended that the words or conduct constituted a threat or intimidation or had that purpose. The distinction between, for example, words that constituted a threat and words that were spoken in jest would be determined by the circumstances in which they were spoken - that is, the context. However, the circumstances alleged in this case were such that it was not necessary to further consider this issue.
In this case the State was required to prove that:
(a)the accused did or said something to Mr Barr that, viewed objectively, conveyed an intention to intimidate Mr Barr;
(b)the accused deliberately did the act or said the words with the intention that the act or words should convey an intention to intimidate Mr Barr;
(c)the accused deliberately did the act or said the words with the intention of compelling Mr Barr to assist the accused to clean up Unit 7, to load Ms Gascoigne's body into the boot of his car and to travel with the accused to a beach carpark in Kallaroo; and
(d)Mr Barr was lawfully entitled to abstain from assisting the accused.
In my view, the offence is complete on proof of the threat, the requisite intent and the fact that the victim was lawfully entitled to abstain from doing the act intended by the accused person. It is not necessary to prove that the victim did, in fact, abstain from acting. However, the State's case was that Mr Barr assisted the accused to clean up Unit 7, to load Ms Gascoigne's body into the boot of his car and to travel with the accused to a beach carpark in Kallaroo as a result of threats deliberately made by the accused.
Count 3 - murder
The elements
Section 279(1) of the Criminal Code (WA) states that:
If a person unlawfully kills another person and -
(a)the person intends to cause the death of the person killed or another person; or
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,
the person is guilty of murder.
Section 270 of the Criminal Code provides that any person who causes the death of another person, directly or indirectly, by any means whatever, is deemed to have killed that other person. Section 268 of the Code provides that it is unlawful to kill any person unless the killing is authorised or justified or excused by law. Accordingly, s 279(1) of the Criminal Code creates the offence of murder; s 268 and s 270 define what is meant by unlawfully killing another person for the purpose of the offence created by s 279.
The State sought to prove the accused was guilty of the murder of Ms Gascoigne in either of two ways.
First, the State submitted that the accused had unlawfully and intentionally killed Ms Gascoigne (s 279(1)(a) or (b)). The State was required to prove the following elements beyond a reasonable doubt to prove the accused was guilty of murder in that way:
(a)the accused killed Ms Gascoigne - that is, the accused caused, directly or indirectly and by any means whatever, the death of Ms Gascoigne;
(b)the killing of Ms Gascoigne was unlawful; and
(c)at the time of doing the act or acts that caused Ms Gascoigne's death, the accused intended to either:
(i)cause Ms Gascoigne's death (s 279(1)(a)); or
(ii)cause a bodily injury of such a nature as to endanger, or be likely to endanger, Ms Gascoigne's life (s 279(1)(b)).
Second, the State submitted that the accused had unlawfully killed Ms Gascoigne by doing an act in the prosecution of an unlawful purpose that was of such a nature as to be likely to endanger her life. This way of proving that an accused person is guilty of murder is sometimes referred to as 'felony murder'. It required the State to prove the following elements beyond a reasonable doubt:
(a)the accused killed Ms Gascoigne - that is, the accused did an act that caused directly or indirectly Ms Gascoigne's death;
(b)the killing of Ms Gascoigne was unlawful;
(c)Ms Gascoigne's death was caused by means of an act done in the prosecution of an unlawful purpose; and
(d)the act was of such a nature as to be likely to endanger Ms Gascoigne's life.
I have stated the first element of the offence of murder in a way that expresses two issues: what was the cause(s) of Ms Gascoigne's death and if the cause of her death was an act(s) done by another person, was it the accused who did the act that caused Ms Gascoigne's death? I have followed the structure of the relevant provisions of the Criminal Code in stating the first element of the offence of murder that the State must prove in that way.
The relevant legal principles
Causation
In a passage that has been repeatedly cited, and which has been approved by the High Court, Burt CJ observed in Campbell v The Queen:[22]
[It] would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.
[22] Campbell v The Queen [1981] WAR 286. The passage was approved of in Royall v The Queen (1991) 172 CLR 378, 387. In Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334 [9], French CJ confirmed the test.
Accordingly, the word 'cause' in s 270 refers to a factual connection between the accused's alleged act or omission and a result (the death of a person) which is, in law, sufficient to attract criminal responsibility. The required connection is established by proof that the act or omission made a substantial or significant contribution to the victim's death.
The concepts of causal connection and causal responsibility were further explained by the Court of Appeal in Krakouer v The State of Western Australia.[23] McLure JA (as her Honour then was) stated:
Under s 270 of the Criminal Code (WA), any person who causes the death of another, directly or indirectly, by any means whatsoever, is deemed to have killed that other person. Sections 272 to 275 deal with causation in particular situations: causing death by threats (s 272), acceleration of death (s 273), where death might have been prevented by proper precautions (s 274) and injuries causing death as a result of subsequent treatment (s 275). However, these specific sections do not, in my view, limit the generality of the causation requirement in s 270. The common law principles of causation provide guidance in that regard.
Causation involves questions of fact and law. Insofar as it is a question of fact, it must be determined on the evidence. An act or omission will be a factual cause if it is a necessary condition of the damage (in this case, death). This involves the application of the 'but for' test: would the deceased's death have occurred 'but for' the applicant's conduct. In the criminal law context, it is the death as and when it occurred that is in issue, not some potentiality or even inevitability of death at some other, even marginally later, time.
An act or omission does not have to be the sole or even the main cause of death. It is sufficient if it is a cause. Where death results from multiple independent contributing causes, none of which alone would produce that consequence, each contributing cause is a factual cause. Where death results from more than one cause, each of which is sufficient of itself to cause the death, the 'but for' test cannot be satisfied. However, if independent multiple sufficient causes operate together to produce the result, each cause is a factual cause of death: R v McLachlan [2000] VSC 516; Glanville Williams, 'Causation in Homicide' [1957] Crim LR 429 at 432. It is unnecessary to consider what the position would be in a situation where there are multiple sufficient causes but insufficient evidence to conclude that both causes factually contributed to a person's death (as and when it occurred). It may be that policy considerations require that each sufficient cause is a legal cause of death.
An act or omission that is, or is deemed to be, a factual cause of death, is a necessary but not of itself sufficient condition of criminal liability. The act or omission must also satisfy the legal test of causation which is used as a filtering device to narrow the unacceptably wide net cast by the test of factual causation. The legal test of causation is that the act or omission must have substantially or significantly contributed to the relevant event: Royall v The Queen (1991) 172 CLR 378. Of course, if the evidence does not establish factual causation then (save in exceptional situations) the legal test cannot be satisfied. If factual causation is established, the legal test answers questions relating to, inter alia, the sufficiency of the contribution made to the relevant event and the effect of intervening acts of the victim or a third party.[24]
Intention
[23] Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347.
[24] Krakouer v The State of Western Australia [74] ‑ [77]. See also the comments of Steytler P at [21] ‑ [23].
The first way in which the State sought to establish that the accused was guilty of the charge of murder was to prove that he had unlawfully and intentionally killed Ms Gascoigne. The Macquarie Dictionary defines the word 'intent' to mean 'to have in mind as something to be done or brought about'; 'to design or mean for a particular purpose'; and 'to have a purpose or design'.[25] Intention does not necessarily require premeditation; it may be formed spontaneously. Further, intention is to be distinguished from motive or desire; although, of course, evidence that the accused had a motive to cause the death of the person killed will be a significant circumstance in determining whether the State has proven the specific intent required by s 279(1)(a) and (b).
[25] See The State of Western Australia v Bell [No 3] [2014] WASC 341 [95] ‑ [96] referring to R v Ping [2005] QCA 472; (2006) 2 Qd R 69 and Willmot v The Queen [No 2] [1985] 2 Qd R 413.
A person's state of mind can only be inferred from what they did and said and from the circumstances in which they acted. Sections 279(1)(a) and (1)(b) require the State to prove beyond a reasonable doubt that an accused person had a specific intent at the time they did the act or acts that are alleged to have caused the death of the person killed. Accordingly, the State must prove that the only reasonable inference to be drawn from the facts and circumstances established by evidence that has been accepted as truthful and reliable is that the accused had the intent specified by s 279(1)(a) or (b) at the time of acting to cause the victim's death.
Further, there is both an objective and subjective element to proof of the intent specified in s 279(1)(b). That was explained by McLure P in Wongawol v The State of Western Australia[26] in which her Honour held that, although the bodily injury must have been intended, its dangerousness need not have been foreseen:
The expression 'of such a nature' as to endanger, or be likely to endanger, life is in my view intended to define the scope or types of bodily injuries that must be intended, being bodily injuries that have the (objective) potential consequence or effect. That is, s 279(1)(b) is partly subjective and partly objective; the accused must subjectively intend to cause bodily injuries which objectively endanger life, or would be likely to endanger life [25].
[26] Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 [25].
The words 'endangering life' refer to the potential for, or the risk of, death or injury. Accordingly, the objective aspect of s 279(1)(b) is concerned with the potential for the bodily injury that the State alleges the accused person intended to inflict to have caused the death of the person who, in fact, died. The phrase 'likely to endanger life' means a substantial or real chance of endangering life. The phrase 'of such a nature' indicates it is not necessary for the State to prove that the accused person intended to cause the bodily injury that was the actual cause of death; the State must prove that the bodily injury the accused intended to cause was of such a nature as to endanger or be likely to endanger life.
Unlawful
The killing of another person will be unlawful unless it is excused, justified or authorised by law. For example, the killing of a person may be excused by law pursuant to s 23A or s 23B of the Criminal Code or a person may be justified in using such force as is necessary to kill another person pursuant to s 248 of the Criminal Code (and see s 260).
However, the evidence in this case was such that the killing of Ms Gascoigne was unlawful on proof beyond a reasonable doubt that she was either intentionally killed or her death was caused by means of an act done in the prosecution of an unlawful purpose that was of such a nature as to be likely to endanger her life. It was not suggested by either party that there was evidence from which it could be concluded that the accused should be relieved of criminal responsibility for the killing of Ms Gascoigne if those matters were established. The nature of Ms Gascoigne's death on the State's case - that she had been bound, gagged, assaulted and her face wrapped and covered in plastic - excluded the possibility that the acts that caused her death were unwilled or that her death was an event that occurred by accident. The question of unlawfulness would not arise if, on the other hand, Ms Gascoigne died of opioid intoxication.
Nevertheless, there was no admissions made by the accused on this or any issue on which the State carried an onus. Accordingly, the State was strictly required to prove that Ms Gascoigne's death was caused by an act done consciously and deliberately by the accused.
Section 279(1)(c)
The effect of s 279(1)(c) of the Criminal Code is to treat the unintentional and non-reckless killing of a person as murder.[27] Accordingly, the section does not require proof of any mental element;[28] it is not necessary for the State to prove that the accused knew or foresaw that their act was likely to endanger life.
[27] Macartney v The Queen [2006] WASCA 29 [108] (Steytler P).
[28] Johnston v The State of Western Australia [2012] WASCA 98 [30].
The expression 'unlawful purpose' has a wider meaning than 'offence'; the unlawful purpose is not confined to the 'strict elements of the offence'.[29] The act that caused death must be done in furtherance of the unlawful purpose. The expression 'likely to endanger life' carries the same meaning as in s 279(1)(b). Whether the act that, in fact, caused death was of such a nature as to be likely to endanger life is to be determined objectively.
[29] R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150 [53].
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 was presumed to be innocent of the charges alleged against him and the presumption of innocence continued to apply until a verdict was 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 was not required to prove anything; there was no onus on him to establish any fact, let alone to prove his innocence.
The standard of proof
The State could only establish the guilt of the accused by proving he was guilty of the charge being determined beyond a reasonable doubt. Beyond a reasonable doubt is a high standard; it is the highest standard known to the law. The accused was entitled to the benefit of any reasonable doubt I had about his guilt after considering all of the evidence. If I had been left with a reasonable doubt as to whether he was guilty of any of the charges alleged against him, my duty would have been to find him not guilty of that charge.
Those fundamental principles - that the accused was presumed to be innocent of each charge alleged against him; that the State carried the onus of proving his guilt and that the State was required to prove his guilt beyond a reasonable doubt before he could be convicted of a 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 his evidence.
The accused's election
The accused elected to give and call evidence. He was not required to do so; as I have already noted, the accused was not required to prove anything in this trial. That the accused elected to give and 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. His evidence, and the evidence given by the witnesses he called, 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 proven the accused's guilt beyond a reasonable doubt. It was on the whole of the evidence that I had to be satisfied that the State had proven the charges alleged against the accused before he could be found guilty of those charges.
The accused had to be acquitted of the charges alleged against him if his evidence of his whereabouts during the afternoon and evening of 14 July 2017 was accepted as truthful and reliable. Further, he was entitled to have been found not guilty if either:
(a)I did not know whether the accused's evidence concerning his whereabouts was the truth but I thought it might be true so that I was left with a reasonable doubt; or
(b)any part of the evidence, including the evidence given by the witnesses called by the accused, raised a reasonable doubt as to the accused's guilt.
I concluded that the accused's alibi evidence, and the evidence given by Mr O'Neill, should be rejected. I also did not accept other parts of the accused's evidence on the nature of his relationship with Ms Gascoigne and on various aspects of the State's case against him. Those findings could not, and did not, transpose into a finding of guilt or proof of the contrary. I put to one side the accused's evidence and that given by Mr O'Neill. The issue that remained was whether the State had proven the accused's guilt beyond a reasonable doubt on evidence I accepted as being truthful and reliable.
It is never a question in a criminal trial of making a choice between the evidence presented by the State and the evidence given by or on behalf of an accused person. Such an approach would be contrary to the onus that always rests on the State. It followed that I could not discharge my function of finding the facts and reaching verdicts by merely asking whether I believed or disbelieved the evidence given by the accused and/or the witnesses he called.
Inferences
Proof of each charge alleged against the accused required the State to prove beyond a reasonable doubt the state of mind of either Mr Barr or the accused:
(a)for count 1, the State was required to prove that Mr Barr's will had been overborne by the accused - that is, that Mr Barr was confined against his will;
(b)for count 2, the State was required to prove that the accused made a threat with the intention of compelling Mr Barr to do an act;
(c)for count 3, to prove that the accused was guilty of the intentional killing of Ms Gascoigne, the State was required to prove that the accused did an act that caused Ms Gascoigne's death with the intent specified in either of s 279(1)(a) or (b) of the Code; and
(d)for each count, the State was required to prove that the acts allegedly committed by the accused that constituted the offence under consideration were conscious and deliberate acts.
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 a matter on which the State carries the burden of proof can only be drawn against the 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.[30] That logically follows from the onus that the State carries in every criminal trial.
[30] See Shepherd v The Queen (1990) 170 CLR 573.
PART D: CAUSATION
I begin with count 3 on the indictment – the charge of murder – and with the issue of causation: what were the cause and mechanism of Ms Gascoigne's death?
The post‑mortem examination of Ms Gascoigne's body was conducted by Dr White on 18 and 19 July 2017. Dr White submitted a report to the Coroner in which she expressed the opinion that the cause of Ms Gascoigne's death was 'asphyxia in a woman with a traumatic brain injury and drug effect'.[31] That opinion was formed after considering information from several sources:
(a)observations made during the post‑mortem examination of Ms Gascoigne's body;
(b)specialist reports provided by Dr Fabian and Professor Joyce;
(c)histology, microbiology and other test results; and
(d)statements given by first responders who were present at the Accident Scene when Ms Gascoigne's body was removed from the boot of Mr Barr's vehicle.[32]
[31] ts 876.
[32] ts 876.
The state of Ms Gascoigne's body
The last source of information referred to by Dr White reflected the obvious significance of the state of Ms Gascoigne's body when recovered from the boot of Mr Barr's vehicle at the Accident Scene.
The circumstances in which Mr Barr stopped at the Accident Scene, and his behaviour at the scene, are considered in Part F of the reasons. Those matters are not directly relevant to determining the cause of Ms Gascoigne's death. It is sufficient to note at this point that I found Mr Barr was shouting words to the effect 'she's in the boot' as he approached the Accident Scene and that he repeated those words on getting out of his car. Consequently, police officers and paramedics at the scene were immediately alerted to the possibility that there was someone in the boot of the vehicle.
Constable Stock gave evidence that at about 12.30 am he was directing traffic around the Accident Scene using a torch when his attention was drawn to a car. The car's horn was continuously sounding and the car was travelling at a speed which he estimated to be 'quite faster than the posted speed limit on the freeway'.[33] He was unable to determine which lane the car was travelling in when he first saw it, although it appeared to be close to the train line in the centre of the Freeway. A man got out of the vehicle after it stopped; he was wearing a baseball cap and was yelling out something to the effect of 'bikies have killed her, she's in the back'. It was not in issue that Mr Barr was the man.
[33] ts 486.
Constable Stock assisted Constable Moore and Constable Daly to remove Ms Gascoigne's body from the boot of Mr Barr's vehicle and to place it on the ground. He described Ms Gascoigne's body as:[34]
Cold to the touch and stiff. She was wearing just a top and underpants. She had been - she had a yellow plastic bag which was wrapped - which was over her head and like gaffer tape wrapped up around her neck like a collar. So it was - appeared to be completely sealed. I was stood at her feet and her ankles were cable tied together and she had the same - appeared to be the same tape used around her - her ankles to her - to her shins wrapped - wrapping her legs together as well.
[34] ts 487.
Senior Constable Daly estimated she first heard Mr Barr's car approaching the Accident Scene at approximately 12.50 am.[35] Mr O'Neill gave the same estimate.[36] Constable Thomas and Senior Constable Adamczyk stated that they heard the sound of Mr Barr's car horn as the vehicle approached the Accident Scene at about 12.55 am.[37] Senior Constable Reid declared a protected forensic area after Ms Gascoigne's body was removed from Mr Barr's car at 12.58 am.[38]
[35] ts 462.
[36] ts 467.
[37] ts 499, ts 594.
[38] Detective Constable Fryer, ts 493 and Detective Senior Constable Beyfus, ts 547.
Constable Moore opened the boot of Mr Barr's vehicle. He saw a rolled‑up rug fastened with tape to form a bundle. The bundle occupied most of the boot space. He removed the bundle from the boot with the assistance of Mr O'Neill. They placed the bundle on the ground about a metre to the rear of the vehicle. Constable Moore then cut the tape that bound the bundle. He continued:
… I saw a - a restrained female person lying face down with her hands tied behind her back and her feet also tied behind her back in a - what I would describe as a hog tied position. She had a - yellow plastic bag on her head and that was taped around the neck to hold onto the head. She was facing down, wearing clothes.
And when you were - say she was, I think, 'restrained' was your words, what was that with? - - - Yeah. So it was with black tape and zip ties - and zip ties. So around the hands, zip ties. Sorry, there was one white zip tie around the - holding the hands together. But there was also black tape around the wrists and, I think, around the arms as well.
And what about any part - other parts of her body that was restrained? - - - Yeah. So similar sort of restraints around the ankles. So a zip tie around the feet. It was around her boots. She had long ankle - well, probably half-length boots - black boots. And yeah, the electrical tape as well as doing the same thing, reinforcing the zip tie.[39]
[39] ts 449 ‑ 450.
Constable Moore stated that the tape holding the yellow plastic bag was bound two or three times around Ms Gascoigne's neck area. He removed the plastic bag; he was not certain whether he pulled the tape off or whether Mr O'Neill had pulled it off or whether they had removed the tape together. There was 'gladwrap type material' over Ms Gascoigne's head. Again, he could not recall whether he or Mr O'Neill removed the wrapping but he thought it had been fairly easy to tear and that it had just pulled straight off.[40] After the wrapping material and the plastic bag were removed, Constable Moore and Mr O'Neill looked at Ms Gascoigne's airway and found a gag had been placed in her mouth.[41]
[40] ts 457.
[41] ts 450.
Constable Moore cut the restraints around Ms Gascoigne's wrists and ankles and he and Mr O'Neill then rolled Ms Gascoigne over so that she was lying on her back, arms out, airways free and with her legs at about a 30 degree angle. He described her legs as having 'stiffened up a little' so that they were at an angle. He could not see any signs of life. Ms Gascoigne's pallor was fairly white, she did not have strong rigor mortis and there was no smell.[42]
[42] ts 451.
Constable Moore stated that he had received some medical training while serving in the Special Air Services.[43] He could not discern any clear signs that Ms Gascoigne had been dead for 'a period of time'. He checked her carotid pulse but was unable to obtain a pulse. He was wearing latex gloves; however, 'she didn't feel warm, but she wasn't extremely cold or anything'.[44] Nevertheless, she felt like she was dead. He agreed that there was black dirt on the front of Ms Gascoigne's thighs.[45]
[43] ts 460.
[44] ts 451 ‑ 452.
[45] ts 459.
Constable Moore also stated that Ms Gascoigne was wearing a shaggy dark coloured jacket; a black singlet; blue pants like jeans that were 'slightly pulled down' exposing her underwear and dark boots that extended to just below the knees.[46]
[46] ts 450.
Senior Constable Daly stated that she observed Constable Moore and Mr O'Neill lift Ms Gascoigne's body out of the boot of Mr Barr's car. The body was rolled up in a large rug.[47] Senior Constable Daly used her police radio to request urgent assistance from detectives. CPR was being administered by this time. Ms Gascoigne was lying on her back and did not have any clothing on from the waist up. She was wearing blue underwear and her jeans were pulled down towards her knees. Her skin was 'quite pale, a bit grey in colour and her stomach was bloated'. There was a 'bit of - like purple tinge around her neck'. There was some dirt or black debris on her thighs. She was cool to touch but not completely cold. She had 'a bit of movement in her fingers and stuff like that still'.[48]
[47] ts 463.
[48] ts 465.
Mr O'Neill stated that he and Constable Moore lifted Ms Gascoigne's body, wrapped in a rug, from the boot of Mr Barr's car. Ms Gascoigne's body was bound and there was covering over her head - either a plastic bag or plastic wrap. The plastic was yellow and there was black tape around Ms Gascoigne's neck. Her hands were bound behind her back and her ankles were also bound. The tape around Ms Gascoigne's neck extended from the mid or lower face to the neck.[49]
[49] ts 468.
Mr O'Neill stated that Ms Gascoigne's body had been turned over after the bindings were removed so that she was lying on her back. He cleared her airway by removing a piece of black material from her mouth. He also removed some of the coverings over Ms Gascoigne's face using his hands. He described Ms Gascoigne as having a 'blue, a mottled appearance, was not obviously freezing cold. That would be significant of a longer term death in my training. Yeah, mottled or hypoxic appearance, not breathing and pulseless'.[50] She was cool but not cold to touch. She was wearing jeans but they were down around her knees.[51] There was no obvious rigor mortis. There was also no obvious signs of significant trauma or bleeding.[52]
[50] ts 469.
[51] ts 468 ‑ 470.
[52] ts 475.
Ms MacConnell stated that Mr O'Neill was already working on Ms Gascoigne when she arrived at the Accident Scene.[53] She read into evidence part of the relevant St John's Ambulance patient care record (number 17015562). The record stated that Ms Gascoigne's temperature was taken at the scene at 1.00 am and a reading of 33.5 degrees was obtained.[54]
[53] ts 696.
[54] ts 695.
Mr Dawson said he administered CPR to Ms Gascoigne. He noticed that there were pieces of plastic like tape adjacent to her body and 'something scrunched up if I recall of a multi‑colour thing, small in nature, a handkerchief, sock, something like that'.[55] When he first saw Ms Gascoigne's body her jeans were below her waistline, pulled down to her knees. He recalled there being thick black tape wrapped around Ms Gascoigne's ankles.[56]
[55] ts 480.
[56] ts 484.
Senior Constable Adamczyk stated that when the rug had been removed from around Ms Gascoigne's body she was lying face down with her hands and ankles tied together by different types of plastic.[57] She had a transparent plastic bag over her head and a long piece of dark cloth, possibly a sock, was removed from her mouth by a paramedic. He assisted to put Ms Gascoigne on her back and endeavoured to straighten out her left leg. However, the leg was not 'straightening out which immediately I just thought rigor mortis but I'm no expert'.[58]
[57] ts 595.
[58] ts 596.
Photographs CDP 9638 and CDP 9639, forming part of exhibit 12, captured a green and black sock adjacent to Ms Gascoigne's body at the Accident Scene. The sock was allocated forensic exhibit identifier 'HBE 05'.
Photographs CDP 9683, 9658, 9738, 9708, 9713, 9714 and 9824, also forming part of exhibit 12, showed the tape that was used to bind Ms Gascoigne's wrists and ankles and to secure the plastic bag over her head. The colour of the tape was black, with a shiny non-adhesive side. The tape was of a type that is commonly referred to as electrical tape.
Mr O'Neill signed a life extinct certificate, witnessed by Senior Constable Daly, at 1.12 am.[59]
[59] Mr O'Neill, ts 470; exhibit 5.
Dr White's post‑mortem observations
In her post‑mortem examination, Dr White identified at least 23 injuries that had been sustained by Ms Gascoigne and which were described in Dr White's report to the Coroner. The injuries were numbered in the report.
Dr White gave evidence that injury numbers 1 to 16 were bruising, abrasion or scrape injuries to the face, head and neck of Ms Gascoigne. Injury number 23 was a fresh incise wound at the base of Ms Gascoigne's palm.[60]
[60] ts 866 ‑ 871.
Dr White stated that the injuries to Ms Gascoigne's head and neck were blunt force type injuries which appeared fresh and of a similar age. She considered they were sustained around the time of death or up to 24 hours prior to death.[61] She also considered the degree of force used to inflict the injuries was 'at least mild to moderate force'.[62]
[61] ts 873 ‑ 874.
[62] ts 874.
Dr White was asked about petechiae observed on each side of Ms Gascoigne's head in the area around her ears. She stated:
There was an - an odd pattern to both sides of the head. And when there is a pattern to a particular injury you consider that whatever has been lying next to the head or whatever has impacted or caused the blow to the head that may have left an imprint from either part or all of the surface of which has - has struck that particular part of the head. I'm aware that Ms Gascoigne was wrapped up in a - in a rug. That rug had quite a - a course weave, sort of looped - looped weave to it which was quite irregular. So if the head had been cushioned with that and there'd been a blow to the outer aspect of the carpet, that perhaps would give a unevenness to the way the impact met the skin and therefore may have led to the - the odd speckled pattern as a possibility.[63]
Dr White also explained that the degree of force used to inflict the injuries might have been greater if Ms Gascoigne's face had been wrapped in clingwrap or rolled up in a mat or both at the time that the injuries had been inflicted.[64]
[63] ts 874.
[64] ts 874.
Section 96(3) of the CPA provides that if an accused person intends to give or adduce alibi evidence they must lodge and serve a written notice of their intention providing details of the nature of the evidence, the name of each person who it is intended to call to give the alibi evidence and the person's address or other information sufficient to enable the person to be located. Section 96(4) further provides that if, after lodging a notice, an accused person receives or obtains evidence, information or material referred to in s 96(3), they must lodge and serve it as soon as practicable.
Section 97 of the CPA provides for the consequences of non‑disclosure. Section 97(2) states that where an accused person has not obeyed a disclosure requirement the court, on the application of the party affected by the breach, may adjourn the trial for sufficient time to enable the party affected by the breach to properly investigate any evidence or other matter disclosed in accordance with the requirement and to obtain any evidence that may be necessary as a result of the disclosure. Section 97(3) provides that on the resumption of a trial adjourned under s 97(2), a party affected by a disclosure breach may, among other things, adduce evidence in rebuttal of the evidence or other matter disclosed in accordance with the disclosure requirement and may cross‑examine or further cross‑examine the person about the evidence or other matter disclosed in accordance with the disclosure requirement.
The notice given by the accused and the failure to give a further notice
The accused lodged an alibi notice on 13 March 2020. The notice was not produced in evidence but the accused was cross‑examined on its contents. He did not deny that a notice was given in the terms put by the prosecutor. The notice stated:[456]
Mr Newton will rely upon a defence of alibi to the extent that he has instructed us that he went to an unoccupied house across the road from Mr Barr's property at approximately 12.00 pm on Friday, 14 July 2017 and did not return to the unit of Mr Barr.
[456] ts 1053.
The accused did not give evidence in accordance with the alibi notice. Rather, in his evidence‑in‑chief, he gave a different account of his whereabouts on the afternoon and night of 14/15 July 2017. His alibi was to the effect that sometime in the afternoon of 14 July 2017, he was collected from a street near Unit 7 by Mr O'Neill and he spent the rest of the afternoon and the night at Mr O'Neill's house located somewhere near Wanneroo Road.
The accused made a formal admission that he did not serve a notice of the alibi evidence that he gave in his evidence‑in‑chief.[457] That was the subject of a complaint by the prosecutor at the completion of the accused's evidence‑in‑chief and the trial was adjourned for a short time to enable investigations to be undertaken into the accused's alibi evidence.
[457] Exhibit 58.
The State alleged that the accused failed to discharge his disclosure obligation under s 97 in another respect. That concerned the accused's evidence regarding tape he said he had affixed to the surfboard that was kept at Unit 7. The State's assertion that the accused was obliged to give notice of that evidence pursuant to s 97 relied on observations made about the meaning and effect of the section by McKechnie J in The State of Western Australia v Noble.[458] In that case, his Honour observed that the definition of 'alibi evidence' in s 62 of the CPA did not focus on where the accused was at a particular time but rather, on where they were not at the relevant time. The effect of the definition, so the State, by implication, submitted was that any evidence relied on by the accused to establish that he was not at Unit 7 on the evening of 14 July was caught by the definition of 'alibi evidence' and his evidence about the tape affixed to the surfboard was evidence that was relied on for that purpose.
[458] The State of Western Australia v Noble [2006] WASC 79.
The effect of the State's submission was that arguably, in a case which was contested on the basis that either the accused or Mr Barr had killed Ms Gascoigne, any evidence given by or on behalf of the accused that implicated Mr Barr was subject to the disclosure requirements imposed by the CPA. That submission gave s 97 a very wide application. However, I concluded that it was not necessary to further consider whether, on a proper construction of the CPA, the accused was obliged to give disclosure of his proposed evidence on taping his surfboard having regard to the findings I made on the State's case when considered as a whole.
The effect of the alibi evidence
The State carried the burden of disproving the accused's alibi evidence. The accused had to be acquitted if the State did not prove beyond a reasonable doubt that the alibi evidence should be rejected. That was because, of course, the State had to prove beyond a reasonable doubt that the accused was at Unit 7 when Ms Gascoigne was killed. The accused had to be acquitted if there was any reasonable possibility that he was somewhere else, as asserted by the alibi evidence, at the time on the State's case Ms Gascoigne was killed.
However, it did not follow that the accused must necessarily be convicted if the State had proven beyond a reasonable doubt that the alibi evidence should be rejected. The question remained whether on the whole of the evidence the State had proven beyond a reasonable doubt each of the elements of the charges alleged against the accused.
Whether the alibi was plausible
The accused and Mr O'Neill stated that they did not know each other before 14 July 2017. They had a mutual friend, Travis Ugle, but there was scant evidence as to why Mr Newton chose to contact Mr O'Neill on the afternoon of 14 July 2017. In cross‑examination, Mr Newton stated:[459]
So Travis Ugle, how is it that Liam came to be picking you up? - - - Travis had rung me - I can't remember whether I rung Travis or Travis rang me. It would have been two - about 10 weeks possibly prior to this occasion and I was actually going to catch up with Travis that day. He was going to see Liam, asked me if I knew him, I said, 'No, I haven't met him'. He basically said he was a good guy. He was with his girl at the time Travis. So anyway, yeah, they were going to come and pick me up, but they were tight for time so - yeah, he - he said, 'Well, catch up with him anytime you want, he's a good guy'. So at that stage he give me Liam's number, I wrote it down, put it in my wallet.
And how is it that Liam O'Neill came to be picking you up on the Friday afternoon? - - - I had a couple of phones, 'burner phones' I suppose you'd call them, just basically throw aways. So I rang Liam up, I was going to go over to Lindsay's place, but I thought I'd give Liam a go. I rang him up on one of the extra phones that I had, and he knew who I was once I said, 'It's Travis's mate, he give me your number a couple of months ago'. I said, 'I'm just leaving a friend's place, I need a lift'.
[459] ts 1031.
Mr O'Neill did not explain why he agreed to travel to Scarborough to pick up the accused in response to a request apparently made 'out of the blue' by someone he did not know and when he did not have a motor vehicle driver's licence. Further, according to the accused, he simply asked Mr O'Neill for a 'lift'. Neither he nor Mr O'Neill gave any explanation for why Mr O'Neill should have driven the accused back to his house or why the accused should have remained at Mr O'Neill's house that afternoon and night. The accused stated that he did not have a vehicle as at 14 July and so it was difficult for him to get to Kwinana where he had stayed on past occasions. However, neither he nor Mr O'Neill gave evidence that the accused had requested that he be permitted to stay with Mr O'Neill on leaving Unit 7. According to the accused, he set off the next morning to go to the house of another person without speaking to Mr O'Neill - indeed, there was no evidence that they had any contact after the accused was said to have stayed the night at Mr O'Neill's house (until when they were both held in custody at Hakea Prison). The accused said that he stayed with Pearise Daniels for a few days (Ms Daniels was the person who the accused stated that he went to see on the morning of Saturday, 15 July 2017) and with another person called Blake.[460] He did not suggest that he had returned to Kwinana in the days after leaving Unit 7 despite that being the explanation he offered for why he needed to stay overnight with Mr O'Neill.
[460] ts 1011.
I considered that the evidence given by the accused and Mr O'Neill regarding the accused's movements on the afternoon and evening of 14 July 2017 was implausible in light of those matters.
Mr O'Neill's evidence and the Arunta call
There were several points that I noted about what was said in the Arunta call in light of Mr O'Neill's evidence:
(a)The Arunta call was made on 17 June 2020. Mr O'Neill gave evidence on 19 June.
(b)Mr O'Neill professed in the call that he was unable to recall much about the various events and episodes he discussed with Ms Archer during the call. It was suggested in the call that he had a bad memory; that his memory was affected by medication that he was taking (that is, medication that he was taking in June 2020); and he was trying to recall events that had occurred three years earlier. There was a marked contrast between the tenor of his conversation with Ms Archer about his inability to clearly recollect events in 2017 and the detail of Mr O'Neill's evidence two days later.
(c)Mr O'Neill was asked at the start of his cross‑examination, 'How is it you come to be here today?' He replied, 'I - me and Shawn are in the same prison … And I said to him recently that if - if it - like if that was - the timing was around anything to do with that night that - when he was with me, then he can let his lawyers know and they can come see me.' That answer implied that Mr O'Neill had not known the date on which Ms Gascoigne had died but he had a recollection of being with the accused 'that night'. Mr O'Neill's conversation with Ms Archer in the Arunta call suggested that 'this cunt' had approached him and claimed to be at Mr O'Neill's house - presumably around the time of the anniversary of the death of Mr O'Neill's father given the way in which Mr O'Neill commenced his conversation with Ms Archer in the Arunta call.
(d)Mr O'Neill did not expressly identify the accused as the person for whom he was going to go to court and towards whom he felt an obligation to give evidence. He identified the subject matter of the court proceedings - 'that one with the body in the boot on the side of the freeway' - but he did not identify the accused as the person who was calling him as a witness or as 'the cunt' who was 'coming and going' from his house and who 'reckoned' he was at Mr O'Neill's house. Subsequently there was an odd, and unexplained, exchange which indicated that Ms Archer knew Ms Hyland, that the accused had been in a relationship with Ms Hyland and the accused was the person who had been charged with murder in respect of the 'body in the boot on the side of the freeway'. It was in that context that Mr O'Neill referred to the accused but still did not identify him as the person who 'reckoned' he had stayed at Mr O'Neill's house and in respect of whom Mr O'Neill was to give evidence. Mr O'Neill's identification of the accused in response to Ms Archer's allegation about the kidnapping of Ms Hyland's child might also have suggested that Mr O'Neill had some knowledge of the accused apart from a connection with Mr Ugle. However, this aspect of the Arunta call was not explored with Mr O'Neill in his evidence.
(e)Mr O'Neill said to Ms Archer that the person who 'reckoned' he stayed with Mr O'Neill 'that night' was someone who 'was coming and going' from his house 'at the time'. That was inconsistent with the evidence given by the accused and Mr O'Neill about the extent of their association.
(f)As the prosecutor submitted, Mr O'Neill's reference to 'this cunt reckons he was at my house' suggested that the accused or someone on his behalf had put to Mr O'Neill that they had been together on the night that Ms Gascoigne was killed. Mr O'Neill added in his conversation with Ms Archer, 'I do sort of remember it but I don't know if it's definitely at that time'.
(g)In his evidence, Mr O'Neill implied that he had been in the 'punishment cells' prior to making the Arunta call, whereas in the call, he told Ms Archer that he would be placed in a single cell in the crisis centre that night. He implied that was a bonus rather than a punishment.
I found that Mr O'Neill's explanation for why he said to Ms Archer 'this cunt reckons he was at my house' rather than 'this cunt was at my house' was unconvincing. Further, as I have already noted, the difference in Mr O'Neill's apparent recall in giving evidence and his lack of any clear recollection in the Arunta call was striking. There was nothing in the Arunta call itself which would have assisted Mr O'Neill to more clearly recall what he was doing on 14 July 2017. He commenced the call by referring to the anniversary of his father's death but that had apparently not prompted any recollection of his movements. Rather, that appeared to be a reference point connected to the date on which Ms Gascoigne had been killed - a reference point that, at least at the time when the Arunta call was made, had not assisted Mr O'Neill to recall his whereabouts on 14 July.
I did not accept Mr O'Neill's explanation for his ability to recall the events of 14 July in giving evidence – that his memory had been jogged by ruminating on his activities around the time of the anniversary of his father's death. There was only one clear day between the Arunta call and when Mr O'Neill testified. There was no plausible explanation for his recall given what was said in the Arunta call.
The prosecutor made submissions on what might have happened between the Arunta call and when Mr O'Neill was called as a witness. However, I did not consider that it was necessary to make findings on those submissions in light of the findings I made about the truthfulness and reliability of the evidence given by the accused and Mr O'Neill.
The prosecutor also noted that the accused had said that he rang Mr O'Neill twice in arranging to be picked up from Unit 7, whereas Mr O'Neill referred to a single call and a text message. It was suggested that this indicated that the accused and Mr O'Neill had not got their story straight. However, the difference might have been explained by the effect of the passage of time on their respective memories.
The accused's explanation for the false alibi notice
The accused gave the following explanation for why he had given a false alibi in his notice dated 13 March 2020:[461]
Okay. And you're saying that you got picked up by a Mr O'Neill who rates no mentions at all in this alibi notice?‑‑‑I didn't want to mention his name. That's just the culture of the world we live in.
The culture of what?‑‑‑Well, I don't ‑ ‑ ‑
The Comancheros, Mr Newton?‑‑‑ ‑ ‑ ‑ I don't like talking to police and at the same time I'm not going to declare people to the courts that don't want to be identified. So that was the unfortunate predicament I was in. It was not ideal. It was a horrible predicament to be in but I did not want to declare him to the court if he wasn't willing to.
because that's the culture of the times we live in, is it?‑‑‑The world I live in, yeah, and - and a lot of people I know. Look, I'm in prison. I'm not going to go declaring people to the court ‑ ‑ ‑
Now ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ don't want to be known or that have their own issues with the police.
[461] ts 1054
I did not accept the accused's explanation for why his alibi notice falsely stated his whereabouts on the afternoon and evening of 14 July. Mr O'Neill was not implicated in the death of Ms Gascoigne and there was no reason why the accused would have been reluctant to state in March 2020 that he had been with Mr O'Neill during the afternoon and night of 14/15 July. He did not allege that Mr O'Neill had engaged in some criminal activity that night which might explain why he was reluctant to refer to him in his notice. According to the accused, Mr O'Neill was just a person he had met on one occasion and with whom he otherwise had no relationship and about whom he apparently knew little apart from supposedly being a 'good guy' according to Mr Ugle.
I concluded that the accused's explanation for why he did not want to involve Mr O'Neill in giving evidence when he gave the alibi notice was not plausible. I considered that the false alibi notice, coupled with the lack of any plausible explanation for why it had been given, was strong evidence in support of the State's submission that the alibi evidence was fabricated by the accused and Mr O'Neill.
I was satisfied that the State had proven beyond a reasonable doubt that the alibi evidence given by the accused and Mr O'Neill should be rejected. I did not consider that the evidence might be true; the evidence did not raise any reasonable doubt in my mind about the accused's guilt. I was satisfied beyond a reasonable doubt that the accused was at Unit 7 on the afternoon and during the night of 14 July as Mr Barr had testified.
Implausibility
There were several aspects of the accused's evidence which I considered to be implausible:
(a)his claim that he had used black tape to repair the rails of his surfboard;
(b)his claim that he only had sex with Ms Gascoigne on two occasions;
(c)his explanation for why he was wearing a wig when he was arrested at the Northshore Tavern;
(d)his evidence about removing the registration plates 1DHP 372 from a vehicle he was working on at Unit 7 and directing Ms Gascoigne to place the plates in a toolbox;
(e)the lack of any logical explanation for why he would ring someone that he had never met to collect him from Unit 7 on the afternoon of 14 July;
(f)his claim that he did know how his Department of Corrective Services security tag, medications and the Department of Transport letter addressed to him came to be found in the Ford Falcon utility when it was searched on 7 July 2017;
(g)his denial that the orange handled object was not his and had not been put in his bag by him – the object was obviously significant given Mr Barr's evidence about how he was threatened by the accused with an orange handled knife with a rounded point.
Findings on the accused's evidence
For the reasons given above, I found that the accused was not a truthful witness. I rejected his evidence except to the extent expressly or impliedly stated in the reasons. I set his evidence aside. I also did not accept the evidence of Mr O'Neill and found that the evidence of Mr Morris and Ms Santini was not accurate on the issue of Mr Barr's movements on the afternoon and early evening of 14 July. Their evidence was also set to one side.
Other submissions on behalf of the accused
The cleaning of Mr Barr's bedroom
Mr Watters noted in his closing address that Mr Barr stated that the accused had cleaned up Mr Barr's bedroom. Mr Watters asked rhetorically, 'who, out of Mr Barr and [the accused] would be concerned with the cleaning of Mr Barr's room? Who would be concerned with removing any evidence of Ms Gascoigne from Mr Barr's room?' and 'why would [the accused] have any concern about Mr Barr's bed being crisply made, with his laptop sitting on top of his bed?'[462]
[462] ts 1198.
Mr Watters also noted that Mr Barr stated that the accused had taken condoms and other personal items from Mr Barr's bedroom and placed them in the rubbish bags found at Wilton Place, Scarborough. Again, Mr Watters asked rhetorically, why would the accused take personal items belonging to Mr Barr in cleaning up Unit 7?
With respect, that submission did not raise a reasonable doubt in my mind as to the accused's guilt. It might equally be asked why Mr Barr would seek to dispose of evidence that Ms Gascoigne had lived at Unit 7 given that she had lived there since late March/early April; that Ms Calvert had visited Ms Gascoigne at Unit 7 and knew she was residing with Mr Barr; that at least one of Mr Barr's co-workers knew that Mr Barr claimed to be in a relationship with someone named Rebecca; Ms Mona, and presumably others who lived within Mr Barr's unit complex, had seen Mr Barr and Ms Gascoigne together and it was likely that acquaintances of Ms Gascoigne such as Lindsay would have known that she was living with Mr Barr. Again, why would Mr Barr remove evidence that Ms Gascoigne had lived at Unit 7 at the time of her death and voluntarily stop at the Accident Scene with Ms Gascoigne dead in the boot of his car?
Mr Barr also said that the accused had placed tape over the webcam built into Mr Barr's laptop. However, when forensic officers examined Unit 7 they found Mr Barr's bed neatly made, his laptop lying in the middle of his bed and no tape across the webcam.'[463] It was submitted by Mr Watters that Mr Barr's explanation for why tape had not been found over the webcam for his laptop was dishonest. However, Mr Barr said, when cross-examined by Mr Watters, that he did not know why the tape had not been found and agreed without equivocation that he had not seen the accused remove the tape. I considered that answer to be inconsistent with the submission that Mr Barr was endeavouring to explain away incriminating evidence.
The bottle of bleach
[463] Price (ts 561).
A bottle of bleach was found in Mr Barr's car when it was forensically examined on 18 July. Again, it was submitted that the finding was consistent with Mr Barr planning to kill Ms Gascoigne after he had taken her somewhere in the northern suburbs and sexually assaulted her. Presumably, the suggestion was that the bleach was to be used to remove forensic traces.
Mr Barr claimed that the accused had added bleach to various items that were placed in the washing machine after Ms Gascoigne had been bundled into the rug. It was put to Mr Barr that 'no bleach was ever used'.[464] However, it was not put to him that he took bleach with him in his vehicle to destroy evidence that might have implicated him in the sexual assault and killing of Ms Gascoigne.
[464] ts 394.
Further, there was no evidence that bleach had been used in Mr Barr's car or on anything connected with Ms Gascoigne's clothing or body.
Mr Barr's vehicle at the front of Unit 7
Mr Barr gave evidence that the accused drove Mr Barr's vehicle from the rear carpark for the unit complex to the 'front of the units' so that Ms Gascoigne's body, bundled in the rug, could be carried to and placed in the boot. He added that he thought that the accused had lined the boot with a blanket taken from Mr Barr's bed.[465]
[465] ts 295.
That evidence was challenged in cross-examination on the basis that Mr Barr had previously said in a witness statement that he had driven the car to the front rather than the accused.[466] He was not cross‑examined on whether it was possible to drive the car to 'the front'. However, Ms Mona stated that it was not possible to drive a car to the front door of her unit or to the rear door.
[466] ts 325.
It was submitted that Mr Barr had fabricated evidence in saying that the accused had driven the vehicle to the front for two reasons: first, it was Mr Barr and not the accused who drove Mr Barr's vehicle, on the night of 14 July and second, it was not possible for Mr Barr's vehicle to be driven to the front of his unit.
Mr Barr did not state that the accused drove Mr Barr's vehicle to the front of his unit. Rather, he said that the vehicle was driven to the front of 'the units'. I understood Mr Barr's evidence to be a reference to the vehicle being driven to the front of the unit complex in Abbett Street rather than literally to the front door of Unit 7.
As for the difference between Mr Barr's evidence about the accused driving the vehicle around the front and his witness statement to the effect that he drove, I did not find that difference to be so significant as to undermine Mr Barr's credit. As I earlier observed, there were relatively few instances in which it was suggested that Mr Barr had departed in his evidence from what he had stated in apparently lengthy out of court statements.
The 'rollies' at the Accident Scene
Mr Barr gave evidence that the accused gave him a packet of readymade cigarettes - Rothmans Blue - while Unit 7 was being cleaned after Ms Gascoigne had been bundled in the rug. Mr Barr stated that he thought he placed the cigarettes in his trouser pocket, the implication being that he had the cigarettes with him when he arrived at the Accident Scene.
However, Ms Grainger gave evidence that Mr Barr had a pouch of tobacco with him when he was searched at the Accident Scene and that a packet of cigarettes had not been found in his possession. I did not draw any adverse inference concerning Mr Barr's credit from that inconsistency. It was not surprising that there were some inconsistencies in the detail of Mr Barr's evidence given the traumatic events that he experienced and the passage of time between those events and giving evidence.
The baseball cap as a disguise
I accepted Constable Stock's evidence that Mr Barr was wearing a baseball cap when he stopped at the Accident Scene. It was suggested that he was wearing the cap as a form of disguise. I did not accept that submission. It was inconsistent with Mr Barr's conduct in voluntarily stopping at the Accident Scene and alerting police at the scene about Ms Gascoigne's body in the boot of his car.
The 'evidence genie'
Mr Watters suggested in his opening address that Mr Barr had provided the police with items that he believed would falsely implicate the accused in the death of Ms Gascoigne. The submission was colourfully described as Mr Barr rubbing the 'evidence genie' to produce evidence apparently implicating the accused. The items to which Mr Watters referred were a t-shirt and a pair of jocks; a knife (a different knife to the orange-handled object that was found in the accused's possession when he was arrested) and a diary said to belong to Ms Gascoigne. However, those items did not feature in the State's case against the accused. Further, Mr Barr was not cross-examined to the effect that he had given the items to the police so as to falsely implicate the accused.
Mr Barr's knowledge of the prosecution evidence
It was submitted that parts of Mr Barr's evidence indicated that he was familiar with the prosecution brief and that he had tailored his evidence accordingly – for example, in his description of the force used in the assaults on Ms Gascoigne. However, the possibility that Mr Barr knew what witnesses would say was put to him in the context of his movements on the afternoon of 14 July. Mr Barr replied that he was aware of witness statements taken by police about that matter from when he was questioned after his arrest.[467]
[467] ts 427.
Further, the evidence of Dr White was that 'at least mild to moderate force' had been used to inflict a number of injuries to Ms Gascoigne's head. The fact that there was no blood was consistent with the site of the injuries and the fact that the injuries were blunt force injuries. Those findings were, in turn, consistent with Mr Barr's evidence on how the injuries were inflicted by the accused. Moreover, Dr White's report to the Coroner did not contain any opinion about the degree of force that might have been applied to inflict the injuries that were described. It was difficult to see how Mr Barr might have shaped his evidence to accord with Dr White's report.
For the reasons given above, I found that the State had proven beyond a reasonable doubt that the accused did the acts that I found caused Ms Gascoigne's death. In making that finding, I was satisfied beyond a reasonable doubt about the truth and reliability of Mr Barr's evidence on matters that were relied on by the State to prove the first element of the offence of murder.
PART J: FINDINGS ON THE REMAINING ELEMENTS OF MURDER
Unlawful
I found that the acts that caused Ms Gascoigne's death were the accused's acts in placing a sock in her mouth to act as a gag, wrapping her head in clingwrap and placing and securing a plastic bag over her head. The accused's acts in assaulting Ms Gascoigne and binding her wrists and ankles facilitated those acts and prevented her from being able to resist the accused and from being able to remove the gag and the plastic wrapped around and over her head. Accordingly, those acts contributed to her death. The accused's acts of bundling Ms Gascoigne into the rug and placing her in the boot of Mr Barr's car also prevented her from being able to escape and remove the gag and plastic wrapping and covering.
The very nature of those acts establishes that they were consciously and deliberately done by the accused. That was confirmed by Mr Barr's evidence.
I found that the State had proven beyond a reasonable doubt that the killing of Ms Gascoigne was unlawful.
Intention
The first of the two ways in which the accused could have been found guilty of the murder of Ms Gascoigne required the State to prove beyond a reasonable doubt that, at the time he did the acts that caused Ms Gascoigne's death, the accused intended to either kill Ms Gascoigne or to cause a bodily injury of such a nature as to endanger or be likely to endanger her life.
I found that the cause or a substantial or significant cause of Ms Gascoigne's death was asphyxia. I further found that the acts that caused Ms Gascoigne's death by asphyxia were the accused's acts of placing a sock in her mouth, wrapping her head in clingwrap and placing and securing a plastic bag over her head.
I also found that the accused bound Ms Gascoigne's wrists and ankles with cable ties and tape. Mr Barr stated that the accused did this prior to wrapping and covering Ms Gascoigne's head in plastic. I inferred that the accused bound Ms Gascoigne's wrists and ankles so that she could not resist and would be unable to remove the gag from her mouth and the plastic from around her head. I would have drawn that inference even if I had found that Ms Gascoigne's wrists and ankles were bound after her head had been covered in plastic.
Finally, I accepted Mr Barr's evidence that the accused wrapped Ms Gascoigne in a rug and placed her in the boot of Mr Barr's car. The gag and the wrappings were never removed by the accused and Ms Gascoigne was restrained so that she could not remove them.
In my view, all those acts unequivocally expressed an intention by the accused to kill Ms Gascoigne.
The acts which I found caused Ms Gascoigne's death were committed by the accused during a single episode. I concluded that the acts were part of a continuing course of conduct and that it was not necessary to make separate findings about the accused's intention in committing each act.
In summary, I was satisfied that the only reasonable inference to be drawn from the facts I found was that the accused intended to kill Ms Gascoigne at the time he committed the acts that caused her death. I made that finding having regard to the following:
(a)Mr Barr's evidence about the way in which Ms Gascoigne was killed;
(b)the nature of the acts that I found caused Ms Gascoigne's death through asphyxia;
(c)the accused's acts of binding Ms Gascoigne's wrists and ankles so that she could not remove the gag, the wrapping around her face and the plastic bag over her head;
(d)the accused's act in bundling Ms Gascoigne in the rug, securing the rug with tape and placing the bundle in the boot of Mr Barr's vehicle.
Accordingly, I found that the State had proven beyond a reasonable doubt that the accused had the intention specified by s 279(1)(a) of the Criminal Code for the offence of murder.
I was satisfied on all of the evidence I accepted that the State had proven beyond a reasonable doubt each element of the offence of murder and that there was no reasonable explanation consistent with the accused's innocence of the charge of murder.
It followed that it was not necessary to make findings about whether the State had proven that the accused was guilty of the charge of murder pursuant to s 279(1)(b) or (1)(c). I add that I would have been satisfied beyond a reasonable that the accused had intended to inflict a bodily injury such a nature as to endanger Ms Gascoigne's life had I not found that the State had proven that the accused had intended to kill Ms Gascoigne.
PART K: FINDINGS ON COUNTS 1 AND 2
The State's case on count 1 of the indictment was that:
(a)the accused threatened Mr Barr with what he thought was a knife;
(b)the accused also threatened Mr Barr by claiming to have a gun and having Ms Gascoigne confirm that he was armed;
(c)the accused forced Mr Barr to go into Ms Gascoigne's room and told him to 'lay on your hands at Rebecca's feet'. Mr Barr was forced to face the wall with his hands in front of and under his chest; and
(d)subsequently, Mr Barr was again forced to lie on the floor in the kitchen/living area beside a couch, facing the wall. The accused said words to the effect 'don't you fucking move, cunt. You're fucking dead'.[468]
[468] ts 284.
I accepted Mr Barr's evidence that the events that were the subject of count 1 on the indictment occurred. I made that finding based on the findings I made about the truth and reliability of Mr Barr's evidence. I was satisfied beyond a reasonable doubt that:
(a)Mr Barr had been confined by the accused by being forced to lie on his hands on the floor of Ms Gascoigne's bedroom and on the floor in the kitchen/living area of Unit 7;
(b)Mr Barr was confined or detained against his will – not only was Mr Barr threatened but he was prevented from intervening to assist Ms Gascoigne; and
(c)Mr Barr's confinement was unlawful – that element was obviously established by the circumstances in which Mr Barr was confined.
Count 2
The State alleged that:
(a)Mr Barr was forced by the accused to assist in cleaning up Unit 7 after Ms Gascoigne had been bundled into the rug; to assist the accused to move Ms Gascoigne from Unit 7 to the boot of Mr Barr's car; to drive his car to Wilton Place, Scarborough where the plastic bags were placed in rubbish bins; and to allow the accused to drive his vehicle from Wilton Place, Scarborough;
(b)Mr Barr did those acts as a result of threats made by the accused; and
(c)the accused made the threats with the intention of compelling Mr Barr to do the acts - acts which Mr Barr was lawfully entitled to abstain from doing.
I found that the accused threatened Mr Barr at Unit 7. In addition to the threats referred to in count 1, Mr Barr stated that the accused had referred to 'kill shots' after Ms Gascoigne had been bundled into the rug and he said that 'I'm in submission not to die' when asked why he had assisted the accused to carry Ms Gascoigne's bundled body to his car. He also stated he handed tape to the accused because he did not want to die and he had just witnessed Ms Gascoigne being assaulted in the most graphic way.
I accepted Mr Barr's evidence that the accused threatened him having regard to the findings I made about the truthfulness and reliability of his evidence. The whole of the accused's conduct after Mr Barr knocked on Ms Gascoigne's bedroom door at about 7.00 pm would have conveyed a threat and been intimidating.
I was satisfied beyond a reasonable doubt that:
(a)the accused made threats to Mr Barr;
(b)the nature of the threats was such that, viewed objectively, conveyed an intention to threaten and intimidate Mr Barr;
(c)the accused deliberately threatened Mr Barr with the intention that his acts or words should convey an intention to threaten and intimidate Mr Barr;
(d)the accused deliberately threatened Mr Barr with the intention of compelling him to assist the accused to clean up Unit 7, to load Ms Gascoigne's body into the boot of Mr Barr's car and to travel with the accused to a beach carpark in Kallaroo; and
(e)Mr Barr was lawfully entitled to abstain from assisting the accused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Corboy15 DECEMBER 2020
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