Wallam v The State of Western Australia - [2022] WASCA 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WALLAM -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 107
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   18 MARCH 2022
DELIVERED          :   19 AUGUST 2022
FILE NO/S:   CACR 58 of 2021
BETWEEN:   MARTIN JOSEPH WALLAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number            :   ALB IND 73 of 2020

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of aggravated home burglary - Whether trial judge erred in ruling defence counsel could not cross‑examine complainant in relation to a statement made by an investigating police officer to complainant's partner in complainant's presence - Whether trial judge misdirected jury with respect to the element of assault in alleged offence

Legislation:

Criminal Code (WA), s 401(2)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms S H King
Respondent	:	Ms K C Cook & Mr S D Packham

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

R v Dookheea [2017] HCA 36; (2017) 262 CLR 402

JUDGMENT OF THE COURT:

This is an appeal against conviction.
The appellant and a co‑accused, Trevor Jerome Penny, were charged on indictment with two counts.
Count 1 alleged that on 24 May 2020, at Katanning, the appellant and Mr Penny, while in the place of Ralph Edward Edgill without his consent, committed the offence of assault and that the appellant and Mr Penny were in company with each other; and that the appellant and Mr Penny did bodily harm to Mr Edgill; and that the place was ordinarily used for human habitation, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code).
Count 2 alleged that, on the same date and at the same place as in count 1, the appellant and Mr Penny unlawfully assaulted Mr Edgill and thereby did him bodily harm and that Mr Edgill was a person of or over the age of 60 years, contrary to s 317(1) of the Code.
The appellant and Mr Penny pleaded not guilty.
The appellant and Mr Penny were tried before Stevenson DCJ and a jury.
On 6 May 2021, after a three day trial, the jury returned verdicts of guilty in relation to the appellant and Mr Penny on count 1 and verdicts of not guilty in relation to both of them on count 2.
As to the pleaded circumstances of aggravation concerning count 1, the jury returned findings as follows:
(a)the allegation that the appellant and Mr Penny were in company with each other had been proved beyond reasonable doubt;
(b)the allegation that the appellant and Mr Penny did bodily harm to Mr Edgill had not been proved beyond reasonable doubt; and
(c)the allegation that the place was ordinarily used for human habitation had been proved beyond reasonable doubt.

Initially, the appellant relied upon three grounds of appeal. However, at the hearing of the appeal, counsel for the appellant abandoned ground 1 (appeal ts 16). Ground 2 alleges, in essence, that the trial judge erred in ruling that defence counsel for the appellant could not cross‑examine Mr Edgill in relation to a statement made by an investigating police officer to Mr Edgill's partner, in Mr Edgill's presence. Ground 3 alleges, in essence, that his Honour failed adequately to direct the jury with respect to the element of assault and that the misdirection was a wrong decision by his Honour on a question of law, alternatively the misdirection occasioned a miscarriage of justice.
Neither ground 2 nor ground 3 had a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

The facts and circumstances of the alleged offending

At all material times, the appellant, Mr Penny and Mr Edgill knew each other. Mr Edgill, his daughter and his partner, Denise Oliver, lived at a home unit in Katanning. There had been ongoing tension between Mr Penny's family and Mr Edgill's family.
Mr Edgill gave evidence that on the day before the alleged offending there was a confrontation between Mr Edgill, Mr Edgill's nephew and Mr Penny's brother, Wayne Penny.
Mr Edgill's evidence was that on the date of the alleged offending the appellant and Mr Penny were in the vicinity of his home unit. Mr Edgill said that the appellant and Mr Penny knocked on the front door of the unit. When Mr Edgill opened the front door, the appellant and Mr Penny began assaulting him. All three of them fell into the home unit as the assault continued. Mr Edgill said that the appellant and Mr Penny punched and kicked him. Mr Edgill recognised the appellant and Mr Penny. During the assault, Mr Penny told Mr Edgill to stay out of Wayne Penny's business. The assault ceased when Stanley Inman arrived and said 'that's enough'. The appellant and Mr Penny then walked away. Mr Inman was not called as a witness by the State, the appellant or Mr Penny. Mr Edgill said that he was not intoxicated at the time of the offending. However, both the appellant and Mr Penny were intoxicated.
Mr Edgill gave evidence that the assault caused him bruises and aches and a cut to his hand (ts 66 ‑ 67). However, Mr Edgill had previously told an investigating police officer, First Class Constable Fiona Tonkin, that he did not know what had caused the cut to his hand (ts 66, 98). Mr Edgill said in evidence‑in‑chief that he did not have the cut before he was assaulted (ts 67). In cross‑examination, Mr Edgill said that he did not know how the cut was caused and that he 'must have been off somewhere' (ts 76).
Mr Edgill's partner, Ms Oliver, was not at the home unit when the assault occurred. Mr Edgill telephoned Ms Oliver after the assault. Ms Oliver then called the police at 1.01 pm and the police, including Constable Samuel Roberts, attended at the unit at 1.06 pm. Ms Oliver and some of Mr Edgill's relatives were at the unit when the police arrived. At that point, the appellant and Mr Penny were about 65 to 70 metres from the unit.
The appellant and Mr Penny did not participate in an electronic record of interview with police. Neither of them gave evidence at the trial.

Ground 2: relevant background

Constable Roberts activated his body‑worn camera upon arrival at Mr Edgill's home unit.
Initially, defence counsel for the appellant sought to exclude the whole of the camera footage on the basis that the footage was 'extremely prejudicial with very little probative value' (ts 13).
The prosecutor submitted to the trial judge that the camera footage demonstrated:
(a)the demeanour of the appellant and Mr Penny towards Mr Edgill at a time proximate to the alleged commission of the assault;
(b)the level of intoxication of the appellant and Mr Penny; and
(c)the connection between the appellant and Mr Penny, on the one hand, and Wayne Penny, on the other (ts 18 ‑ 19).
After further consideration, defence counsel for the appellant withdrew his objection to the admissibility of the whole of the camera footage, but maintained his objection to parts of the footage including the part the subject of this appeal.
The trial judge decided that the prosecutor's proposed edits to the camera footage were appropriate. The following exchange occurred between defence counsel for the appellant and his Honour, before the prosecutor's opening address and in the absence of the jury, in relation to one of the prosecutor's proposed edits:
PLENDERLEITH, MR: Yes, your Honour. In relation to the edits proposed by the State, there is one aspect that they have sought to address that I would say is admissible, and it's the comment made by Constable Roberts in the presence of [Mr Edgill] - Mr Roberts is obviously a witness giving evidence in this trial - and that is the expression 'Listen to me. Listen to me. If people start running through houses, people are getting charged with burglaries. They go away for that one. It's not a walk away'. In my submission, that should remain in the video footage, and it is an admissible and relevant piece of evidence in this trial.
STEVENSON DCJ: Well, it's a statement of opinion, and, with respect, I don't understand how it is relevant and how it could possibly assist this jury in relation to the factfinding which is concerned with the identity of the people involved in the incident. How that expression of opinion could assist the jury in their factfinding.
PLENDERLEITH, MR: As the court pleases (ts 32). (emphasis added)
Mr Edgill said in evidence‑in‑chief that on the day in question there was a knock on the front door of his home unit. When he opened the door 'there [were] two blokes standing there' (ts 56). He said the people he saw were '[t]hese two idiots here' (ts 57). Mr Edgill explained that the 'two idiots' were the appellant and Mr Penny. Mr Edgill gave evidence that he had known the appellant 'from when [the appellant] was a kid' and that he had known Mr Penny 'all [Mr Penny's] life' (ts 57). He had also known Wayne Penny for a long time (ts 57 ‑ 58). Mr Edgill said that the day before the alleged offending he saw Wayne Penny and told him 'to pull his kids up because they're causing a bit of trouble between' Mr Edgill's family and the Penny family (ts 58).
After the completion of Mr Edgill's examination‑in‑chief and before defence counsel for the appellant began Mr Edgill's cross‑examination, defence counsel raised with the trial judge, in the absence of the jury, 'how far [he] could put matters in cross‑examination' that had been edited from the camera footage (ts 70). In particular, defence counsel for the appellant referred to Constable Roberts' statement to Ms Oliver, in Mr Edgill's presence (see [21] above):
Listen to me. Listen to me. If people start running through houses, people are getting charged with burglaries. They go away for that one. It's not a walk away.
The following exchange then occurred between defence counsel for the appellant, defence counsel for Mr Penny and the trial judge in the absence of the jury:
STEVENSON DCJ: So this is in the context of a conversation with [Mr Edgill's] partner, Denise?
PLENDERLEITH, MR: Well, your Honour, it's - to some extent, yes. However, the way that it is expressed is in the presence of [Mr Edgill] prior to [Mr Edgill] giving a statement or any version of events, and the basis with which it's going to be led is that it was a matter said rather than to the truth of the contents of it, because in my submission, it does go to the relevance of the credibility of [Mr Edgill], given that there is an expression that people go away for that one.
Whether it's true or not, I'm not seeking to lead any evidence of. It's the mere fact that that was said prior to a complaint being made and such a complaint eventuated. So I would be seeking to lead evidence of that. I note your Honour made a comment in relation to an opinion and the like and the relevance, but my submission is that that would be relevant and able to be put in cross‑examination.
STEVENSON DCJ: Well, with respect, I can't see any relevance at all in relation to this conversation between an attending police officer and [Mr Edgill's] partner in relation to the content of what is said. If anything, it's likely to cause prejudice and an unfair trial to the accused, or at least one of the accused. It's - I just can't see how it could at all be utilised by you on behalf of your client in any proper, meaningful way with respect to issues of credibility, and you can make further submissions but I, with respect - - -
PLENDERLEITH, MR: Well, your Honour, the inference that would be drawn, and in my submission, appropriately drawn from that expression being made vocally by an officer - - -
STEVENSON DCJ: What, that this complainant has taken an oath and he has made a statement and made a complaint and he has fabricated everything because of what he might or might not have heard?
PLENDERLEITH, MR: That's correct.
STEVENSON DCJ: Thank you. I don't need to hear from you, Mr Clarke. Ms Hamilton, do you wish to be heard?
HAMILTON, MS: No. Thank you, your Honour.
STEVENSON DCJ: Yes. Mr Plenderleith, I hear the submission. As I sit here as the judge in this trial, with knowledge of what the issues are as I understand them from counsel's opening addresses, and yours is a bare defence in the sense that you have not informed the jury that there is to be an alternative version of facts on the evidence which might go to, for example, the issue of identity, that is a positive case, and I appreciate that you're not obliged to disclose anything for the purpose of opening addresses to inform the jury what the factual issues are so that they know when they see and hear the evidence what they are looking out for.
In the context of this trial at this present moment, with respect, I can't see how a passage which would need to include what precedes it can have any relevance which would make it admissible for any proper purpose, having regard to the issues in this trial. So there can be no cross‑examination in relation to that evidence.
PLENDERLEITH, MR: If the court pleases (ts 70 ‑ 72). (emphasis added)
The following exchanges occurred during defence counsel for the appellant's cross‑examination of Mr Edgill:
And you told Constable Tonkin that you didn't know how you received the cut to the hand?---Yes.
And when you were asked, by police, where it happened, you said, 'Out the door', didn't you?---Yes.
And, in fact, you pointed outside the door, to Constable Tonkin, didn't you?---It could have happened at the door. Might have happened when - anywhere near the - in the house, you know. How would you cut yourself.
…
So … when Constable Tonkin asked you where it happened, you never told her that it happened inside the house, did you?---No. It might have happened on the roof.
Now, you gave evidence that you were repeatedly punched in the head?---Yes.
Would you agree with that. And that you were kicked. And after that [the appellant] left, you called some people, didn't you?---Yes.
You called Denise, didn't you?---Yes.
And you called some other people as well?---They turned up there, they were probably told about it, early in the grapevine.
Well, your evidence earlier was that you called some other people?---Yes.
So you called more than just Denise, didn't you?---Yes. I did.
And they all came around?---Two people.
…
But you didn't call the police, did you?---If I had have been young, I would have done it my own way. I would have sorted it out.
But you didn't - - -?---This is the first time I ever charged anyone. And someone - one of my mates said, 'Charge them.'
And by one of your mates, you mean Denise, don't you?---No.
You would agree that you didn't call the police - - -?---No.
- - - after you were just attacked?---If you just got bashed, you wouldn't feel very - like doing much. I just felt like grabbing a mob of my boys and going back onto them.
So you were angry?---Yes. Well, wouldn't you.
You were angry before that, weren't you?---What do you mean? What do you mean by that?
You were angry with - - -?---When I got bashed. Yes.
Before that, with Wayne?---It was the furthest thing from my mind until he brought it up.
You were angry with Wayne from the day before, weren't you?---I wasn't angry with him. I just told him to pull his kids up. …
Now, when the police were there, you had a group of people with you, didn't you?---Yes.
And they were all yelling and carrying on, weren't they?---Two girls. Two of the daughters.
They were all yelling and carrying on, weren't they?---Yes.
They were yelling at [the appellant]?---And Wayne and Trevor and Melanie.
They were yelling at everyone?---They were …
…
The group that you were with were yelling at the group down the street, weren't they?---Yes. I think you would do the same if someone bashed … one of your elders.
…
Mr Edgill, [the appellant] never bashed you, did he?---Then it was someone who looks exactly like [the appellant] did. … As far as I'm concerned, [the appellant] done it. He was the first one to kick me.
[The appellant] never entered into your house, did he?---You were there.
I'm asking - - -?---He did. How was the cabinet knocked and the objects fell out of it. Really.
…
Did you tell the police that there [were] objects knocked over?---No.
No. Is that because you don't pay attention to them much?---I would like how you would get bashed and then pay attention to something.
…
So you couldn't say with any certainty when, if any, any objects had fallen over, could you?---If they're laying on the floor, they - what, they jumped off there, did they?
…
You could have told [the police] at the time the ornaments had been knocked over?---We were dealing with an assault, not worried there were objects knocked over in the process.
But you could have?---Yes, if I had a brain like yours.
…
[The appellant] never caused you any injury, did he?---What?
[The appellant] never caused you any injury - - -?---What did I just say? What did I tell you? He was the first one to kick me. Don't try to make a [liar] out of me.
That's not the question I asked you?---You're just telling me he did. Okay.
And, in fact, the only injury that you showed the police, which you would agree was your hand, you don't even remember how that was caused, do you?---No, I don't know how that was caused. I must have been off somewhere (ts 73 ‑ 76).

Ground 2: counsel for the appellant's submissions

Counsel for the appellant submitted that the statement made by Constable Roberts to Mr Edgill's partner (that is, Ms Oliver) was relevant to Mr Edgill's state of mind and his knowledge as to the consequences of 'an offence involving an altercation inside his home'.
It was submitted that the State's case against the appellant relied upon the veracity of Mr Edgill's evidence. According to counsel, there was a suggestion that Mr Edgill's original complaint did not allege that the appellant and Mr Penny entered his home. It was contended that Mr Edgill's assertion to that effect only arose after Constable Roberts made it clear that 'a serious result would ensue', namely a custodial sentence, if the altercation had taken place inside Mr Edgill's house.
It was submitted that, in those circumstances, it was necessary for defence counsel for the appellant to be able to adduce into evidence and play for the jury that part of the camera footage which included Constable Roberts' statement and for defence counsel to be able to cross‑examine Mr Edgill with respect to it (in particular, whether the statement had influenced the content of Mr Edgill's ultimate complaint to the police).

Ground 2: counsel for the State's submissions

Counsel for the State submitted that the proposed cross‑examination identified by counsel for the appellant, as set out at [28] above, was at odds with the manner in which defence counsel for the appellant conducted the appellant's case at trial.
It was submitted that defence counsel for the appellant did not put to Mr Edgill in cross‑examination or cross‑examine him on the basis that Mr Edgill had embellished the assault he had initially described to police so as to place the assault inside the home unit rather than outside it.
Rather, the essence of the cross‑examination was that Mr Edgill was angry with Wayne Penny as a result of events that had occurred the previous day and that the appellant had never attacked Mr Edgill or caused him any injury or entered the unit.
In his closing address at the trial, defence counsel for the appellant argued that the alleged assault and burglary 'never happened' and that Mr Edgill 'had revenge on his mind and he had his friend telling him to charge [the appellant]' (ts 179). The appellant's case at trial, as advanced by his defence counsel, was that the 'assault did not happen' (ts 219).

Counsel for the State submitted that the proposed cross‑examination identified by counsel for the appellant, as set out at [28] above, if relevant at all, could only potentially have been relevant to Mr Edgill's credibility.
It was submitted that if the cross‑examination of Mr Edgill at the trial had been on the basis of an acceptance by the appellant that he had assaulted Mr Edgill, or that he had assaulted Mr Edgill outside the home unit or exclusively in the doorway, then it may be that the proposed questioning would seriously have affected the opinion of the court 'as to the credibility of the witness on the matter to which he testifies', and therefore have been proper within s 25(2)(a) of the Evidence Act 1906 (WA). However, any questioning of Mr Edgill to that effect at the trial would have been inconsistent with the appellant's case at trial, as explained by defence counsel for the appellant to the trial judge in the absence of the jury, and as pursued in cross‑examination and in closing address.
Counsel for the State submitted that defence counsel for the appellant made a forensic decision to run the appellant's case at trial on the basis set out at [31] and [32] above. The ultimate submission made by defence counsel to the jury in his closing address was that 'those things' (namely, the violent assault and the burglary) 'never happened'.
Further, the trial judge's statement in discourse with defence counsel for the appellant, as set out at [24] above, to the effect that '[i]n the context of this trial at this present moment' (ts 72), revealed a willingness by his Honour to engage again with that issue later in the trial. It was open to defence counsel for the appellant to have sought to revisit the issue in light of his cross‑examination of Mr Edgill. Defence counsel's failure to do so and his failure to articulate precisely how the proposed line of cross‑examination was relevant, belies the submission made on appeal that there was a miscarriage of justice.
Counsel for the State submitted that, in any event, even if ground 2 was made out, no substantial miscarriage of justice had occurred. The issue at trial was whether any violence at all had occurred, and not the location of the violence by reference to one side or the other of the front doorway. Accordingly, the impugned topic of cross‑examination was immaterial to the matters in dispute at the trial.

Ground 2: its merits

We are of the opinion, for the following reasons, that the trial judge did not err, as alleged in ground 2, in ruling that defence counsel for the appellant could not cross‑examine Mr Edgill in relation to the statement made by Constable Roberts to Ms Oliver, in Mr Edgill's presence, as recorded in the video footage.
First, his Honour's view, before the prosecutor's opening address, was that the statement made by Constable Roberts to Ms Oliver, in Mr Edgill's presence, was merely Constable Roberts' opinion. At that stage, defence counsel for the appellant had not informed his Honour why, in defence counsel's submission, Constable Roberts' statement was relevant and admissible. See [21] above.
Secondly, his Honour's ruling that defence counsel for the appellant was not entitled to cross‑examine Mr Edgill on Constable Roberts' statement was made before defence counsel began Mr Edgill's cross‑examination. His Honour's ruling, at that stage, was correct. His Honour said that he made the ruling '[i]n the context of this trial at this present moment' (ts 72). His Honour indicated, by that observation, a willingness to revisit the issue having regard to how Mr Edgill's evidence emerged in cross‑examination.
Thirdly, his Honour's view, before the prosecutor's opening address and his Honour's ruling before defence counsel for the appellant began Mr Edgill's cross‑examination, did not prevent defence counsel from cross‑examining Mr Edgill to the effect that:
(a)Mr Edgill's evidence about the appellant having entered his home unit was fabricated and was inconsistent with a prior statement made by Mr Edgill to police; and
(b)Mr Edgill fabricated his evidence on that point because Mr Edgill harboured a grudge against or ill will towards the appellant, and Mr Edgill believed that if the appellant had entered his home unit the appellant was likely or more likely to receive a custodial sentence.
Cross‑examination to that effect could have been undertaken without any reference to the statement made by Constable Roberts to Ms Oliver, in Mr Edgill's presence, as recorded in the video footage.
Fourthly, if defence counsel had undertaken cross‑examination to the effect we have set out at [41] above and Mr Edgill had denied that, at any material time, he believed that if the appellant had entered his home unit the appellant was likely or more likely to receive a custodial sentence, then it would have been open to defence counsel to put to Mr Edgill that he in fact had that belief as a result of the statement made by Constable Roberts to Ms Oliver, in Mr Edgill's presence.
Fifthly, if, as set out at [43] above, defence counsel had put to Mr Edgill that he in fact had the relevant belief as a result of the statement made by Constable Roberts to Ms Oliver, in Mr Edgill's presence, and Mr Edgill denied that Constable Roberts had made that statement in his presence, it would have been open to defence counsel, at that stage, to seek a ruling from his Honour to the effect that the collateral evidence rule did not apply to Mr Edgill's denial and that defence counsel should be permitted to contradict Mr Edgill's denial by putting to him the relevant part of the video recording.
It follows that his Honour did not make the error alleged in ground 2.
Further, and in any event, no miscarriage of justice occurred at the trial, as a result of his Honour's ruling, for the reasons we have given at [39] ‑ [44] above. In addition, the appellant's case at trial was that the alleged offending had not occurred; in particular, the appellant did not enter Mr Edgill's home unit and the appellant had not assaulted Mr Edgill either inside or outside his unit.
Ground 2 fails.

Ground 3: counsel for the appellant's submissions

Counsel for the appellant submitted that the trial judge directed the jury that the State's case relied wholly upon the jury being satisfied beyond reasonable doubt as to the honesty, reliability and accuracy of Mr Edgill's evidence concerning:
(a)the identity of the assailants;
(b)the manner in which he was assaulted including, in relation to count 1, that the assault occurred inside his home unit; and
(c)Mr Edgill having suffered bodily harm as a result of count 2.
It was also submitted that his Honour told the jury that the State was required to prove beyond reasonable doubt each element or part of each alleged offence.
Counsel for the appellant referred to the following passage in the trial judge's summing up where his Honour summarised the appellant's case as follows:
In relation to [the appellant], he says also that, on a proper consideration of the evidence, you could not be satisfied and that you should reject the evidence of Mr Edgill as to his account of the incident, including the identity of [the appellant] and, also, the place where Mr Edgill said he was assaulted by [the appellant]. That is, inside the unit. And, also, that you should not be satisfied beyond reasonable doubt that Mr Edgill, in fact, suffered bodily harm as a result of the incident (ts 206).
Counsel noted that the following day, after the jury notified his Honour that the jury may not be able to arrive at verdicts, his Honour gave a synopsis of the trial to the prosecutor and defence counsel in the absence of the jury (ts 218). In the synopsis his Honour proposed to tell the jury that the key issues were whether the assault had occurred inside the home unit and whether bodily harm had been caused. Defence counsel for the appellant told his Honour that whether the assault occurred or not was also an issue for the jury.
The trial judge then gave the jury the following direction:
Before you retire to continue your deliberations, I'm just going to say something further, because yesterday you indicated that you were having some difficulty reaching your verdicts. What I'm about to say may assist you in your further deliberations.
You are, of course, the sole judges of the facts, and what weight you give to the evidence of [Mr Edgill] is, of course, entirely a matter for you. As I said to [you] yesterday, you could not convict the accused unless you are satisfied beyond reasonable doubt of the honesty and reliability of [Mr Edgill's] evidence as to what he said happened when he answered the knock on his front door.
What followed, you might think, is connected to the incident which [Mr Edgill] said occurred the previous day, when in the context of family feuding about Mr Penny's brother's kids' behaviour. You might think the demonstrated behaviour of the accused, as can be seen in exhibit 5, shortly after the alleged incident is consistent with the state of relations between the two groups at the time, but you must still be satisfied beyond a reasonable doubt about each factual element of the alleged offence before you could convict the accused.
The State says [Mr Edgill's] evidence was honestly given and is reliable, and you should accept what he says happened. The accused each say that you should reject [Mr Edgill's] evidence for the various reasons that counsel asked you to think about in their closing addresses as to why what [Mr Edgill] says happened didn't happen. The accused say that there was no assault.
Members of the jury, factual issues you will need to consider for the purpose of reaching a verdict in relation to count 1 include, in particular, if the assault occurred inside [Mr Edgill's] place, and, count 2, in particular, if [Mr Edgill] suffered bodily harm. Now, this is because each of those factual matters are elements of the alleged offence. These are key factual issues if you accept [Mr Edgill] was assaulted by the accused.
So, members of the jury, that may assist your thinking and further deliberations. You are now free to continue those deliberations. Thank you (ts 219 -220).
As to the passage we have set out at [50] above, counsel for the appellant complained that the trial judge failed to inform the jury that the appellant contended that no assault had occurred. His Honour summarised the appellant's case as involving a denial that the assault had occurred inside the home unit and as denying that any bodily harm had been suffered by Mr Edgill.
As to the passage we have set out at [52] above, counsel complained that his Honour directed the jury in a manner which suggested that the element of assault had been made out. Although he added, 'if you accept the complainant was assaulted by the accused', his Honour emphasised that the factual matters for the jury to consider 'in particular' were whether 'the assault occurred inside [Mr Edgill's] place' and, for count 2, 'in particular, if [Mr Edgill] suffered bodily harm'. According to counsel, this passage in his Honour's summing up was problematic in that:
(a)In his Honour's summary of each count, there was 'an assumed assault' in his Honour's comments 'if the assault occurred inside [Mr Edgill's] place' and 'if [Mr Edgill] suffered bodily harm'.
(b)His Honour noted two things 'in particular' for the jury to consider. Those things did not include whether an assault had actually occurred. His Honour drew attention to two facts 'in particular' that required consideration, namely whether the assault occurred inside the unit and whether bodily harm was caused.
It was submitted that, in the circumstances, his Honour failed adequately to summarise the factual elements that were 'live issues for the jury to decide' and in his summary his Honour 'usurped [the jury's] function with respect to a key element in relation to both charges [namely] whether there was in fact an assault'.

Ground 3: counsel for the State's submissions

Counsel for the State noted a number of aspects of the trial judge's summing up. First, his Honour told the jury that the jury was not obliged to accept anything his Honour said about the facts. Secondly, his Honour instructed the jury that the issue at the trial was whether, upon a consideration of all of the evidence, the jury was satisfied beyond reasonable doubt that the State had proved the alleged offence under consideration. Thirdly, his Honour told the jury that the defence cases were that the State had not proved the relevant charges beyond reasonable doubt and that the burden of proving each charge was on the State.
His Honour directed the jury that each accused was presumed to be innocent of the charged offences and that the State relied wholly upon the jury being satisfied beyond reasonable doubt as to the honesty, reliability and accuracy of Mr Edgill's evidence about:
[T]he identity of the assailants, the fact that [Mr Edgill] says he was assaulted in the way that he described to you in his evidence, and, also, the fact that it occurred inside his unit, for the purpose of count 1, and, for the purpose of count 2, that he suffered bodily harm as a result of the assault (ts 192 - 193).
The trial judge informed the jury as to how the jury could assess a witness's credibility (ts 195 - 196). His Honour also gave the jury an aide which set out the elements of each offence which the State was required to prove beyond reasonable doubt (ts 196).
According to counsel for the State, the passage we have set out at [50] above must be read in the context of the passage which follows it. The passages as a whole read:
In relation to [the appellant], he says … that, on a proper consideration of the evidence, you could not be satisfied and that you should reject the evidence of Mr Edgill as to his account of the incident, including the identity of [the appellant] and, also, the place where Mr Edgill said he was assaulted by [the appellant]. That is, inside the unit. And, also, that you should not be satisfied beyond reasonable doubt that Mr Edgill, in fact, suffered bodily harm as a result of the incident.
You were taken through certain aspects of the evidence relied upon by [the appellant] for the contention that you could not be satisfied beyond reasonable doubt of his guilt in relation to either offence. And it was submitted to you that the cut, bruises and aches referred to by Mr Edgill could not and did not constitute bodily harm for the reasons that he explained. It is submitted on behalf of [the appellant] that you should reject the evidence of Mr Edgill as being unreliable and that, therefore, accordingly, you could not be satisfied beyond reasonable doubt of [the appellant's] guilt in relation to either count on the indictment (ts 206 - 207). (emphasis added)
It was submitted that nothing in those passages presupposed to the jury, as a matter of fact, that an assault had actually occurred. His Honour repeated to the jury shortly after those passages that the State's case relied upon the acceptance by the jury of Mr Edgill's credibility in relation to what Mr Edgill asserted about each charged offence. At the conclusion of his Honour's summing up, defence counsel for the appellant did not seek any additional direction or redirection (ts 210).
Counsel for the State noted that the jury had some difficulty in arriving at their verdicts. The trial judge told the prosecutor and defence counsel that he proposed to inform the jury, amongst other things, that each accused's case was that the jury:
[S]hould reject [Mr Edgill's] evidence for the various reasons that counsel asked you to think about in their closing addresses as to why what [Mr Edgill] says happened didn't happen (ts 218).
Defence counsel for the appellant then raised with his Honour that the proposed direction did not identify specifically that the defence case was that 'the assault did not happen' (ts 219).
The jury then returned and, in his further direction, the trial judge directed the jury as he initially proposed but, in addition, told the jury that 'the accused say that there was no assault' (ts 220) (emphasis added).
In the circumstances, and having regard to the whole of the context in which his Honour's directions were given and having regard to the aide given to the jury, the jury could have been in no doubt that a critical issue for their determination was whether the State had proved beyond reasonable doubt, upon the whole of the evidence, that an assault had actually occurred.

Ground 3: its merits

We are of the opinion, for the following reasons, that the trial judge did not misdirect the jury with respect to the element of assault, as alleged in ground 3.
As we have mentioned, the jury returned verdicts of guilty on count 1 and verdicts of not guilty on count 2.
Count 1 alleged, relevantly, that the appellant and Mr Penny, while in the place of Mr Edgill without his consent, committed the offence of assault. An essential element of count 1 was that the appellant and Mr Penny assaulted Mr Edgill while the appellant and Mr Penny were in Mr Edgill's home unit.
The jury found, relevantly, that the circumstance of aggravation pleaded in count 1, namely that the appellant and Mr Penny did bodily harm to Mr Edgill, had not been proved beyond reasonable doubt.
His Honour gave the jury an aide for the purpose of assisting the jury in their deliberations. The jury aide provided, relevantly:
Count 1 - aggravated home burglary:
1.         The offender was the A (identity);
2.         The A was in the place of the C without his consent;
3.         Whilst in the place of the C, the A assaulted the C, and
4.         The assault was unlawful.
Factual issue - count 1:
Has the State proved BRD that the A person committed the alleged assault in the place of the C?
If yes, then you should return a verdict of guilty.
If no, then you should return a verdict of not guilty.
…
Terms used:
'assault' means striking, touching, moving or otherwise applying force of any kind to the person of another; either directly or indirectly, without their consent.
'bodily harm' means any bodily injury which interferes with health or comfort.
'unlawful' means not authorised or justified or excused by law.
A = the accused (Martin Joseph WALLAM or Trevor Jerome PENNY)
C = the complainant (Ralph William EDGILL)
BRD = beyond reasonable doubt
The trial judge directed the jury in his summing up, relevantly, as follows:
(a)The State was required to prove beyond reasonable doubt each element of each alleged offence (ts 196).
(b)It was an element of the offence charged in count 1 that 'whilst in the place of the complainant, the accused assaulted the complainant' (ts 197).
(c)A factual question in relation to that element of count 1 'is whether the complainant was assaulted by the accused whilst in his place' (ts 199).
(d)The term 'assault' means 'striking, touching, moving or otherwise applying force of any kind to the person of another, either directly or indirectly, without their consent' (ts 199).
(e)The relevant factual question for the jury was whether the jury was 'satisfied beyond reasonable doubt on the evidence of Mr Edgill that the accused person whose case you are considering [was] involved [in] an assault of him whilst inside Mr Edgill's unit' (ts 199).
(f)The State's case on each count against each accused relied upon Mr Edgill's evidence 'as being honest, accurate and reliable as to what he says occurred on 24 May 2020 when he heard a knock on the door of his unit and what he says happened after the assault commenced and the entry of [the appellant] and Mr Penny into his place and that he was kicked whilst on the floor before he managed to get up' (ts 205).
(g)The appellant's case in relation to count 1 was that 'on a proper consideration of the evidence, [the jury] could not be satisfied and that [the jury] should reject the evidence of Mr Edgill as to his account of the incident, including … the place where Mr Edgill said he was assault by [the appellant]. That is, inside the unit' (ts 206).

We are satisfied, having regard to the relevant part of the jury aide to which we have referred at [69] above and the relevant passages in his Honour's summing up to which we have referred at [70] above, that there is no doubt that the jury would have understood that they could not convict the appellant on count 1 unless they were satisfied beyond reasonable doubt, relevantly, that:
(a)the appellant had participated in an assault on Mr Edgill; and
(b)the assault had occurred inside Mr Edgill's home unit.
After the jury had been deliberating for some time, the jury sent a note to the trial judge indicating that they were having some difficulty in reaching their verdicts (ts 218). His Honour informed the prosecutor and defence counsel, in the absence of the jury, what his Honour proposed to say to the jury. His Honour then enquired of the prosecutor and defence counsel whether they had any submissions in relation to what his Honour proposed to say to the jury. Defence counsel for the appellant responded:
Your Honour, it may just be one matter in relation to what the defence say - is that … the assault did not happen. Perhaps whether you want to include that … (ts 219).
Ultimately, his Honour said that he could 'add that, if you wish' (ts 219).
When the jury returned the trial judge gave, relevantly, these additional directions:
The accused each say that you should reject [Mr Edgill's] evidence for the various reasons that counsel asked you to think about in their closing addresses as to why what [Mr Edgill] says happened didn't happen. The accused say that there was no assault.
Members of the jury, factual issues you will need to consider for the purpose of reaching a verdict in relation to count 1 include, in particular, if the assault occurred inside [Mr Edgill's] place … Now, this is because each of those factual matters are elements of the alleged offence. These are key factual issues if you accept [Mr Edgill] was assaulted by the accused (ts 220). (emphasis added)
Defence counsel for the appellant did not request his Honour to redirect the jury in relation to the additional directions.
It is, of course, well established that a trial judge's summing up must be considered as a whole and as a jury listening to the summing up as a whole might understand it, and not upon a subtle examination of the transcript or by giving undue prominence to any individual parts. See R v Dookheea.[1]
[1] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37].
In our opinion, upon reading the whole of the trial judge's directions in relation to count 1 as a jury listening to the directions might understand them, in the context of his Honour's summing up as a whole, there was no risk that the jury may have considered the State's case, the appellant's case or the evidence on the basis that the appellant accepted that Mr Edgill had been assaulted or that whether an assault had actually occurred was not in contest. His Honour adequately summarised the factual elements that were in issue at the trial. His Honour did not usurp the jury's function in relation to whether Mr Edgill had actually been assaulted.
Ground 3 fails.

Conclusion

Neither ground 2 nor ground 3 had a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
19 AUGUST 2022

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Citations

Wallam v The State of Western Australia [2022] WASCA 107

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The Queen v Dookheea [2017] HCA 36