Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted after trial of murder - Whether the trial judge misdirected the jury in relation to the appellant's post-offence conduct of flight - Whether the trial judge erred in leaving to the jury the defence of accident - Whether the trial judge erred in failing to leave to the jury the defence of unwilled act

Criminal Code (WA), s 23 (repealed), s 23A, s 23B, s 279

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Broadhurst v The Queen [1964] AC 441

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166

Hedgeland v The State of Western Australia [2013] WASCA 97

Hussaini v The State of Western Australia [2009] WASCA 207

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389

McKey v The Queen [2012] NSWCCA 1; (2012) 219 A Crim R 227

Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193

NAD v The State of Western Australia [2013] WASCA 2

Nestorov v The Queen [1999] WASCA 303

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

R v Ciantar [2006] VSCA 263; (2006) 16 VR 26

R v Falconer [1990] HCA 49; (1990) 171 CLR 30

R v Hartwick [2005] VSCA 264; (2005) 14 VR 125

R v Konstandopoulos [1998] 4 VR 381

R v Taiters; Ex parte Attorney-General [1997] 1 Qd R 333

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

1 BUSS P: This is an appeal against conviction.

2 On 30 June 2015, the appellant was convicted, after a trial in the Supreme Court before Simmonds J and a jury, on one count in an indictment which alleged that on 14 April 2014, at Orange Grove, the appellant murdered Mark Colin Koller (the victim), contrary to s 279 of the Criminal Code (WA) (the Code).

3 I would allow the appeal, set aside the judgment of conviction for murder and order a new trial on the count pleaded in the indictment. My reasons are as follows.

The age, height and weight of the appellant and the victim

(a) The appellant was aged 33, was about 183 cm in height and weighed about 90 kg.

(b) The victim was aged 50, was 188 cm in height and weighed about 115 kg.

5 An overview of the State's case at trial is as follows.

6 At all material times, the appellant and his partner, Gina Cook, lived in a caravan at the Crystal Brook Caravan Park (the caravan park) at Orange Grove. At all material times, the victim and his partner, Shelley Williams, also lived in a caravan at the caravan park. Their caravans were some distance apart.

7 During the late afternoon of 14 April 2014, the appellant killed the victim by stabbing him with a large folding knife after a confrontation near the victim's caravan.

8 The appellant confronted the victim after the appellant's partner, Ms Cook, had informed the appellant that the victim was interested in having a 'sexual threesome' with Ms Cook and the victim's partner, Ms Williams, and that sexual activity had already occurred between them.

9 The appellant drove his car to the victim's caravan with Ms Cook in the front passenger seat.

10 Upon arrival, the appellant alighted from the car. He confronted the victim and waved a knife in the victim's direction. The victim picked up a gas bottle and waved it in the appellant's direction. The gas bottle either fell or was knocked from his grasp.

11 The victim punched or banged the side of the appellant's car. The men struggled physically and fell to the ground. The appellant was on his back. The victim was on top of the appellant. There was some scrambling between them.

12 The appellant stabbed the victim four times with the knife in the chest and abdomen area. It was more likely that the appellant inflicted those wounds before they fell to the ground with the victim on top of the appellant.

13 Ms Williams, who was at the scene, attempted to stop the fight by picking up a brick and hitting the appellant on the head.

14 Ms Cook alighted from the appellant's car and attempted to pull the appellant away from the victim. Eventually, the appellant got out from under the victim and threw the knife on the ground. The appellant and Ms Cook left the scene immediately in the car. The victim was on the ground either dead or dying. Ms Williams called the emergency services. The victim was pronounced dead by the ambulance officers who attended.

15 After the appellant and Ms Cook left the scene, the appellant stopped the car on Gilchrist Road, Lesmurdie. He removed his shirt, which was covered in blood, and threw it in some bushes. The appellant was convinced he had killed the victim. He became depressed and said he was going to slit his wrists.

16 A post-mortem examination of the victim's body revealed four penetrating sharp force injuries, being stab wounds to the chest and abdomen, with five wound tracts and injuries to the heart and stomach; two small sharp force injuries to the back; multiple rib fractures; and aspirated food in the airways.

17 The appellant had armed himself with the knife before driving his car to confront the victim. The appellant was angry and wanted revenge. The only reasonable explanation for the injuries inflicted on the victim was an intent by the appellant to cause the death of the victim or an intent to cause the victim bodily injury of such a nature as to endanger his life.

19 The appellant's case, as explained by defence counsel, was that the appellant drove to the victim's caravan for the purpose of confronting the victim. He did not intend to kill him. The appellant acted in self-defence in using the knife against the victim. At the time the appellant knew that the victim had a firearm in his caravan. The victim had previously shown the firearm to Ms Cook. The appellant claimed that the victim had a screwdriver during the confrontation. When they were on the ground the victim was on top of the appellant. The victim was attacking the appellant.

The defences left by the trial judge to the jury

20 The trial judge directed the jury in his summing up as to, amongst other things, the elements of murder, the alternative verdict of manslaughter, self-defence and the defence of accident. His Honour did not leave to the jury the defence of unwilled act.

22 Ground 1 alleges that there was a miscarriage of justice when the trial judge erred 'by failing to provide a full "Edwards direction" to the jury, in relation to the appellant's post-offence conduct of flight, which was relied upon by the State as evidencing a consciousness of guilt'.

1.1 The jury was not told that the conduct would not constitute evidence against the appellant unless the conduct was deliberate;

1.2 The jury was not told that the conduct could not be evidence against the appellant unless the conduct was done out of a consciousness of guilt and that the conduct revealed knowledge of the offence charged or some aspect of it;

1.3 There was a reasonable and not fanciful possibility that the failure of the trial judge to direct the jury pursuant to the High Court decision in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 accordingly may have affected the verdict.

24 Ground 2 alleges that there was a miscarriage of justice when his Honour erred 'by failing to leave to the jury the possibility that [the victim] was killed by the appellant pursuant to an unwilled act, pursuant to s 23A of [the Code]'.

2.1 A defence of unwilled act was open to the jury based upon the evidence, thus obliging the learned trial judge to direct the jury as to its application;

2.2 Despite defence counsel expressly not pursuing a direction as to unwilled act from the trial judge, His Honour was still bound to direct the jury as to its potential application.

26 On 11 January 2016, Mazza JA ordered that the application for leave to appeal on grounds 1 and 2 be referred to the hearing of the appeal.

Ground 1: the State's case and the appellant's case at trial in relation to the appellant's post-offence conduct of flight

27 It was not in dispute at the trial that the appellant fled immediately after the victim suffered the fatal wounds.

28 The prosecutor and defence counsel advanced two competing explanations for the appellant's post-offence conduct of flight.

29 On the State's case, the appellant's flight was inconsistent with his claim to have acted in self-defence (ts 740, 754, 882).

30 On the appellant's case, the appellant fled because he panicked (ts 882, 953 - 954).

31 The prosecutor submitted in his opening address:

[The appellant] didn't stop and try to help this man who was in - that this would mean something that he didn't intend. He might have stopped. He might have stayed there, if it was truly an issue of self-defence stayed there and said, look, I had no option, I had to do this.

He didn't [stay], he fled. Now, you'll probably hear that he's said to be panicked, but it's going to be a matter for you and the State says to you that the only explanation for the infliction of these injuries is an intent to kill or an intent to do such harm, such bodily injury to [the victim] as would endanger his life and indeed did endanger his life (ts 59 - 60).

32 The appellant gave this evidence in cross-examination:

So you were fully aware of [the victim's] weakness, the blood, and everything?---I - I observed that, yes.

And yet you chose to leave?---In the moment of panic, yeah. It wasn't a real conscious decision. It just sort of happened, I believe.

Well, it was a panic because of your feeling of guilt. Is that right?---Panic because of the whole situation that had just happened.

But it was a panic arising, as far as you were concerned, from guilt, wasn't it?---As I said, it was a panic at the whole situation, what had just happened.

Well, you see, you're telling this court today that this was - these injuries that were inflicted upon [the victim] were inflicted by you in self-defence?---Yes.

Why was there any need for you to run away?---It was pretty serious - pretty serious matter that - flee - fight or flight, I suppose. I can't - can't say that it is. It doesn't look really good to oneself, does it, to run, but I - I didn't know if the people that were coming over that - were going to see it like that, whether there's more to this - is going to happen. I can't say that I really put a lot of thought to - to that reason of - of flight.

Well, it's the case, isn't it, that the idea of self-defence only developed much later?---No (ts 754).

33 The prosecutor submitted in his closing address:

Now, we know what happened afterwards. [The appellant] gets up; he leaves. What's that mean? He says, 'I panicked.' Well, why do you panic? Gina Cook says, 'We're moving in the other direction to the police.' And he's the one doing the driving. What's the purpose of the panic? He knows in his own mind he's done at least serious injury, and then when they stop, he thinks about it and realises what he's done, what he's seen, what he's felt, the blood that's all over him, that he's probably killed this man. And he was right.

And he gets depressed about that and he contemplates self-harm, suicide; go into the bush, break a bottle, slash his writs (ts 860).

34 Later in his closing address, the prosecutor returned to the issue of the appellant's flight:

So what is [the appellant's] reaction? What's his reaction when he sort of in that sense has got that limited opportunity to cool down and to think about what he's done? Now, what is that reaction? And what it is is not to think about what might be done about [the victim] or how sorry he is at the outcome for [the victim] but really to think about himself.

...

So that's what the defence is all about. He doesn't think he can handle gaol. So that's the beginning of it. That's where self-defence starts to surface, you may think. It's a matter for you. It's a totally selfish thought. 'I can't do gaol time'. But it gives you the key, that thought, to the defence.

He says - not only says that to Gina Cook, but he goes off into the bush and contemplates taking his own life, and he's confirmed that that's what happened. Fortunately, he doesn't do that. Nobody would wish that upon him, no matter what he did.

But think about it: a person who will do that because he can't face gaol - contemplate taking his own life because he can't face gaol. What else might he do to avoid prison? What else might he do? Might he make up a story to evade - avoid the consequences of what he'd done? Because that's exactly what the State says he has done in this particular case, and what he's doing to you now in this trial (ts 865 - 866).

Ground 1: the trial judge's directions to the jury on the appellant's post-offence conduct of flight

35 The trial judge directed the jury in his summing up, on the issue of the appellant's flight, as follows:

The prosecution says you should treat the following matters of evidence as conduct occurring after the offence and constituting evidence pointing away from self-defence by [the appellant]. Those matters, the prosecution says, [were the appellant] leaving the scene as he did when he did, and his behaviour subsequently with Ms Cook and in relation to her, and as he testified to, near his car, after the car had come to a stop, after leaving the scene.

The matter of whether you treat the evidence on which the prosecution relies in the way the prosecution contends for is entirely a matter for you.

It's important I say at the outset, even if the conduct can be viewed as the prosecution contends, it would only be affirmative support for the prosecution's case, a part of what you must consider in determining whether or not the prosecution has discharged its burden of proof beyond a reasonable doubt.

And to get even to that point, you must consider the following. First, you must determine whether or not the conduct of [the appellant] was as the prosecution refers to it. And you will have noted the evidence in the case, including the evidence from [the appellant] himself, as well as the evidence from Ms Cook, and the evidence from the video, exhibit 18, most particularly.

Next, you may only take account of that conduct as an admission against the interest of [the appellant] if you are satisfied that it reveals a concern by [the appellant] of the sort for which the prosecution contends, representing an inference; that is to say, of such concern from [the appellant's] conduct. Such an inference is only possible in the way other inferences are possible, as I have explained.

You may consider - and this is the important point - that after your review of all the evidence and your use of your common sense, that it is not an inference you would draw from the conduct of [the appellant] the prosecution relies upon.

There may be other explanations for the conduct of [the appellant]: panic, fear of others, confusion brought about by alcohol, or others. In that case there would be no question of you being satisfied that the conduct should be relied upon by you in the way the prosecution contends for (ts 953 - 954).

36 The reference in that passage to exhibit 18 was to a video recording of part of the physical struggle between the appellant and the victim. The State's witness, Ingrid Turner, was present at the scene and made a video recording of part of the struggle on her mobile telephone. The video was played to the jury and tendered as exhibit 18 (ts 303, 305 - 307). Photographs taken from the recording were also tendered (ts 312).

(a) His Honour identified the purpose for which the State sought to rely on the appellant's post-offence conduct of flight, namely to rebut self-defence (ts 953 - 954).

(b) His Honour identified other possible explanations for the appellant's flight. In addition to panic (being the explanation advanced by the appellant), his Honour referred to fear of others, confusion brought about by alcohol consumption, and other possible explanations (ts 954).

(c) His Honour instructed the jury that it could only use the evidence of flight against the appellant if it was satisfied that the evidence 'reveals a concern by [the appellant] of the sort for which the prosecution contends, representing an inference; that is to say, of such concern from [the appellant's] conduct' (ts 954).

(d) His Honour directed the jury that it could only draw the inference advanced by the State if '[s]uch an inference is ... possible in the way other inferences are possible, as I have explained' (ts 954).

38 Counsel for the appellant submitted that the trial judge's directions on the appellant's post-offence conduct of flight were inadequate in that the jury was not directed that the conduct would not constitute evidence against the appellant, unless the conduct:

(b) was done out of a 'consciousness of guilt'; and

(c) revealed knowledge of the offence charged or some aspect of it.

39 In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth.

40 An Edwards direction is ordinarily essential if the State relies on a lie told by the accused as evidence of his or her guilt. As Lord Devlin observed in Broadhurst v The Queen [1964] AC 441, 457, there is a natural tendency for a jury to think that, if an accused is lying, it must be because he or she is guilty. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning. There is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case. See R v Konstandopoulos [1998] 4 VR 381, 388 (Callaway JA, Winneke P & Kenny JA agreeing); Nestorov v The Queen [1999] WASCA 303 [11] (Kennedy J, Ipp J agreeing).

41 If an Edwards direction is required, the direction must ordinarily encompass the following:

(b) the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;

(c) the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;

(d) the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;

(e) the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and

(f) the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.

See Edwards (209 - 211); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ); R v Hartwick [2005] VSCA 264; (2005) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA); R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] - [85] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] - [285] (Martin CJ, Steytler P & Miller JA); Hedgeland v The State of Western Australia [2013] WASCA 97 [86] (Buss JA, Martin CJ agreeing).

42 It is legitimate for the State to rely upon an accused's post-offence conduct (for example, flight from justice) in support of its case. See Ciantar [44] - [45]; McKey v The Queen [2012] NSWCCA 1; (2012) 219 A Crim R 227 [26] (Latham J, Whealy JA & Hislop J agreeing); NAD v The State of Western Australia [2013] WASCA 2 [71] (Buss JA, McLure P & Mazza JA agreeing).

43 In Wigmore on Evidence (Chadbourn rev 1979), vol 2, s 276(4), the admissibility of flight from justice as evidence of consciousness of guilt is discussed:

Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ...

It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself. (footnote omitted)

44 Post-offence conduct, including lies and flight from justice, is circumstantial evidence. A jury may accept and act upon evidence of post-offence conduct without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post-offence conduct which is reasonably open on the facts), unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends. See Edwards (210); Ciantar [45]; Hedgeland [80].

45 So, ordinarily, an accused's post-offence conduct that constitutes an implied admission against interest may be considered by the jury together with other evidence (whether direct or circumstantial) without it being necessary for the State to prove beyond reasonable doubt that the post-offence conduct demonstrates a consciousness of guilt, unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends. Ordinarily, the accused's post-offence conduct that constitutes an implied admission against interest is merely part of the evidence as a whole which the jury must consider in determining whether the State has proved its case against the accused beyond reasonable doubt.

46 A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J); Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J). This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron ACJ, Gummow, Kirby & Hayne JJ).

47 In my opinion, the trial judge was not bound, in the present case, to give the jury additional directions of the kind contended for by counsel for the appellant in relation to the evidence of the appellant's post-offence conduct of flight. In any event, I am satisfied that the failure to give those directions did not occasion a miscarriage of justice. There is no reasonable possibility that the jury may have misused the evidence of the appellant's flight so as to make a finding of guilt by impermissible reasoning. My reasons for those conclusions are as follows.

48 First, the critical question in relation to the appellant's flight was whether, as the State alleged, his flight was inconsistent with his claim to have acted in self-defence.

49 Secondly, the evidence of the appellant's flight, which was relied on by the State to rebut self-defence, was not the only evidence against the appellant and it was not an indispensable link in a chain of evidence necessary to prove his guilt.

50 Thirdly, counsel for the appellant's contention that the trial judge erred in failing to instruct the jury that the appellant's conduct would not constitute evidence against him unless the conduct was 'deliberate' is without merit. As I have mentioned, there was no dispute at the trial that the appellant fled immediately after the victim suffered the fatal wounds. The dispute was as to the inference (if any) to be drawn from his flight.

51 Fourthly, counsel for the appellant's contentions that his Honour erred in failing to instruct the jury that the appellant's conduct would not constitute evidence against him unless the conduct was done out of a consciousness of guilt and, also, revealed knowledge of the offence charged or some aspect of it, are without merit. If the jury accepted that the proper inference to be drawn was that the appellant fled because he knew or believed that he had killed the victim in circumstances that were inconsistent with self-defence (as submitted by the prosecutor), then the probative value of the evidence as to the appellant's flight would be established.

52 Fifthly, counsel for the appellant's contention that the consequence of the alleged deficiencies in his Honour's directions is that the jury may have 'failed to consider more innocent explanations for [the appellant's] conduct which were consistent with the defence case at trial' is without merit. As I have mentioned, the appellant's case at trial on this issue, as reflected in the appellant's evidence, was that he fled because he panicked. His Honour instructed the jury that one of the possible explanations for the appellant's flight was panic (ts 953 - 954).

53 Sixthly, his Honour directed the jury that it could only draw the inference advanced by the State if '[s]uch an inference is ... possible in the way other inferences are possible, as I have explained' (ts 954). That direction expressly incorporated his Honour's earlier general direction on inferences. The earlier general direction stated that the jury '[could] never reach a conclusion as a matter of inference from facts so long as there are other reasonable hypotheses open consistent with [the accused's] innocence' (ts 951). His Honour elaborated that 'before a person charged with a crime can be found guilty upon circumstantial evidence or an adverse inference drawn against them, the facts or the circumstances must exclude every reasonable hypothesis consistent with the man's innocence' (ts 951). His Honour, by incorporating his earlier general direction on inferences, gave a direction on the appellant's post-offence conduct of flight that was erroneously favourable to the appellant in that his Honour instructed the jury, in effect, that the inference advanced by the State could only be drawn if the State had excluded every other reasonable hypothesis consistent with the appellant's innocence. As I have mentioned, that standard of proof did not apply in the present case because the appellant's flight was not the only evidence against the appellant and it was not an indispensable link in a chain of evidence necessary to prove his guilt.

54 Seventhly, there were no hidden or other dangers in the evidence as to the appellant's post-offence conduct of flight or the inferences that were open to be drawn from his flight which required further or additional directions from his Honour, based on judicial experience, to avoid a reasonable possibility that the jury may misuse the evidence.

55 Eighthly, counsel for the appellant's submissions are based on a misconception in relation to the decision in Edwards and its application. Edwards was concerned with lies told by an accused that are evidence because they constitute implied admissions against interest. The directions mandated by Edwards do not apply inflexibly or without discrimination to an accused's post-offence conduct where the State seeks to rely on the conduct as an implied admission against interest or for some other purpose. In any event, there is no precise verbal formula for the giving of an Edwards direction and a trial judge must tailor the direction to the circumstances of the case.

56 Ninthly, the appellant's very experienced defence counsel did not seek an additional direction or a redirection.

57 Ground 1 fails. The ground does not have a reasonable prospect of success. Leave to appeal should be refused.

58 The prosecutor said in his opening address that the appellant had admitted that 'he stabbed [the victim] and as a result of the stabbing [the victim] died and death ... was caused by penetrating sharp force injuries to the chest of [the victim], those injuries caused by a knife' (ts 51).

59 A little later, the prosecutor reiterated that the appellant had admitted 'having stabbed [the victim] and thereby causing his death' (ts 51).

60 Defence counsel did not object to or contradict the prosecutor's statements that the appellant had admitted having stabbed the victim and that the victim had died as a result of the stabbing.

Ground 2: the appellant's formal admissions

61 During his opening address, defence counsel made a number of formal admissions on the appellant's behalf pursuant to s 32 of the Evidence Act 1906 (WA) (ts 68 - 69).

1. [The victim] was standing near a white Ford Falcon car parked near the camp kitchen in the overflow area of the [Crystal Brook] caravan park at the time.
2. Words were exchanged between [the appellant] and [the victim].
3. [The appellant] and [the victim] became embroiled in a physical altercation.
4. At some point during that physical altercation [the victim] sustained four penetrating sharp force injuries to his chest and abdomen area.
5. [The victim] died at the scene as a result of one or more of those injuries.
6. [The appellant] and Gina Cook left the Crystal Brook park in [the appellant's] car.

63 So, the appellant formally admitted that the cause of the victim's death was one or more of the four penetrating sharp force injuries to the victim's chest and abdomen which the victim sustained during his physical altercation with the appellant.

64 The appellant did not, however, formally admit that he had, by a willed act or acts, used the knife to inflict the four penetrating sharp force injuries or any of them.

Ground 2: defence counsel's opening address

(a) The appellant told the police that when he went to confront the victim he took the knife 'for protection' (ts 66).

(b) The appellant told the police that 'he got the knife out and used it ... when [the victim] was attacking him with items and [the appellant] was fearing for his life' (ts 66).

(c) The defence case was that the appellant 'was acting in self-defence when he used the knife' (ts 67).

(d) The 'real issues' at the trial were 'was it self-defence, who attacked who, when did the knife come out, and issues such as that' (ts 67). In particular, 'whether the prosecution has proved these things beyond reasonable doubt; in other words, [the appellant] when he used the knife was acting unlawfully, he wasn't acting in self-defence' (ts 67).

(e) It was 'the defence position that ... when [the appellant] got out of the car [the victim] went to and attacked him' (ts 70). It was also 'the defence position that [the victim] had items' (ts 70). There would be 'some suggestion that at one stage [the victim] had a gas bottle' and there would be evidence that 'he had a screwdriver' (ts 70).

[The victim] ended up on top of [the appellant]. So [the appellant] is underneath him. And at that point of time [the victim] was physically attacking [the appellant] and [the appellant] had the knife. So think about that in the concept generally what you may understand of what's self-defence (ts 71).

(g) The prosecution 'has got to prove ... that it wasn't a lawful act, in other words have to prove beyond reasonable doubt that [the appellant] wasn't acting in self-defence' (ts 72).

66 During his opening address, defence counsel did not mention the defence of unwilled act or suggest that if the appellant had stabbed the victim, as alleged by the State, the appellant's conscious mind did not direct any act of stabbing.

67 Indeed, to the contrary, the passages I have reproduced from his opening address establish that the defence case, as opened by defence counsel, accepted that the appellant had 'got the knife out' and 'used it' against the victim, but asserted that he had 'used' the knife in self-defence.

68 Dr Amy Spark is a forensic pathologist. She conducted the post-mortem examination of the victim's body.

69 Dr Spark concluded that the cause of the victim's death was 'penetrating sharp force injuries to the chest' (ts 441).

(a) A penetrating sharp force injury is an injury caused by a sharp instrument (ts 441). An injury of that kind can be inflicted by any object with a sharp blade or sharp surface (ts 442).

(b) The victim had four penetrating sharp force injuries to his chest and abdomen (ts 441). The order in which the injuries were suffered could not be determined (ts 444).

(c) The four penetrating sharp force injuries caused internal injuries to the victim's heart, rib cage and stomach (ts 441).

(d) One of the sharp force injuries (the first injury) was on the right side of the front of the victim's chest 'toward the mid line from the nipple' and measured about 27 mm on his skin surface 'when the edges of the wound [were] put together' (ts 443). The wound track had an estimated depth of 150 mm. Once the skin surface was penetrated 'it would require relatively little force for [the knife] to continue through the muscle' (ts 443).

(e) Another of the sharp force injuries (the second injury) was on the left side of the front of the victim's chest and it was 'in line [with] and below the nipple' (ts 444). It measured about 21 mm on his skin surface. The wound track went through the muscle, between two ribs, and the rib below the wound track was fractured. The wound track then continued 'into the sac around the heart and then ... [went] into the heart muscle' (ts 445). It '[cut] through one of the vessels on the surface of the heart' (ts 445). The wound track had an estimated depth of 150 mm (ts 445). As the knife cut the vessel on the surface of the heart 'it would have [had] a similar effect [to] a heart attack' (ts 445). It would have cut off the blood supply to that part of the heart and, consequently, the heart would have been unable to pump properly.

(f) The infliction of the first injury would have required 'a moderate amount of force' (ts 446). The infliction of the second injury would have required 'slightly more' force in order 'to cause the bony injury as well' (ts 446).

(g) Another of the sharp force injuries (the third injury) was more towards the mid line than the second injury. It was on the left side of the front of the chest. It was vertically oriented and measured 25 mm on his skin surface. It was likely that there were 'a number of penetrating injuries in this region' (ts 447). There were two parallel wound tracks; namely an inner track (which was closer to the mid line) and an outer track (which was closer to the outside of the body). The inner track extended 'front to back, left to right, and slightly downward, and it went through the upper half of the left seventh rib and the lower half of the left sixth rib' (ts 447). The sharp force injury has gone through 'the cartilage in this region' and there was also 'some fracture around that area' (ts 447). It continued to 'the sac around the heart' and had gone into the right ventricle (ts 447). The outer track went through the cartilage portion of the sixth rib and entered again into the right ventricle of the heart, but at a slightly lower point. Both the inner track and the outer track had an estimated depth of 180 mm.

(h) The rationale for the two separate wound tracks in relation to the third injury was as follows:

So what would have had to have happened in this region is that there would have been one injury, and then the knife will have moved out of the body and re-entered in the same region to cause the two separate wound tracks (ts 447).

It was more likely that the knife would have moved partly out of the body rather than wholly out of the body. Injuries of this kind, with two separate wound tracks, are often seen 'where a knife is taken out and then the trajectory changes and it's reinserted into the body' (ts 447). There was in effect 'one entry point' and 'two knife movements' (ts 448).

(i) The infliction of the third injury would have required 'a moderate amount of force, at least' (ts 448).

(j) As to the second and third injuries, 'when you get stab wounds to the right side of the heart people tend to die a lot more quickly than they would if they had the same injuries to the left side of the heart' (ts 448). Blood loss is 'generally fairly rapid', but there 'can be some functioning for a short period of time after sustaining these injuries' (ts 448).

(k) The remaining sharp force injury (the fourth injury) was on the left side of the abdomen 'just below the line of the ribs' (ts 449). It measured about 20 mm on his skin surface. The wound track was 'front to back, slightly left to right and slightly downwards' (ts 449). It then went through the muscles on the abdominal wall and into the front of the stomach. The wound track had an estimated depth of 90 mm. The infliction of the fourth injury would have required 'a mild to moderate amount of force' (ts 449). It was, however, 'a potentially survivable wound' (ts 449).

(l) The victim also suffered two small sharp force injuries to his back and a number of other relatively minor injuries.

(m) The victim's height was 188 cm and his body weight was 115 kg (ts 460).

(a) It was impossible to say 'what position [the victim] and the holder of the knife were in when [the four penetrating sharp force injuries] were inflicted' (ts 476). The victim might have been moving or the holder of the knife might have been moving.

(b) After Dr Spark was shown the video recording made by Ms Turner on her mobile telephone (exhibit 18), which depicted, relevantly, the appellant and the victim on the ground with the appellant on his back and the victim on top of him, Dr Spark confirmed that she was unable to 'rule out that any of the ... sharp force injuries ... were inflicted at any particular point in the altercation between [the victim] and [the appellant]' (ts 478).

(c) Dr Spark said 'the weight of [the victim] coming down onto the knife [could certainly] contribute to the depth of the penetrating sharp force injury' (ts 479). Dr Spark elaborated:

And how does that work?---So, the depth of the injury depends on the force which is applied between the knife and the deceased, so force is related to mass and acceleration, so if somebody of a big mass is on top, then the force of mass and gravity acting as acceleration will have an impact ... on the amount of force that's relative between the deceased and the knife.

And when you - - -?---So if you increase that mass then you increase the amount of force.

So is it fair to say that a heavy man plus the weight of gravity would significantly increase the force onto the knife?---Yes, I think that's fair, yes.

And is it also fair to say that that would decrease the force required by the person holding the knife?---Yes. (ts 479).

(d) The chest is reasonably compressible. The deeper a wound track of a sharp force injury the greater the force required to inflict the injury, but that does not 'necessarily equate to how much force' (ts 479 - 480). It is 'more of a relative thing' (ts 480). It does not 'describe the source of the force' (ts 480).

(e) If the second and third injuries were sustained 'when [the victim] was facing forward and down, the organs have their own weight and they would sit closer to the chest' (ts 484).

72 So, defence counsel explored with Dr Spark whether the weight of the victim, and his position relative to the appellant when they were on the ground, would have decreased the force required to be applied by the person holding the knife (namely the appellant) if one or more of the four penetrating sharp force injuries to the victim's chest and abdomen had been inflicted while they were on the ground.

73 Defence counsel did not, however, explore with Dr Spark whether it was reasonably possible that the victim's skin surface on his chest or abdomen could have been penetrated, as a precursor to the wound tracts to the victim's chest and abdomen, while the appellant and the victim were on the ground, if the person holding the knife (namely the appellant) was merely holding it and was not consciously directing any act of stabbing.

Ground 2: the video recording made by Ms Turner

74 At all material times, Ms Turner lived in a caravan at the caravan park. She witnessed part of the physical altercation between the appellant and the victim. Ms Turner made a video recording on her mobile telephone (exhibit 18) of part of the physical altercation.

75 The video recording showed, amongst other things, the appellant and the victim on the ground. The appellant was on his back and the victim was on top of him. They were facing each other. When the appellant and the victim were in those positions, the knife was in the appellant's right hand (ts 740 - 742).

76 I have watched the video recording. It is not possible to discern from the recording whether and, if so, how the victim sustained any of the penetrating sharp force injuries to his chest and stomach while the appellant and the victim were on the ground.

Ground 2: the appellant's video recorded interview with the police

77 The prosecutor tendered, as part of the State's case, the appellant's video recorded interview with the police.

78 The appellant was interviewed by the police on 15 April 2014 (being the day after the victim died). The interview resumed on 16 April 2014, initially at the location in Lesmurdie where the appellant had stopped his car after he and Ms Cook had fled from the caravan park, and then at the offices of the police in Perth.

79 During the interview the appellant gave this account of various relevant events:

(a) The appellant went to the victim's caravan to confront the victim about the victim having 'got in the sack' with the appellant's partner (VROI 26, 50 - 51).

(b) The appellant put a knife in his sock before he went to the victim's caravan (VROI 51).

(c) When the appellant arrived at the victim's caravan, the victim 'starting coming towards [him]' (VROI 51). The victim had a screwdriver in his hand and he 'threw a gas bottle around' (VROI 51). There was a physical scuffle between the appellant and the victim (VROI 51).

(d) The appellant did not remember 'just standing there toe-to-toe ... with a blade in [his] hand having a go at [the victim]' (VROI 51).

(e) The appellant thought that the screwdriver was green in colour (VROI 52). The victim had 'a bloody swing at [the appellant]' with the screwdriver (VROI 52).

(f) The victim threw the gas bottle at the appellant (VROI 53). The victim 'lost a hold of his screwdriver' (VROI 53).

(g) The knife was a folding knife with a wooden handle and 'a decent blade on it' (VROI 54).

(h) The appellant could not remember opening the knife (VROI 63). However, he pulled out the knife after the victim 'swung the gas bottle' (VROI 64).

(i) The following exchange occurred when a police officer asked the appellant whether he had stabbed the victim:

SGT JOHNSTON: Did, did you stab him?

[THE APPELLANT]: I believe I did.

SGT JOHNSTON: Yeah. I mean, do you remember stabbing him?

[THE APPELLANT]: I remember the knife in my hand, yeah.

SGT JOHNSTON: Yeah.

[THE APPELLANT]: Yeah, I do.

SGT JOHNSTON: Um, do you remember whereabouts on his body that you stabbed him?

[THE APPELLANT]: Probably just up here.

SGT JOHNSTON: Yeah. And you, so you're describing that, that area under the left armpit or the left ribs.

[THE APPELLANT]: Just, like, when he's standing square on my ear. Yeah.

SGT JOHNSTON: Yep.

[THE APPELLANT]: I don't know where. I'm, like, I, yeah, fuck. Could I, I was just, just really, it was fucking very fast and I don't want to try and make myself seem - - -

SGT JOHNSTON: No, no, no.

[THE APPELLANT]: It is what it is, you know what I mean. And the rest, you know, it is what it is, but oh fuck.

SGT JOHNSTON: Do you know how many times you've stabbed him?

[THE APPELLANT]: No, 'cause that's what I was going to ask you, eh.

SGT JOHNSTON: Yeah.

[THE APPELLANT]: Yeah.

SGT JOHNSTON: Do you, I mean, do you know if it was once or more than once?

[THE APPELLANT]: I don't know if it was, I don't know if I left it in him and just fucking held on, you know what I mean? I don't know. I - - -

SGT JOHNSTON: Yes.

[THE APPELLANT]: I had it in my hand at the end. Because I didn't care any more and it was, it, I threw it and after I'd, I think I, I fucking threw that knife away. You know, and not, it was just in hindsight of the whole thing, thinking fuck me, mate, like, it's just, I'm not like that any way, but, you know, it's just, so I know I had it in my hand at the end of, at the end, so I don't know if it's been on top of me or, or what but I pulled it out.

SGT JOHNSTON: Yeah. And I think, at, at some stage, well, well, what happened then? What, what happened then?

[THE APPELLANT]: Like, a lot of blood on my hands.

SGT JOHNSTON: Yeah.

[THE APPELLANT]: On top of me, a lot blood.

SGT JOHNSTON: So when he was on top of you, and you're saying there was a lot blood, what was he doing?

[THE APPELLANT]: He's fucking chewing on my ear, I think.

SGT JOHNSTON: Yeah.

[THE APPELLANT]: Right on my ear. I just remember saying, 'Enough', 'cause I felt wet, you know, I knew something had happened. Yeah. I knew I'd done something wrong. And I said, 'Enough, enough, enough, enough.' And from what I've been, oh, well, I'll just say what I know, what I told was Gina's story. But I was, Gina told me, 'Get your girlfriend to step in' or something like that. I didn't, I didn't, yeah, but, I just remember saying, 'Enough', and then I, sort of, got out from under him and he didn't look fucking real, really good then.

SGT JOHNSTON: Yep.

[THE APPELLANT]: Yeah, fucking no good. I was saturated in shit. I was just - - -

SGT JOHNSTON: So when you say you got out from under him, can you tell us how - - -

[THE APPELLANT]: Oh, wiggled away and I don't know if he had stopped, you know what I mean?

SGT JOHNSTON: So he'd stopped at that point?

[THE APPELLANT]: I think so. Yeah, he, he was out of my eye, and I was just trying to keep that eye, I don't know how he, teeth on there, and, like, finger in my eye or something like that, and, yeah, I just, I think it was, yeah, I don't know if I, yeah. I don't know. Yeah. I just, I hope I didn't fucking do it. I just hope I didn't.

SGT ATKINSON: [The appellant], you said you remembered stabbing him?

[THE APPELLANT]: Yeah.

SGT ATKINSON: A second ago you remembered it.

[THE APPELLANT]: Yep.

SGT ATKINSON: What position were you in and what position was he in when you remember doing it?

[THE APPELLANT]: I don't know. If it was, us standing him on me, like, he got me, you know what I mean? And - - -

SGT ATKINSON: So you were, both standing?

[THE APPELLANT]: - - - we're going down or on a knee.

SGT ATKINSON: Alright. So I guess what I'm asking, do you remember what position you were in?

[THE APPELLANT]: No, not, not entirely. I know he, I know it wasn't when he was on top of me, 'cause I don't even know if I was on my back or if I was half turned and he was on me like that, you know?

SGT ATKINSON: Yep.

[THE APPELLANT]: Like, I don't know, 'cause we were still, yeah, still somewhat - - -

SGT ATKINSON: Face-to-face.

[THE APPELLANT]: - - - face-to-face. Yeah. Yep.

SGT ATKINSON: And, and what did he have, at that stage, 'cause you mentioned the screwdriver's gone and the gas bottle's gone at you - - -

[THE APPELLANT]: I don't know if he - - -

SGT ATKINSON: - - - but what was, what was he - - -

[THE APPELLANT]: I don't know if he - - -

SGT ATKINSON: - - - would did he have - - -

[THE APPELLANT]: - - - let go of either of them, it was just, I know he didn't have, when he went at the gas bottle, I didn't see it in his hand.

SGT ATKINSON: Yep.

[THE APPELLANT]: Um, but I, I didn't know what was, it was all pretty quick, eh? Not, like - - -

SGT ATKINSON: Yeah.

[THE APPELLANT]: And, so, I don't know if he let go of the bottle or, or, um, or just hit me with it and was, was trying to hit me with it, you know, or whatever. I don't know what, yeah.

SGT ATKINSON: Yep. So - - -

[THE APPELLANT]: Pretty much just, yeah, I, yeah, he, yeah - - -

SGT ATKINSON: So what you, what you're saying is then, from what I gather from that is when you were face-to-face or whether it be on your knees, standing - - -

[THE APPELLANT]: Yeah.

SGT ATKINSON: - - - whatever the case may be - - -

[THE APPELLANT]: Yeah.

SGT ATKINSON: - - - you already had the knife unfolded in your hand at that stage.

[THE APPELLANT]: Yeah, maybe it was when he was, yeah, going to get the bottle. I, I don't know, eh. 'Cause he, we did have a, like, as, as I said we, we, he ran, he ran around me just for a second, eh. I don't know if that's when I've gone and - - -

SGT ATKINSON: Sorry, what do you mean - - -

[THE APPELLANT]: Oh - - -

SGT ATKINSON: he ran around you?

[THE APPELLANT]: - - - well, he's, grabb-, grabbing something, trying to grab something, like, you know, he's just, well, and it's, yeah, had the screwdriver, gone like that. I don't know if I, sort of, stood back and swung, swung at him. He just, sort of, run next to me, run around, grabbed the bottle and I don't know if that's when I've gone, went off by myself, you know what I mean?

SGT ATKINSON: Okay. Yeah.

[THE APPELLANT]: But at some stage there he's come over to the car as well, so I don't, I don't where that fits into it at all. But he, yeah, and he's punched on the window of the car. So I don't know if that was after - - -

SGT ATKINSON: I think, I think we'll get to that but I just - - -

[THE APPELLANT]: Yeah.

SGT ATKINSON: - - - want to touch on the fact that you've mentioned you had the finger in the eye and your ear was, is that - - -

[THE APPELLANT]: I remember that because I was just having to make - - -

SGT ATKINSON: Is that how, sorry, 'cause he's turned, is that how that injury occurred to your head?

HAWKE: Um, I'm not sure, but I believe he was biting me ear.

SGT ATKINSON: Okay.

[THE APPELLANT]: I believe he was.

SGT ATKINSON: So, so is that the, is that, that's how you believe you got injured?

[THE APPELLANT]: Yes.

SGT ATKINSON: Okay.

[THE APPELLANT]: Yeah.

SGT ATKINSON: So the finger in the eye you think and you believe that your ear, he's bitten your ear.

[THE APPELLANT]: Yeah (VROI 64 - 68). (emphasis added)

(j) The appellant told the police that after he and Ms Cook had fled from the caravan park he stopped on a 'quiet road', and removed his wet singlet and threw it into the bush (VROI 71 - 73). The appellant said he then 'just thought about what [he'd] done and [he] said to [Ms Cook]':

I think I might have killed him, I don't know. What have I done? (VROI 73).

Ground 2: the appellant's evidence at trial

80 As I have mentioned, the appellant gave sworn evidence at the trial.

81 The appellant said that he was about 183 cm in height and at the material time he weighed about 90 kg.

82 The appellant said that when he arrived at the victim's caravan the victim 'swung' and he 'ducked' (ts 725). He thought the victim had a screwdriver (ts 725). The appellant pulled the knife out of his sock and opened it (ts 726). He held the knife in his right hand with the blade facing out (ts 728). The appellant thought the blade of the knife and the screwdriver 'connected' (ts 730).

83 The appellant also said in his evidence-in-chief:

Just describe what you mean when you say 'I rushed him'. What did you physically do?---I started real fast at him, just - - -

Yes?--- - - - run at him.

Yes?---We come together and that's when I remember - like ­ like he's biting my ear. Like we got into sort of like a grapple almost, you know. He bit my - bite my ear, because I remember he - the noise, it just - yeah, like - - -

Where were you at that point in time?---We're at the front - like, the front of the vehicle, like, between the caravan and the - and the - and the Commodore, the wagon.

Okay. And how - how were your bodies positioned?---Just together, sort of, held like, together.

Yes?---But - - -

Okay. You put your arms out?---Like - - -

Did you have hold of him with both arms?---I think so, yeah. Yeah.

Yes?---But still holding, you know, one arm maybe around him as well.

Where was the knife?---In - in my right hand the whole time, yeah.

Yes?---And I grappled, sort of thing. And - and then it went from there - fell - fell backwards, almost have spun - spun on the spot because my feet - my feet were facing the rear - down the side of the car. So I was laying the same way as the car was.

...

Yes?---So lying parallel to the car.

...

And what part of your body was connecting the surface?---My back.

Okay. What about [the victim]?---He was - he was on - on me.

Okay. Where was the knife? Can you remember that at that point of time?---Still in my hand.

Yes. Which hand?---My right hand.

Okay. What was happening then?---I can remember the finger in my eye.

Yes. Whose finger, did you know?---No, just - just the finger in my eye and I could hear the 'err' of - of someone and then - - -

Okay. Can I stop there because I need to describe which eye, which ear. You're pointing to your left eye. Is that the eye - - -?---Yeah.

- - - you remember the finger in?---I think so, yeah. Yeah. Left eye, right ear. Yeah.

Sorry?---Left eye, right ear.

Yes. Okay. Thank you. Keep going. Take your time?---And then it's - it's - someone's trying to take the blade out of - knife out of my hand that that's when I - yeah, there was a struggle for - for the knife.

All right. So you're on the ground, your back's on the ground, your head's up near the bonnet. Have I got that right?---Yep.

Okay. How was [the victim] in relation to your body?---on top of me.

Okay. And what was he doing at the time?---Just - like, I don't know, trying to take the knife, trying to take my eye out. I don't know. Everything. It was all just sort of happening all so quick.

Yes?---Then on the ground.

Yes. What happened then?---Well, I can't clearly say but I imagine that I used the knife or it was used - - -

Okay. Well, what were you - - -?--- - - - at some point.

What were you doing?---Well, someone was trying to take it off - out of my hand.

Yes?---And - and then just - I don't know if I've swung and got him on the inside of his gut, lower, you know.

Could you remember - and go back to 14 April last year, can you remember physically using the knife?---Not - no.

Okay. Do you remember having the knife in your hand when you were lying on the ground?---Yeah. Yeah. I remember - - -

Do you remember what [the victim] was doing while you were lying on the ground as you've described?---Yeah, I can remember just my eye, my ear and - and the knife in my hand, trying to get out of my hand.

How were you feeling?---It was pretty quick. Just - I was shitting myself, yeah. I - I - yeah, it was - it was, sort of, like - it was me or him that day, you know what I mean. There was nothing else to it.

Why do you say that?---Because it - from the get-go - from the get-go he is having - having a go at my head. That wasn't - it wasn't mucking around, it was - it was serious. But when we were on the ground that was - it was - it was one of - - -

Going back to before you got on the ground, there was a period of time that you told us where you had the knife, you'd got it out of your sock?---Yeah.

Go back to that?---Yeah.

So I'm asking about before you ended up on the ground. Do you remember at any stage making contact with him - his body with the knife?---I - I hope that I didn't, you know what I mean, but I can't recall. I can't recall. I - yeah, when- when- when he's swung across and there was a click, I know that would have hurt his hand, you know, arm or something like that but- but that's - yeah. That's all the - - -

Why did you get the knife out?---But - he had a go at me, I should have walked away but I - I got it out to defend myself.

Now, I know this is a difficult question, how long were you on the ground for, from the way you've just described?---I don't know. I don't know. It - it felt like a while but it - I don't know really. It has - it happened so quick but till - till at the end it was - it was an attempt or, you know, to - it took a while, yeah.

How did it end?---I wriggled out from under him and - but he - he didn't have much fight - fight then left in him, when I - - -

Did you see where he was when you wriggled out from under him?---He was on top of me.

At any stage whilst you were on the ground, were you on top of him?---No.

...

So you stood up when you got out?---Yep.

And what did you do then?---It was my hand, I saw the knife, like - - -

Yes?---I dropped it (ts 734 - 739). (emphasis added)

84 The appellant agreed with the prosecutor in cross-examination that 'these injuries that were inflicted upon [the victim] were inflicted by [the appellant] in self-defence' (ts 754).

85 Later, the appellant gave this evidence in cross-examination:

You do accept, don't you, that you caused the death of [the victim]?---The struggle did, yeah.

No. You did?---Okay.

Well, you don't just have to agree with me. It's a matter of your evidence. Do you accept that you caused the death of [the victim]?---The struggle did.

The struggle did. So you don't accept that you caused it?---No, I think you're just mincing words now and I don't think we need to do that. I just - - -

Well, did you accept - do you accept that you caused the death of [the victim] or not?---He died as a result of - of an altercation between him and myself, yeah.

That's what you say in ... the formal admissions that were made by your counsel on your behalf?---So are we just going to worry about words - - -

It goes further than that, doesn't it?--- - - - don't worry about the actual actions that happened? Now·it's just a political - - -

...

The cause of [the victim's] death was your use of that knife, wasn't it?

...

Very well?---Yep. The altercation did, yes.

No, not the altercation. You putting the knife - - -?-- The altercation - - -

- - - into the body of [the victim] is what caused his death, isn't it? Isn't it?---The altercation, sir.

You're not prepared to accept - - -?---I accept it, sir. It's just the way you're making it sound if I - - -

I'm just asking you the questions. You can answer as you will?---Okay.

So you're saying that you don't accept that you caused the death of [the victim] by the use of that knife?---I didn't say that either.

...

It was present and it was in the injuries. It didn't work of itself, did it? It didn't independently of anybody jump up and stab [the victim], did it?---In the struggle, both of our hands were on that - on that handle.

Are you now saying that [the victim] stabbed himself?---Are you saying that?

Don't ask me questions. I'm here to ask the questions?---Yeah, I - I don't like the way you're going.

Are you saying that [the victim] stabbed himself?---Why is it like this? Why are you saying these things like that?

Are you saying that [the victim] stabbed himself?---Why would you be saying that? Why would you ask that?

Well, we'll be here for a long time if you keep asking me questions, ...?---Both of our hands were on that handle. That's my answer.

At the moment that ... the knife entered his body, are you saying that both your hands were on the handle?---Quite possibly, yeah, yeah. Quite possibly.

Quite possibly. But you can't remember you told us as to - - -?---That's why I say quite - - - the moments when this - - -?---Quite possibly. That's why I said that.

So you're suggesting that [the victim's] hand was guiding the knife into his own body, are you?---No, I'm not suggesting that.

Or it might have been possible that [the victim] was trying to stop you from stabbing him?---That was - well - - -

You think that's what he might have been doing if he had his hands on any part of the knife?---Nah, that - there was a struggle. That was - if I didn't let - it - it - yeah, it would have gone into either of us.

Sorry?---It would have gone into either of us.

Well, it didn't, did it?---No, it didn't.

Because you were wielding it and you stabbed him deliberately with that knife, didn't you?---No. I didn't stab him deliberately, no. Not out of cold blood, no, nothing like that. No, I didn't. It was in the struggle of the fight and that - that is all. I don't know how you can't get that.

Well, it was in your hand and it ended up in his body, didn't it? Yes? You have to say yes or no or whatever your answer is. This thing doesn't pick up a nod or a shake of the head as his Honour told you?---I haven't answered yet, yeah.

Well, you nodded your head. What did that mean?---I'm pretty disgusted with your questions like that. It's - it's- it's a bad---

So you're not prepared to say to this jury that you caused the death of that man, [the victim], by your use of that knife?---But yes, (indistinct) that was the reason for his death.

Your use of that knife, yes?---In my hand.

In your hand. You accept that with your use of that knife, ... you caused the four sharp force injuries to the chest and abdomen of [the victim]. Do you accept that?---Okay, I'll accept that.

Sorry?---I accept that.

You do accept that?---In the - the way it happened is the - the only - - -

But you tell us you don't know how it happened?---It was a struggle, sir, that's it.

Well, what you're effectively saying to us is that at some time during the course of the time you were together with [the victim], this just happened. Is that all you're saying?---I'm not saying that. No, I'm not saying that.

And you certainly accept, don't you, that those injuries that were referred to by Dr Spark caused [the victim's] death?---Yes.

...

No, well, let's talk about the moment that you actually put the knife into [the victim's] body. You were intending to put the knife into his body, weren't you?---No.

Well, what are you saying? That it somehow got there of its own accord?---No.

Well, what are you saying?---Nothing.

Nothing. So we just don't know how it got there. Is that right?---Well, he threw an - altercation between the two of us.

Well, we know there was an altercation. That's one thing. The next thing is how the knife gets into his body- - -?---I didn't set -

- - - on four occasions?---I didn't set out to hurt - hurt - to hurt - I didn't - - -

You didn't set out to what?---It wasn't like that.

Sorry?---It was - it was a - it was a fight.

Well, we know it was a fight. But you were wielding a knife, weren't you?---Yeah.

You took the knife to the fight, didn't you?---Yeah

And it was your hand that put the knife into the body of [the victim], wasn't it?---Yep.

And when you did that you were intending to do that, weren't you?---No.

To put the knife into his body?---No.

Mm hmm?---No.

Well, are you saying the knife got into his body by some sort of accident?---(No audible answer).

You're shaking your head?---In the struggle - - -

Is your answer no?---In the struggle - - -

But isn't it your case that you were defending yourself? Yes?---Yes.

And that in the course of defending yourself you needed to put the knife into [the victim's] body? Isn't that your defence? Or did I misunderstand it?---I wish I could break it down to so slow, but like I say, it just happened - the thing just happened. It just - it just - it just happened.

But you're saying you were defending yourself?---Yep.

And the way you were defending yourself was using the knife, wasn't it?---Yep, I was holding that knife. Yes.

Not just holding it; using it?---Holding that knife.

So all you did to defend yourself was hold the knife?---Stop it from going - going into me.

Stop it from going into you?---Yep.

Well, how, if you're stopping it from going into you, does it somehow go four to five times into [the victim]?---Moving around, just - - -

So you're not saying that, 'Look, I was so much in fear of [the victim] that I had to put the knife into him four times'?---No.

'Four times, twist it once'?---No.

You're not saying that?---No.

So you're not saying that in order to defend yourself you had to inflict these fatal injuries? You're not saying that?---The struggle it - between it - it has, as you say, gone into [the victim's] body in the struggle of - of things.

But you're not saying that you pushed the knife into his body by way of self-defence? Am I right about that?---The wording is- is- is- it's just- it happened how it happened, how it's been said and- and I don't understand that just a word - you say, it did go into [the victim]. It did with my hand on the handle and his hand at some stage as well and, yes, it did go in and - and four times, you know.

Yes?---But I - I didn't see it to stab - to - yeah.

So you don't think now, you didn't think then that you had to put the knife into his body to defend yourself?---It's the course that - it - it happened. Okay. It happened. It's -

So you weren't stabbing him in the arm or the leg or somewhere, were you? You were stabbing him in the body mass, the chest, the abdomen?---Our hands were just there. Both our hands together were just there.

And was that for all of the wounds?---I don't - - -

Or did some of the wounds occur - - -?---No, I don't - - -

- - - before you got to the ground?---No, I don't think so. No.

You don't think so. You don't even know?---I don't think so. (Indistinct) - - -

Sorry, you - you don't think so. Does that mean you think that - - -?---I don't recollect - - -

- - - some wound or wounds occurred before you both hit the ground?---I don't - I don't recollect (ts 765 - 771). (emphasis added)

86 Later in his cross-examination, the appellant said:

(a) The 'outcome' of the fight was that the victim was wounded (ts 792).

(b) The appellant 'had the knife out and ... [he] heard [a] click between a screwdriver and the knife ... hitting each other' (ts 792).

(c) The appellant had 'no idea how the wounds that caused [the victim's] death happened'; all he could say is that the wounds occurred 'in the scuffle' (ts 794).

(d) The knife was only used on the victim in the scuffle while they were on the ground (ts 797). The victim was on top of him while they were on the ground and the appellant 'didn't know what was going on' (ts 797).

(e) The appellant could not say how many times he stabbed the victim after the appellant saw that the victim did not have anything in his hands (ts 799). The appellant did not know whether the victim had a weapon in his hand when they went to the ground because 'it happened so fast' (ts 799).

(f) The appellant did not know 'in which order [he] inflicted [the] wounds' with the knife (ts 804). He could not remember the knife being in the victim's body and he did not remember pulling the knife at least partially out or moving it around (ts 804).

(g) The appellant thought the victim was coming towards him to 'finish' him (ts 806).

(i) Although the appellant was carrying a knife when he went to confront the victim, he did not go to the victim's caravan with the intention of using the knife on him (ts 809).

(j) The appellant was 'just holding onto' the knife while he and the victim were 'wriggling around on the ground' (ts 810).

(a) The appellant had 'no recollection' of the order in which the wounds were inflicted on the victim (ts 810). It happened 'that quick' (ts 810).

(b) The appellant first became aware that the victim had been wounded when the victim was on top of him and he felt blood (ts 812). The first time the appellant saw the blood was when he got up from the ground (ts 812).

88 Later, in the course of determining the merits of ground 2, I will summarise what appears to me to be the relevant substance of the appellant's evidence at trial in relation to the possible defence of unwilled act.

Ground 2: the discussions between the trial judge, the prosecutor and defence counsel in relation to an 'unwilled act' direction and an 'accident' direction

89 On 25 June 2015, before the closing addresses and the summing up, the trial judge raised with the prosecutor and defence counsel the defences of unwilled act and accident.

90 The following exchange occurred between his Honour, the prosecutor (Mr O'Sullivan) and defence counsel (Mr Prior):

PRIOR, MR: Sorry, your Honour. Accident hadn't loomed large, primarily, if we go back [to] our opening, it being self-defence.

But having said that, when one considers (a) exhibit 18, that mobile phone footage, and (b) what [the appellant] said about it, I think whether it was a willed act or not needs to be left, especially when you have evidence - I don't know what the wounds were incurred, what order, or when.

SIMMONDS J: Yes.

PRIOR, MR: And you've got a man on the ground with a larger man on top of him, and he had the knife in his hand at that point of time.

SIMMONDS J: ... Are you telling me - or perhaps one way of testing it, are you telling me, 'No, your Honour, willed act is not an issue. It's accident'.

PRIOR, MR: Sorry. Sorry, yes. No, I think - I'm just trying to think of the factual circumstances.

SIMMONDS J: It's possible both are in issue, but - - -

PRIOR, MR: No, well - - -

SIMMONDS J: - - - it - one doesn't get to either of them until one gets past caused death. ...

PRIOR, MR: Yes, because I suppose this will confuse, a bit, my answer, but we say it was a willed act - the stabbing in the context of it was done in self-defence - that's part of his evidence. That's another issue for the jury.

SIMMONDS J: Yes.

PRIOR, MR: It goes to close - to two issues: what was his intention when using the knife, and whether it was lawful - - -

SIMMONDS J: Yes. Yes.

PRIOR, MR: - - - and he's excused at law. Look, I really - I almost need to have a think about that overnight.

SIMMONDS J: I think you might.

PRIOR, MR: Because I must say, before the trial started I had some doubt whether willed act or accident would arise.

SIMMONDS J: All right.

PRIOR, MR: But we've now heard the evidence - - -

SIMMONDS J: It is perfectly possible that neither - that the evidentiary onus in respect of neither has been discharged, or one, or other, or both.

PRIOR, MR: Yes.

SIMMONDS J: Reflecting on all the evidence, which is of course what I will be instructing the jury to do repeatedly, there is purchase, to use a neutral term - - -

PRIOR, MR: Yes.

SIMMONDS J: - - - for each. But whether the purchase is enough for evidentiary onus purposes or not is not altogether clear, which is why I asked the question.

...

SIMMONDS J: It is clear self-defence is in issue. There is no doubt on that. I have a few - a question or two with respect to detail, but there is no doubt the evidentiary onus has been discharged there.

I wouldn't have asked the question I did in respect of willed acts and accident - which we reached a little earlier, I thought - had I not greater doubt with respect to those two.

...

SIMMONDS J: Can I say this about willed act and accident? That if the prosecution - assuming both are raised or one is raised at least, and assuming the prosecution has not discharged its burden in respect of willed act or not discharged its burden in respect of accident, let alone both, in that case no question of murder seems to me to arise because intention does not seem to be open.

It's more a question for you, Mr O'Sullivan.

O'SULLIVAN, MR: No, that's logically right I think, your Honour.

SIMMONDS J: I think that's logically right. I've heard a little bit of wavering from counsel on that but it seems to me that it's rather difficult to imagine a scenario.

O'SULLIVAN, MR: Well, murder has to have, well, relevantly here, one of those two intentions.

SIMMONDS J: And how can that be if it's - - -

O'SULLIVAN, MR: Not a willed act.

SIMMONDS J: - - - the burden has not been discharged?

O'SULLIVAN, MR: Yes.

SIMMONDS J: All right. That's helpful, thank you.

There might be a case at some stage in the future where the issue is live but this is not that case (ts 815 - 820). (emphasis added)

91 The following morning, 26 June 2015, the trial judge, the prosecutor and defence counsel continued to discuss the relevance of the defences of unwilled act and accident:

PRIOR, MR: ...

As to unwilled act or accident or both, the defence position is not leading unwilled act. And can I just say generally in this context evidentially, obviously as to whether the act was willed or not, the use of the knife and the wielding of the knife, the starting point is what [the appellant] says in his record of interview and also his evidence yesterday. Although there's the odd gap where he says, 'I don't know what happened next or when that happened', generally the tone of the evidence is, he had the knife out. There's obviously a significant factual dispute as to when.

SIMMONDS J: Yes.

PRIOR, MR: And he had it in his hand, his right hand and he used it.

SIMMONDS J: Very well.

PRIOR, MR: So in terms of the willed and whether there's knowledge and intent, we're happy - we don't seek a direction in that nature.

Accident is a little bit different. Accident, we would seek a direction and can you try to make it simple in terms of the evidence. And it probably is simple in terms of the evidence as to why it's evidentially raised, your Honour.

To start with Dr Spark - and I'll use the numeration she uses in her diagram into evidence, the fatal injuries are 2 and 3, either both of them or each of them singularly. Those chest stabs to around the heart region, those penetrating wounds.

SIMMONDS J: Yes.

PRIOR, MR: No one in the prosecution or the defence case for all that can give evidence as to what order they were incurred and more importantly, when they were incurred.

That being the case the wounds that killed [the victim], ... 2 and 3, when did they occur in a factual time context? The evidence as to when [the victim] was stabbed and where, and when in terms of when he was still standing or when he was on the ground and in particular on top of [the appellant], as we see at the end of exhibit 18 - - -

SIMMONDS J: Yes.

PRIOR, MR: - - - there's no clear factual outcome there. It's something for the jury.

So when they were incurred, those wounds 2 and 3. And the other thing that's vague about the evidence in totality is how the two men came to the ground.

SIMMONDS J: Yes.

PRIOR, MR: The struggle seems to be the highest point. No one says one pulled the other down or one fell on the other. But the problem with that is, and this is where I would submit accident arises, there's a potential link. The man on the ground at the end, [the appellant], who, there doesn't seem to be much dispute, still has the knife in his hand, could have accidentally caused the fatal wound at that point of time, when [the victim] lands on top of him, got in the way.

SIMMONDS J: Yes, all right. That was the factual scenario that occurred to me. Yes.

...

SIMMONDS J: ...

Mr O'Sullivan?

O'SULLIVAN, MR: With respect yes, I'd agree with my learned friend. I don't see room for unwilled act here. But accident, we're talking about the event, the event is probably the wound, the actual wound itself rather than necessarily going as far as saying the death, but once you've got that there, the way that the evidence was given yesterday probably raises the fact that the knife goes in during the course of the struggle. And that's what he keeps saying. It's the struggle that did it. He had great difficulty coming to the proposition that he'd actually done it. He says it's the struggle.

SIMMONDS J: Yes.

O'SULLIVAN, MR: So that would seem to raise accident if nothing else.

SIMMONDS J: All right. Thank you, for that. I'm grateful for that (ts 831 - 834). (emphasis added)

92 The passages I have reproduced from the discussion between the trial judge, the prosecutor and defence counsel reveal a misunderstanding as to the legal principles relating to the defences of unwilled act and accident and their possible application to the facts of the case. I will develop and explain that point in the course of determining the merits of ground 2.

Ground 2: defence counsel's closing address

93 Defence counsel made these submissions in his closing address:

(a) One of the crucial issues for the jury to consider was the appellant's intention 'when he used the knife' (ts 874).

(b) Other questions for the jury included 'what was [the appellant's] intention when the knife came out?'; 'when was the knife actually used?'; '[w]hen did [the appellant] swish it around, move it?'; and 'when was [the victim] fatally stabbed?' (ts 876).

(c) Defence counsel elaborated that the jury would need to decide 'when [the victim was] fatally stabbed'; in particular, was the victim fatally stabbed 'when he was on top of [the appellant], when he was standing out by the car or was it earlier on?' (ts 877).

When were these two mortal wounds, two or three to use the numeration of Dr Spark, when were they incurred and how were they incurred? Was it an accident? Was it done when [the appellant] was defending himself (ts 878)?

(e) Defence counsel played part of the video recording made by Ms Turner and then made the following submission:

And [the appellant] has said, 'I'm using the knife' - and I'm paraphrasing what he's saying - 'but I'm using my knife at that point of time to defend myself.' ... [P]art of the prosecution case is, I suppose, that one, if not both, of those fatal wounds had already been incurred before he hit the ground. Because if you've got a doubt about that, the self-defence response, if you like, is very important as to what's going on here (ts 890 - 891).

(f) Defence counsel made this submission about the appellant's credibility:

Now, [the prosecutor] says there's gaps in [the appellant's] story and he can't remember things. Well, once again, that might at first glance look like a negative, but it's also a positive, if you think about it, for his credibility. Because why not say, 'Look, the knife never came out. I got it out just as he went to punch the window and just before we went to the ground, I got the knife out. That was the only time it was out'.

He says to the police, and to you yesterday, 'There's bits I can't explain. It was pretty quick. It was pretty violent. It was pretty traumatic'. And we all know what the end result is. So think about his record of interview, what he said on the 15th and 16th, really in two parts, separated by overnight and separated by the trip, I think, to Lesmurdie (ts 900 - 901).

(g) Defence counsel sought to explain for the jury the appellant's assertion in cross-examination that the victim's death was caused by 'the struggle':

[Y]ou might remember it vividly, when [the prosecutor] was saying, 'You caused the death of [the victim]', and [the appellant's] saying, 'It was the struggle. It was the struggle'.

Well, I'm his counsel. He caused the death of [the victim]. No ifs, no buts. The death in terms of the knife that went into the man, yes, that's causation. But that's not why we're here.

This is a criminal trial. He's charged with murder. So the man over there is charged with intentionally either killing him or causing him serious injury and not acting in self-defence. That's what we're here about. So yes, it might have been difficult for him to accept or acknowledge that. A man is dead, and it's not like, 'Oh, well, look, someone else did it' or 'he was injured before'. It's about criminal responsibility (ts 901 - 902). (emphasis added)

(h) Defence counsel noted that Dr Spark could not say when the fatal wounds (that is, the second and third injuries) were sustained (ts 904). According to defence counsel, it was 'entirely possible' they were sustained when the victim was on top of the appellant and, as the appellant contended, '[the appellant's] eyes [were] being gouged and his ear was bitten' and '[the victim was] wrestling and [the appellant has] got the knife' (ts 904).

(i) Defence counsel reiterated that a crucial issue for the jury was the appellant's intention 'when he was using the knife' (ts 907).

(j) Defence counsel also reiterated his explanation of the appellant's evidence in cross-examination that the victim's death was caused by 'the struggle':

[Y]ou can critically look at, perhaps, what [the appellant] said yesterday and I've alluded to it already, when [the prosecutor] was saying, 'Well, you caused [the victim's] death.' And he said, 'Well, the struggle did.' Now, that might be [the appellant's] own way - might not be that articulate or intelligent, but he's saying to you he had a struggle and then when you drill down to that, what he's saying to you is, 'Yes, when I was defending myself with the knife.' That's what he's saying (ts 908 - 909).

94 As I have mentioned, the trial judge directed the jury in his summing up as to, amongst other things, the elements of murder, the alternative verdict of manslaughter, self-defence and the defence of accident. His Honour did not leave to the jury the defence of unwilled act.

Here ... it is not in contest that [the appellant] caused the death of [the victim], nor is it in contest that the causing of that death was the result of the entry of the knife ... into the body of [the victim] (ts 959).

96 That instruction was consistent with defence counsel's submissions in his closing address. Defence counsel did not seek any additional direction or redirection.

Ground 2: the legal principles that must be examined

97 It is necessary, in view of the approach of the trial judge, the prosecutor and defence counsel to the defence of unwilled act and the defence of accident, to examine the nature of the evidential burden on an accused in relation to a defence, the principles governing the defences of unwilled act and accident and the nature of a trial judge's obligation to leave a defence to the jury.

Ground 2: the evidential burden on the accused in relation to a defence

98 Section 112 of the Criminal Procedure Act 2004 (WA) states, relevantly, that 'the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice'.

99 The law in Western Australia concerning a summing up in a criminal trial before a judge and jury is not relevantly different from the law in trials at common law. See Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [77] - [78] (McHugh J).

100 If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as in the present case) the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, had been negatived? Questions as to the weight to be given to the evidence and the credibility of the accused are matters for the jury. See Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ).

101 A trial judge must leave a defence to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived the defence, even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it. See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 - 118 (Barwick CJ, Windeyer J agreeing), 132 - 133 (Menzies J); Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 - 162 (Gibbs CJ, Wilson, Brennan & Deane JJ); Fingleton [83] (McHugh J); Braysich [32].

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

...

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused (117 - 118).

[C]ounsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused. The law is always for the judge (133).

104 In Van Den Hoek, Gibbs CJ, Wilson, Brennan and Deane JJ said:

Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration (161).

105 In Fingleton, McHugh J emphasised, by reference to Barwick CJ's statement of the relevant principles in Pemble (117 - 118), that a trial judge is bound to put to the jury 'every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it' [83]. See also Braysich [32].

106 The accused may discharge the evidential burden by giving or calling evidence, or by pointing to evidence called in the State's case. See Braysich [37]. Slender evidence may be sufficient, depending on the facts and circumstances of the particular case, to discharge the evidential burden.

107 If the accused discharges the evidential burden then the jury is responsible for making findings of fact in relation to the elements of the defence.

Ground 2: the text of s 23A and s 23B of the Code

108 Before the enactment of the Criminal Law Amendment (Homicide) Act 2008 (WA), s 23 of the Code read:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

109 By s 4 of the Criminal Law Amendment (Homicide) Act, s 23 was repealed and replaced by new sections 23, 23A and 23B. Section 4 commenced on 1 August 2008.

111 At the material time, s 23A of the Code provided:

(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2) A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.

112 At the material time, s 23B of the Code provided:

(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2) A person is not criminally responsible for an event which occurs by accident.

(3) If death or grievous bodily harm -

(a) is directly caused to a victim by another person's act that involves a deliberate use of force; but

(b) would not have occurred but for an abnormality, defect or weakness in the victim,

the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.

(a) even if the other person did not intend or foresee the death or grievous bodily harm; and

(b) even if the death or grievous bodily harm was not reasonably foreseeable.

113 Section 23A reproduces, in substance, the first part of the first paragraph of the former s 23 of the Code in relation to unwilled acts and omissions. The case law on the first part of the first paragraph of the former s 23 is relevant to the interpretation and application of the current s 23A.

114 Section 23B(1) and s 23B(2) reproduce, in substance, the second part of the first paragraph of the former s 23 of the Code in relation to accident. The case law on the second part of the first paragraph of the former s 23 is relevant to the interpretation and application of the current s 23B(1) and s 23B(2).

115 At all material times before 4 April 2011 (when the Criminal Code and Other Legislation Amendment Act 2011 (Qld) came into operation), the provisions of s 23(1) of the Criminal Code (Qld) (the Queensland Code) with respect to:

(a) unwilled acts and omissions were relevantly identical to the provisions of the first part of the first paragraph of the former s 23 of the Code and the current s 23A of the Code with respect to unwilled acts and omissions; and

(b) accident were relevantly identical to the provisions of the second part of the first paragraph of the former s 23 of the Code and the current s 23B(1) and s 23B(2) of the Code with respect to accident.

Ground 2: the elements of the defence of unwilled act

116 In Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, Gibbs J (Stephen J agreeing) distinguished between the unwilled physical acts or omissions of the accused apart from their consequences, on the one hand, and the 'accidental outcome of his willed acts', on the other, for the purposes of s 23 of the Queensland Code (226 - 227). Although the two parts of s 23 dealt with related matters, they were quite distinct (226).

117 Gibbs J said the first part of s 23, namely that a person is not criminally responsible for an act which occurs independently of the exercise of his or her will, requires that the act for which a person is criminally responsible shall be his or her own act, and an act which results from the exercise of his or her will (226 - 227). That is, the first rule, insofar as it applies to acts of the accused himself or herself, requires that those acts should be of his or her own volition (227). The accused should have willed that the acts themselves should happen (227).

118 His Honour noted that the first part of s 23 is not concerned with the consequences of an act which the accused has willed (227). It is the second part of s 23, namely that a person is not criminally responsible for an event which occurs by accident, that exculpates an accused from liability for the accidental outcome of his or her willed acts (227).

119 Gibbs J held that the word 'act' in the first part of s 23 (that is, the part of s 23 which deals with unwilled acts) is not intended to embrace the consequences as well as the action that produced them (231). So, the 'act' to which the first part refers is some physical action or movement, apart from its consequences (231).

120 In Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171, the appellant was convicted after a trial of murder. The deceased received a fatal knife wound in the course of a fight between the appellant, holding a knife, and the deceased, wielding a cricket bat. The appellant gave evidence that he put his hand up to push the deceased away as the deceased approached to hit him with the cricket bat. There was no dispute at the trial that the appellant was holding the knife when the deceased sustained the fatal wound to his chest, but the appellant denied in evidence having used the knife to stab the deceased. The trial judge directed the jury on the law of self-defence, but did not separately put to the jury whether there might have been an unwilled act by the appellant within s 23 of the Code. The appellant's appeal to the Court of Criminal Appeal of Western Australia was, by majority, dismissed. The High Court allowed the appellant's further appeal, set aside the conviction and ordered a new trial.

121 The High Court held that the trial judge's summing up had not given effect to the possibility of an unwilled act within s 23. The question of a willed or unwilled act was logically anterior to the questions of whether, by reason of self-defence, the killing was lawful and, if not, whether it was done with an intention to kill or do grievous bodily harm.

122 Gummow and Hayne JJ (Gaudron J relevantly agreeing) said:

Section 23 deals with two subjects, unwilled acts and events occurring by accident. It is convenient to deal first with the accident limb. As has been noted earlier, trial counsel disavowed reliance on the limb of s 23 which deals with events occurring by accident. She was right to do so. The evidence led at the appellant's trial did not raise an issue about an event that occurred by accident. There was, however, an issue about whether there may have been an unwilled act.

The distinction which is made in s 23 between 'acts' and 'events' is not without difficulty. In the joint reasons of three Justices in R v Falconer ((1990) [1990] HCA 49; 171 CLR 30 at 38, per Mason CJ, Brennan and McHugh JJ) it was said of s 23 of the Criminal Code that:

'[t]he first limb of s 23 requires the act to be willed; the second limb relates to events consequent upon the act: it excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen.'

At least a majority of the members of the Court held in Falconer that the 'act' of which s 23 speaks is, in a context like the present, the 'death-causing act ... not the death itself' (R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 38, per Mason CJ, Brennan and McHugh JJ; 81, per Gaudron J. See also Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56; Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62; Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47; Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209). It is not necessary to consider whether that formulation of the meaning to be given to 'act' in s 23 leaves some unanswered questions. For present purposes, it is enough to notice that a distinction is to be drawn between the 'act', with which the first or unwilled act limb of s 23 deals, and the 'event', with which the second or accident limb deals.

It appears not to have been disputed in the Court of Criminal Appeal, or in this Court, that in the present case the relevant 'event' against which the accident limb of s 23 had to be considered was the death of the deceased. There was, however, no issue raised at the trial about whether the consequences of the knife entering the body of the deceased were unlikely or unforeseen. That being so, the accident limb of s 23 was not engaged. What was in issue, however, was whether the insertion of the knife in the body of the deceased was a voluntary act - an act 'willed' by the appellant. One view of the evidence that the jury might have taken was that the prosecution had not proved that it was. And that was a question for the jury, not a question to be decided by the judge. It follows that the jury should have been directed to consider this issue [25] - [27].

The directions of the trial judge did not give effect to the possibility of an unwilled act within the meaning of s 23 of the Code. The jury should have been directed that the Crown was obliged to negative that possibility. The fact that on one version of the appellant's defence, self-defence, his act of 'fending off' may have been intentional, that is, intentionally defensive, did not relieve the trial judge of the necessity to direct in accordance with s 23. It remained for the jury to assess all of the evidence in the case, including any apparently conflicting versions given by the appellant. Indeed, it may be, having regard to the flurry of events at the time of the penetration of the knife, a person might be excused for being unable to say with certitude whether a particular movement was instinctively self-protective or otherwise unaccompanied by a will to inflict harm. However, as I point out in Murray [Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 at 235 - 236 [148], [149]], the sequence of acts leading up to the penetration such as the choice of a knife and the appellant's voluntary participation in accosting [the deceased] may have much to say about the nature of the movement of the arm and hand with the knife in it [75].

Ground 2: the elements of the defence of accident

124 In Kaporonovski, Gibbs J held that an event occurs by accident, within the second part of s 23 of the Queensland Code, 'if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person' (231).

125 In R v Taiters; Ex parte Attorney-General [1997] 1 Qd R 333, the Court of Appeal of Queensland (Macrossan CJ, Pincus JA & Lee J) made these observations about the references to 'act' and 'event' in s 23 of the Queensland Code:

It should now be taken that in the construction of s 23 the reference to 'act' is to 'some physical action apart from its consequences' and the reference to 'event' in the context of occurring by accident is a reference to 'the consequences of the act'. Even if, as has been said, there can on occasion be some difficulty, in an exceptional case, in distinguishing the border line between act and event so viewed, this theoretical distinction is clear. Taking an example from Kaporonovski itself, the thrusting of the glass by the accused was the act and the injury to the victim's eye which constituted the grievous bodily harm was the event. A number of occurrences can as a result of the operation of one or more chains of causation follow upon the doing of an act. However, s 23 is concerned to excuse from criminal liability so the relevant event for the purpose of the section should be taken to be the one which, apart from the operation of the section, would constitute some factual element of an offence which might be charged. In cases when grievous bodily harm is charged the state of bodily harm will be the relevant event and when unlawful killing is charged, the death will be the relevant event (335).

126 In Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372, Anderson J said:

It appears now to be settled that the reference to 'event' in s 23 is a reference to the consequential event, that is, the event consequential upon the 'act or omission': R v Taiters (1996) 87 A Crim R 507 at 509. An event occurs by accident within the meaning of s 23 if it was a consequence which was not, in fact, intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 per Gibbs J at 231. An event will not therefore be an accident unless two requirements are met. Firstly, the event must not be intended or foreseen by the accused. That is the subjective element. Secondly, the event must be one which would not reasonably have been foreseen by an ordinary person. That is the objective element [83]. (emphasis added)

See also Hussaini v The State of Western Australia [2009] WASCA 207 [10] - [11] (Wheeler JA).

127 In Taiters, Macrossan CJ, Pincus JA and Lee J examined the degrees of likelihood comprehended by the objective and subjective elements of the defence of accident:

If the outcome of some action is regarded as certain or even just more probable than not, it cannot legitimately be called accidental. Even if there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental. On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.

The references which have been made in the cases to 'reasonably' and 'ordinary person' in the context under discussion, give an emphasis to the fact that the relevant test calls for a practical approach and is not concerned with theoretical remote possibilities. It directs inquiry to what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time for assessing probabilities, this being a factor which is applicable to a great deal of human activity. However, it should not be accepted that some real risk of an outcome which an ordinary person in the circumstances would have been conscious of, can be disregarded by the doer of an action, yet still, if it eventuates, be called accidental within the meaning of the section. In the subjective part of the expression being considered under s 23 ('an event which occurs by accident'), ie when it is necessary to consider 'foreseen' by the accused, the same degrees of likelihood will be regarded as those discussed in connection with the objective test (338).

128 So, the State can disprove accident, within s 23B of the Code, if it proves beyond reasonable doubt either that, subjectively, the accused intended or foresaw the event in question as a possible outcome or that, objectively, the relevant event would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome (excluding, in each case, possibilities that are no more than remote and speculative).

129 Where the accused has been charged with unlawful killing, the relevant 'event' within s 23B(2) is the victim's death.

130 Counsel for the State submitted that, even on the version of events most favourable to the appellant, it could not be concluded that there was material on which a reasonable jury might fail to be satisfied beyond reasonable doubt that any defence based on s 23A of the Code had been negatived. That is, it was submitted that there was no evidence which raised the question of whether the fatal injuries were inflicted by unwilled acts on the part of the appellant.

131 In the present case, neither the defence of unwilled act nor the defence of accident was raised by defence counsel in his opening address.

132 It is apparent from the discussions between the trial judge, the prosecutor and defence counsel on 25 and 26 June 2015 that defence counsel had not anticipated at least some of the evidence which the appellant gave in cross-examination as to the circumstances in which the victim suffered the fatal wounds or the mechanism by which those wounds were sustained.

133 The appellant's evidence in cross-examination was, at times, inconsistent, argumentative, evasive, vague and unresponsive to the prosecutor's questions. The appellant appears, on one view of the evidence, to have been unwilling or unable to accept any responsibility for the victim's death.

134 His evidence in cross-examination was also, in some respects, relevantly inconsistent with other evidence he gave at trial and with some statements he made in his video-recorded interview with the police.

135 As I have mentioned, it is apparent from the discussions between the trial judge, the prosecutor and defence counsel in relation to an 'unwilled act' direction and an 'accident' direction that there was a misunderstanding as to the relevant legal principles and their application.

(a) The 'act' in s 23A(2) of the Code is not intended to embrace the consequences as well as the action that produced them. So, the 'act' to which s 23A(2) refers is some physical action or movement, apart from its consequences. See Kaporonovski (231).

(b) Section 23A(2), insofar as it applies to acts of the accused himself or herself, requires that those acts should be of his or her own volition. The accused should have willed that the acts themselves should happen. See Kaporonovski (227).

(c) By contrast, the 'event' in s 23B(2) of the Code is a reference to the consequential event; that is, the event consequential upon the 'act' in s 23A(2). See Taiters (335); Stanik [83].

(d) In the present case, the 'event' was the victim's death. His death was consequential upon the 'act' or 'acts' which caused the knife to enter his chest and inflict the penetrating sharp force injuries.

137 As I have mentioned, during the discussions defence counsel submitted:

The man on the ground at the end, [the appellant], who, there doesn't seem to be much dispute, still has the knife in his hand, could have accidentally caused the fatal wound at that point of time, when [the victim] lands on top of him, got in the way (ts 833).

138 That submission reflects a misunderstanding of the distinction between an 'act' within s 23A(2) of the Code and an 'event' within s 23B(2). What defence counsel appears to have been attempting to assert was that 'the fatal wound' may have been inflicted by an unwilled act of the appellant. Defence counsel appears to have used the word 'accidentally' in its colloquial rather than its legal sense.

139 Unfortunately, the prosecutor agreed with defence counsel's submission that the defence of 'accident', but not the defence of 'unwilled act', was open on the evidence (ts 834).

140 The trial judge, after expressing his gratitude to the prosecutor (and, perhaps, defence counsel) for his submissions on those points (ts 834), proceeded to direct the jury accordingly.

141 I am satisfied that the defence of accident did not arise on the evidence. It should not have been left to the jury. If the appellant had, by a willed act or willed acts, caused the knife to enter the victim's chest and inflict one or more of the penetrating sharp force injuries, there was no evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived that the relevant event (namely, the victim's death) would reasonably have been foreseen by an ordinary person, in the appellant's position, as a possible outcome of the appellant's action or actions (excluding possibilities that are no more than remote and speculative).

142 The relevant substance of the appellant's evidence at trial, in relation to the possible defence of unwilled act, was as follows:

(a) There was a physical fight or altercation between the appellant and the victim.

(c) There was a struggle between the appellant and the victim over the knife.

(e) The knife, while in the appellant's hand, went into the victim's body four times.

(f) The appellant put the knife into the victim's body and this caused the victim's death.

(g) The appellant did not intend to put the knife into the victim's body.

(h) The appellant did not deliberately stab the victim with the knife.

(i) The appellant stabbed the victim in the course of the struggle between them and during the struggle both of their hands were on the handle of the knife.

(j) The appellant could not remember the knife being in the victim's body and he did not remember pulling the knife at least partially out or moving it around.

(k) The appellant had 'no idea how the wounds that caused [the victim's] death happened'; all he could say is that the wounds occurred 'in the scuffle' (ts 794).

(l) The knife was only used on the victim in the scuffle while they were on the ground. The victim was on top of the appellant while they were on the ground and the appellant 'didn't know what was going on' (ts 797).

(m) The appellant was 'just holding onto' the knife while he and the victim were 'wriggling around on the ground' (ts 810).

(n) The appellant first became aware that the victim had been wounded when the victim was on top of him and he felt blood.

143 That evidence of the appellant must be evaluated with relevant evidence given by Dr Spark.

(a) The infliction of the first injury would have required 'a moderate amount of force' (ts 446). The infliction of the second injury would have required 'slightly more' force in order 'to cause the bony injury as well' (ts 446). The infliction of the third injury would have required 'a moderate amount of force, at least' (ts 448).

(b) It was impossible to say 'what position [the victim] and the holder of the knife were in when [the four penetrating sharp force injuries] were inflicted' (ts 476).

(c) The weight of the victim 'coming down onto the knife [could certainly] contribute to the depth of the penetrating sharp force injury' (ts 479).

(d) The chest is reasonably compressible. The deeper a wound track of a sharp force injury the greater the force required to inflict the injury, but that does not 'necessarily equate to how much force' (ts 479 - 480). It is 'more of a relative thing' (ts 480). It does not 'describe the source of the force' (ts 480).

(e) If the second and third injuries were sustained 'when [the victim] was facing forward and down, the organs have their own weight and they would sit closer to the chest' (ts 484).

145 In my opinion, the evidence of the appellant and the evidence of Dr Spark to which I have referred was sufficient to discharge the appellant's evidential burden in relation to the defence of unwilled act. In particular, that evidence was sufficient to raise for the jury's consideration whether any acts of the appellant that caused the fatal wounds (that is, the second and third injuries) were acts of the appellant's own volition; that is, acts which the appellant had willed. It is notable, in this context, that the trial judge, the prosecutor and defence counsel, who had seen and heard the appellant give evidence and were absorbed in the atmosphere of the trial, thought that either the defence of unwilled act or the defence of accident should be left to the jury. Unfortunately, as I have mentioned, there was confusion at the trial as to the elements and proper application of those defences. Eventually, it was erroneously agreed that accident should be left.

146 I am satisfied that his Honour was bound, in the circumstances, to leave the defence of unwilled act to the jury. His Honour was not absolved from directing on unwilled act by defence counsel's ultimate decision to disavow that defence or by the prosecutor's support for defence counsel's stance. The prosecutor and defence counsel misunderstood the law relating to unwilled act and accident and the application of the law to the evidence at trial. His Honour failed to recognise and correct the misunderstanding.

147 Defence counsel's disavowal of the defence of unwilled act was not a rational tactical decision. It is therefore unnecessary to consider the interaction between a rational tactical decision by defence counsel to disavow a defence, on the one hand, and a trial judge's obligation to leave a defence to the jury, on the other, where the leaving of the defence would undermine or scuttle defence counsel's strategy. I merely note that in Pemble, Barwick CJ (Windeyer J agreeing) said:

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part (117 - 118).

148 It was for the jury to assess the evidence of the appellant and the evidence of Dr Spark to which I have referred, in the context of all of the evidence at trial, including that part of the appellant's evidence which was inconsistent, argumentative, evasive, vague and unresponsive. Decisions as to the appellant's credibility and as to the weight to be given to his evidence were matters for the jury. The critical question for the jury in relation to the defence of unwilled act was whether the appellant had inserted the knife into the victim's body and, if so, whether the appellant's actions with the knife were 'willed'.

149 I am persuaded that, at the close of the evidence at the appellant's trial, there was evidence which, taken at its highest in his favour, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived the defence of unwilled act.

150 Ground 2 has been made out. Leave to appeal should be granted.

Ground 2: the non-application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA)

151 Counsel for the State conceded that if ground 2 was made out then it could not be said that no substantial miscarriage of justice has occurred. In other words, counsel for the State conceded that the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) was not engaged. In my opinion, the concession was properly made.

152 It was for the jury to assess the evidence. I am unable to conclude that a jury, properly instructed, would necessarily have decided beyond reasonable doubt that any actions by the appellant involving the insertion of the knife into the victim's chest were acts willed by the appellant. I am not satisfied beyond reasonable doubt that no substantial miscarriage of justice has in fact occurred. I am not persuaded to the criminal standard that the appellant has not been denied a chance of an acquittal that was fairly open to him.

153 Leave to appeal on ground 1 should be refused and leave to appeal on ground 2 should be granted.

154 I would allow the appeal, set aside the judgment of conviction for murder and order a new trial on the count pleaded in the indictment.

155 MAZZA JA: The relevant facts and statutory provisions of the Criminal Code (WA) are set out in Buss P's reasons. I will repeat them only to the extent necessary to explain the conclusions I have reached.

156 I agree with his Honour, for the reasons that he gives, that ground 1 fails and that leave to appeal should be refused.

157 I have arrived at a different conclusion to Buss P in respect of ground 2. In my opinion, there was no evidential basis for leaving to the jury the defence of unwilled act pursuant to s 23A of the Code.

158 The appellant and his girlfriend, Ms Cook, drove to the caravan occupied by the deceased, Mr Koller, and his partner, Ms Williams, to confront Mr Koller over the deceased having had sex with Ms Cook. The appellant brought with him a large folding knife which he had placed in a sock he was wearing. Shortly after the appellant's arrival at Mr Koller's caravan, he unfolded the knife. A physical altercation followed. The appellant held the unfolded knife at all times during this altercation. Initially, the two men fought on their feet. However, over the course of the struggle both men ended up on the ground. The appellant landed on his back with Mr Koller on top of him.

159 Eventually, the appellant escaped from underneath Mr Koller, at which point he threw the knife onto the ground. He and Ms Cook then drove away. At some point during the physical altercation, Mr Koller sustained multiple stab wounds. It was not in issue that those wounds were inflicted with the knife the appellant had brought with him and held in the altercation. Ambulance officers were called, but Mr Koller died at the scene. As will be seen, his death was caused by the stab wounds he received.

160 On 15 and 16 April 2014, the appellant was interviewed by the police. The appellant told the police that he remembered having the knife in his hand in the physical altercation and that it all happened 'very fast'. He described Mr Koller swinging at him with a screwdriver and throwing a gas bottle at him. The appellant appeared to accept that he had stabbed

Mr Koller, but he was unable to say how many times or in what position he was in when it occurred. He did say that he knew 'it [the stabbing] wasn't when he was on top of me'. The gist of the appellant's answers in the police interview was that he acted in self-defence. Contrary to the written submissions made on behalf of the appellant, filed 8 August 2016, there was nothing said in the police interview which was capable of discharging the evidential onus for a defence of unwilled act.

161 A post-mortem examination of Mr Koller was conducted by Dr Amy Spark on 16 April 2014. She found that Mr Koller suffered four penetrating sharp force injuries to the chest and abdomen with five wound tracks and injuries to the heart and stomach (ts 462). The location of each of the four penetrating sharp force injuries may be seen on the diagram drawn by Dr Spark at the post-mortem examination (exhibit 25). She concluded that the cause of death was 'penetrating sharp force injuries to the chest' (ts 441). Three of these injuries penetrated the chest (wounds 1, 2 and 3). Wounds 2 and 3 penetrated the heart. Wound 1 penetrated the right pectoralis towards the right shoulder (ts 443). As I read Dr Spark's evidence, the cause of Mr Koller's death was blood loss from the wounds to the heart (ts 448).

162 Dr Spark testified that it was not possible for her to say where the appellant and deceased were positioned when the different wounds were inflicted (ts 476).

163 In cross-examination, no scenario was put to her to the effect that Mr Koller had impaled himself multiple times on the knife held by the appellant. At one point, Dr Spark agreed that if any one of the penetrating sharp force injuries was inflicted in a struggle where the deceased was on top of the appellant, the weight of the deceased 'coming down onto the knife' could have contributed to the depth of the penetrating sharp force injuries and that the weight of the deceased would decrease the force required by the person holding the knife (ts 479). However, this cross-examination was not in the context of a proposition that Mr Koller may have impaled himself.

164 At trial, the appellant's counsel made a series of factual admissions pursuant to s 32 of the Evidence Act 1906 (WA). They cannot be read as an admission that the stabbing of Mr Koller was a willed act by the appellant.

165 The appellant's trial counsel's opening address made no mention of unwilled act. To the contrary; he made it clear that the appellant's case was that he used the knife in self-defence.

166 The appellant gave sworn testimony. I will return to his testimony later in these reasons.

167 After the defence case closed, the learned trial judge raised with trial counsel whether he should leave to the jury the defences of unwilled act or accident, pursuant to s 23B of the Code, or both. In the end, with the acquiescence of both trial counsel, only accident was left to the jury. Defence counsel disavowed unwilled act. I accept that this decision was based upon a misunderstanding of the operation of the relevant Code provisions: see ts 832 - 833. In fairness to defence counsel, it was a misunderstanding shared by the prosecutor and the trial judge.

168 I agree with Buss P, for the reasons that he gives, that the defence of accident was erroneously left to the jury.

169 The issue raised by ground 2 is whether there was an evidential basis for the defence of unwilled act pursuant to s 23A of the Code to have been left to the jury. If the defence should have been left for the jury's consideration, his Honour was bound to direct the jury in respect of it, regardless of whether defence counsel disavowed any reliance upon it.

170 The test to be applied was described by French CJ, Crennan and Kiefel JJ in Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36]:

If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be:

1. In a case where the legal burden is on the prosecution and the evidential burden on the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?

171 The evidential onus cast upon the appellant does not present a high bar. The factual analysis must have regard to the evidence as a whole. But in undertaking that analysis, a judge must guard against speculation and the assumption of facts in favour of an accused where there are gaps in the evidence.

172 A consideration of a claimed defence under s 23A of the Code requires the 'act' to be identified. In a homicide, the 'act' for the purposes of s 23A is the 'death-causing act ... not the death itself': R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 38; Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171 [26] and Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [42]. I accept that in deciding what is the 'act', it is important to avoid an overly refined analysis: Murray v The Queen [49].

173 As Callinan J pointed out in Murray v The Queen [148], from time to time there will be cases where it will be difficult to identify the relevant 'act'. This is not such a case. Here, the death-causing act was, or acts were, the insertions of the knife into the deceased's chest which pierced his heart. According to Dr Spark's evidence, both wounds 2 and 3 pierced the heart muscle. Wound 2 also pierced a blood vessel on the surface of the heart. Wound 3 had two tracks, both of which pierced the heart. The two wound tracks in wound 3 reflect two knife movements (ts 447). Wound 4 was survivable. Although not completely clear from Dr Spark's evidence, I will assume, in favour of the appellant, that wound 1 was not fatal.

174 Buss P has referred in detail to the appellant's evidence at trial, including by direct reference to the transcript. I agree with him that, under cross-examination, the appellant appeared argumentative, evasive, vague and unresponsive to the prosecutor's questions. I also agree that the appellant's evidence in cross-examination was, in some respects, inconsistent with his evidence-in-chief and some statements made during the police interview. For my part, I would add that, particularly in cross-examination, the appellant's testimony appears confusing. However, the impact, if any, of these matters was for the jury and not the judge to decide. The task for the trial judge was to faithfully apply the Braysich test.

175 The hypothetical scenario in which the knife was inserted into the body of the deceased by unwilled acts of the appellant involved, in effect, Mr Koller impaling himself on the knife held by the appellant. This was the only scenario proffered by the appellant to this court to explain how Mr Koller suffered the four wounds identified by Dr Spark. On the facts of this case, such a scenario would require Mr Koller to have impaled himself on the knife not once (as in Ugle), but in such a way as to give rise to the two separate fatal wounds to the chest - wounds which caused three separate wound tracks into the heart. Based on Dr Spark's evidence, this would require three separate impaling movements by Mr Koller. I have put to one side the infliction of wounds 1 and 4, but it should be noted that the appellant's argument in this court is that those wounds were also caused by Mr Koller impaling himself on the knife held by the appellant. How Mr Koller could realistically have impaled himself on the knife held by the appellant so as to create five wound tracks has not, to my mind, been adequately explained, having regard to the evidence.

176 It was suggested that Mr Koller could have fallen onto the knife when he fell on top of the appellant. This might explain one such wound, but it does not explain the multiple wounds and tracks. The appellant argued that it may be seen from the DVD of the recording made by Ms Turner (exhibit 18) that Mr Koller moved around while on top of the appellant and that he could have impaled himself in that process. I have viewed exhibit 18. It is difficult to tell what went on between Mr Koller and the appellant. While it is correct that Mr Koller was on top of the appellant, it is impossible to see where the knife was and how it was positioned in relation to the deceased. For Mr Koller to have impaled himself as the appellant posits would require the appellant to have held the knife so that the blade was directed towards Mr Koller and for Mr Koller to impale himself on the blade multiple times. The appellant did not say this occurred. The appellant did say that he did not stab Mr Koller deliberately. However, he qualified this statement to mean that he did not stab Mr Koller 'in cold blood' - that is, without reason (ts 767). Dr Spark was not asked about such a scenario and its likelihood, and no witness testified to the effect that it occurred. The appellant's testimony that the stabbing occurred during 'the struggle' or 'the altercation' is no more than a statement of the obvious and is, in context, suggestive only of self-defence. His inability to recall what precisely occurred in the altercation with Mr Koller or explain how the wounds were inflicted does not mean his actions were unwilled. The appellant accepted that he caused the four sharp-force injuries to the abdomen (ts 767). In my view, the proposition that Mr Koller impaled himself on the knife while on top of the appellant is speculative at best.

177 On the basis of the evidence taken at its highest, I am unable to accept that a reasonable jury, properly instructed, could have had a reasonable doubt that the acts which caused Mr Koller's death were unwilled. In my view, the evidence was insufficient to discharge the appellant's evidential onus in relation to the defence of unwilled act under s 23A of the Code_._ The trial judge was not required to leave the defence for the jury's consideration. His Honour's failure to do so has not given rise to any miscarriage of justice. While I would grant leave to appeal on ground 2, the ground has not been made out.

178 As neither ground of appeal has been made out, the appeal must be dismissed. The orders I would make are:

1. Leave to appeal is refused on ground 1.
2. Leave to appeal is granted on ground 2.
3. The appeal is dismissed.

179 CORBOY J: The principal issue in this appeal was whether the jury were required to decide whether the appellant was not criminally responsible, by reason of s 23A of the Criminal Code (WA), for the acts that caused the death of Mr Koller. I have concluded that the jury was required to decide that question and that the trial judge erred in not directing the jury accordingly.

180 The facts and circumstances relevant to the appeal are contained in the President's reasons. It should be noted that the appellant's counsel told the jury in his opening address that the appellant's 'defence' was that the appellant was 'acting in self-defence when he used the knife' (ts 67).

181 The post mortem examination conducted by Dr Spark disclosed that Mr Koller had sustained four penetrating sharp force injuries to the chest and abdomen and two sharp force injuries on the right side of the torso, below the bottom level of the ribs and penetrating to just below the skin. The sharp force penetrations to the chest and abdomen caused internal injuries to Mr Koller's heart, ribcage and stomach (ts 441). Dr Spark concluded that Mr Koller's death was caused by 'penetrating sharp force injuries to the chest' (ts 441). It was not in issue that the injuries described by Dr Spark were caused by a knife held by the appellant during his struggle with Mr Koller.

182 Dr Spark could not express an opinion on the sequence in which the injuries to Mr Koller had been inflicted. However, the injuries were referred to in the order in which they were described by Dr Spark in her evidence.

183 The first injury to Mr Koller's chest was a penetrating sharp force injury to the upper right side of the chest. The wound track was through the pectoralis and towards the right shoulder. The wound track for the second and third injuries passed through the pericardial sac and into the

heart (the left side for the second injury and the right side for the third injury). The fourth injury was to the left upper outer aspect of the front of the abdomen.

184 Dr Spark accepted that the fourth injury was 'a potentially survivable wound' (ts 449). She also explained that an injury to the right side of the heart can cause death more rapidly than the equivalent injury to the left side of the heart (ts 448). She did not otherwise distinguish between the injuries in determining the cause of Mr Koller's death.

185 Dr Spark stated that at least moderate force would have been required to inflict the penetrating injuries to Mr Koller's chest and abdomen, except for the fourth injury (ts 446, 448). A 'mild to moderate amount of force' would have been required to inflict that injury (ts 449). Significantly, Dr Spark was unable to express an opinion on the position of the appellant and Mr Koller when each of the sharp force injuries had been inflicted (ts 476).

186 The State did not exclude any of the four injuries to Mr Koller's chest and abdomen as the cause of death. However, the prosecutor stated in his closing address that the 'focus' was on the second and third injuries (for obvious reasons). The appellant's counsel addressed the jury in closing on the basis that Mr Koller's death had been caused by either the second or third injury, or by a combination of those injuries.

187 The President has accurately characterised the appellant's evidence, particularly in cross-examination, as 'argumentative, evasive, vague and unresponsive'. Further, there were internal inconsistencies in his evidence and differences between his evidence and the statements that he made in his electronically recorded interview with the police.

188 However, it is significant that the trial judge raised s 23A and s 23B with counsel at the conclusion of the evidence and prior to closing addresses. His Honour stated:

It seems to me - for what it's worth at this point, but this is the point I'm seeking to have clarified - that there is no contest but that Mr Hawke caused the death. The question, rather, is the mechanism, which feeds into two further questions I will reach in a moment, but I can foreshadow now is the question of whether it was by a willed act, and whether it was by accident that the death was caused by Mr Hawke (ts 814 - 15).

189 The following exchange between his Honour and the appellant's counsel occurred immediately following those comments:

PRIOR, MR: Sorry, your Honour. Accident hadn't loomed large, primarily, if we go back [to] our opening, it being self-defence.

But having said that, when one considers (a) exhibit 18, that mobile phone footage, and (b) what Mr Hawke said about it, I think whether it was a willed act or not needs to be left, especially when you have evidence - I don't know when the wounds were incurred, what order, or when.

SIMMONDS, J: Yes.

PRIOR, MR: And you've got a man on the ground with a larger man on top of him, and he had the knife in his hand at that point of time.

SIMMONDS, J: All right. If you don't mind me saying so, it doesn't answer my question. Are you telling me - or perhaps one way of testing it, are you telling me, 'No, your Honour, willed act is not an issue. It's accident'.

PRIOR, MR: Sorry. Sorry, yes. No, I think - I'm just trying to think of the factual circumstances.

SIMMONDS, J: It's possible both are in issue, but ---

...

SIMMONDS, J: --- it - one doesn't get to either of them until one gets past caused death. And I'm thinking here obviously of Ugle.

PRIOR, MR: Yes, because I suppose this will confuse, a bit, my answer, but we say it was a willed act - the stabbing in the context of it was done in self-defence - that's part of his evidence. That's another issue for the jury (ts 815).

190 As the exchange continued, counsel for the appellant indicated that he required time to consider the issue overnight. He commented that prior to the commencement of the trial he had some doubt whether unwilled act or accident would arise but having heard the evidence he required further time to reflect on the issues.

191 The trial judge returned to the question of whether the jury ought to be directed on s 23A and/or s 23B the next day. The appellant's counsel submitted that the jury should be directed on whether Mr Koller's death was an event that had occurred by accident (ts 832 - 833). However, as the President has explained, counsel's submissions on why accident should be left with the jury concerned, in substance, whether the appellant did the acts that caused the wounds inflicted on Mr Koller. The appellant's counsel submitted:

That being the case the wounds that killed the deceased, Mark Koller, 2 and 3, when did they occur in a factual time context? The evidence as to when Mr Koller was stabbed and where, and when in terms of when he was still standing or when he was on the ground and in particular on top of Mr Hawke, as we see at the end of exhibit 18 --- There's no clear factual outcome there. It's something for the jury.

So the when they were occurred those wounds 2 and 3. And the other thing that's vague about the evidence in totality is how the two men came to the ground. ...

The struggle seems to be the highest point. No one says one pulled the other down or one fell on the other. But the problem with that is, and this is where I would submit accident arises, there's a potential link. The man on the ground at the end, Mr Hawke, who, there doesn't seem to be much dispute, still has the knife in his hand, could have accidently caused the fatal wound at that point of time, when Mr Koller lands on top of him, got in the way (ts 832 - 833).

I don't see room for an unwilled act here. By accident, we're talking about the event, the event is probably the wound, the actual wound itself rather than necessarily going as far as saying the death, but once you've got that there, the way that the evidence was given yesterday probably raises the fact that the knife goes in during the course of the struggle. And that's what he keeps saying. It's the struggle that did it. He had great difficulty coming to the proposition that he had actually done it. He says it's the struggle. ... So that would seem to raise accident if nothing else. ... It would certainly be safer to leave it. I appreciate that it has an effect upon self-defence but that's going to be something for the jury to work out (ts 834).

193 It should also be noted that in his closing address the prosecutor again dealt with the issue of accident principally by reference to matters that went to whether Mr Koller's injuries had been inflicted by the willed acts of the appellant, rather than to intention and foreseeability. For example, the prosecutor submitted to the jury:

So it's hardly the weight of Mark Koller that causes the knife to go in as far as it does, which is about as far as it can go the way Dr Spark describes it. If that happened once, it happened once but not twice, not three times, not four times. You wouldn't think that would be a reasonable possibility, would you? You know, if he collapsed on him once on top of the knife, you'd think he'd be super careful not to do it again and move away (ts 851).

You may think it's strange and unlikely that when he has that lack of memory, he can suggest that the wounds were caused because Mark Koller was trying to use the knife in Ryan Hawke's hand and instead, somehow stabbed himself. You might think that's somewhat unlikely; certainly unlikely that it happened four times, if not more (ts 870).

194 It appears that both the appellant's counsel and the prosecutor conceived of the issue that they accepted had been raised on the evidence as accident using the word 'accident' in a colloquial sense.

195 The trial judge directed the jury on what the prosecution was required to prove beyond a reasonable doubt to negate the defence of accident under s 23B - that is, in terms of proof of intention and foreseeability. Indeed, his Honour directed the jury that they would necessarily be satisfied that the death of Mr Koller was not an event that occurred by accident if they were satisfied that the appellant had caused the death of Mr Koller and that he had intended to cause Mr Koller's death (ts 961).

Section 23A and 23B of the Criminal Code

196 Where it is alleged that an accused caused the death of a person by stabbing the victim with a knife, the 'act' for the purpose of s 23A is the insertion of the knife into the body of the deceased. The 'event' for the purpose of s 23B is the death of the victim: Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171.

197 The accused bears an evidential onus on the application of each section. The test of whether a particular defence should be left for the jury to consider in a case where the onus of proof is on the State but the accused bears an evidential onus is whether there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negated: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ). Accordingly, in a case where the victim died from a stab wound, the jury must be directed on s 23A if there is evidence that satisfies that test that the insertion of the knife into the body of the victim may not have been a voluntary act of the accused. The jury must be directed on s 23B where there is evidence that the victim's death may have been unintended and unforeseen by the accused and not reasonably foreseeable by an ordinary person.

198 It must be acknowledged that the State's case on voluntariness was strong. However, I have, with some hesitation, concluded that the question of whether the penetration wounds sustained by Mr Koller were inflicted by the willed acts of the appellant ought to have been left for the jury to decide.

199 It is for this court to determine in the appeal whether the evidence adduced at trial satisfied the test stated in Braysich. I have reached the conclusion that the jury ought to have been directed on s 23A generally for the reasons given by Buss P. However, I am reinforced in my view by the fact that the trial judge, the appellant's counsel and the prosecutor considered, on completion of the evidence, that there was a question concerning the appellant's criminal responsibility for the injuries sustained by Mr Koller (apart from self-defence) that, as a matter of law, the jury was required to decide. That was notwithstanding the manner in which the appellant gave evidence.

200 The issue was characterised as whether the death of Mr Koller was accidental. However, there was no evidentiary basis for a defence pursuant to s 23B of the Criminal Code as it was reasonably foreseeable that Mr Koller might be killed or suffer a life endangering injury while struggling with the appellant when the appellant held a knife in his hand throughout the struggle. As I have endeavoured to explain, counsel for the appellant and the prosecutor actually explained the issue that they perceived had been raised by the appellant's evidence as whether the penetration wounds inflicted on Mr Koller had been caused by the intentional acts of the appellant. The trial judge agreed that there was an issue that ought to be left to the jury, although he mistakenly joined in the mischaracterisation of that issue as accident.

201 Significantly, the views of counsel and the trial judge were formed with the benefit of having heard all of the evidence and their views reflected their immediate impressions following completion of the evidence. As to the quality of the appellant's evidence, the observation of Callinan J in Ugle that has been cited in the reasons of the President is apposite:

The fact that on one version of the appellant's defence, self-defence, his act of 'fending off' may have been intentional, that is, intentionally defensive, did not relieve the trial judge of the necessity to direct in accordance with s 23. It remained for the jury to assess all of the evidence in the case, including any apparently conflicting versions given by the appellant. Indeed, it may be, having regard to the flurry of events at the time of the penetration of the knife, a person might be excused for being unable to say with certitude whether a particular movement was instinctively self-protective or otherwise unaccompanied by a will to inflict harm [75].

202 For the reasons given by his Honour, I agree with Buss P that leave to appeal on ground 1 should refused.