The State of Western Australia v Spratt - [2023] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SPRATT [2023] WADC 58
CORAM:   RITTER DCJ
HEARD:   13-17 MARCH 2023
DELIVERED          :   7 JUNE 2023
FILE NO/S:   IND 819 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
JORDAN PATRICK SPRATT
COREY NICHOLAS LEE WINMAR

Catchwords:

Criminal law - No case to answer application - Circumstances of aggravation - Co‑accused - Burglary - Common purpose - Acting in concert - Assault - Parties to offences

Legislation:

Nil

Result:

No case application dismissed
First circumstance of aggravation on count 1 removed from jury

Representation:

Counsel:

The State of Western Australia	:	Ms B E Sojan
First Accused	:	Mr K G Robson
Second Accused	:	Mr S M Shadgett

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
First Accused	:	Ken Robson
Second Accused	:	Shadgett Legal

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

Jackson v Horne [1965] HCA 44; (1965) 114 CLR 82
Marchesano v The State of Western Australia [2017] WASCA 177
O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997)
O'Dea v The State of Western Australia [2022] HCA 24; (2022) 403 ALR 200
Pickett v The State of Western Australia [2020] HCA 20; (2020) 270 CLR 323
Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Beck [1990] 1 Qd R 30
The State of Western Australia v Balestra [2018] WASCA 209
The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124
The State of Western Australia v Godbold [2022] WADC 112

RITTER DCJ:

Introduction and background

By indictment 819 of 2022 Mr Winmar and Mr Spratt were charged as follows:
(l)On 20 October 2021 at Manning Corey Nicholas Lee Winmar and Jordan Patrick Spratt, while in the place of Kimberley Florence Wells without her consent, unlawfully assaulted Darrelle Bradley Charles Green
And that Corey Nicholas Lee Winmar and Jordan Patrick Spratt were armed with an offensive instrument, namely a machete
And that Corey Nicholas Lee Winmar and Jordan Patrick Spratt were in company with each other and others
And that Corey Nicholas Lee Winmar and Jordan Patrick Spratt did bodily harm to Darrelle Bradley Charles Green
And that immediately before the commission of the offence Corey Nicholas Lee Winmar and Jordan Patrick Spratt knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place as in Count (1) Corey Nicholas Lee Winmar and Jordan Patrick Spratt unlawfully assaulted Darrelle Bradley Charles Green and thereby did him bodily harm.
At the conclusion of the State case, I determined two issues. The first was an application that Mr Spratt had no case to answer.
The second was whether, as a matter of fact and law, it was open for the State to proceed with the first circumstance of aggravation to count 1, being that Mr Winmar and Mr Spratt were armed with an offensive instrument, namely a machete. This was an issue I raised with counsel.
I heard submissions on these issues in the afternoon of 15 March 2023. I reserved my decision until the following morning. At that time I informed the parties that the no case application on behalf of Mr Spratt would be dismissed. I also informed the parties that the first circumstance of aggravation on count 1 of the indictment would be withdrawn from the jury because as a matter of fact and law it could not succeed.
At the time I gave brief oral reasons and said, with the concurrence of all counsel, that I would provide fuller reasons after the trial had concluded.
These are those reasons.

No case submission

The submissions of the parties

The State case against Mr Spratt was contained in the statement of material facts, the opening of counsel for the State and her submissions during the no case submission.
It is clear that the case against Mr Spratt with respect to both charges on the indictment was as an aider to Mr Winmar as being the principal offender. Furthermore, the evidence against Mr Spratt was entirely circumstantial.
The State accepted that mere presence at an offence was insufficient for somebody to be an aider. It was submitted that positive steps needed to be taken. It was then accepted that positive steps were taken in the present case against Mr Spratt. It was submitted there was evidence that he got out of the vehicle in which he had been travelling with Mr Winmar, Mr Macgill and an unnamed person who ended up wielding a machete, according to State witnesses (Mr Machete).
The State pointed to the evidence that Mr Spratt stood behind Mr Winmar while Mr Winmar was told to wait at the gate of the house. Then it was submitted that one of the group opened the gate and Mr Spratt followed Mr Winmar through the gate and into the house after Mr Winmar barged into it. It was submitted there was evidence from State witnesses that Mr Spratt stood directly behind Mr Winmar when the latter committed the assault.
It was submitted that Mr Spratt's actions were beyond being a bystander at a street fight, for example. It was submitted Mr Spratt took positive steps to put himself in the house. It was submitted there was an inference available that he could, in the sense that he had the present capacity to, have assisted Mr Winmar in the alleged assault that occurred inside the house.
The State submitted that standing directly behind Mr Winmar when Mr Winmar allegedly punched Mr Green was something beyond being merely present.
It was submitted that in the circumstances the presence of Mr Spratt could have emboldened Mr Winmar to assault Mr Green as alleged by the State witnesses.
By contrast, counsel for Mr Spratt, Mr Robson, submitted there was no evidence at all that Mr Spratt encouraged Mr Winmar to enter the home or assault Mr Green.
Mr Robson also pointed to evidence from Mr Jayden Wells that the only conduct he saw Mr Spratt engage in was to try and separate Mr Winmar from Mr Green.
Reference was also made to evidence from Ms Kimberley Wells who said words to the effect that Mr Spratt looked like he was 'security'. Ms Wells' evidence was clarified in cross‑examination when she made it clear she did not mean Mr Spratt was taking any measures to act like a security guard as she did not know what he was doing there. That is, Ms Wells likening Mr Spratt to a security guard was aimed more at his inaction than anything else.
Mr Robson submitted that there was no suggestion in the State case that Mr Spratt was there by way of 'muscle' or to 'overbear or to overpower or provide more numbers or anything like that'.
With respect to count 2, Mr Robson submitted the evidence did not provide any reason or hint or suggestion that Mr Spratt went to the property to aid Mr Winmar to assault anybody.
In reply the prosecutor, Ms Sojan submitted that Mr Spratt was an additional body at the premises and was one of four people who attended at the house in question. Ms Sojan submitted the evidence was that he did not know anybody at the house, attended there at 11.45 pm, was told not to come in and stay at the gate, but entered anyway and was lending weight to Mr Winmar as the principal offender. Further, Ms Sojan reiterated that whilst inside the house Mr Spratt's actions and his presence acted as an additional body and emboldened Mr Winmar to act in the way that he did. It was submitted that it was not a situation where Mr Winmar went there on his own, to a house full of people and committed the alleged offences. It was submitted Mr Winmar allegedly went to the house with three other people and then committed the offences. It was also submitted that Mr Spratt's presence contributed to the heightening of the fear of the occupants and that was one of the reasons why his presence may have emboldened Mr Winmar to take the actions that the State said he did.
It was also submitted that there was no evidence that Mr Spratt went to leave the premises before the fracas was over. He remained there as a 'body' throughout.
Counsel for the State agreed, during my discussion with her, that one could rhetorically ask the question of why Mr Spratt was there and whether the answer was to provide assistance to Mr Winmar if necessary.

The evidence

Before ruling on the issue I reviewed the evidence relating to Mr Spratt and his presence in the house and his involvement, if any, with what occurred there.
I also summarised this evidence during my charge to the jury.
The following is the relevant evidence on the issue.

(a) Mr Darelle Green

The evidence of the alleged victim of the assault Mr Darelle Green, or Mr Bradley Green as he was called by other witnesses, was as follows.
In his evidence-in-chief, Mr Green was asked:[1]
How do you know Corey?
[1] ts 94.
His evidence then was:
He used to date Kimberley.
And did you speak with him?---Yeah. I said wait at the gate, I'll go get Kimberley.
And where was he at that point in time?---At the gate still.
Okay. Was there anyone else with him?---Yeah. A couple of boys standing behind him.
Okay. Did you know them?---Nah. I don't know them.
And when you say a couple of boys, how many people are we talking about?---Three.
Three? All right. And when you told him to wait at the gate, what did you do?---I walked inside to tell Kimberley that Corey was out the front and to go and see him. And then I came back out, and he was already coming through the gate. So I walked back inside to shut the door, and by that time I've shut the door and he's already trying to open the door, coming inside and demanding to see his son.
Okay. When you say he was trying to open the door, could you describe for us what he was doing?---Well, the door was closed, so I tried to hold the handle and he's grabbed it, opened it and pulled it open and barged his way inside the house.
Mr Green later gave this evidence:[2]
[2] ts 95.
Those other three men that you were talking about, whereabouts were they?---They were behind him.
And what were they doing?---They were just standing there.
And did he push the door open?---Yeah, he pulled it open.
Okay?---And he came in.
And then when you say he came in, whereabouts was he?---Just barges straight through the front door, come into the lounge room, cos the lounge room's right where the front door is.
Okay. So he was in the lounge room after?---Yeah.
After he pushed the door open, he was in the lounge room? What about the other three men?---Right behind him.
Okay, inside the house?---Yep.
And did you give Corey permission to come into the house?---No, I didn't. I told him to wait at the gate, as I'll get Kimberley.
Mr Green was later asked:[3]
Now, did you have any other conversation with Mr Winmar?---No, he just came in demanding to see his son, more or less standing over me, and then his friend came in, swung a machete, tried to hit me in the head with it.
Okay, so when - - -?---And I - and I had a torch at the time, so I put the torch up and the machete struck the torch, so I was lucky I had that.
[3] ts 96.
He said a little later:[4]
Corey came in first, and then the guy behind him said, 'We're here to chop you up,' and I was like, 'What have I done? Nothing.' And he's like, 'I don't care, Corey's my cousin.' And then he tried to hit me with the machete.
[4] ts 96.
Mr Green was also asked in evidence-in-chief:[5]
When you are talking about the machete coming into contact with your torch, what part of the machete came into contact?---The blade.
And where were the other men?---They were all just standing behind Corey.
And did you have any other interactions with Corey?---Yeah, he punched me in the mouth.
Okay. When was that?---Cos not long after I almost got hit in the head with a machete.
And whereabouts in the mouth did he punch you?---Straight there.
Okay?---So the mouth, in the nose and in the teeth.
Okay. And did you suffer any injuries from that?---Yes. Blood nose. My tooth's fucked.
[5] ts 98.
Mr Green was also asked:[6]
At that point in time when he punched you, where were the other men?---They were all, like, one was in the hallway standing, like - so you come in - so this is my kitchen, right? I'm in there, and I've got a hallway going that way. One of them was standing about over there. Corey was here trying to get me in the kitchen. Two of them were over in the lounge room standing.
[6] ts 99.
A little later he was asked:[7]
At that point in time, how did you feel?---I was trying to tell Corey, 'What have I done wrong?' And he's like, 'I want to see my son, I want to see my son,' and ripped his shirt off, and he wanted blood, right or wrong. One of the other guys tried to give him the machete, but he didn't take the machete.
And what about the other men, what were they doing?---They were just standing there, waiting for – if anything popped off, I suppose.
Did you have any interactions with those other men?---Yeah, one of them punched me.
Okay. And how long were these people in the house for, approximately?---Maybe five minutes.
Okay?---Maybe a bit longer, I don't know.
And did they leave the house at the end of that five minutes?---They left, yeah, eventually.
[7] ts 99.
Mr Robson briefly cross-examined Mr Green, including this questioning:[8]
Was it Mr Spratt who stayed in the car?---No, Mr Spratt was inside the house.
Mr Spratt never went inside the house at all did he?---Yes, he did. He stayed in the car for a while at least.
Mr Spratt never assaulted you, did he?---No.
Mr Spratt didn't assault anyone, did he?---No, he didn't.
[8] ts 162.
Later on in the cross‑examination was the following:[9]
[9] ts 163.
And you said that one of them punched you?---Yeah, I did.
But you never told the police that did you?---No, I didn't.
And that would have been important to tell the police that another male punched you, wouldn't it?---Yes, it would have been.
The reason you didn't tell the police that a second male punched you is because you wanted to sound more impressive to the police?---No, you - I didn't want to come in the court.
You didn't want to come in the court?---Yeah.
But when the police were there you wanted to tell them a bigger story than what really happened?---No, I didn't.
So if somebody - a second male had assaulted you, you would have told the police, wouldn't you?---Yeah.
Unless you forgot or something, I suppose?---Yeah.
So you just forgot?---No, I was a bit dazed at the time, so yeah.
It was put to Mr Green by Mr Robson that there was no incident with the second male, but he said yes, there was. He was then asked:
And Mr Spratt did not have this machete, did he?---No, he didn't.
…
… All he did was try to separate you and Mr Winmar?---No one was fighting with Mr Winmar.
Mr Robson also put to Mr Green:[10]
You and Mr Winmar were disagreeing about something outside the house, Mr Spratt came over to separate you, that's all he did?---No.
And then everyone left?---No, they didn't, it didn't end like that, mate.

(b) Ms Shannon Wells

[10] ts 164.

Ms Shannon Wells gave evidence for the State. In her examination‑in‑chief she said it was Mr Winmar and three males who came into the house and she gave a description of those people.[11] And she said that Mr Winmar said:
'Where's my son? Where's my son?'
[11] ts 168.
Ms Wells then said:[12]
The light‑skinned person had the machete and was waving it around … he was [my] main focus, so once I seen that he had the machete, that's when I started like screaming, I was like, you know, what are you doing? And then frigging he was like - my main focus was just him, like trying to reason with him, you know, like there's kids inside the house like what the hell, like. And yeah, he was just like my main priority at the time.
[12] ts 168.
Ms Wells was also asked and answered in examination‑in‑chief:[13]
Where was he?---Well, in front of me, like, so Corey, they had all sort of come in, Corey was first, they were behind Corey, and then Corey sort of like shuffling towards the kitchen way more, which is where Darrelle was, and I had sort of stopped with the one that had the machete, trying to reason with him so he didn't go any further.
[13] ts 169.
Ms Wells also gave this evidence:[14]
Did you see Corey having interactions with anyone else?---When I - I - when they came in, yeah, he was shouting like where's my son, where's my son, and that's when I was with him, and then the man with the machete, I heard it hit something, so I've turned around and as I've turned around at that same time, all I've seen is Corey punch Darrelle in the mouth.
[14] ts 169.
Ms Wells was asked whether Mr Green had any injuries, and she said:
His lip was bleeding and his tooth's now wobbly because of it.
Ms Wells was also asked about the other people in the house and she said:
The dark skinned one, he was just standing there in front of the cupboard the whole time, like I didn't see him do anything, he was just standing there. Then the Caucasian one was standing just to the left of the entrance of the kitchen door.
Ms Wells clarified that 'the Caucasian one' was not the person who had the machete, she had referred to him as the light‑skinned person.
Ms Wells was then asked by Ms Sojan whether she heard any of the other man say anything, and she said:
No, only the one with the machete, I was trying to reason with him so he was talking back to me, obviously, but the other two, no, I didn't hear anything.
And did you see the other two do anything?---No.
Ms Wells also said:[15]
The man with the machete had attempted to give it to Corey but Corey didn't take the machete.
[15] ts 171.
Ms Wells was asked by Ms Sojan whether she saw any of the men leave and she said:
The one with the machete I seen him walk out the door, and then after that I didn't see anyone leave at that time because he was the first one out. After a while I noticed that the dark skinned one wasn't inside.
Mr Robson questioned Ms Wells on behalf of Mr Spratt and it was put to her that Mr Spratt did not go into the house, but Ms Wells said:
Yes, he did go into the house.
Mr Spratt did not assault anybody, did he?---I did not see him assault anyone, no.
And Mr Spratt didn't have the machete?---No, I didn't - no.
There was no machete at all, was there?---There was a machete.
Ms Wells was also asked 'Did Mr Spratt stay in the car, or did you first see him … ', and then she interrupted 'They were all inside the property'.
The questioning continued:[16]
That's when you first saw him, was it?---Yes.
Okay. Isn't it right that Mr Spratt, as far as you could tell, all he did was try and separate Mr Winmar and Mr Green?---No. Mr Spratt, the whole time, like I said before, was just standing in front of that cupboard, like, I didn't see him do anything at all, he was just standing there the whole entire time. I don't know what.
Now, when you say 'cupboard', you mean the one that's?---Directly in front of the kitchen, the entrance to the kitchen.

(c) Ms Kimberley Wells

[16] ts 196.

Ms Kimberley Wells, in her examination-in-chief, referred to, 'those boys'. She was asked to describe them, and said:
The boys that Corey came with, I mean, Jordan, Brayth and the other one who didn't get caught.
Ms Wells said she had never met those people in her life. Her evidence was then:
When was the first time you saw these other men?---All at the same time, they all came through the door at the same time.
And where is everyone in the house when they came through the door?---Well, like, Brad - Bradley, he was telling me, 'Corey's at the door'. I froze, like I got so scared that my brother jumped up before me, and my sister, she's already like coming down the hallway. The kids were in the back end of the house, like the room together. Well, Darrelle was in his room, Leticia and Corey were in their room. And then we just - they just all came through the door and we just all got caught up in the, like, corridor area between the kitchen and before the hallway, and just right there.

Ms Wells also gave this evidence:[17]
And did you witness any interactions between Corey and Mr Green?---Yeah, well, like Corey, he's come through the front door, he's like, 'Where's my son?' punches the wall -
[17] ts 201.
Ms Wells then said:
… he's come through the door, he's like, 'Where's my son?' he's punched the brick, like, the wall in my sister's house, and then he's ended up punching Bradley, he's loosened his tooth. He had a couple of hits on Bradley. And then the guy with the machete, he's just had - I don't know. He was - they were there to chop Brad, I don't even know what Bradley has ever done to any of them. Like, I'm the one who's got the kid to Corey and I haven't even done anything to Corey to deserve - I don't know.
Ms Wells then said:
… Corey's come through the door. He said, 'Where's my son?' and he's punched the wall. Then he's seen Bradley, got the chance and hit him, hit him, like, in the mouth. And then before you know it, the guy with the machete, he's just pulled it out and he's - I don't know where, if he had it behind his back, I didn't see how. He's just doing this, like trying to go over, cos Bradley's in the kitchen. Lucky Bradley had a freaking torch in his hand, lucky he came back from the road verge side, because if he had not, he would have probably been in a wheelchair or probably dead.
Ms Wells then gave a description of the person with the machete and said he was fair. She then said:
… Jordan, he was - cos I remember him, he was the one where I was positioned in the hallway. I didn't know what he was doing, he was just standing there, like he didn't do anything. He was like a security guard, I don't know, but I wasn't sure if he was intention to go down the hallway to see where little Corey was. I don't know.
When asked how long the fracas lasted she said:
About three minutes.
Mr Robson cross‑examined Ms Wells as follows:
Mr Spratt did not assault you in any way?---No.
He didn't assault anybody?---No.
You said you thought he was doing something like a security guard, or something like that?---Yeah, cos I mean, he just - I don't know what - yeah it was - but that's just from -
I don't know what you mean by that. But anyway, he wasn't there telling anyone he was security was he?---No, he wasn't saying anything. He just stood there in one spot. He just stood there pretty much the whole time, just in one spot like a security guard.
It was put to her that no one had a machete. She said:
Yes, they did.
It was put to her that there was no machete at the house and she said:
Yes, there was.
It was put to Ms Wells that:
The only thing Mr Spratt did that night was sit in the car for a while?---In the car, then I wouldn't have even known he was there, how did I see his face if he was in the car?
It was put to Ms Wells that Mr Spratt had tried to separate Mr Winmar and Mr Green, and Ms Wells said:
No, he didn't try to separate, he didn't try to spate anyone, but he didn't do anything either. That's why I don't know what he here for.
It was also put to Ms Wells that:
You're mistaken in thinking -
And then she said:[18]
And the boy that got charged as well, they both didn't do anything, him and Brayth.

(d) Mr Jayden Wells

[18] This was a reference to Mr McGill.

The final of the State's witnesses as to the facts was Mr Jayden Wells. In his examination-in-chief he said 'he just woke up from the couch and he heard Corey and Bradley arguing'.[19]
[19] ts 227.
Mr Wells was asked:[20]
When Corey came into the house, did anyone else come with him?---Yeah, I think there was two other - there was two other people, yes.
And did you see them?---Little bits of them, yes. I didn't pay much attention completely to their faces and everything, but yes, there was two other people there.
[20] ts 229.
Mr Wells was then asked:[21]
Did you witness anything occur between Corey and Bradley, other than the verbal argument that you spoke about?---Nah, I think Corey just punched Bradley. That's - that's all I've seen.
And when was that? That was at the door, I think, when they were arguing.
And when you say he punched Bradley, did you see whereabouts he punched him?---I think to the face, into the face.
Okay. And did you see Corey do anything else?---Nah, no there was just a lot of arguing going on.
[21] ts 229.
Mr Wells also said:[22]
And then it got into a bit of a physical - another little physical shuffle, but I couldn't really remember and it was happening that quick.
[22] ts 230.
Mr Wells was then asked about the other men:
And did any of the men have anything with them?---Yeah, one of them had a machete.
Okay. Do you know which one that was?---No.
Obviously in was referred to them as 'the men and Corey', are we talking about Corey or the other men?---The other men.
And did you see what the one with the machete did with the machete?---No.
And did you see the man leave?---Yes.
When cross‑examined by Mr Robson, it was put to Mr Wells that he had said, during the fighting, male 1 and male 2 stood there, waiting for Mr Winmar. Mr Wells' answer was:
I did say that they were in the house at the time, I did. I did say that, cos they've all ended up coming into the house and then having a bit of push and shove. And then - yeah, and then just - yeah, everyone left then. And as I said, I couldn't recall their faces too well cos I wasn't paying real attention, like, you know, like to details like that.
Mr Robson then questioned as follows:
I assume that one of the men, one of those, male 1 or male 2, must be Jason Spratt?---I don't know him by name, but yes. I've never seen him before, but yes.
So are there two males, and they just stood there, waiting for Corey?---Yeah, like - like, yes. After - like - they were inside, having a bit of a scuffle, everyone was just all arguing, scuffling a bit. It wasn't me that's scuffling really, but - like, yeah.
It was put to Mr Wells that Mr Spratt was not pushing or assaulting anyone. He said:[23]
No, no, no, but they were like sort of - once we got into the lounge room, or - everyone was in the lounge room then. Like, there was two other people in the lounge room, I could see verbally, like, that's why I give the descriptions of who they were. And I think, like, it was more Bradley and Corey arguing. Like, everyone else who was alongside of him is like, I don't know whether they were antagonising him or calming - telling Corey not to, I don't know.
…
And what I'm going to suggest to you is that Mr Spratt was not instigating?---Okay.
[23] ts 266.
Mr Robson put to Mr Wells that 'Mr Spratt was just trying to separate Mr Winmar and Mr Green?' Mr Wells answered 'Yes, could - yes, could have, yes'.[24]
[24] ts 267.
In re-examination by Ms Sojan, there was then this evidence by Mr Wells:
When you were talking about the two other men in the house, you said that they all came into the house and all ended up having a push and shove?---Yes, I'm pretty sure, yes.
What do you mean by that, could you describe?---Like, Bradley and Corey were pushing, and then, like, I think the girls started coming in and started just kind of - and all I could see was sort of everyone just stopped, like you know, like mainly, man, I think, you know, the girls might have tried to pull Corey off a little bit. And then I don't know, then - like, I think the other boys might have just - I couldn't - to be - I couldn't tell exactly how it worked, to be honest, and that's being honest. But I know there was pushing and shoving going on. And like, you know, between them two, like, pushing and shoving, so that everyone else around, including the girls and those other two were sort of - you know.

Determination of no case application

In The Stateof Western Australia v Burke,[25] Buss JA as the President then was, referred to the judgment of King CJ in the decision of Questions of Law Reserved on Acquittal (No 2 of 1993),[26] where the Chief Justice said:
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it anyway way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
[25] The Stateof Western Australia v Burke [2011] WASCA 190 [14]; (2011) 42 WAR 124.
[26] Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1.
That test has been applied more recently in the Court of Appeal in The State of Western Australia v Balestra,[27] and in this court by Levy DCJ in The State of Western Australia v Godbold.[28] In applying that test I reviewed all of the evidence in relation to Mr Spratt's possible involvement in count 1 and count 2. Whilst I thought it was a marginal case, I did think there was a case to answer based upon the evidence and the relevant test. In looking at the issue I also had regard to the cases of R v Beck,[29] O (a child) v The Queen,[30] and Marchesano v The State of Western Australia.[31]
[27] The State of Western Australia v Balestra [2018] WASCA 209.
[28] The State of Western Australia v Godbold [2022] WADC 112.
[29] R v Beck [1990] 1 Qd R 30.
[30] O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997).
[31] Marchesano v The State of Western Australia [2017] WASCA 177 [169].
My opinion was that there was sufficient evidence to go to the jury with respect to Mr Spratt on both count 1 and count 2. That was, essentially, because I agreed with the submissions of counsel for the State. There was evidence that Mr Spratt was more than an innocent bystander; that he took active steps to enter the house and position himself in such a way that he was physically supporting Mr Winmar whilst it was alleged he was in the house with intent to commit an offence and then assaulted Mr Green. His presence could, in the circumstances, be found by the jury to be physically supportive of Mr Winmar, an alleged intruder into the house, late at night, who was loud and assaulted Mr Green, on the State case. Mr Spratt had taken active steps to position himself as a potential physical supporter of Mr Winmar. For these reasons the no case application was dismissed.

Count 1 and the circumstance of aggravation

As set out earlier the second issue concerned the first circumstance of aggravation pleaded in count 1 on the indictment. This issue was decided by reference to s 7 and s 8 of the Criminal Code, in conjunction with s 400 and s 401 of the Criminal Code.
Section 7 of the Criminal Code provides:
Chapter II - Parties to offence
…
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence;
(d)Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
Section 8 of the Criminal Code provides:
(1)When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2)A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person -
(a)withdrew from the prosecution of the unlawful purpose; and
(b)by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c)having so withdrawn, took all reasonable steps to prevent the commission of the offence.
The State alleging a circumstance of aggravation with respect to a charge under s 401 of the Criminal Code characterises the offence for the purposes of penalty. Specifically, under s 401(1)(a):
A person who … is in the place of another person, without that other person's consent, with intent to commit an offence in that place is guilty of a crime and is liable -
(a)if the offence is an aggravated home burglary, to imprisonment for 20 years; …
The expression 'aggravated home burglary' is defined in s 1 of the Criminal Code to mean a home burglary committed in circumstances of aggravation within the meaning given in s 400(1) of the Criminal Code.
The term 'home burglary' is defined in s 1 of the Criminal Code to mean:
an offence against any provision of Chapter XXXIX (as enacted at any time) other than section 407 committed in respect of a place (within the meaning given in section 400(1)) ordinarily used for human habitation.
Section 400(1) of the Criminal Code relevantly defines a 'place' to include a building. The house in question in the present case was clearly a building. It was also a building ordinarily used for human habitation, as being the house which was lived in by Ms Shannon Wells and others.
Section 400(1) of the Criminal Code defines 'circumstances of aggravation' as being circumstances in which the conduct occurred, that is either described in s 400(1)(a) or in s 400(1)(b). Subparagraph (a) contains a definition of circumstances of aggravation to mean circumstances in which immediately before or during or immediately after the commission of the offence the offender does any one of six listed things. The first of these things is that the offender is or pretends to be armed with a dangerous or offensive weapon or instrument.
The State did not rely on s 8 of the Criminal Code in the present case. It purported to rely on s 7 of the Criminal Code to sheet home liability to Mr Spratt and Mr Winmar for the circumstance of aggravation involving the machete. This was described in the opening by the State.[32] After referring to the first charge being complete after the first paragraph on the indictment, counsel went on to say:
So in relation to those, we have that the accused were armed with an offensive weapon, namely a machete. Now, what the State says about that is that you don't need to find which specific person had a machete. If you are in fact satisfied that one of those four men and that all of the men were involved in the incident in the burglary itself, then you would be satisfied that they were in fact all guilty of that circumstance of aggravation.
[32] ts 84.
In my opinion that statement of the case ignored what the High Court, by majority, decided in O'Dea v The State of Western Australia.[33] O'Dea was comprised by Justices Gordan, Edelman and Steward.
[33] O'Dea v The State of Western Australia [2022] HCA 24; (2022) 403 ALR 200 (O'Dea).
O'Dea decided that there is no doctrine of 'common purpose' within s 7 of the Criminal Code. The State must identify for the purposes of s 7(a) which particular person had, in this instance, a machete. The accessorial liability of others can then be considered in that context.
The majority in O'Dea referred to the different approaches taken to the construction of s 7(a) of the Criminal Code and the equivalent section in the Queensland Criminal Code by different intermediate appellate courts. Their Honours determined that the trial judge in O'Dea had erroneously directed the jury, based upon the broadest approach to the construction of the words 'actually does the act', in s 7(a) of the Criminal Code. The construction involved attribution to the accused person of the acts of another person provided that they were 'acting in concert' and the acts were part of 'the same series of events'. Their Honours decided this approach erroneously rewrote s 7(a) of the Criminal Code. This was because, in part, the accused person could be treated as having actually committed a stabbing murder if another person had stabbed the victim. In deciding the appeal in this way, their Honours said they were following the earlier decision of the High Court in Pickett.[34]
[34] Pickett v The State of Western Australia [2020] HCA 20; (2020) 270 CLR 323 (Pickett).
Their Honours discussed the history of the common law provisions about principles in the first, second and third degrees. Their Honours said:[35]
Nevertheless, there remained in s 7 the important requirement of the commission of an offence either by the principal offender (s 7(a)) or by other persons (ss 7(b), 7(c) and 7(d)). The opening words of s 7 are: 'When an offence is committed'. Section 2 defines an 'offence' as '[a]n act or omission which renders the person doing the act or making the omission liable to punishment'. By their terms, ss 7(b), 7(c) and 7(d) therefore all require that another person has done an act that renders that person liable to punishment, subject to excuses. Section 7(a) requires that the accused person 'actually does the act' which constitutes the offence.
[35] O'Dea [62].
Their Honours then further considered the decision in Pickett. In that case, as their Honours recounted, a Mr Slater died as a result of stab wounds to his chest, which were inflicted during an attack by a group of eight male persons that included the five appellants. The person who 'actually' inflicted the stab wound that caused Mr Slater's death was either Mr Pickett or a juvenile, PM. PM was not proved by the prosecution to have had the capacity to know that he ought not do the act. Accordingly, PM was excused from criminal responsibility under s 29 of the Criminal Code. The question for the High Court was whether the appellants, including Mr Pickett, could be criminally responsible under s 7(b) or s 7(c) or s 8 of the Criminal Code, even though the person who may have actually inflicted the stab wound was not criminally responsible. As recounted by the majority in O'Dea,[36] the court in Pickett held unanimously that despite PM's lack of criminal responsibility, the appellants were capable of being criminally responsible under s 7(b), s 7(c) or s 8 of the Criminal Code.
[36] O'Dea [64].
The majority in O'Dea summarised the reasoning of the judgment of Kiefel CJ, Bell, Keane and Gordan JJ in Pickett, which established that a requirement for liability of a participant under s 7(b), s 7(c) or s 7(d) was that there was an offence committed by another person.
The majority in O'Dea also noted that the principles enunciated in Pickett were not novel. Nettle J in his separate reasons in Pickett had observed that the plurality of Brennan CJ, Dawson and Toohey JJ in R v Barlow[37] and Jackson v Horne[38] had held that the criminal responsibility of a person who procures the commission of an offence by another person, under the provision of the Queensland Criminal Code equivalent to s 7(d) of the Criminal Code, requires that the other person has committed an offence.
[37] R v Barlow [1997] HCA 19; (1997) 188 CLR 1.
[38] Jackson v Horne [1965] HCA 44; (1965) 114 CLR 82, 88.

The majority in O'Dea then said that the proper approach to s 7(a) of the Criminal Code was that the act causing the punishable conduct must be the actual and not attributed act of the accused person.
Accordingly, their Honours decided the Court of Appeal should have found that the trial judge erred in his direction to the jury that Mr O'Dea could be convicted based upon a combination of the acts of Mr O'Dea and a Mr Webb acting in concert. Their Honours said that the concept of acting in concert was not contained in s 7(a) and should not form part of any direction concerning the section.
In the present case the State was trying to use s 7(c) of the Criminal Code to sheet home to Mr Winmar and Mr Spratt, accessorial liability for the action of Mr Machete, when the use of the machete was only pleaded as a circumstance of aggravation. The State case was never that Mr Winmar and Mr Spratt were armed with the machete. It was the State case that Mr Machete was armed with the machete and, as State witnesses described, waved that around during the incident inside the house and attempted to hit Mr Green with it.
The State case was, in effect, that Mr Winmar and Mr Spratt aided Mr Machete in that circumstance of aggravation.
Accordingly the State case was that although Mr Winmar was the principal offender in assaulting Mr Green, he could also be liable for a circumstance of aggravation as an aider, committed by Mr Machete.
As a matter of law I was not convinced that the State could proceed in the way in which it pleaded the charge as a matter of fact and law.
Section 7 refers to an offence being committed and then other persons being deemed to have taken part in committing the offence and to be guilty of the offence.
Section 7 of the Criminal Code refers to an offence, not a circumstance of aggravation. That was one problem for the State.
I was also not convinced that Mr Winmar, having been alleged to be the principal offender with respect to the burglary, could be guilty of a circumstance of aggravation as an aider to another person wielding a machete. And the same follows with respect to Mr Spratt, given it was alleged he aided Mr Winmar in the commission of the offence alleged in count 1.
With respect to being armed with the machete, Mr Machete was the principal offender. If he had been charged with an offence then, arguably, Mr Winmar or Mr Spratt could have been charged with aiding him. However, in my opinion s 7 of the Criminal Code in combination with s 400 of the Criminal Code does not allow the State to engage in the type of accessorial liability gymnastics contended for in the present case. In short, if Mr Winmar is alleged to have been a principal offender under s 7(a) of the Criminal Code, in committing a burglary under s 400 of the Criminal Code, I did not think that at the same time he can be held liable for a circumstance of aggravation committed by another person.
The same applies for Mr Spratt. If the Crown case was that Mr Spratt was alleged to have been an aider to Mr Winmar as the principal offender, he cannot also be liable under s 7 of the Criminal Code for a circumstance of aggravation committed by Mr Machete and not Mr Winmar.
It is for these reasons that I held as a matter of fact and law the first circumstance of aggravation to count 1 in the indictment could not be established by the State and therefore must be withdrawn from the jury. This is what then occurred.

Conclusion

For completion of these reasons, I simply mention that Mr Winmar and Mr Spratt were both found not guilty by the jury of both charges.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
7 JUNE 2023