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[2016] WASCA 148
General information, not legal advice.
Court of Appeal (WA)
2016-08-19
Mr J, Lure P, Buss JA, Mazza JA, Kechnie J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : BROADBENT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 148
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Murder - Appellants convicted after trial - Whether the trial judge misdirected the jury on the issue of knowledge in relation to the offence - Whether the trial judge failed adequately to direct the jury as to the connection between an unlawful purpose and a probable consequence for the purposes of s 8 of the Criminal Code (WA) - Whether there was a miscarriage of justice occasioned by the trial judge's failure to exclude prejudicial opinion evidence to the effect that one of the accused was a 'hit man' and a 'wannabe hit man' - Whether the trial judge erred in putting to the jury, without notice, the State's case in a manner not put by the prosecutor - Whether the trial judge misdirected the jury on the meaning and significance of DNA evidence
Criminal law - Appeal against sentence - Murder - Parity principle - Whether disparity between co-offenders is required or justified on account of their gender - Cooperation with the police and its consequences upon an offender's incarceration
State's applications dated 16 March 2016 and 18 March 2016 for leave to adduce additional evidence in the appeal granted
Barnden v The State of Western Australia [2014] WASCA 161
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Cronin v The State of Western Australia [2007] WASCA 159
Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497
Evans v The State of Western Australia [2012] WASCA 13
Ferris v The State of Western Australia [2007] WASCA 69
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Midjumbani v Moore [2009] NTSC 27; (2009) 229 FLR 452
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Moloney v The State of Western Australia [2006] WASCA 193
R v Wright [1999] VSCA 145; [1999] 3 VR 355
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Santos v The State of Western Australia [No 2] [2013] WASCA 39
The State of Western Australia v Stoeski [2016] WASCA 16
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
White v The Queen [2006] WASCA 62
Young v The State of Western Australia [2013] WASCA 292
1 McLURE P: I agree with the orders proposed by Buss JA generally for the reasons he gives.
2 BUSS JA: The appellant in CACR 63 and 64 of 2014 (Ms Broadbent), Kym Steven Foster, the appellant in CACR 73 and 84 of 2014 (Mr Kosick) and the appellant in CACR 70 of 2014 (Mr Young) were charged on indictment that on 4 March 2012, at Wanneroo, they murdered David James Blenkinsopp, contrary to s 279 of the Criminal Code (WA) (the Code).
3 On 31 March 2014, after a nine-week trial in the Supreme Court before McKechnie J and a jury, Ms Broadbent, Mr Kosick and Mr Young were convicted of murder and Mr Foster was convicted of manslaughter.
(a) Ms Broadbent: life imprisonment with a minimum non-parole period of 24 years;
(b) Mr Foster: 8 years' imprisonment with eligibility for parole;
(c) Mr Kosick: life imprisonment with a minimum non-parole period of 22 years; and
(d) Mr Young: life imprisonment with a minimum non-parole period of 24 years.
5 Ms Broadbent and Mr Kosick have appealed against conviction and sentence. Mr Young has appealed against conviction but not sentence.
6 Mr Kosick appeared by counsel in his conviction appeal, but was self-represented in his sentence appeal.
7 I would dismiss all of the appeals. My reasons are as follows.
8 The State's case at trial was that Ms Broadbent and Mr Blenkinsopp had been in a turbulent relationship involving heavy drinking, illicit drug use and violence.
9 Prior to 22 August 2011, Ms Broadbent obtained a violence restraining order against Mr Blenkinsopp (ts 273). On 22 August 2011, Mr Blenkinsopp assaulted Ms Broadbent at her home. Ms Broadbent responded by wounding Mr Blenkinsopp with a knife. As a result of this
incident, Mr Blenkinsopp was charged with breaching the violence restraining order and aggravated common assault, and Ms Broadbent was charged with unlawful wounding (ts 284). Each of them was released on bail. Mr Blenkinsopp was prohibited by the violence restraining order from contacting Ms Broadbent. It was a condition of Ms Broadbent's bail that she not contact Mr Blenkinsopp. However, within a week, Mr Blenkinsopp was at Ms Broadbent's home with her consent. Mr Blenkinsopp was charged again with breaching the violence restraining order. Ms Broadbent was charged with breaching the condition of her bail (ts 284). Mr Blenkinsopp breached the violence restraining order on other occasions. On 21 December 2011, he was arrested, charged, convicted and sentenced to 8 months' imprisonment, suspended for 15 months (ts 285).
10 The State contended that, prior to his death, Mr Blenkinsopp had decided to terminate his relationship with Ms Broadbent and resume living with his wife, Diana Blenkinsopp (ts 291 - 292). However, soon after he made that decision, Mr Blenkinsopp sent text messages to Ms Broadbent indicating that he wanted to continue their relationship (ts 294).
11 Ms Broadbent began a new relationship with Mr Foster. She endeavoured to terminate her relationship with Mr Blenkinsopp, but gave him 'mixed messages'. Mr Blenkinsopp was unwilling or unable to accept that the relationship was at an end (ts 273 - 274).
12 Mr Foster disliked Mr Blenkinsopp. They had previously fought physically (ts 274).
13 The State adduced evidence of the nature of the relationship between Ms Broadbent and Mr Blenkinsopp to give context to the alleged agreement by the offenders to kill Mr Blenkinsopp (ts 285).
14 On 3 March 2012, Ms Broadbent and Mr Blenkinsopp, independently of each other, consumed a large quantity of drugs and alcohol. Mr Blenkinsopp was in Wanneroo. Ms Broadbent was at the home of Mr Kosick's former wife, Kay Kosick, in Wheeler Street, Morley (the Morley property). During the evening Ms Broadbent was joined by Mr Kosick, Mr Young, Mr Foster and Ryan Bradley. They consumed drugs and alcohol together. Mr Kosick was a close friend of Ms Broadbent, and Mr Young was a friend of Mr Kosick (ts 274 - 275).
15 At about 7.34 pm on 3 March 2012, Mr Blenkinsopp spoke to Ms Broadbent by telephone. During their conversation Mr Blenkinsopp allegedly made threats. The telephone call created a volatile atmosphere among Ms Broadbent, Mr Kosick, Mr Young and Mr Foster. This included collective anger towards Mr Blenkinsopp (ts 274 - 275). The offenders decided that Mr Blenkinsopp had to be killed in order to end his perceived harassment and abuse of Ms Broadbent (ts 275).
16 Mr Kosick and Mr Young left the Morley property in Mr Young's motor vehicle. When they returned, Mr Young had a modified .22 calibre rifle and ammunition. All of the offenders then departed from the Morley property in Mr Young's vehicle. Mr Kosick was the driver. The offenders went to Wanneroo in search of Mr Blenkinsopp. They had with them Mr Young's rifle and ammunition and a shovel. The offenders drove from one place to another in Wanneroo. Eventually, they ascertained that Mr Blenkinsopp was at the home of Rosalita Marshall in Taywood Drive (ts 275).
17 Mr Kosick parked the vehicle in Winship Avenue, which intersects at a T-junction with Taywood Drive. The three male offenders waited with the vehicle. Ms Broadbent went to Ms Marshall's home. The offenders' plan was that Ms Broadbent would lure Mr Blenkinsopp from the home and take him to the place where the three male offenders were waiting (ts 275).
18 Ms Broadbent persuaded Mr Blenkinsopp to accompany her. He was unarmed and confronted by the three male offenders. Mr Blenkinsopp was shot at least three times; twice in the torso and once in a leg. He remained on his feet for a short time and walked from Winship Avenue towards Taywood Drive. Mr Kosick then drove the vehicle at and struck him. Mr Blenkinsopp fell onto the bonnet of the vehicle, struck the back of his head on the windscreen and became unconscious. The windscreen cracked extensively and he slid from the bonnet onto the road. He was bleeding and motionless (ts 275 - 276).
19 The offenders placed Mr Blenkinsopp in the vehicle and travelled to Pinjar. They had the shovel with them for the purpose of digging a grave. At Pinjar, Mr Blenkinsopp was shot in the head. The offenders dug a grave and buried him. When the burial was finished, Ms Broadbent fired two shots into the grave with the rifle as an act of defiance to signify that she was rid of him (ts 276).
20 The offenders then embarked on a deliberate course of conduct to destroy incriminating evidence and avoid apprehension by the police. They left the gravesite at Pinjar and returned to the Morley property. Kay Kosick noticed that the offenders looked dirty. They had black sand on their arms and blood on their clothes (ts 318). At the Morley property the offenders cleaned Mr Young's vehicle. They burnt clothing, seat covers and other items (ts 319). Ms Broadbent and Mr Foster purchased a windscreen to replace the one that was cracked by the impact of Mr Blenkinsopp's body when he was run down by Mr Kosick (ts 321).
21 Police conducted a search of Mr Young's home in Waldemar Street, Gwelup. They found a .22 calibre rifle, a box of .22 calibre ammunition, a pair of gloves and a mask or balaclava in a storage unit at his home. Mr Young was not at home when his premises were searched because he was working in the south west of the State. Kay Kosick gave evidence as a State witness that she had heard Mr Young speak previously about owning what he described as a Chinese sniper rifle. A ballistics expert examined the rifle found at Mr Young's home and determined that, within the bounds of reasonable certainty, the rifle had fired the shells found by the police at Winship Avenue and the grave site. The gloves found with the rifle had Mr Young's DNA on them. Mr Young's DNA was also found on the mask or balaclava (ts 347 - 348).
22 At the trial, Ms Broadbent's defence counsel opened her case by stating she accepted that Mr Blenkinsopp had been unlawfully killed (ts 367).
23 Defence counsel conceded that Ms Broadbent was present while Mr Blenkinsopp was shot, she assisted in digging a grave at Pinjar and burying his body and she assisted in cleaning blood from Mr Young's vehicle (ts 370).
24 However, defence counsel contended that Ms Broadbent did not intend that Mr Blenkinsopp should be killed. Her intention was merely to scare him and persuade him to leave her alone. Mr Young took matters into his own hands and shot Mr Blenkinsopp several times (ts 369).
25 Ms Broadbent persuaded Mr Blenkinsopp to accompany her to the intersection of Winship Avenue and Taywood Drive for the purpose of confronting him. She did not ask Mr Young to kill Mr Blenkinsopp and she did not expect that he would be killed. It was not a probable consequence of her actions that Mr Blenkinsopp would be killed (ts 371).
26 Defence counsel rejected the prosecutor's suggestion that the violence in the relationship between Ms Broadbent and Mr Blenkinsopp was a motive for murder. According to defence counsel, the violence in the relationship was merely a motive for confronting Mr Blenkinsopp and warning him to stay away from her (ts 372).
27 Defence counsel said Ms Broadbent fired the bullets into the grave to release her frustration and other emotions. It did not mean she had intended that Mr Blenkinsopp should be killed (ts 374).
28 As to Mr Young, defence counsel stated that Ms Broadbent did not know him, did not ask him to kill Mr Blenkinsopp and did not know that he had a loaded rifle. Mr Young made his own decision to kill Mr Blenkinsopp (ts 375). Defence counsel urged the jury to consider the motives of the other accused. They knew the rifle was loaded and they had a plan that was different from Ms Broadbent's. The other accused must have known that there was a wider range of possible outcomes including Mr Blenkinsopp's death.
29 Defence counsel conceded that Ms Broadbent knew the rifle would be taken in the vehicle as a means to intimidate (that is, scare) Mr Blenkinsopp. She did not know, however, that there was a shovel in the vehicle. She did not see the shovel until it was used to dig the grave at Pinjar (ts 377).
30 Defence counsel conceded that, in her first record of interview with police, Ms Broadbent told some lies. Defence counsel urged the jury to accept as truthful Ms Broadbent's account of events in her second record of interview with police. According to defence counsel, in the second record of interview Ms Broadbent made a full and accurate confession of her involvement in what had occurred (ts 379).
31 Mr Kosick's case at trial, as opened by his counsel, was as follows.
32 Mr Young was the only person responsible for Mr Blenkinsopp's death (ts 387). Mr Kosick admitted that he was present at material times, but he denied being part of any plan that would have resulted in anyone's death (ts 388).
33 When Mr Kosick went with Mr Young to retrieve Mr Young's rifle, there had not at that time been a discussion about Mr Blenkinsopp. In other words, the retrieving of the rifle was unrelated to what occurred later that night (ts 388).
34 Ms Broadbent, Mr Foster and Mr Bradley were at the Morley property on the evening in question (ts 389).
35 Although Mr Kosick heard that Ms Broadbent wanted Mr Blenkinsopp dead, after she had received a threatening telephone call from him, Mr Kosick did not take that wish seriously or literally (ts 389).
36 Mr Kosick acknowledged that 'there was as the night went on a loose arrangement to go and teach [Mr] Blenkinsopp a lesson', but he denied that there was a plan to cause him life-threatening injuries or kill him or that Mr Young's rifle would be used in any way (ts 389).
37 Mr Kosick admitted that he drove the other accused to Wanneroo in Mr Young's vehicle and that they eventually found Mr Blenkinsopp. Mr Kosick remained in the vehicle while there was an altercation between Ms Broadbent, Mr Foster and Mr Blenkinsopp. Mr Young then shot Mr Blenkinsopp (ts 389).
38 After witnessing those events, Mr Kosick told Ms Broadbent to get into the vehicle. He drove away but, somehow, Mr Blenkinsopp walked in front of the vehicle and was struck. Mr Kosick did not deliberately run him down (ts 389 - 390).
39 Next, Mr Kosick was threatened by Mr Young with the rifle and told to drive away with the other accused and Mr Blenkinsopp. They arrived at Pinjar. Mr Young ordered Mr Kosick, Ms Broadbent and Mr Foster to dig a grave where Mr Blenkinsopp was buried (ts 390).
40 Mr Kosick was in a state of shock and panic. This caused him to conceal what had occurred. He assisted in cleaning Mr Young's vehicle, burning clothes and disposing of other evidence (ts 390).
41 Mr Kosick alleged that Mr Young had threatened him and his family with death if he spoke to anyone about the events in question. Mr Kosick believed that Mr Young would act on the threat and, accordingly, he was initially reluctant to tell the police what had happened. However, Mr Kosick helped the police locate Mr Blenkinsopp's body after they had given him assurances as to his safety and welfare (ts 390).
42 At the trial, Mr Young's defence counsel opened his case by stating that Mr Young did not kill Mr Blenkinsopp. Mr Young was not present when he was killed (ts 392, 395).
43 Defence counsel contended that Mr Young had never met or contacted Mr Blenkinsopp and had no motive to kill him. Also, prior to the night in question, Mr Young had no connection with Ms Broadbent, Mr Foster or Mr Bradley.
44 According to defence counsel, the jury could not be satisfied beyond reasonable doubt of Mr Young's guilt. Defence counsel asserted that the witnesses who implicated Mr Young were of bad character, were intoxicated on the night in question and had motives to lie. In particular, the other accused, Mr Bradley and Kay Kosick should not be believed. They had colluded. Their common false assertion was to blame Mr Young for what had occurred.
45 According to defence counsel, the DNA evidence which implicated Mr Young was unreliable because there was a reasonable possibility that his DNA had been placed on the rifle and other items by 'contamination'.
Ms Broadbent's appeal against conviction: the grounds of appeal
46 Ms Broadbent relied on two grounds in her appeal against conviction.
47 Ground 1 alleged that the trial judge erred by misdirecting the jury concerning the issue of 'knowledge' in relation to the offence of murder.
48 The particulars of ground 1 allege that his Honour failed adequately to direct the jury:
(a) that Ms Broadbent 'might not have appreciated, much less desired or intended, the result of the assault upon [Mr Blenkinsopp], having regard to her state of mind at the time' (particular 1.1);
(b) as to the role of knowledge in determining an unlawful purpose (particular 1.2); and
(c) that there is a distinction between 'the intention of [Ms Broadbent] and her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged' (particular 1.3).
49 Ground 2 alleged that his Honour erred by failing adequately to direct the jury 'as to the connection between an unlawful purpose and a probable consequence' in relation to s 8 of the Code.
50 On 30 November 2014, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
Ms Broadbent's appeal against conviction: particular 1.1 of ground 1: her submissions
51 Counsel for Ms Broadbent asserted that the trial judge failed adequately to direct the jury that Ms Broadbent 'might not have appreciated, much less desired or intended, the result of the assault upon [Mr Blenkinsopp], having regard to her state of mind at the time'.
52 According to counsel, the relevant elements of Ms Broadbent's state of mind were 'her intoxication and her degree of knowledge'.
53 It was submitted that Ms Broadbent's actions before and during the offending included 'voluntarily travelling with the rest of the party to confront [Mr Blenkinsopp]', but 'she had no knowledge of [a] gun, ammunition, or a shovel'.
54 There was evidence that Ms Broadbent had made comments to the effect that she wanted Mr Blenkinsopp dead and that Mr Young had made comments to the effect that he would gun down Mr Blenkinsopp. However, both were 'drunk and emotional' at the time.
55 Counsel for Ms Broadbent argued that, when directing the jury about intention in his summing up, his Honour should have instructed the jury that Ms Broadbent's state of knowledge may have precluded her from appreciating the likely outcome of seeking out Mr Blenkinsopp with a view to confronting him. An inability to appreciate the likely outcome would have precluded Ms Broadbent from intending to cause that outcome. It was argued that Ms Broadbent neither intended nor expected serious injury or death to result from the confrontation.
Ms Broadbent says that the extent of her participation in any plan was to go along and verbally sort it out with [Mr Blenkinsopp]. It was never her intention that he would be killed. [Mr Young] acted alone in that. She did not aid him. She of course acknowledges her responsibilities afterwards being an accessory (ts 3521).
57 It was submitted that his Honour was required to direct the jury that:
(a) Ms Broadbent 'might not have appreciated the possible outcomes of her course of conduct given [her] state of mind'; and
(b) the jury must have regard to '[Ms Broadbent's] state of mind, including her emotions and her possible knowledge or lack thereof of a gun and a shovel, in assessing the intention with which she decided to be a party to a confrontation with [Mr Blenkinsopp]'.
Ms Broadbent's appeal against conviction: particular 1.1 of ground 1: its merits
58 At the trial the State's case against Ms Broadbent included evidence and inferences relevant to her state of knowledge and intention, as follows:
(a) On 28 March 2012, in an electronically recorded interview with police, Ms Broadbent admitted that, as a result of the telephone call from Mr Blenkinsopp on the evening in question, in which he threatened her, she cried and thought, 'this is not gonna end'. Her reaction to the telephone call led to discussion with the other accused about travelling to Wanneroo that night and confronting Mr Blenkinsopp (second EROI 5, 23 - 24).
(b) Ms Broadbent admitted in the interview that after Mr Kosick said, 'this is not gonna end, is it?', she said, 'nah ... come on, I'll have to do it' (second EROI 24). Later in the interview Ms Broadbent stated that she did not intend to kill Mr Blenkinsopp, and that the accused intended to threaten him with a view to persuading him to leave her alone. It was, of course, for the jury to decide on the credibility of Ms Broadbent's explanations and what significance, if any, they had.
(c) Ms Broadbent admitted in the interview that she had in the past spoken angrily about wanting to get rid of Mr Blenkinsopp, but she maintained, 'I could never have done it myself'. It was open to the jury to conclude that on the evening in question she was presented with the opportunity for someone else, namely Mr Young, to get rid of him.
(d) Ms Broadbent admitted in the interview that Mr Young accompanied the group, when they set out to find and confront Mr Blenkinsopp, for the purpose of providing 'fire power' (second EROI 60).
(e) Ms Broadbent admitted in the interview that she knew there was a gun in the car, but did not know precisely where it was and refused to say who had possession of it (second EROI 60).
(f) During the interview Ms Broadbent was questioned about the presence of a shovel. When asked what she used to dig the grave at Pinjar, she said 'a shovel and hands'. When asked where the shovel had come from, she said, 'you know what, I can't even recall'. When asked if there was definitely a shovel in the car, she nodded and said, 'yep' (second EROI 44 - 45). It was open to the jury to conclude, from Ms Broadbent's answers and her demeanour in the interview, that at the relevant times she knew there was a shovel in the car (second EROI 44).
(g) Bradley Chesson gave evidence to the effect that, when Ms Broadbent asked him where Mr Blenkinsopp was (while the accused were endeavouring to locate him on the evening in question), she said, 'we're going to end this tonight, Bradski' (ts 633). It was open to the jury, in the context of the history between Ms Broadbent and Mr Blenkinsopp, including the violence restraining order, the breaches of that order and the violence between them (in particular, Ms Broadbent having stabbed Mr Blenkinsopp), to conclude that her reference to 'ending it' could only have been to something more final and effective than the steps she had previously taken against him.
(h) Mr Kosick gave evidence that, on the evening in question, Ms Broadbent said she wanted Mr Blenkinsopp dead and there was a discussion between her and Mr Young in which Mr Young said he would 'put a hole' in Mr Blenkinsopp's head and 'get rid of him' (ts 2799, 2975).
(i) Ms Broadbent admitted in the interview that, when driving away from the vicinity of Winship Avenue and Taywood Drive, after Mr Blenkinsopp had been shot, he asked her, 'why, why?', and she replied, 'because of what you done to me, put me through hell and back and now you're threatening me and my family, my girl' (second EROI 6). It was open to the jury to conclude that this conversation was inconsistent with Ms Broadbent having been taken by surprise when Mr Young shot Mr Blenkinsopp. Later in the interview Ms Broadbent claimed, in relation to the shooting of Mr Blenkinsopp, that she was 'just gobsmacked, cos, it shouldn't have gone like that'. She made that statement in response to questions about whether any of the accused in the car had suggested that Mr Blenkinsopp be taken to a hospital. Nevertheless, it was open to the jury to conclude that Ms Broadbent's claim was inconsistent with her earlier admission in the interview about what she had said to Mr Blenkinsopp in the car after he had been shot. In any event, Ms Broadbent's assertions as to her state of mind at the relevant times would have been readily apparent to the jury from her electronically recorded interview.
(j) During the interview Ms Broadbent did not assert that anyone had suggested taking Mr Blenkinsopp to a hospital (second EROI 66).
(k) Mr Foster gave evidence that Ms Broadbent instructed Mr Kosick to take Mr Blenkinsopp, who was then dying, to Flynn Drive (ts 2526, 2741).
(l) During the interview Ms Broadbent said that Flynn Drive was a place where Mr Blenkinsopp had assaulted her, threatened to kill her and abandoned her (second EROI 15 - 17). It was open to the jury to find that Ms Broadbent's instruction to take Mr Blenkinsopp to Flynn Drive indicated a desire by her to exact revenge upon him and, given he was then bleeding from the gunshot wounds inflicted by Mr Young, was indicative of her intention to cause his death.
(m) After she was arrested, and while she was in custody with Kay Kosick (who was in a cell nearby), Ms Broadbent told Kay Kosick that she (Ms Broadbent) was 'looking at 20 years', but Kay Kosick was 'just an accessory' (GAB 217). It was open to the jury to conclude that 20 years was a sentence Ms Broadbent might have expected to receive for murder and that she was distinguishing her belief about her own criminal responsibility from her belief about Kay Kosick's criminal responsibility.
59 The State's case against Ms Broadbent was materially different from the State's case against Mr Foster, who, as I have mentioned, was convicted of manslaughter. Mr Foster did not make admissions of the kind made by Ms Broadbent, from which inferences could be drawn that she had a motive and the intention to kill Mr Blenkinsopp and that she had knowledge of the gun being in the car when the offenders set out to find Mr Blenkinsopp.
60 In the electronically recorded interview, Ms Broadbent did not assert that she was so intoxicated or emotionally affected as to be unable to appreciate the purpose of locating and confronting Mr Blenkinsopp or to appreciate the potential outcomes of acting on that purpose.
61 The trial judge's directions on intention (ts 3512 - 3513), motive (ts 3513 - 3514), knowledge (ts 3514, 3519 - 3520, 3525), common intention to prosecution an unlawful purpose (ts 3523 - 3525) and intoxication (as a matter relevant to intention) (ts 3515 - 3516) were expressed in conventional terms and were appropriate in the circumstances.
62 In any event, it is not apparent how counsel for Ms Broadbent's complaint about his Honour's summing up could have had a material adverse effect on the jury's consideration of either the s 7 of the Code pathway or the s 8 of the Code pathway in the State's case.
63 The State's case on the s 7 pathway required proof that Ms Broadbent was involved in a plan to kill Mr Blenkinsopp (or cause him life-threatening injury) which was formed at the Morley house and that Ms Broadbent then intentionally did an act pursuant to that plan (by luring Mr Blenkinsopp to the place in Winship Avenue where the other accused were waiting, so he could be shot). The trial judge directed the jury in that manner in relation to the s 7 pathway (ts 3518 - 3520). His Honour summarised the State's case and Ms Broadbent's case on the s 7 pathway as follows:
The State's case against Ms Broadbent is that she had a motive to want the deceased killed. She joined in the plan, got in the car knowing what would happen and intending that would happen. She knew that Mr Young had a weapon and among other ways she aided, was she lured the deceased away from Rosalita Marshall's house.
Evidence of her intention, the State says, is also shown in what happened afterwards. She was never - he was never taken to a hospital, she not only assisted in digging the grave but fired two shots into the grave.
Through Mr Freitag, Ms Broadbent says that the extent of her participation in any plan was to go along and verbally sort it out with the deceased. It was never her intention that he would be killed. Gary Young acted alone in that. She did not aid him. She of course acknowledges her responsibilities afterwards being an accessory (ts 3521).
64 The real issue at the trial between the State and Ms Broadbent concerned the nature of the plan that was made at the Morley house. If the plan had been nothing more than verbally to confront Mr Blenkinsopp and warn him against contacting or approaching her, then Ms Broadbent could not have been convicted pursuant to the s 7 pathway.
65 Counsel for Ms Broadbent's submission that the jury should have been directed to the effect that '[Ms Broadbent's] state of knowledge may have precluded her from appreciating the likely outcome of going to [Mr Blenkinsopp's] house with a view to [confronting] him', is without merit.
66 The direction would not have assisted the jury in relation to understanding or applying the s 7 pathway. In particular:
(a) Ms Broadbent either was, or was not, a party to a plan to kill Mr Blenkinsopp or cause him life-threatening injury;
(b) Ms Broadbent either did, or did not, intentionally perform an act to aid in killing Mr Blenkinsopp or causing him life-threatening injury at Winship Avenue; and
(c) comments by the trial judge on the evidence about her state of mind as to the 'likely outcome of going to [Mr Blenkinsopp's] house with a view to confronting him' were not material to the issues raised by the s 7 pathway.
67 Counsel for Ms Broadbent's further submission that the jury should have been directed as to her state of mind, emotions and knowledge of the gun and the shovel, 'in assessing the intention with which she decided to be a party to a confrontation with [Mr Blenkinsopp]', is also without merit.
68 The submission appears to conflate intention and motive. In any event, his Honour did direct the jury on the relevance of intoxication and motive to intention. His Honour also commented on the potential importance of knowledge about the presence of the gun, the ammunition and the shovel in the car. These issues were relevant to the State's case against each of the accused and, in those circumstances, were appropriately formulated so they applied to all of them. It was unnecessary, in the circumstances, for his Honour to repeat the directions in a manner specific to Ms Broadbent. His Honour was not bound to give a further direction of the kind contended for on behalf of Ms Broadbent.
69 Counsel for Ms Broadbent's complaint in relation to the s 8 pathway could only be relevant to the first limb of s 8 (that is, the common intention to prosecute an unlawful purpose), and could only be relevant to the extent that it concerned 'the intention with which [Ms Broadbent] decided to be a party to a confrontation with [Mr Blenkinsopp]'. Whether Ms Broadbent did, or did not, 'appreciate the likely outcome of going to [Mr Blenkinsopp's] house with a view to [confronting] him' was not relevant to the second limb of s 8. The question as to what was a 'probable consequence' of the prosecution of the unlawful purpose was objective, not subjective. In any event, counsel's complaint is without merit for the reasons I have given at [67] - [68] above.
Ms Broadbent's appeal against conviction: particular 1.2 of ground 1: her submissions
71 Counsel for Ms Broadbent asserted that the trial judge failed adequately to direct the jury as to the role of knowledge in determining an unlawful purpose.
[S]ection 8 [of the Code] extends criminal liability set out in section 7 [of the Code] to a probable consequence and does not depend on the accused's knowledge, but objectively, whether it was a probable consequence. Your answer to these questions will depend on the facts and what you are satisfied the State has established (ts 3525).
As a matter of comment, one fact of importance may be whether or not the accused you are considering either had a gun or knew that a gun was present, and whether they had knowledge of ammunition in the car. Another fact may be the knowledge of the accused as to whether or not there was a shovel in the car before it left Morley. Those, of course, are matters which might assist you in determining whether or not the State has proved that the accused you are considering was part of a plan (ts 3525).
74 It was submitted that his Honour erred 'in confining the knowledge of [Ms Broadbent] as going to determine only whether [Ms Broadbent] was part of a plan to prosecute an unlawful purpose'. Counsel said that 'the knowledge of an accused is instrumental in determining the nature of the unlawful purpose they might be a party to'.
Ms Broadbent's appeal against conviction: particular 1.2 of ground 1: its merits
75 After outlining in brief the State's case and the response of each of the accused, the trial judge gave the jury these directions about the State's case and the s 7 pathway and the s 8 pathway:
[T]he State's case is very clearly, fair and square, there was a plan, all of them joined in the plan, they played different parts ... And if you are satisfied beyond reasonable doubt as to the State's case then it would be open for you to convict of murder.
There's an alternative route, and now I'll get you to read section 8 ... [I]f you were satisfied that there was a plan you would not need to have resort to section 8. If you were not satisfied that there was a plan as alleged by the prosecution then you would consider section 8 to see whether the prosecution can make out its case, bearing in mind it is its burden to make it out beyond reasonable doubt. And as I've said earlier, I'm giving you comprehensive directions on everything, because I have no way of knowing what is going to be, in the end, the way that you will reason.
The alternative arises this way: if you are satisfied that the State proved that the accused whose case you are presently considering was part of a plan to kill, then it's not necessary to consider this. If you're not so satisfied, then consider section 8. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to commit the offence.
Now, that's quite a dense passage. I've given it to you, and I'll unpack it. Its essential difference between this and section 7 is this: if there was a plan to murder, if the State proved that, you wouldn't need to consider section 8. The common intention talked about to prosecute an unlawful purpose in section 8 is not a common intention to murder. It is a common intention to do something else, and in this case to assault the deceased, either cause him harm or threaten him with a loaded firearm. That is the common intention which the State must prove in respect to the accused that you are considering.
But under section 8, the State does not have to prove that the person you are considering intended death, but it does have to prove that an offence was committed, in this case murder - was a probable consequence of the unlawful purpose to go and assault Mr Blenkinsopp.
So the question really is, under section 8, has the State satisfied you there was a common intention held by the accused you are considering and at least one other accused that they would go to Wanneroo and, at the least, assault the deceased? Confront him in a manner where violence would be used. The unlawful purpose, if any, you find to be established must be an unlawful purpose either to inflict some physical harm on the deceased or to threaten him with a loaded firearm. To assault him, in other words.
If there's a reasonable possibility that the purpose in which they joined was simply to confront the deceased in a verbal exchange, this would not be an unlawful purpose. If the plan was simply to go and confront him and argue with him and talk to him, that's not an unlawful purpose. So the State must first satisfy you that there was, between the accused who you're considering and at least one other, an unlawful purpose to assault the deceased in the way I've suggested, either by causing him physical harm or threatening him with a loaded firearm.
The second element, if the State proves that, is that the offence committed was a probable consequence of that purpose. So if the accused you are considering at the time was prosecuting an unlawful purpose with Mr Young, say, and Mr Young formed an intention to kill and did so, the question is: has the State proved this was a probable consequence of the unlawful purpose? Put another way, was it a probable consequence of a purpose to go to Wanneroo and assault the deceased that one of the number would commit murder? That is, that one of the number would form an intention to kill, and do so.
A probable consequence is one that is more than a possible consequence. It must be probable in the sense that it could well happen. Bear in mind that it's an objective test, as I've said. The test is not whether the accused you are considering thought it was a probable consequence that an intentional killing would occur, but whether you as the jury are objectively satisfied that an intentional killing was the probable consequence of any common intention to assault the deceased.
Looking at the facts, are you satisfied that the intentional killing of the deceased was an event arising from the prosecution of the unlawful purpose to assault that was not merely possible, but probable, in the sense that it could well happen? If, and only if, the State proves these matters beyond reasonable doubt could the accused you are considering be guilty of murder pursuant to section 8.
If you're not satisfied that it was a probable consequence of the unlawful purpose that the accused would murder the deceased but consider it was a probable consequence of a plan to assault that the deceased would be unlawfully killed, that is unlawfully killed but without an intention to kill, then the crime of manslaughter would be established for that purpose. But if, and only if, first of all, you were satisfied there was an unlawful purpose of one or more of them to assault the deceased and, secondly, that it was a probable consequence in the sense that it might well happen that the deceased would be unlawfully killed, in that event the accused you are considering would be guilty of manslaughter.
So section 8 extends criminal liability set out in section 7 to a probable consequence and does not depend on the accused's knowledge, but objectively, whether it was a probable consequence. Your answer to these questions will depend on the facts and what you are satisfied the State has established.
As a matter of comment, one fact of importance may be whether or not the accused you are considering either had a gun or knew that a gun was present, and whether they had knowledge of ammunition in the car. Another fact may be the knowledge of the accused as to whether or not there was a shovel in the car before it left Morley. Those, of course, are matters which might assist you in determining whether or not the State has proved that the accused you are considering was part of a plan. I don't answer the question, I merely raise it for you as a matter for consideration on the evidence (ts 3522 - 3525).
76 I am satisfied, for the reasons I have given in considering particular 1.1 of ground 1, that his Honour gave appropriate and adequate directions in relation to knowledge and criminal responsibility under s 8.
77 The passage from the trial judge's summing up, which Ms Broadbent challenges in particular 1.2 of ground 1 and which I have set out at [73] above, must be evaluated in the context of his Honour's summing up as a whole.
78 The passage in question was not a direction on the law, but contained comments on facts which may be of importance to the jury's evaluation of certain matters. This is apparent from the opening words of the passage, namely '[a]s a matter of comment' (ts 3525). Earlier in his summing up, his Honour gave orthodox directions about the jury's primacy as the judges of the facts and also that any comments by his Honour on the facts or the evidence were not binding on the jury (ts 3501).
79 The impugned passage dealt with knowledge of certain matters as being relevant to whether Ms Broadbent was 'part of a plan' (ts 3525). The trial judge had stated in the previous paragraph of the transcript that, '[y]our answer to these questions will depend on the facts and what you are satisfied the State has established' (ts 3525). That statement came at the end of his Honour's directions in relation to criminal responsibility under both s 7 and s 8.
80 In my opinion, it would have been obvious to the jury that the impugned passage, in the context of the s 8 pathway, was relevant only to the existence and nature of an unlawful purpose, because his Honour had directed the jury, correctly, in the preceding sentence that the extension of criminal liability under s 8 to a probable consequence does not depend on knowledge.
81 The trial judge did not, by the use of the words 'part of a plan', confine the relevance of knowledge by excluding from the jury's consideration 'the nature of the unlawful purpose'.
82 I am satisfied, after considering the relevant passage in the context of his Honour's directions on criminal responsibility as a whole, that the words 'part of a plan' did not refer to 'any plan', but to a plan of the various kinds that his Honour had discussed, when explaining s 7 and s 8, as would render Ms Broadbent criminally responsible for murder or manslaughter. His Honour was merely commenting on the knowledge that may be relevant to an assessment by the jury of the nature of the plan under s 7 or the unlawful purpose under s 8, to which each of the accused was, on the State's case, a party.
83 Ms Broadbent's knowledge of the gun and the ammunition was relevant to establishing both the existence of a common intention as between Ms Broadbent and the co-accused to prosecute an unlawful purpose and, also, to the nature of that unlawful purpose. The determination of whether there was a common unlawful purpose would necessarily involve the determination of the nature of that unlawful purpose.
84 The trial judge's directions on common intention to prosecute an unlawful purpose were correct and, in the circumstances, adequate to inform the jury of the relevant law and its application to the facts.
Ms Broadbent's appeal against conviction: particular 1.3 of ground 1: her submissions
86 Counsel for Ms Broadbent asserted that the trial judge failed adequately to direct the jury that there is a distinction between 'the intention of [Ms Broadbent] and her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged'.
87 It was submitted that although his Honour directed the jury, once with regard to all of the accused and once with regard to Ms Broadbent specifically, that 'being glad' of an event after the fact does not necessarily impute an intent to cause that event at the time it happened, the fact that the direction was given, on both occasions, with respect to 'an attitude after an event was insufficient to make it clear to the jury that even a desire or wish for an event to happen prior to its occurring is a separate state of mind than that of intending to cause such an event'.
88 The relevant directions by the trial judge were as follows:
So being glad for instance about the death afterwards may be considered as part of the circumstances if you are satisfied that a person was dead, but of itself doesn't necessarily mean that the person had the intention at the time the acts causing death were carried out (ts 3514).
...
In relation to that, don't forget what I said earlier. The time for the intention is to be judged at the time of the shooting. What occurred afterwards is relevant and may be used by you to determine what her intention was at the time of the shooting but the mere fact that somebody might be glad afterwards of an event with which they were unconnected doesn't of course mean that they intended that event to occur (ts 3552).
89 According to counsel, the jury's verdict in relation to Mr Young is consistent with the evidence that it was Mr Young, and not Ms Broadbent, who caused Mr Blenkinsopp's death by shooting him with the rifle. Counsel argued that, in these circumstances, 'the issue of [Ms Broadbent's] intent as distinct from her possible desires or motives at the time and before the commission of the offence was a real one, and one that the jury was inadequately directed on'.
Ms Broadbent's appeal against conviction: particular 1.3 of ground 1: its merits
90 Counsel for Ms Broadbent's submission that the trial judge did not adequately distinguish between her intention, on the one hand, and her possible desires or motives, on the other, is without merit.
91 His Honour gave the following conventional directions on the issue of intention and motive:
(a) the relevant intent was one to kill or do a life-threatening injury (ts 3512);
(b) the intent to kill or cause a life-threatening injury could be inferred from the circumstances (ts 3512);
(c) the inference must be the sole inference reasonably open (ts 3512 - 3513);
(d) intention and motive were 'two different things' (and his Honour illustrated the distinction by an example unconnected with the case) (ts 3513);
(e) the State was not required to prove motive (ts 3514);
(f) intention was to be judged at the time the acts causing death were done, even if it had arisen at an early point in time (for example, hours earlier at the Morley house) (ts 3514);
(g) motive was not irrelevant, because if a person had a motive to 'wish another person dead', then that was something the jury could consider in deciding whether the accused had an intention to kill at the time the acts causing death were committed (ts 3514); and
(h) the mere fact that somebody might be 'glad' after an event does not mean they necessarily intended that the event should occur, although it was relevant to the determination of intent at the time when the acts causing death were committed (ts 3552).
92 The trial judge's directions communicated to the jury that the existence of a motive to kill Mr Blenkinsopp did not mean that the requisite intent existed when the acts causing his death were committed. Further, his Honour's directions communicated to the jury that the mere fact that Ms Broadbent may have been glad that Mr Blenkinsopp was dead was separate and distinct from, although relevant in assessing, whether Ms Broadbent had the requisite intent when the acts causing his death were committed. His Honour's directions dealt with the distinction between intention and other mental states both before and after the acts causing Mr Blenkinsopp's death were committed.
93 The fact that the issue of Ms Broadbent's intention was a 'real one', in that Mr Young was directly responsible for shooting Mr Blenkinsopp, would have been readily apparent to the jury from his Honour's summary of the State's case and Ms Broadbent's defence (ts 3521).
Ms Broadbent's appeal against conviction: ground 2: her submissions
95 Counsel for Ms Broadbent asserted that the trial judge failed adequately to direct the jury 'as to the connection between an unlawful purpose and a probable consequence' in relation to s 8 of the Code.
96 Counsel submitted that, in the following direction, his Honour did not distinguish between 'different unlawful purposes and their relationship with probable outcomes':
[T]he State must first satisfy you that there was, between the accused who you're considering and at least one other, an unlawful purpose to assault the deceased in the way I've suggested, either by causing him physical harm or threatening him with a loaded firearm (ts 3524).
97 According to counsel, the distinction between 'two possible common purposes' was 'conflated again and stated in general terms' by the trial judge in the following passage:
Put another way, was it a probable consequence of a purpose to go to Wanneroo and assault the deceased that one of the number would commit murder? (ts 3524). (emphasis added)
98 Counsel also complained about the following direction which, he claimed, 'left the issue in an unsatisfactory fashion':
Looking at the facts, are you satisfied that the intentional killing of the deceased was an event arising from the prosecution of the unlawful purpose to assault that was not merely possible, but probable, in the sense that it could well happen? (ts 3524). (emphasis added)
99 It was submitted that his Honour should have drawn a distinction between 'a plan to assault and a plan to threaten with a weapon', and should have directed the jury that 'in assessing probable consequences of an unlawful purpose they should have regard to the degree or type of harm intended'. Counsel elaborated that the 'factual circumstances of the offending were of such a nature' that it was 'incumbent upon his Honour to direct the jury on this issue, especially given [Ms Broadbent's] evidence that she had no knowledge of a gun or a shovel and so, on her evidence, could have been a party to a plan to assault [Mr Blenkinsopp] but not to threaten him with a loaded gun'.
Ms Broadbent's appeal against conviction: ground 2: its merits
100 In my opinion, counsel for Ms Broadbent's submission that the trial judge conflated 'two possible common purposes' is without merit.
101 His Honour directed the jury that the common purpose was, 'in this case to assault the deceased, either cause him harm or threaten him with a loaded firearm' (ts 3523).
102 It is plain, from the following passage in the trial judge's summing up, that his Honour used the words 'assault the deceased' to connote either inflicting physical harm or threatening Mr Blenkinsopp with a loaded firearm:
[The] essential difference between [section 8] and section 7 is this: if there was a plan to murder, if the State proved that, you wouldn't need to consider section 8. The common intention talked about to prosecute an unlawful purpose in section 8 is not a common intention to murder. It is a common intention to do something else, and in this case to assault the deceased, either cause him harm or threaten him with a loaded firearm. That is the common intention which the State must prove in respect to the accused that you are considering.
But under section 8, the State does not have to prove that the person you are considering intended death, but it does have to prove that an offence was committed, in this case murder - was a probable consequence of the unlawful purpose to go and assault Mr Blenkinsopp.
So the question really is, under section 8, has the State satisfied you there was a common intention held by the accused you are considering and at least one other accused that they would go to Wanneroo and, at the least, assault the deceased? Confront him in a manner where violence would be used. The unlawful purpose, if any, you find to be established must be an unlawful purpose either to inflict some physical harm on the deceased or to threaten him with a loaded firearm. To assault him, in other words.
If there's a reasonable possibility that the purpose in which they joined was simply to confront the deceased in a verbal exchange, this would not be an unlawful purpose. If the plan was simply to go and confront him and argue with him and talk to him, that's not an unlawful purpose. So the State must first satisfy you that there was, between the accused who you're considering and at least one other, an unlawful purpose to assault the deceased in the way I've suggested, either by causing him physical harm or threatening him with a loaded firearm (ts 3523 - 3524).
103 As I have mentioned, counsel for Ms Broadbent complained that:
(a) his Honour should have 'drawn a distinction between a plan to assault and a plan to threaten with a weapon' [113]; and
(b) his Honour should have directed the jury that 'in assessing probable consequences of an unlawful purpose they should have regard to the degree or type of harm intended' [113].
104 As to the first complaint, the trial judge did distinguish between inflicting physical violence and threatening Mr Blenkinsopp with a loaded firearm. The State relied on those two forms of unlawful purpose in connection with the s 8 pathway. The distinction between them was obvious. The question whether murder was a probable consequence of one or other of the two forms of unlawful purpose was a question of fact for the jury.
105 As to the second complaint, his Honour clearly directed the jury that it had to be satisfied of two matters in deciding upon criminal responsibility under s 8. First, that the accused who was being considered formed a common intention with one or more of the other accused to prosecute an unlawful purpose. Secondly, that the murder or, alternatively, the unlawful killing of Mr Blenkinsopp was a probable consequence of any unlawful purpose which the jury found to have been proved.
106 The trial judge's directions conveyed to the jury that, in respect of the s 8 pathway, whether the offence under consideration (murder or manslaughter) was a probable consequence of the common unlawful purpose would depend on the nature of the unlawful purpose, and this may require the jury to consider the degree of harm intended to be inflicted on Mr Blenkinsopp. The intended degree of harm was not to be considered in isolation or a vacuum, but having regard to the applicable context including the facts and circumstances on the night in question and Ms Broadbent's history with Mr Blenkinsopp.
107 At the trial, defence counsel for Ms Broadbent conceded in his closing address that, if it was part of the plan to take a loaded firearm, then it was a 'probable consequence that someone might get shot and killed' (ts 3463 - 3464). The question as to whether such an outcome was a probable consequence of a common unlawful purpose to inflict physical violence on Mr Blenkinsopp or threaten him with a loaded firearm was a question of fact for the jury, having regard to all of the circumstances and the applicable context including Ms Broadbent's history with Mr Blenkinsopp and any expectation, on the basis of that history, as to how Mr Blenkinsopp might react.
108 The essence of the appellant's complaints is that his Honour should have undertaken a more detailed discussion of or comment on the facts and evidence relevant to common unlawful purpose and probable consequence. I am satisfied that a more detailed discussion of or comment on the relevant facts and evidence was not required in order properly to inform the jury of its task or otherwise to avoid a perceptible risk of a miscarriage of justice.
Ms Broadbent's appeal against conviction: conclusion
110 Neither of the grounds of appeal has been made out. Leave to appeal should be refused on each ground. Ms Broadbent's appeal against conviction should be dismissed.
Mr Kosick's appeal against conviction: the grounds of appeal
111 Mr Kosick relied on two grounds in his appeal against conviction.
112 The grounds (including the particulars of ground 1) were identical to the grounds (including the particulars of ground 1) relied on by Ms Broadbent.
113 On 30 November 2014, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
Mr Kosick's appeal against conviction: particular 1.1 of ground 1: his submissions
114 Most of Mr Kosick's written submissions on particular 1.1 of ground 1 were relevantly identical to Ms Broadbent's written submissions on that issue.
115 Mr Kosick's written submissions on this issue differed from the written submissions of Ms Broadbent only in the following material respects.
116 It was submitted that although Mr Kosick had heard Ms Broadbent make comments to the effect that she wanted Mr Blenkinsopp dead, and he had heard Mr Young make comments to the effect that he would gun down Mr Blenkinsopp, Mr Kosick did not take those comments seriously as he considered them to be 'drunken talk'. This was not remarkable given that 'emotions were high after the phone call from [Mr Blenkinsopp]'.
117 Mr Kosick was 'heavily under the influence [of] methylamphetamine at the time'.
118 The trial judge directed the jury as to the 'two-edged sword' nature of intoxication 'as it relates to intention'. A state of intoxication can both facilitate an intention to do an act that one would not do when sober and preclude the ability to form an intention at all. His Honour said:
[Alcohol] can act in a variety of ways. It can lead to a loss of normal constraints, lessen self-control, lead to a loss of inhibition, unexpected changes of mood; it can affect a person's judgment and capacity to appreciate the consequences of what they're doing.
...
As to cannabis, there was evidence from at least Kay Kosick that she had a number of cones and used the bucket bong. It may be that some of the accused were also smoking cannabis ...
We have limited use about methamphetamine. I think Mr Ryan Bradley said that it calmed him down when he'd been drinking. Mr Foster said he'd taken an OxyContin earlier but the effect, I think he said, had worn off. Mr Kosick said he'd effectively spiked Mr Young's drink (ts 3515 - 3516).
119 Counsel for Mr Kosick complained that his Honour did not mention Mr Kosick's degree of intoxication in summarising the case concerning him.
120 According to counsel for Mr Kosick, 'a degree of intoxication not only goes to the ability to form an intention but also to the ability to be able to predict or appreciate the possible outcomes of an action'.
121 Counsel noted the evidence that Mr Kosick was significantly affected by amphetamines at the time of the offending. Mr Young's rifle was already in the vehicle and was not placed there specifically for the purpose of travelling to find Mr Blenkinsopp and confront him. Mr Kosick heard a remark about a shovel, but was not involved in placing it in the vehicle.
122 It was submitted that although 'the circumstances objectively might lead a reasonable person to conclude that dire consequences would follow, those circumstances failed to coalesce in [Mr Kosick's] intoxicated mind'. His state of mind should have been considered 'before excluding the possibility that he drove to Winship Avenue without the intention, or knowledge of an intention, to do grievous bodily harm to or kill [Mr Blenkinsopp]'. The jury should have been directed that Mr Kosick might not have appreciated the possible outcomes of his course of action given his state of mind.
123 At the hearing of the appeal, counsel for Mr Kosick merely adopted the oral submissions made by counsel for Ms Broadbent on particular 1.1 of ground 1 (appeal ts 45).
Mr Kosick's appeal against conviction: particular 1.1 of ground 1: its merits
124 In my opinion, particular 1.1 of ground 1 is without merit. I am of that opinion generally for the reasons I have given in relation to particular 1.1 of ground 1 of Ms Broadbent's appeal against conviction. Some additional observations are, however, necessary.
125 At the trial the State's case against Mr Kosick included evidence and inferences relevant to his state of knowledge and intention, as follows:
(a) Initially, Mr Kosick lied to the police about having anything to do with Mr Blenkinsopp's disappearance and about the extent to which he knew Mr Young. On the State's case, he told the lies because he knew the truth would incriminate him.
(b) Mr Kosick admitted in his third electronically recorded interview with police (third EROI) on 17 April 2012 that he and Mr Young went to Mr Young's home so that Mr Young could collect his gun, and that this occurred before the conversations among the group in the shed at the Morley house about killing Mr Blenkinsopp (third EROI 6).
(c) Mr Kosick admitted that he knew a box of ammunition was in Mr Young's vehicle (third EROI 12).
(d) Mr Kosick admitted that the shovel used to dig Mr Blenkinsopp's grave came from Mr Kosick's house and was placed in the car at Mr Young's direction (third EROI 49 - 50).
(e) Mr Kosick admitted that he heard Mr Young and Ms Broadbent discuss in the shed at the Morley house Mr Blenkinsopp's murder. Ms Broadbent said, 'I want him fucken dead'. Mr Young said, 'I'll put a fucken hole in his head', which Mr Kosick clarified to mean 'you know, he'd execute him' (third EROI 7). Mr Kosick knew that the 'end result' of that was 'murder' (third EROI 16).
(f) Mr Kosick admitted that he knew the plan involved Ms Broadbent 'as the bait ... to lure [Mr Blenkinsopp] out and shoot [him] dead' (third EROI 21).
(g) Although he asserted that the plan to murder Mr Blenkinsopp involved only Mr Young and Ms Broadbent, Mr Kosick nevertheless stated that he was 'supposed to get out of the car with a baseball bat' and that Mr Foster would also have 'smashed' Mr Blenkinsopp with 'bats' (third EROI 22).
(h) Mr Kosick's knowledge that the gun, ammunition and shovel were in the car constituted knowledge that, not only was there a plan to murder Mr Blenkinsopp, but also that the means to carry out the plan were available to the group when they left the Morley house in search of Mr Blenkinsopp.
(i) Mr Kosick's conduct in deliberately running down Mr Blenkinsopp was consistent with not wanting him to escape from Winship Avenue, and supported the State's contention that Mr Kosick willingly participated in the pre-existing plan to kill Mr Blenkinsopp.
(j) The evidence as to Mr Kosick's running down of Mr Blenkinsopp being deliberate included the evidence of Clifford Garavanta (an independent eye witness to the incident), Mr Kosick's admission to Mr Bradley that 'we had no choice, we had to run him over' and the speed of the collision being sufficient to cause Mr Blenkinsopp to strike and break the car's windscreen.
(k) On the evidence of Mr Foster, Mr Kosick told him to inform the police falsely, if he was arrested, that none of the accused had left the Morley house on the night in question. Mr Kosick's role in coordinating the lies which he and Mr Foster initially told the police supported the State's contention that if either of them told the truth then the truth would incriminate Mr Kosick.
126 Further, there was evidence that Kay Kosick and Mr Kosick knew Mr Young held himself out as a 'hit man' (ts 696 - 697, 2787 - 2788) and evidence that Mr Kosick believed Mr Young was 'evil', aggressive and violent when drunk (ts 2803, 2953, third EROI 16). This evidence was of particular relevance to the second limb of the s 8 pathway concerning probable consequence. It was reasonably open to the jury to conclude that murder was a probable consequence of embarking on a plan to inflict physical violence on Mr Blenkinsopp, or threaten him with a loaded firearm, in circumstances where Mr Young (who had held himself out as a 'hit man' and who becomes 'evil', aggressive and violent when drunk) had with him a gun and ammunition. Those factors concerning Mr Kosick's belief about Mr Young and his knowledge of the presence of the gun and ammunition in the car were also relevant to the s 7 pathway in that they were evidence of the fact that Mr Kosick was a party to a plan to commit murder.
127 Mr Kosick did not assert, in his third EROI or in his evidence at trial, that he was so intoxicated or emotionally affected as to be unable to appreciate the purpose of locating and confronting Mr Blenkinsopp or to appreciate the potential outcomes of acting on that purpose.
128 The State's case on the s 7 pathway required proof that Mr Kosick was involved in a plan to kill Mr Blenkinsopp (or cause him life-threatening injury) which was formed at the Morley house and that Mr Kosick then intentionally did an act in aid of the plan. His Honour directed the jury in that manner in relation to the s 7 pathway (ts 3518 - 3520). His Honour summarised the State's case and Mr Kosick's case on the s 7 pathway as follows:
The State's case against Mr Kosick is that he is also part of the plan. It is illustrated by the fact that he first of all drove Mr Young to get the rifle and ammunition. He drove all four first he says to Ms Broadbent's place, then on eventually parking in Winship Avenue.
He was the driver when the deceased having been shot, was in the State's case, scooped up by the car driven by Mr Kosick, forced to break the windscreen and fall to the ground. Again, he did not take the deceased to hospital but he took him instead via Flynn Road to the burial site.
Mr Kosick's evidence in summary was that while he overheard talk and general hostility about the deceased, he regarded that as drunken talk and did not give it any credence or weight. He drove the car but did not know or agree to a killing and when Mr Young opened fire, this was a surprise and a shock, something he never expected or wanted to have happen.
Thereafter his actions are explicable, at least until the time of the fitting of the windscreen on the basis that he was threatened by Mr Young over the period (ts 3521 - 3522).
129 Counsel for Mr Kosick's submission that the jury should have been directed to the effect that '[Mr Kosick's] state of mind may have precluded him from appreciating the likely outcome of going to [Mr Blenkinsopp's] house with a view to [confronting] him', is without merit.
130 The direction would not have assisted the jury in relation to understanding or applying the s 7 pathway. In particular:
(a) Mr Kosick either was, or was not, a party to a plan to kill Mr Blenkinsopp or cause him life-threatening injury;
(b) Mr Kosick either did, or did not, intentionally perform an act to aid in killing Mr Blenkinsopp or causing him life-threatening injury at Winship Avenue; and
(c) comments by the trial judge on the evidence about his state of mind as to the 'likely outcome of going to [Mr Blenkinsopp's] house with a view to [confronting] him' were not material to the issues raised by the s 7 pathway.
Mr Kosick's appeal against conviction: particular 1.2 of ground 1: his submissions
132 Mr Kosick's written submissions on particular 1.2 of ground 1 were relevantly identical to Ms Broadbent's written submissions on that issue.
133 At the hearing of the appeal, counsel for Mr Kosick merely adopted the oral submissions made by counsel for Ms Broadbent on particular 1.2 of ground 1 (appeal ts 45).
Mr Kosick's appeal against conviction: particular 1.2 of ground 1: its merits
134 In my opinion, particular 1.2 of ground 1 is without merit. I am of that opinion generally for the reasons I have given in relation to particular 1.2 of ground 1 of Ms Broadbent's appeal against conviction.
Mr Kosick's appeal against conviction: particular 1.3 of ground 1: his submissions
136 Mr Kosick's written submissions on particular 1.3 of ground 1 were relevantly identical to Ms Broadbent's written submissions on that issue.
137 At the hearing of the appeal, counsel for Mr Kosick merely adopted counsel for Ms Broadbent's oral submissions on particular 1.3 of ground 1 (appeal ts 45).
Mr Kosick's appeal against conviction: particular 1.3 of ground 1: its merits
138 In my opinion, particular 1.3 of ground 1 is without merit. I am of that opinion generally for the reasons I have given in relation to particular 1.3 of ground 1 of Ms Broadbent's appeal against conviction.
Mr Kosick's appeal against conviction: ground 2: his submissions
140 Mr Kosick's written submissions on ground 2 were relevantly identical to Ms Broadbent's written submissions on that issue.
141 At the hearing of the appeal, counsel for Mr Kosick merely adopted counsel for Ms Broadbent's oral submissions on ground 2 (appeal ts 45).
Mr Kosick's appeal against conviction: ground 2: its merits
142 In my opinion, ground 2 is without merit. I am of that opinion generally for the reasons I have given in relation to ground 2 of Ms Broadbent's appeal against conviction. Some additional observations are, however, necessary.
143 In my opinion, it was reasonably open to the jury to conclude that, if it was part of the plan to take the loaded firearm then murder was a probable consequence of carrying out that plan. In making that determination, it was relevant for the jury to have regard to the evidence that Mr Kosick knew Mr Young held himself out to be a 'hit man' (ts 2787 - 2788) and that Mr Kosick believed Mr Young was 'evil', aggressive and violent when drunk (ts 2803, 2953, third EROI 16).
144 The question whether such an outcome was a probable consequence of a common unlawful purpose to inflict physical violence on Mr Blenkinsopp or threaten him with a loaded firearm was a question of fact for the jury having regard to all of the circumstances and the applicable context, including Ms Broadbent's history with Mr Blenkinsopp, Mr Kosick's knowledge of Ms Broadbent's history with Mr Blenkinsopp and any expectation, on the basis of that history and Mr Kosick's knowledge of it, as to how Mr Blenkinsopp might react.
Mr Kosick's appeal against conviction: conclusion
146 Neither of the grounds of appeal has been made out. Leave to appeal should be refused on each ground. Mr Kosick's appeal against conviction should be dismissed.
Mr Young's appeal against conviction: the grounds of appeal
147 Mr Young relied on six grounds in his appeal against conviction.
148 Ground 1 alleged that the trial judge erred in permitting to be adduced in evidence prejudicial opinion evidence to the effect that Mr Young was a 'hit man' and a 'wannabe hit man'.
149 Ground 2 alleged that his Honour erred 'in putting, without notice, the prosecution case in a way not put by the prosecutor'.
150 Ground 3 alleged that his Honour erred by misdirecting the jury concerning the issue of 'knowledge' in relation to s 8 of the Code.
151 Ground 4 alleged that his Honour erred by failing to direct the jury 'as to the connection between an unlawful purpose and a probable consequence' in relation to s 8 of the Code.
152 Ground 5 alleged that his Honour erred by failing adequately to direct the jury on 'the meaning and significance of the corrupted DNA evidence'.
153 Ground 6 alleged that his Honour erred by failing adequately to direct the jury on the significance of the evidence pertaining to Mr Young alone 'and its importance in giving appropriate weight to the evidence of the co-accused'.
154 On 14 July 2015, McLure P granted leave to appeal on grounds 1, 2 and 3 and referred the application for leave to appeal on grounds 4, 5 and 6 to the hearing of the appeal.
Mr Young's appeal against conviction: ground 1: his submissions
155 Counsel for Mr Young asserted that the trial judge erred and there was a miscarriage of justice in that his Honour permitted to be adduced in evidence prejudicial opinion evidence to the effect that Mr Young was a 'hit man' and a 'wannabe hit man'.
156 It is a remarkable and unsatisfactory feature of the appellant's written submissions that his counsel merely restated the ground of appeal. The written submissions did not identify the impugned evidence or make any submissions in support of the ground.
157 Counsel for the appellant referred, in his oral submissions, to the following passage in the cross-examination of Mr Kosick:
Are you saying that you would talk to Mr Young about being associated with bikies but say to him, 'Look, but it's not something I really want to be associated with'?---Correct.
Is that what you say?---Correct.
Isn't it the case that you both fed off each other about this bikie business?---I don't think so.
But he seemed to you to be someone who thought himself as a hit man for the bikies? That's what you thought, yes?---Would - possibility.
Yes. Did you regard him as a - a hit man wannabe? Someone who wanted to be a hit man? Is that how you saw him?---Yes, I did. A wannabe, yes.
SKERRITT, MR [defence counsel for Mr Young]: Well, I object, your Honour. I don't know that this witness can give evidence in relation to what someone else thought or wanted to be.
McKECHNIE J: He was asking what his impression was; is that how he saw him.
SKERRITT, MR [defence counsel for Mr Young]: Well, then that's clarified. Thank you.
McKECHNIE J: But I take your point. It's only evidence in relation to what this witness thinks, not anything about the truth of it.
FIANNACA, MR [the prosecutor]: Thank you, your Honour. That's precisely the - that's your - that was the way you perceived it, the way you thought of it, correct?---Correct (ts 2968).
158 Counsel for Mr Young conceded at the hearing of the appeal that Mr Kosick's evidence in that passage was relevant (appeal ts 23). However, he submitted that, although the evidence was relevant, it should have been excluded by his Honour, in the exercise of his discretion, because of 'the overwhelmingly prejudicial nature of the evidence' (appeal ts 24).
Mr Young's appeal against conviction: ground 1: its merits
159 Kay Kosick gave evidence that, prior to the offending, Mr Young had held himself out to be a 'hit man' (ts 696). In particular, Mr Young had portrayed himself as someone associated with 'bikie clubs' and, on one occasion, had boasted that one of the clubs had asked him to 'knock off' a person, for which he would be paid $20,000. Mr Young owned what he described as a 'Japanese sniper rifle'. He had shown Kay Kosick the scope from the weapon (ts 697). (The rifle in question was, in fact, a cheap firearm manufactured in the Philippines (ts 1583).)
160 Mr Kosick also gave evidence, in his evidence-in-chief, of the conversation referred to by Kay Kosick in her evidence. Mr Kosick said he did not take Mr Young's boasts seriously (ts 2787 - 2788).
161 Detective Senior Constable Daniel Heller gave evidence, in his evidence-in-chief, about Mr Kosick having told the police that he was in fear of his life because Mr Young had been 'a fucking hit man for the clubs for 20 years' (ts 2144, 2146). Defence counsel for Mr Kosick adduced similar evidence from Detective Heller in cross-examination (ts 2166). Detective Heller also gave evidence of a conversation he had overheard between Mr Kosick and another police officer, Detective Sergeant Thompson. Detective Thompson gave evidence in his evidence-in-chief, later in the trial, that was consistent with Detective Heller's account (ts 2184).
162 At the trial, defence counsel for Mr Young did not object to the admissibility of the evidence which counsel for Mr Young now challenges in ground 1. In these circumstances, Mr Young must establish that the evidence occasioned a miscarriage of justice at the trial.
163 I am satisfied, for the following reasons, that the evidence given by Kay Kosick, Mr Kosick, Detective Heller and Detective Thompson did not occasion a miscarriage of justice.
164 First, no witness gave evidence that Mr Young was, in fact, a 'hit man' for outlaw motorcycle gangs or was, in fact, a 'wannabe hit man'.
165 Secondly, Mr Young was a stranger to Mr Blenkinsopp. Evidence that tended to explain why, on the State's case, Mr Young would willingly assist in the formulation and execution of a plan to kill Mr Blenkinsopp was relevant to the case against him.
166 The prosecutor outlined, in his closing address at the trial, the relevance of the evidence to the effect that Mr Young had claimed to be a 'hit man':
In Mr Young's case, the State will be suggesting to you, you would be entitled to conclude that he was a wannabe hit man. No one is suggesting for one moment that he was really linked the bikies, that he was a hit man for the bikies. These are just things that he said to Damien Kosick, to Kay Kosick. But it says something about his state of mind, does it not, if you accept that he did say these things?
And even Mr Kosick, you might think; and he was cross-examined about this by at least one of my learned friends, was a bikie wannabe, someone who wanted - or thought of himself as being linked to bikies. Of course, you've heard the evidence of Detective Sergeant Thompson that in reality there's no evidence to show any link between any of them and bikies, although it might be that they have families who - family members who are involved and that the link does not show up in their system.
But ladies and gentlemen, if you accept that picture of Gary Young and Damien Kosick, you may think that you had a very dangerous combination on the night of 3 March going into the morning of 4 March; Gary Young affected by alcohol, Damien Kosick affected by amphetamines, and hostility mounting towards David Blenkinsopp because of this phone call that had been received. Whether it was earlier in the night or later in the night, it may be a matter for you to work out. I'll go to the phone calls later. But there's no doubt that there was hostility mounting against David Blenkinsopp (ts 3110 - 3111).
167 The prejudicial effect of the evidence in question did not outweigh its probative value. Its prejudice was limited in that none of the witnesses said that Mr Young was, in reality, a 'hit man'. The prosecutor expressly disclaimed, in his closing address, reliance upon such a contention. It was the evidence about Mr Young's boasts that he was a 'hit man' which resulted in the prosecutor characterising Mr Young as a 'wannabe hit man'. This characterisation was relevant to Mr Young's state of mind at the relevant times and, consequently, was probative of his guilt.
168 Neither the evidence of Kay Kosick nor the evidence of those witnesses who related Mr Kosick's conversations with the police constituted opinion evidence to the effect that Mr Young was, in reality, a 'hit man'. The evidence was not in the nature of an opinion, but simply conveyed the account of Kay Kosick and Mr Kosick as to what Mr Young had said in their presence.
Mr Young's appeal against conviction: ground 2: his submissions
170 Counsel for Mr Young asserted that the trial judge erred 'in putting, without notice, the prosecution case in a way not put by the prosecutor'.
171 Counsel referred in his written submissions to the following comments by the prosecutor in opening:
[T]he State will be inviting you eventually to conclude that the gun was Mr Young's in the case against him, that it was his gun and that the mask and the gloves were his and that it was he, consistently with what Kay Kosick will tell you, who had the gun on the night; certainly when they came back from killing Mr Blenkinsopp that he was the one who had the gun and was putting it in the car, threatening her with it and so on (ts 350).
...
So ladies and gentlemen, in the case against all of the accused but in particular at the moment because I'm really talking about circumstantial evidence against Mr Young where he has not made any admissions about being involved in this matter, the fact is that the bullets, the shells that were fired at Winship Avenue and at the grave site and one of the bullets that was found at the grave site came from his gun (ts 353).
...
And the State's case is that if you were dealing with section 8, although primarily we say they're all guilty on the basis of being a principal offender or an aider in the way that I've described earlier, but if you were coming to consider section 8, then the State's case is that it must have been a probable consequence and was a probable consequence that it would escalate to the point where Mr Blenkinsopp would be shot and where the shooting would be done in circumstances where there was an intention to kill him or to do a life-threatening injury.
One of the things that you would need to take into account in relation to that is the evidence of what each of the other accused knew of Mr Young's use of the gun and what he might have said about himself. And that is relevant in the case of Mr Kosick and I'll tell you about that (ts 355). (emphasis added)
172 Next, counsel referred to the following comments by the prosecutor in closing:
The real issue in this case is what is the involvement, if any, of each of the accused in that murder? That may require you to make a finding about who it was that shot Mr Blenkinsopp, but it isn't strictly necessary, because even if you had a situation where it couldn't be worked out who fired the gun, but you were satisfied that each of them was party to a plan to shoot Mr Blenkinsopp, you could be satisfied that they were guilty of murder.
However, the State will be submitting to you that, on the evidence that has been presented in this trial, and that includes the evidence of Mr Foster and Mr Kosick - because there's a lot about their evidence I'll be suggesting to you that you simply could not believe, that you would not accept. But on the core issue of who it was who shot Mr Blenkinsopp, they have been consistent, and it fits with what Kay Kosick tells you about what was happening at the house, 30 Wheeler Street, earlier, and then when they returned (ts 3108).
...
But importantly, ladies and gentlemen, when I say to you that you can be satisfied at the end of the day that Mr Young was the shooter, there is of course forensic evidence that connects him to the gun and to the mask that were found at the bottom of the chest of drawers outside his room in Gwelup, as well as the black gloves, which you may think were like the ones that Kay Kosick described that she saw him with the following morning. That is, when they returned in the Commodore and she was doing the cleanup and she saw him around the car, and he had the black gloves (ts 3109).
...
But once I've done that, ladies and gentlemen, I then want to come to deal with what the State's case actually is against Mr Young, because it seems to us that once you put to one side these alternative theories, what you're left with is evidence of the two co-accused, Kosick and Foster that puts Mr Young at the scene with the gun shooting Mr Blenkinsopp (ts 3114).
...
So the evidence of Ryan Bradley assists also, we suggest to you, you to accept the evidence of Damien Kosick and Kym Foster. I said this to you at the beginning, ladies and gentlemen, and I'll say it again. You don't have to accept everything those two witnesses have said. And we'll be suggesting to you, you can't and you shouldn't because there are aspects of their evidence which are simply not true.
Well, it's a matter for you. But on this key matter, we submit you can be satisfied on their evidence in combination with the other evidence that Gary Young was in the car and was the person who shot David Blenkinsopp (ts 3162 - 3163).
...
What the State says to you is that when you have regard to all of the evidence in this case in relation to each of the accused you can be satisfied that they were party to a plan to kill Mr Blenkinsopp, and that that is, in fact, what they carried out on that night, and they are therefore guilty of murder on that basis. But even if you weren't satisfied in respect of any particular accused that when they left 30 Wheeler Street the intention was there and then to kill Mr Blenkinsopp, you can be satisfied that, having regard to everything that they knew about the background, about the circumstances, having regard to what their intention was, which was at least to do him some serious harm, that it was a probable consequence - and this is your objective minds having to make this judgment - that it was a probable consequence of what they set out to do that he would be killed, he would be shot by Mr Young, and that it would be with an intention to kill him or to do him a life-threatening injury.
And if that is the case, ladies and gentlemen, then the proper verdict will be one of murder. Thank you (ts 3312). (emphasis added)
173 Counsel relied on the following direction by his Honour in his summing up which, counsel submitted, was to the effect that, unlike the other accused, 'there was only one path for a murder conviction to be entered against [Mr Young]':
As against Mr Young, the State's case is very direct. He is the shooter. There was a plan, he had the gun and the ammunition. He lay in ambush near a tree and shot the deceased causing injuries from which he shortly died, and that was his intention.
Mr Skerritt's response of course is that when you fully examine the evidence, particularly the part played by Damien Kosick, you could not be satisfied beyond reasonable doubt that Mr Young was ever at Winship Avenue on the night.
... I'll deal with that in more detail later, but the State's case against Mr Young does not depend on section 7 or 8 as I've explained to you. It relies on the combination of direct evidence and circumstantial evidence to prove beyond reasonable doubt that Mr Young was the shooter. Whether it does so is a matter for you (ts 3521).
174 After the trial judge completed his summing up and the jury had retired to consider their verdicts, his Honour received a note from the jury. The note read, relevantly:
Why for Gary Young don't we have the same tree in terms of the offence of accessory after the fact? Why do we have to prove Gary Young was the shooter to be guilty of murder? It may be he was still present at Winship or had knowledge prior to the act that his gun would be used in the offence of murder (ts 3568).
175 His Honour heard from the prosecutor and Mr Young's defence counsel in relation to the note.
176 Defence counsel for Mr Young made this submission:
[T]he case that was made out against Mr Young was quite clearly and squarely put with him being in a particular role.
And the role was ... that he arrived at the house [at Morley]. He went to get a gun with Damien Kosick. They returned. There was more talk planning and whatever. They then drove to the corner of Taywood and Winship.
At that point, Mr Young emerged from the bushes on the side of Winship and shot the deceased a number of times. The deceased was then bundled into a car and taken to Pinjar, where again Mr Young was present, and may have shot the deceased a final time before the grave was dug and then they returned to [the Morley house].
Now, in those circumstances the case that was put and the case that was clearly met and the case that we cross-examined on and framed all of our questioning in relation to was that Mr Young did the things that I've just said quite clearly and squarely. It wasn't that he perhaps had some other role, was perhaps a passenger, was perhaps involved in organising and so and so forth.
So with that in mind, I think your Honour's initial characterisation of what the State needs to prove, as laid out in the flow sheet, was spot on. And so I think, really, that the issue is, as has been put in point 2:
If yes, has the State proved that Mr Young was the shooter at Winship Avenue? Yes or no. No, not guilty of any offence.
Because then we're getting into the real of speculation that hasn't been covered by cross-examination. If the case was going to be that, maybe, if Mr Young wasn't the shooter he was involved in some other role, in assisting, there would have been different cross-examination about, say, for example, whether or not his DNA or fingerprints were recovered from the shovel which, from the way the case was put by the State, just wasn't an issue.
So my position quite firmly is that the jury should be directed in accordance with the flow sheet that your Honour has provided, which I think covers things precisely, and that the issue of him being a party is not a live issue and it hasn't been at this trial.
The issue has been whether or not he was the shooter and that should be the way the jury deal with it and it would probably be confusing to say to them, well, if you don't find that, maybe he was there and maybe he was a party, but that's getting into the realms of speculation and outside what we cross-examined on (ts 3575 - 3576).
177 The trial judge did not accept that submission.
178 His Honour redirected jury, relevantly, as follows:
Your question refers only to Mr Young and so I am only dealing with the trial of Mr Young.
As I have said, in the State's trials in respect of Ms Broadbent, Mr Foster and Mr Kosick, there is no issue that Mr Young was present at Winship Avenue and each of those accused agreed with the State on that aspect of the case. The State case against Mr Young must be considered separately. In this case, the State's case against Mr Young and his presence at Winship Avenue is in issue.
The State case against Mr Young is very clear on this point and has never shifted. The State contends that the evidence will satisfy you that Mr Young was present at Winship Avenue at the time of the shooting. This is an essential fact to be proved to your satisfaction beyond reasonable doubt. If this fact is not proved, then Mr Young must be found not guilty of any offence.
The State has never presented a case and there is no evidence, for example, that Mr Young was involved in the killing of the deceased in any way other than by being present at Winship Avenue. If you are satisfied that Mr Young was present at Winship Avenue, what flows from that? If you accepted the evidence of Mr Foster or Mr Kosick, then they have told you that Mr Young was the shooter. It is direct evidence of that fact.
If the evidence of both of them is such that for any reason you cannot rely on it to be satisfied beyond reasonable doubt that Mr Young was the shooter, set aside their evidence and look at all the circumstances upon which the State relies which include, in brief summary on the State's contention, the firearm was found under the drawers at 5 Waldemar Street and that firearm was used in the killing. The State relies on the ballistic evidence.
The firearm found at 5 Waldemar Street was outside Mr Young's bedroom and the DNA found on the firearm, the mask and the glove found with it is such that you can be satisfied that it was Mr Young's DNA and that there is no evidence that Constable Meeks who found the firearm had searched elsewhere in the house. The Commodore which Mr Young admits he was buying from Mr Kosick was used in the events. It is directly linked by the blood from the deceased found in the car and the broken windscreen.
Mr Young, the State says, lied to the police in a way indicating that he had involvement in a possible offence and particularly his lie, the prosecution says, about the windscreen being damaged by a kangaroo when he was with Damien Kosick. As against that, Mr Skerritt points to the possibility of the DNA being transferred by contamination as questions should be raised about Constable Meeks and his general reliability. He says that Mr Garavanta's evidence supports the conclusion that only two people were outside the car and as to the alleged lies by Mr Young, Mr Skerritt explained those and also said that it might be explained by Mr Young as an old drunk.
If you were satisfied that Mr Young was at Winship Avenue and that his firearm was also at Winship Avenue, but in his case were not able to be satisfied that he was the shooter, then you consider whether the State has proved that the accused, Mr Young, was a party to the offence of murder or manslaughter or part of an unlawful purpose to assault the deceased and that murder or manslaughter was a probable consequence.
To that end, I have amended the decision tree and I remind you again that the decision tree is not in any way binding upon you. It is merely an aid and I'll just give you the amended copy. All right. I won't give you the amended copy just now; I'll read it and we'll just go and photocopy it quickly. The first part is the same, but the second part is on the basis - and I remind you I'm merely commenting on the evidence. What you find is entirely your matter.
It is on the basis that if, for instance, you were not satisfied or could not feel yourself satisfied beyond reasonable doubt on the evidence of Mr Kosick and/or Mr Foster that Mr Young was the shooter, then in the case of Mr Young there is no direct evidence that he was the shooter. There is the circumstantial evidence I have referred to and its response by Mr Skerritt that you weigh up to see whether the circumstantial evidence can establish the State's case first that Mr Young was at Winship [Avenue] and then whether, from all of the circumstantial evidence, the only reasonable inference to be drawn was that he was the shooter.
If you were satisfied about that, there was no other reasonable inference except that he was the shooter, then it would be open to you to convict in the manner I've outlined at the beginning of the decision tree. If you were satisfied - and this, as I say, is an essential fact to be found. If you were satisfied that he was present at Winship Avenue when Mr Blenkinsopp was unlawfully shot and ultimately killed, but not able to be satisfied in Mr Young's case that he was the shooter on the circumstantial evidence case, then you would consider the following.
Has the State proved that Mr Young had knowledge of a plan to kill or cause life-threatening injury to the deceased and did an intentional act in aid of that plan and if the answer is yes, he would be guilty of murder. If the answer is no, had the State proved that Mr Young was part of an unlawful purpose to assault the deceased and if the answer is yes, the second question would be has the State proved that it was a probable consequence of that purpose that a person with the same unlawful purpose would form an intention to kill or do life-threatening injury to the deceased?
If the answer to both of those questions are yes, it would be open for you to find him guilty of murder. If the answer to both of those questions is no, you would consider the alternative which is has the State proved that Mr Young was party to a plan to assault the deceased and did an act in aid of that plan and if the answer is yes, he would be guilty of manslaughter. If the answer was no, has the State proved that he formed an unlawful purpose with another to assault the deceased and if the answer to that was yes, was the unlawful killing of the deceased a probable consequence of that unlawful purpose (ts 3578 - 3580).
179 Counsel for the appellant contended in his written submissions that the trial judge's redirection 'put [the] prosecution case in a way not put by the prosecution and led to a miscarriage of justice'. Counsel asserted that defence counsel for Mr Young did not have the opportunity to address the jury 'knowing that such an avenue was going to be open for the jury and expressly did not consider it in giving his address'.
Mr Young's appeal against conviction: ground 2: its merits
180 Ground 2 is based on a misapprehension of the State's case against Mr Young including, in particular, a misapprehension of the prosecutor's opening address.
181 Early in his opening address, the prosecutor summarised the critical events which occurred at Winship Avenue. Although he stated that Mr Blenkinsopp was confronted by Ms Broadbent and the three men, the prosecutor expressly declined to nominate any of the four accused as the person who had shot Mr Blenkinsopp:
[Mr Blenkinsopp] was unarmed and confronted by, as I say, three men, who were intent on eliminating him from Tamara Broadbent's life. And one of them was armed with a loaded firearm. Mr Blenkinsopp was shot at least three times at that location, twice in his torso, once to his leg. He was shot, it seems, at least from the side and perhaps from behind (ts 275). (emphasis added)
182 Later in his opening address, while summarising the legal pathways to guilt and explaining that, on the State's case, it was not merely the accused who actually shot Mr Blenkinsopp who would be guilty of the offence, the prosecutor again did not assert that Mr Young was the accused who had fired the shots at Winship Avenue (ts 353).
183 In my opinion, the extract from the prosecutor's opening address that is relied on by counsel for Mr Young, and which I have set out at [171] above, does not support the proposition that the prosecutor was identifying Mr Young as the person who shot Mr Blenkinsopp. It does not follow from the fact that Mr Young owned the firearm used to shoot Mr Blenkinsopp, combined with the fact that Mr Young retrieved the firearm from his home before the group set out to confront Mr Blenkinsopp, that the prosecutor was asserting that Mr Young was the shooter.
184 On the State's case, there was circumstantial but not direct evidence that Mr Young was the shooter.
185 However, direct evidence of that fact was given by Mr Kosick and Mr Foster when they gave evidence in their own defence after the close of the State's case. It was open to the jury not to be satisfied as to the reliability of Mr Kosick's and Mr Foster's evidence on this point. If the jury was not satisfied as to the reliability of their evidence, then the jury, in accordance with the trial judge's directions, would have put that evidence to one side. Nevertheless, even if the jury had proceeded on that basis, it was open to the jury to be satisfied from the circumstantial evidence that Mr Young was present at Winship Avenue when Mr Blenkinsopp was shot. It was also open to the jury, in this context, to conclude that they could not determine who shot Mr Blenkinsopp, but that Mr Young was nonetheless a party to the offence.
186 The State's case, as put by the prosecutor in his closing address, was that, while the jury could be satisfied that Mr Young was the shooter, it was not strictly necessary for the State to prove that fact in order for the jury to find him guilty of murder. This is apparent from the passages in the prosecutor's closing address at ts 3108 - 3109, which I have set out at [172] above. Those aspects of the prosecutor's closing address that focused on Mr Young being the shooter were not relevantly inconsistent with the State's opening.
187 Ground 2 asserts that the trial judge, 'without notice', put the State's case in a way 'not put by the prosecutor'. Counsel for Mr Young's written submissions also assert that defence counsel for Mr Young 'did not have the opportunity to address the jury knowing that such an avenue was going to be opened for the jury'. Those assertions are without merit.
188 As I have mentioned, the prosecutor stated, in his closing address, that it was open to the jury to conclude that Mr Young was the shooter, but a conclusion to that effect was not essential to a finding of guilt against him. As I have mentioned, that statement was not relevantly inconsistent with the State's opening.
189 During the trial judge's summing up to the jury, his Honour, of his own volition, narrowed the State's case to a requirement that the jury be satisfied beyond reasonable doubt that Mr Young was the shooter (ts 3521).
190 Shortly after they commenced deliberating on their verdicts, late on a Friday afternoon, his Honour received the note from the jury (ts 3568). The note identified the problem with his Honour's summing up and the first version of his Honour's 'decision tree', which had been given to the jury. After reflecting on the point over the weekend, and after hearing submissions from defence counsel for Mr Young (ts 3575), his Honour expressed the view that he 'did the prosecution a disservice in the way [he] left the [State's] case' (ts 3576). His Honour then redirected the jury and gave them an amended version of the 'decision tree'. The redirection and the amendment left it open to the jury to conclude that Mr Young was guilty of murder, not merely on the basis that he was the shooter, but also on the basis that Mr Young:
(a) had knowledge of a plan to kill or cause life-threatening injury to Mr Blenkinsopp and did an intentional act in aid of that plan; or
(b) was part of an unlawful purpose to assault Mr Blenkinsopp and it was a probable consequence of the purpose that a person with the same unlawful purpose would form an intention to kill or do life-threatening injury to Mr Blenkinsopp (amended version of the 'decision tree', page 2).
191 All of the complaints made by counsel for Mr Young are based on the erroneous assumption that the State was permitted, at the last moment, to depart from a 'narrow' case that merely alleged that Mr Young was the shooter.
Mr Young's appeal against conviction: ground 3: his submissions
193 Counsel for Mr Young asserted that the trial judge erred by misdirecting the jury concerning the issue of 'knowledge' in relation to s 8 of the Code.
194 His Honour directed the jury on s 8 as follows:
So section 8 extends criminal liability set out in section 7 to a probable consequence and does not depend on the accused's knowledge, but objectively, whether it was a probable consequence. Your answer to these questions will depend on the facts and what you are satisfied the State has established.
As a matter of comment, one fact of importance may be whether or not the accused you are considering either had a gun or knew that a gun was present, and whether they had knowledge of ammunition in the car. Another fact may be the knowledge of the accused as to whether or not there was a shovel in the car before it left Morley. Those, of course, are matters which might assist you in determining whether or not the State has proved that the accused you are considering was part of a plan. I don't answer the question, I merely raise it for you as a matter for consideration on the evidence (ts 3525).
195 Counsel acknowledged that the issue raised by ground 3 was not mentioned by defence counsel for Mr Young at the trial.
196 Counsel for Mr Young's written and oral submissions on ground 3 were, in substance, identical to the written and oral submissions of counsel for Ms Broadbent in relation to particular 1.2 of ground 1 in her appeal.
Mr Young's appeal against conviction: ground 3: its merits
197 In my opinion, ground 3 is without merit. I am of that opinion generally for the reasons I have given in relation to particular 1.2 of ground 1 of Ms Broadbent's appeal against conviction.
Mr Young's appeal against conviction: ground 4: his submissions
199 Counsel for Mr Young asserted that the trial judge erred by failing adequately to direct the jury 'as to the connection between an unlawful purpose and a probable consequence' in relation to s 8 of the Code.
200 Subject to one qualification, counsel for Mr Young's written and oral submissions on ground 4 were, in substance, identical to counsel for Ms Broadbent's written and oral submissions on ground 2 of her appeal against conviction.
201 The qualification is that counsel for Mr Young argued that his Honour, in dealing specifically with Mr Young in the following passage in his summing up, failed to distinguish between 'the possible common purposes':
Has the State proved that Mr Young had knowledge of a plan to kill or cause life-threatening injury to the deceased and did an intentional act in aid of that plan and if the answer is yes, he would be guilty of murder. If the answer is no, had the State proved that Mr Young was part of an unlawful purpose to assault the deceased and if the answer is yes, the second question would be has the State proved that it was a probable consequence of that purpose that a person with the same unlawful purpose would form an intention to kill or do life-threatening injury to the deceased?
If the answer to both of those questions are yes, it would be open for you to find him guilty of murder (ts 3580).
Mr Young's appeal against conviction: ground 4: its merits
202 In my opinion, ground 4 is without merit. I am of that opinion generally for the reasons I have given in relation to ground 2 of Ms Broadbent's appeal against conviction. Some additional observations are, however, necessary.
203 In my opinion, it was reasonably open to the jury to conclude that, if it was part of the plan to take the loaded gun then murder was a probable consequence of carrying out that plan.
204 The question whether such an outcome was a probable consequence of a common unlawful purpose to inflict physical violence on Mr Blenkinsopp or threaten him with a loaded firearm was a question of fact for the jury having regard to all of the circumstances and the applicable context.
Mr Young's appeal against conviction: ground 5: his submissions
206 Counsel for Mr Young asserted that the trial judge erred by failing adequately to direct the jury on 'the meaning and significance of the corrupted DNA evidence'.
207 Counsel for Mr Young's written submissions were brief. They read:
His Honour in the several occasions that he referred to it did not explain the significance of contamination to the jury although he suggested obliquely that they had a choice whether to accept it. They received no guidance on contamination and its significance, or guidance that they should reject it if they were satisfied the DNA was contaminated ... [I]t is submitted the guidance to the jury was necessary, without which proper use by the jury of the DNA evidence might not have been made.
208 At the hearing of the appeal, counsel was asked by the court to state what direction the trial judge should have given in relation to the DNA evidence and secondary transfer:
I guess the nub of it [is that his Honour] has said you would weigh it with the other evidence and decide whether the State has proven its case. And he does say in the same paragraph the fact his DNA is on the gun doesn't lead itself to a conclusion that he is guilty. But what he doesn't say is that the jury and all juries need to consider where secondary transfer is an issue, bearing in mind that however improbable it may be, Locard's principle has it as a realistic phenomenon in nature that where secondary transfer is an issue, they must be satisfied that DNA was not there as a result of secondary transfer (appeal ts 29 - 30).
Mr Young's appeal against conviction: ground 5: its merits
209 At the trial, defence counsel for Mr Young conceded that traces of Mr Young's DNA were found on the gun. However, defence counsel submitted that it was likely there was 'DNA transference' by contamination, and that explained the presence of Mr Young's DNA on the gun (ts 3335).
210 Defence counsel for Mr Young noted that the bullets recovered from Mr Blenkinsopp's body were corroded because the human tissue on the bullets had not been properly cleaned (ts 3339).
211 Senior Constable Robert Meeks was, at the relevant time, a police officer who was attached to the physical evidence and firearm examination forensic division. He searched Mr Young's house and handled the gun, the balaclava and other exhibits. Senior Constable Meeks was a State witness at the trial.
212 Defence counsel for Mr Young suggested it was possible that Senior Constable Meeks could accidentally have transferred DNA from other items in Mr Young's house to the gun, the balaclava and other exhibits and, consequently, accidentally 'contaminated' them (ts 3340, 3560).
213 The complaint about the bullets recovered from Mr Blenkinsopp's body may be disregarded, in the context of ground 5, because no relevant DNA evidence was obtained from the bullets. Although there was evidence that Senior Constable Meeks had not properly cleaned the bullets, and that his failure to clean them properly would have contributed to the corrosion of the bullets (ts 1941 - 1942), those matters had nothing to do with the DNA evidence. The corrosion of the bullets was relevant to whether it could be established that the gun recovered by the police was the weapon that had fired the bullets.
214 As to defence counsel for Mr Young's complaints about the evidence as to Mr Young's DNA having been found on the gun, questions put to Senior Constable Meeks in cross-examination contained imputations that he had not followed correct procedures with respect to the use of gloves to avoid 'contamination' of exhibits when conducting the search at Mr Young's house. Senior Constable Meeks rejected the imputations (ts 1587 - 1589). Making good the alleged failure by Senior Constable Meeks to follow the correct procedures, concerning the use of gloves, was essential to any submission relating to secondary transfer. Absent the acceptance by Senior Constable Meeks or separate proof of the alleged failure (which did not occur), defence counsel's argument based on secondary transfer was merely conjecture.
215 In any event, Dr Fiona Baxter, a forensic scientist employed by PathWest, gave evidence to the effect that it was relatively unlikely, on counsel for Mr Young's hypothesis, that secondary transfer would have occurred (ts 2041 - 2042).
216 In my opinion, the trial judge was not bound to direct the jury on 'the meaning and significance of the corrupted DNA evidence', as alleged in ground 5 and counsel for Mr Young's written and oral submissions in support of the ground. No such direction was necessary to avoid a perceptible risk of a miscarriage of justice in relation to the jury's consideration of the DNA evidence.
Mr Young's appeal against conviction: ground 6: his submissions
218 Counsel for Mr Young asserted in relation to ground 6 that the trial judge erred by failing adequately to direct the jury on the significance of the evidence pertaining to Mr Young alone 'and its importance in giving appropriate weight to the evidence of the co-accused'.
219 Counsel said in his written submissions that there were 'marked factual differences between the evidence against [Mr Young] that proceeded from the co-accused and that which [was] led in the prosecution case'.
220 According to counsel, the co-accused alleged, and the jury heard, 'inadmissible and fanciful attributes against [Mr Young] which were no part of the police evidence, such as the allegation that [Mr Young] was a "bikie hit man" of whom the witnesses were afraid'.
221 It was submitted that his Honour should have directed the jury 'to consider this evidence in distinction from the other evidence against [Mr Young] in order that they might properly weigh the relevance and cogency of the evidence from the co-accused, and that such evidence was a matter of which [Mr Young] had no notice'.
222 Counsel for Mr Young said in his oral submissions that 'ground 6 is a ground upon which ... I have reflected and was not going to advance but I'm not instructed to abandon it' (appeal ts 31).
223 Counsel accepted, in response to questions from the court, that Ms Broadbent and Mr Kosick had given written statements to the police and consequently Mr Young was on notice as to the precise content and scope of their evidence (appeal ts 31 - 32). Counsel then admitted that the question of notice referred to in his written submissions was not in truth an issue (appeal ts 32). Counsel added:
But then we have the wannabe hit man corroboration that comes in the cross-examination of Kay Kosick where the impression of the wannabe hit man is really led as part of the prosecution case, in a way. It is open on cross-examination and admissible for the learned prosecutor to elicit that evidence in cross-examination and he has chosen to do so. So in that regard a direction from the trial judge, in my respectful submission, was needed to ameliorate the prejudice which flowed from that (appeal ts 32).
Mr Young's appeal against conviction: ground 6: its merits
224 Counsel for Mr Young's assertion in relation to ground 6 that the trial judge erred by failing adequately to direct the jury on the significance of the evidence pertaining to Mr Young alone, 'and its importance in giving appropriate weight to the evidence of the co-accused', is without merit.
225 The evidence as to Mr Young having boasted to others that he was a 'hit man' was led as part of the State's case for the reasons which I have outlined in dealing with ground 1.
226 Counsel for Mr Young's reference to 'inadmissible and fanciful attributes against [Mr Young]' merely concerned confirmation by Mr Kosick of evidence properly adduced, without objection, during the State's case.
227 Counsel for Mr Young's submission that his Honour should have given a direction to the effect that the evidence of the co-accused should be treated 'in distinction from the other evidence against [Mr Young]' so that the jury 'might properly weigh the relevance and cogency of the evidence from the co-accused' appears not to be limited to the evidence of Mr Young's boasts that he was a 'hit man'. Presumably, the submission extends to Mr Kosick's and Mr Foster's direct evidence that Mr Young was the shooter. I understand the submission to embody the contention that the evidence given by Mr Kosick and Mr Foster in their own defence should have been the subject of a direction by his Honour which required the jury to treat their evidence with a greater degree of care or scrutiny than the evidence adduced in the State's case. In my opinion, it was unnecessary and, indeed, inappropriate for his Honour to have given such a warning.
228 Section 50 of the Evidence Act 1906 (WA) provides:
(1) In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2) On the trial of a person on indictment for an offence -
(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.
229 Section 50 was inserted by the Criminal Law Amendment Act 1988 (WA) and subsequently amended by the Acts Amendment (Evidence of Children and Others) Act 1992 (WA). Section 50 superseded s 36BE(1) of the Evidence Act.
230 In White v The Queen [2006] WASCA 62, Wheeler JA (with whom McLure & Pullin JJA agreed in relation to the ground of appeal which is relevant for present purposes) said:
[Section 50] is in almost identical terms to the former s 36BE(1), save that it now extends to encompass all of those witnesses in respect of whom there was formerly a rule of law or practice which required the giving of a 'corroboration warning'. In relation to any such witness, the trial judge is now positively forbidden to give to the jury a warning to the effect that it is dangerous to convict on the evidence of a category of witness because the witness falls into some suspect 'category'. The judge may comment upon the evidence of a witness, provided that the judge makes it clear that it is for the jury alone to evaluate the evidence of that witness, in the light of common experience. Where, however, there is a particular danger in acting upon the evidence of a witness which a jury might not otherwise appreciate, a warning should be given. It may be that the need to warn is not confined to 'hidden' dangers, but that is the most usual case in which a need to warn is said to arise: Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 319, 325 and see R v Johnson [2004] SASC 241 at [44] - [47], where some examples are discussed [70].
...
Authority in this Court has not been as clear as it might have been in relation to the relevance of s 50 in the past. There has perhaps in some cases been a tendency to analyse a direction to see if it was 'good enough' in traditional terms, with s 50 regarded almost as a provision which excuses a failure to give 'full' direction in traditional terms in some cases. For example, in Lambley v The Queen ([2001] WASCA 38) at [17], the Court appears to have suggested that a warning will be both justified and required whenever the circumstances show some intrinsic lack of reliability in the witness. However, in the particular circumstances of that case, it may well have been common ground that the witness was in a category 'similar to' a prison informer, so that a jury would not, unassisted, appreciate what the dangers of the witness's evidence might be. A case which is often cited in this Court is Foo v The Queen [2001] WASCA 406 at [30] in which Parker J, with whom Steytler J and Olsson AUJ agreed, said:
'Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters.' (emphasis added)
I quoted that passage myself in Hoy v The Queen [2002] WASCA 275 at [18], and at [19] expressed the view that such a warning may also be appropriate even where the dangers are apparently obvious. However, having regard to the authority which I have discussed, it now seems to me that only if the words which I have emphasised in Foo, relating to 'hidden' dangers, are given their full effect, should that passage be regarded as accurate. The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given [77] - [78].
See also Moloney v The State of Western Australia [2006] WASCA 193 [9] - [14] (Wheeler JA, McLure JA agreeing), [22] - [30] (Roberts-Smith JA, McLure JA agreeing); Evans v The State of Western Australia [2012] WASCA 13 [41] - [51] (Mazza JA, McLure P & Buss JA agreeing); Santos v The State of Western Australia [No 2] [2013] WASCA 39 [46] - [48] (McLure P, Buss & Mazza JJA agreeing).
231 In Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344, I reviewed a number of decisions of the High Court in relation to corroboration warnings. See, in particular, Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250; and Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161. I also reviewed the decision of the Court of Criminal Appeal of Victoria in Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497.
232 Apart from s 50 of the Evidence Act, a judge is bound to give an instruction or a warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr (324 - 325) (Brennan J); Longman (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 A-CJ, Gummow, Kirby & Hayne JJ).
233 Cases in which accomplice evidence is given by a co-accused fall into a very special category. See Moloney [13]; Ferris v The State of Western Australia [2007] WASCA 69 [40] (Steytler P & McLure JA); Evans [49]; Santos [No 2] [47].
234 In the present case, Mr Young's co-accused conducted their defences on the basis that they were not a party to the murder of Mr Blenkinsopp. Each co-accused, in the conduct of his or her own defence, sought to blame the other co-accused (especially Mr Young) for the murder. Mr Kosick's and Mr Foster's evidence implicating Mr Young as the shooter was inextricably intertwined with their evidence seeking to exculpate themselves from criminal responsibility for the murder. None of the accused asserted that a murder had not occurred. This was the kind of trial where the potential self-interest of each accused, seeking to implicate his or her co-accused, would have been 'blindingly obvious to the jury'. See Cronin v The State of Western Australia [2007] WASCA 159 [31] (Steytler P, McLure & Buss JJA).
235 There was no hidden danger in relation to the evidence of Mr Young's co-accused which the jury might have been unable to appreciate without the assistance of an instruction or warning from the trial judge. It is not apparent, on my examination of the trial record, that any of the co-accused had any attractive features, or that any other circumstances existed, which gave rise to a risk that the jury might overlook their status as accused persons with their own interests to serve.
236 Prior to defence counsel delivering their closing addresses, his Honour outlined some of his proposed directions and invited counsel to make submissions (ts 3061). One of the proposed directions, on which his Honour invited submissions, was a corroboration warning. As to Mr Kosick and Mr Foster, his Honour said he was conscious of the need 'not to undermine their evidence' (ts 3061). Neither at this stage of the trial nor after his Honour completed his summing up, did defence counsel for Mr Young object to or take issue with the directions on this point. See R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ & Charles JA), [16] - [18] (Callaway JA).
237 Further, as counsel for Mr Young accepted in the appeal, Mr Young cannot fairly complain about a lack of 'notice' of Mr Kosick's or Mr Foster's evidence. Mr Young appealed unsuccessfully against a decision of the trial judge to refuse to grant Mr Young a separate trial from his co-accused. See Young v The State of Western Australia [2013] WASCA 292. One of the arguments advanced in that appeal was the prejudice said to arise from Mr Kosick's electronically recorded interview with police, where he identified Mr Young as the shooter [13]. Also, in his opening address at the trial, defence counsel for Ms Broadbent asserted that Ms Broadbent had witnessed Mr Young shoot Mr Blenkinsopp, and defence counsel for Mr Foster opened with the assertion that Mr Young had shot Mr Blenkinsopp three times (ts 367 - 368, 385). Defence counsel for Mr Kosick opened on the basis that, from Mr Kosick's vantage point, 'it appeared to him' that Mr Young had shot Mr Blenkinsopp (ts 389). In addition, Mr Young was on notice as to the precise content and scope of Ms Broadbent's and Mr Kosick's evidence because they had given written statements to the police which were disclosed to him.
238 In my opinion, the trial judge was not bound, in the circumstances, to give the jury an instruction or a warning in the terms contended for in ground 6. In the circumstances, such an instruction or warning was not required to avoid a perceptible risk of a miscarriage of justice in relation to the jury's assessment of the evidence of Mr Young's co-accused. His Honour's omission to give an instruction or a warning in the terms contended for was not an error of law and did not occasion a miscarriage of justice.
Mr Young's appeal against conviction: conclusion
240 None of the grounds of appeal has been made out. I would refuse leave to appeal on grounds 4, 5 and 6. Mr Young's appeal against conviction should be dismissed.
Ms Broadbent's appeal against sentence: the ground of appeal
241 Ms Broadbent relied on one ground in her appeal against sentence.
242 The ground alleged that her minimum non-parole period of 24 years infringed the parity principle when compared to the identical minimum non-parole period given to Mr Young.
243 On 30 November 2014, Mazza JA granted leave to appeal on the ground.
Ms Broadbent's appeal against sentence: the trial judge's sentencing remarks in relation to the offending of Ms Broadbent and Mr Young and their personal circumstances
244 The trial judge made the following findings of fact, for the purposes of sentencing, in relation to the offending of Ms Broadbent and Mr Young and their personal circumstances.
245 On the night in question, Ms Broadbent had consumed methamphetamine.
246 The jury's verdict of murder in relation to Ms Broadbent was inevitable. Ms Broadbent and Mr Blenkinsopp started an intense sexual relationship, characterised by frequent acts of violence followed by reconciliations and more violence. The relationship was erratic and Ms Broadbent gave Mr Blenkinsopp 'very mixed messages' [14]. Mr Blenkinsopp was a person who could not take no for an answer.
247 His Honour was satisfied beyond reasonable doubt, for the purposes of sentencing, that:
(a) During the course of the evening in question, when Mr Young had arrived at the Morley house, talk turned to murdering Mr Blenkinsopp.
(d) Ms Broadbent was a party to a plan to murder: she had the motive and her behaviour was consistent only with the carrying out of such a plan.
(e) Ms Broadbent intended to and did lure Mr Blenkinsopp from Ms Marshall's house to his death.
248 At the Pinjar gravesite, Ms Broadbent helped dig the grave. She must have been aware that at the gravesite Mr Blenkinsopp was shot, at close range, in the head. The depth of her hatred towards him could be gauged from the fact that, when the burial was finished, she used the rifle to fire two shots into the sand.
249 After the killing, Ms Broadbent and the other accused returned to the Morley house. The car was cleaned. The seat covers and Ms Broadbent's clothes were disposed of. She had a shower and Kay Kosick lent her some clothes. The offenders then had breakfast.
250 Ms Broadbent embarked on a deliberate course, with the other offenders, to cover her tracks. She was 'deeply involved' in getting a new windscreen for the car. She lied to the police. When interviewed on 28 March 2012, she lied again before telling at least a version of the truth.
251 Ms Broadbent's state of mind after the offending was demonstrated by a conversation she had with Kay Kosick after Ms Broadbent became aware that Mr Bradley had given a comprehensive statement to the police about the events on the night in question.
253 A little later, Ms Broadbent repeated that statement in more graphic language.
254 His Honour was satisfied beyond reasonable doubt, for the purposes of sentencing, that Ms Broadbent intended to kill Mr Blenkinsopp and that she conceived the plan before the offenders left the Morley house. Ms Broadbent carried out the plan and did not stop until Mr Blenkinsopp was dead. She buried his body. This resulted in a month of fear and uncertainty for those who loved him, until Mr Kosick took the police to the gravesite.
255 Ms Broadbent was without remorse. Although she had taken methamphetamine and consumed alcohol, the jury, by its verdict, was satisfied that she was capable of forming an intention to kill and did so.
256 At the time of sentencing Ms Broadbent was aged 44. Her prior criminal record was not relevant. She had a daughter aged 22 and the support of her family. At the time of the murder, Ms Broadbent was working as a chef.
257 The trial judge accepted that Ms Broadbent had, by admissions, narrowed the issues at trial. Since her arrest she has worked in prison as a chef and has assisted others. She does not have any mental health issues.
258 The trial judge said that the jury's verdict of murder in relation to Mr Young was inevitable.
259 Mr Young did not know Mr Blenkinsopp. Also, he did not know Ms Broadbent or Mr Foster.
260 On the evening in question, he parked his car at the Morley house. He went to the Morley Ale House. He was ejected from those premises some time later. Consequently, he was in an angry mood.
261 Mr Young returned to the Morley house where the other offenders had been drinking alcohol, taking methamphetamine and smoking cannabis. He became aware of the unhappiness within the group about Mr Blenkinsopp, and inflamed it.
262 His Honour was satisfied beyond reasonable doubt, for the purposes of sentencing, that:
(a) Mr Kosick drove Mr Young, in Mr Young's car, to a house in Gwelup where Mr Young resided so that Mr Young could collect his rifle, gloves and balaclava.
(b) Mr Young armed himself with the rifle and took ammunition and the gloves and balaclava.
(c) Mr Young knew precisely what was going to happen. He also knew that a shovel was put in the back of the car. There was no doubt in Mr Young's mind as to what the venture was about.
(d) Mr Young sat in the front seat while the car was driven by Mr Kosick to Winship Avenue.
(e) Mr Young shot Mr Blenkinsopp three times with the rifle. He intended to kill him. Although one of the wounds would eventually be fatal, Mr Blenkinsopp did not die immediately. He staggered onto the road where he was run down by Mr Kosick. Mr Blenkinsopp, who was grievously injured, was taken to Pinjar for burial.
(f) At the Pinjar gravesite, Mr Young used the rifle to fire a bullet into Mr Blenkinsopp's brain. He gave the rifle to Ms Broadbent so she could fire two shots into the grave.
263 When the offenders returned to the Morley house, Mr Young threatened Kay Kosick and her children. He harassed the other offenders to replace the windscreen of his car. He stored the rifle for a time in Kay Kosick's garage before taking it to a hiding place in his Gwelup house. The police found it at that location. The jury must have rejected, and his Honour rejected, the theory, for which there was no evidence, that Mr Kosick had planted the rifle at Mr Young's premises.
264 Ms Broadbent and Mr Kosick were a party to a plan to kill 'while their blood was running hot' as a result of Mr Blenkinsopp's abuse of Ms Broadbent. However, Mr Young was in a different category. He did not know Mr Blenkinsopp and his actions were 'cold blooded'. His Honour said it was difficult to escape the conclusion that Mr Young was engaged in a 'thrill kill'.
265 Mr Young could accurately be described as a 'hit man wannabe'. He had shown Kay Kosick the scope of the rifle and described it to her as a sniper rifle.
266 Although Mr Young was undoubtedly heavily drunk, his Honour was certain that the alcohol fuelled Mr Young's intention to kill. The intoxication did not deprive him of any intention.
267 When interviewed by the police, Mr Young denied the offence and at times became aggressive.
268 Mr Young was aged 53 at the time of the offending and was nearly 56 when sentenced. He had a very limited family. He was raised in a series of foster homes. Mr Young was significantly disadvantaged as a child. He had no role model.
269 Mr Young left school in year 11 and gained an apprenticeship as a radiator installer. He became a qualified welder. Mr Young has been in gainful employment all of his adult life. He does not use illicit drugs.
270 Mr Young has a serious prior criminal record, including convictions for possession of heroin with intent to sell or supply, engaging in a sexual relationship with a child under the age of 16, escaping legal custody, burglary, false pretences and stealing. However, his Honour said the prior convictions had 'very limited weight' in the context of sentencing Mr Young for the offence of murder. Mr Young's mental state is unstable. He has been a binge drinker for much of his life.
Ms Broadbent's appeal against sentence: her submissions
271 Counsel for Ms Broadbent submitted that there were relevant differences in Ms Broadbent's and Mr Young's offending and personal circumstances. In particular:
(a) Ms Broadbent had a very short criminal record while Mr Young had an extensive criminal record.
(b) Mr Young delivered the fatal injury that caused Mr Blenkinsopp's death.
(c) Mr Young then threatened to kill Kay Kosick and her children if she did not cooperate in concealing evidence. He also harassed the other offenders to arrange for the windscreen of his car to be replaced.
(d) Mr Young's decision to kill Mr Blenkinsopp was motivated by a 'thrill to kill'. He did not know Mr Blenkinsopp.
(e) But for Mr Young's presence, his weapon, his 'pre-planning' and his 'intent to kill', the murder may not have occurred.
272 It was submitted that, although the extent of Ms Broadbent's involvement in Mr Blenkinsopp's death may have been only 'slightly' less than that of Mr Young, her offending behaviour did not extend to the actual killing of Mr Blenkinsopp. Ms Broadbent was involved in Mr Blenkinsopp's death, but her role in luring him to the place where the other offenders were waiting was less significant than Mr Young's role. According to counsel, this fact should have been reflected in the sentencing process by Ms Broadbent receiving an earlier parole eligibility date than Mr Young.
273 Counsel also argued that, generally, 'sentences for women are less than for men on equivalent offences'. He cited R v Nagas (1995) 5 NTLR 45 in support of that proposition.
Ms Broadbent's appeal against sentence: its merits
274 In Barnden v The State of Western Australia [2014] WASCA 161 [55] - [59], I summarised (Martin CJ & Mazza JA agreeing) the parity principle. It is unnecessary to repeat that summary. In The State of Western Australia v Stoeski [2016] WASCA 16 [42] - [45], I set out (Mazza JA & Mitchell J agreeing) the general principles governing the determination of the minimum non-parole period to be imposed where an offender is to be sentenced to life imprisonment for the offence of murder and the sentencing court has decided to fix a minimum period.
275 The concession by counsel for Ms Broadbent that her involvement in Mr Blenkinsopp's death may have been only 'slightly' less than that of Mr Young is, in substance, an acknowledgement that there is little to distinguish her role in the killing from that of Mr Young.
276 When Ms Broadbent's complaint is examined in the context of all of the relevant facts and circumstances and all of the relevant sentencing factors, the absence of any disparity between her minimum non-parole period and Mr Young's minimum non-parole period does not reveal any basis for an objectively justifiable sense of grievance or an objective appearance that justice has not been done.
277 Counsel for Ms Broadbent relied on six factors in support of Ms Broadbent's ground of appeal.
278 The first factor, namely that Mr Young was the shooter, is based on an assumption that, merely because Mr Young was the shooter, his actions on the night in question render him more culpable than Ms Broadbent and, accordingly, her minimum non-parole period should have been less than his.
279 In my opinion, the moral culpability of the offenders in the present case does not turn upon the particular acts performed by each of the offenders when Mr Blenkinsopp was killed. Ms Broadbent had the primary motive to kill Mr Blenkinsopp. She lured him away from Ms Marshall's house. Her action enabled Mr Young to shoot him. The critical point as regards culpability is that Ms Broadbent, Mr Kosick and Mr Young were parties to a plan to kill Mr Blenkinsopp. Each of them had an important role to play.
280 The second factor, namely that Mr Young made threats to Kay Kosick, must be balanced against the threats Ms Broadbent made. As the trial judge noted in his sentencing remarks, after she was arrested Ms Broadbent became aware that Mr Bradley had made a comprehensive statement to the police. Ms Broadbent said to Kay Kosick, while they were in custody, that Mr Bradley 'is dead', and then repeated that threat in 'more graphic language' [27] - [29]. Both Mr Young and Ms Broadbent made threats in order to conceal what had occurred. There is no material point of distinction between them.
281 The third factor was that Mr Young's decision to kill Mr Blenkinsopp was motivated by a 'thrill to kill': he did not know Mr Blenkinsopp. His Honour noted, in his sentencing remarks, that Ms Broadbent and Mr Kosick were party to a plan to kill, 'while their blood was running hot due to the abuse that [Ms Broadbent] had received from [Mr Blenkinsopp]', whereas Mr Young was engaged in a 'thrill kill' [95]. In my opinion, this distinction between Ms Broadbent and Mr Young is not, in all the circumstances, material. Although each of them had different motivations, both formed an intention to kill simultaneously, namely when the plan was formed at the Morley house. The fact that each of them acted upon a different motivation for agreeing to participate in the intentional killing of Mr Blenkinsopp does not render Ms Broadbent's actions materially less culpable than Mr Young's.
282 The fourth factor, namely that but for Mr Young's presence, his weapon, his 'pre-planning' and his 'intent to kill', the murder may not have occurred is inconsistent with the trial judge's finding in his sentencing remarks that Ms Broadbent, Mr Kosick and Mr Young formed a plan to kill Mr Blenkinsopp.
283 The fifth factor is to the effect that Ms Broadbent should have received a lesser minimum non-parole period than Mr Young because of her gender.
284 There is no principle of law that requires or justifies disparity between co-offenders on account of their gender.
285 In Nagas, the Crown appealed against the sentence imposed on a female offender who was convicted, on her pleas of guilty, of three offences, being unlawfully causing grievous bodily harm, deprivation of liberty and stealing. The Court of Criminal Appeal of the Northern Territory dismissed the appeal. One of the Crown's grounds of appeal was that the sentencing judge misdirected himself that 'the question of general deterrence was not as significant as it might otherwise have been because the respondent was a female and the incidence of criminal activity of the kind charged by females was low' (55). The sentencing judge expressly took that matter into account as a mitigating factor. Gallop, Angel and Thomas JJ said:
There is judicial and textual authority for the sentencing judge's approach. The cases are discussed in Fox and Freiberg, Sentencing: State and Federal Law in Victoria, at p 465. It is clearly established that allowance is made for the fact that in practice women are commonly treated with less severity than men. There may, as the authors say, be some sense of grievance where male and female co-offenders are sentenced and significant disparities result, but that is not the situation in this case.
Whether the reason for leniency to women is predicated upon the lower recidivism rate of women, prevalence of a particular type of crime, general deterrence, or simply compassion, the principle is well established and his Honour was correct to have regard to it in sentencing the respondent (55).
286 Nagas has never been referred to in any decisions of courts of any other jurisdiction.
287 In Midjumbani v Moore [2009] NTSC 27; (2009) 229 FLR 452, the appellant, who was female, pleaded guilty to two offences, namely that on two separate occasions she contravened a domestic violence order. The appellant appealed against sentence. Her appeal was dismissed. In one of her grounds of appeal, the appellant complained that the sentencing magistrate 'failed to properly consider the relevance of her gender' [35]. It was submitted on her behalf that her gender should have been taken into account both generally and in relation to the prevalence of the offending. Riley J rejected the submission. His Honour said:
Further, and contrary to the submission made on behalf of the appellant, I do not accept that the gender of the offender is, per se, a relevant matter that should have been taken into account by his Honour. The submission relied upon the judgment of the Court of Criminal Appeal in R v Nagas ((1995) 5 NTLR 45 at 55) where their Honours made the passing observation that 'in practice women are commonly treated with less severity than men' and, in that regard, reference was made to comments in the first edition of Fox and Freiburg: Sentencing, State and Federal Law in Victoria (2nd ed, at 278). The second edition of that work revisits the issue and notes that the empirical evidence in support of such assertions 'is at best equivocal and over recent years any biases, if they do exist, are likely to be less pronounced.' The learned authors go on to observe that it is now accepted that gender alone should not form the basis of differential treatment in sentencing. See also the discussion in Director of Public Prosecutions (Vic) v Ellis ((2005) [2005] VSCA 105; 153 A Crim R 340 at 345) and R v Harkness ([2001] VSCA 87 at [58]).
The sentencing guidelines provided in s 5 of the Sentencing Act identify the need to discourage other persons from committing the same or a similar offence as a purpose for which a sentence may be imposed. I see no reason why the sentence in this case should not be regarded as an appropriate vehicle for general deterrence notwithstanding that the offender is a female [36] - [37].
288 In my opinion, the critical point, in the present context, is that offenders who are to be sentenced for similar offences arising from unrelated events must be sentenced in accordance with established sentencing practice and principles. In particular:
(a) a sentence imposed on an offender must be commensurate with the seriousness of the offence: s 6(1) of the Sentencing Act 1995 (WA); and
(b) the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors: s 6(2) of the Sentencing Act.
289 A disparity in sentences between co-offenders in a particular case may be required or justified on account of relevant differences between the co-offenders and their role in the offending; for example, age, background, criminal history, general character and the part each played in the criminal conduct in question. See Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [31] (French CJ, Crennan & Kiefel JJ).
290 A difference in gender is not, of itself, a factor that requires or justifies disparity. Counsel for Ms Broadbent's argument based on her gender must be rejected. A lower minimum non-parole period for Ms Broadbent compared to Mr Young was not required or justified because of her gender, either of itself or in combination with any other factor or factors.
291 The sixth factor relied on by counsel for Ms Broadbent is the different criminal histories of Ms Broadbent and Mr Young. Counsel did not develop his argument in relation to this factor beyond submitting that Ms Broadbent has a 'very short criminal record' while Mr Young has 'an extensive criminal record'.
292 His Honour summarised, in his sentencing remarks, Mr Young's criminal record [104]. It does not include a lengthy history of violence. The differing antecedents of Ms Broadbent and Mr Young carried little weight in view of the seriousness of the offence of murder for which they were convicted. His Honour noted, correctly, that Mr Young's prior offending had 'very limited weight in setting this sentence' [104].
293 I am satisfied, after examining and weighing all relevant facts and circumstances and all relevant sentencing factors, concerning Ms Broadbent and Mr Young, that the absence of any disparity between the minimum non-parole period imposed on each of them did not infringe the parity principle or the principle of equal justice. The absence of any disparity was not unjustified. It was not such as to give rise to a legitimate or justifiable sense of grievance on Ms Broadbent's part or to give the appearance in the mind of an objective observer that justice was not done as between Ms Broadbent and Mr Young or generally. Ms Broadbent was not deserving of a lesser minimum non-parole period than Mr Young.
Ms Broadbent's appeal against sentence: conclusion
294 The ground of appeal has not been made out. Ms Broadbent's appeal against sentence should be dismissed.
Mr Kosick's appeal against sentence: the grounds of appeal
295 Mr Kosick relied, in effect, on two grounds in his appeal against sentence.
296 Ground 1 alleged, in substance, that his minimum non-parole period of 22 years infringed the parity principle when compared to the minimum non-parole periods of 24 years imposed on Ms Broadbent and Mr Young.
297 Ground 2 alleged, in substance, that, having regard to Mr Kosick's cooperation with the police and its consequences upon his incarceration, his minimum non-parole period was manifestly excessive.
298 On 30 November 2014, Mazza JA granted leave to appeal.
Mr Kosick's appeal against sentence: the trial judge's sentencing remarks in relation to Mr Kosick's offending and his personal circumstances
299 The trial judge made the following findings of fact, for the purposes of sentencing, in relation to the offending of Mr Kosick and his personal circumstances.
300 Ms Broadbent was a friend of Mr Kosick's; indeed, they were distantly related. During the night of 3 March 2012, Mr Kosick consumed alcohol and took methamphetamine. However, as the jury found, he was capable of forming the requisite intentions.
301 His Honour said that, during the course of Mr Kosick's evidence at trial, he formed the impression that Mr Kosick is 'a violent, aggressive and intimidating person with no regard to normal social behaviour, so that the idea of going to kill David Blenkinsopp would not be a shock to [him]' [63].
302 Mr Kosick drove Mr Young to collect Mr Young's rifle and ammunition. Mr Kosick never explained satisfactorily why he did that. The trial judge said the obvious inference was because Mr Kosick intended 'to have the gun used that night' [64].
303 His Honour was satisfied beyond reasonable doubt that:
(a) Mr Kosick knew precisely what was intended at the time; and
(b) there could be no other reason for Mr Young to arm himself except to kill Mr Blenkinsopp.
304 The trial judge rejected the contention that Mr Kosick's intention was merely to be a party to a plan, the probable consequence of which was to cause grievous bodily harm to Mr Blenkinsopp.
305 Mr Kosick was an integral part of the events that night. After he returned with Mr Young to the Morley house, he and the other offenders got ready to leave. His Honour accepted Kay Kosick's evidence that she attempted to telephone Mr Blenkinsopp and that Mr Kosick took the telephone from her and threw it away.
306 Mr Kosick was an enthusiastic participant in the plan. He drove Mr Young's car everywhere. He knew Mr Blenkinsopp was to be shot. He parked the car in Winship Avenue, in a dark place, so that Mr Blenkinsopp could be lured to that location by Ms Broadbent and ambushed by Mr Young.
307 When Mr Blenkinsopp staggered onto the road, after he had been shot by Mr Young, Mr Kosick made sure of the result by running him down with the car with such force that Mr Blenkinsopp's head cracked the windscreen. Mr Kosick drove the car to the Pinjar gravesite. The trial judge said whether Mr Kosick did so at Mr Young's direction was completely immaterial.
308 Mr Kosick participated in digging the grave. Afterwards, he drove the other offenders to the Morley house and was instrumental in burning various incriminating items. Thereafter, he lied to the police until he was arrested on 28 March 2012. After his arrest, Mr Kosick maintained the lies for a short time before giving the police a version of events. Nevertheless, he minimised his involvement.
309 At the time of sentencing, Mr Kosick was about to turn 40. He had a prior criminal record including two convictions for assault and two convictions for making threats.
310 His Honour accepted that Mr Kosick was a damaged person. His parents separated when he was aged 6. He had little contact with his mother. His father was not a positive influence. Mr Kosick grew up in a family where illicit drugs were the norm.
311 Mr Kosick left school in year 9. He lacks some basic skills, but has worked throughout his adult life as a panel beater, spray painter, welder and fabricator. In more recent times, he has become unwell as a result of diabetes. At the time of the offending he was in receipt of a disability pension from Centrelink.
312 At the age of 26, Mr Kosick married Kay Kosick. The marriage produced two children. The trial judge found that, based on her evidence, Kay Kosick hates Mr Kosick and he will never see his children again.
313 His Honour decided that Mr Kosick's crime was 'so terrible that personal factors play only a small role in the setting of a minimum term' [78]. Moreover, by his own confession, Mr Kosick has been a heavy methamphetamine user for many years. His Honour was satisfied that the crime was rooted in methamphetamine, not mental health.
314 The trial judge found that although Mr Kosick may suffer from post-traumatic stress disorder, the effect of that disorder on the sentencing outcome was minimal. Mr Kosick chose to deal with any such disorder by the consumption of enormous quantities of methamphetamine.
315 His Honour did not accept Mr Kosick's assertions that he was in fear of Mr Young or anyone else or that he required protection.
316 But the trial judge did accept, as a mitigatory factor, that although Mr Kosick initially deceived the police, he did show police the gravesite when he was 'looking for a deal' [80].
317 Mr Kosick's action in showing police the gravesite had two relevant consequences. First, Mr Blenkinsopp's family and friends became aware that he had been murdered and that his body could be reclaimed even though they were unable to view it. Secondly, it enabled the police to conduct a comprehensive forensic investigation.
318 His Honour reduced the minimum non-parole period he would otherwise have imposed by 2 years to reflect Mr Kosick' cooperation with the police.
Mr Kosick's appeal against sentence: his submissions
319 As to ground 1, Mr Kosick argued, in essence, that he had the benefit of mitigation which did not apply to Ms Broadbent or Mr Young. He referred, in particular, to his cooperation with the police. He also made reference to a number of personal factors. Mr Kosick asserted, in effect, that there was a material difference in moral culpability between him, on the one hand, and Ms Broadbent and Mr Young, on the other.
320 As to ground 2, Mr Kosick argued, in essence, that, as a result of his cooperation with the police, the conditions under which he would serve his sentence of imprisonment had been and would be materially more arduous than those in the general prison population.
Mr Kosick's appeal against sentence: the State's application to adduce additional evidence in the appeal
321 By an application in Mr Kosick's appeal dated 16 March 2016, the State applied for leave to adduce into evidence in the appeal an affidavit sworn 10 March 2016 by Steven Southgate. On 17 March 2016, Mazza JA referred the State's application to the hearing of the appeal.
322 By another application in Mr Kosick's appeal dated 18 March 2016, the State applied for leave to adduce into evidence in the appeal an affidavit sworn 18 March 2016 by Karen Fuller.
323 Mr Southgate is the Assistant Commissioner, Adult Custodial Operations, Adult Justice Services, at the Department of Corrective Services. In his affidavit, Mr Southgate deposed, relevantly:
324 Ms Fuller is the Executive Manager, Adult Justice Services, at the Department of Corrective Services. In her affidavit, she confirms the content of some of the annexures to Mr Southgate's affidavit.
325 In my opinion, the additional evidence which the State seeks leave to adduce in the appeal is relevant to the proper disposition of Mr Kosick's grounds of appeal and relates to events occurring after he was sentenced by the trial judge. I would grant the State's applications and admit the affidavits in evidence in the appeal. Mr Kosick did not file any affidavits in response and he did not require either Mr Southgate or Ms Fuller to attend for cross-examination.
Mr Kosick's appeal against sentence: its merits
326 As to ground 1 of Mr Kosick's appeal, his written submissions assert that he is not guilty of murder. His submissions refer repeatedly to the fact that Mr Young was the shooter. Mr Kosick does not acknowledge the egregious nature of his own role in Mr Blenkinsopp's murder. I am satisfied, on the trial judge's unchallenged findings of fact and after reviewing relevant aspects of the trial record and the sentencing hearing, that there is no material difference in moral culpability between Mr Kosick, on the one hand, and Ms Broadbent and Mr Young, on the other.
327 Also, I am satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors concerning Mr Kosick, Ms Broadbent and Mr Young, that the absence of greater disparity between Mr Kosick's minimum non-parole period of 22 years and Ms Broadbent's and Mr Young's minimum non-parole period of 24 years did not infringe the parity principle or the principle of equal justice. There were no material differences between Mr Kosick, on the one hand, and Ms Broadbent and Mr Young, on the other, either in relation to their role in the offending or in relation to matters of aggravation or mitigation, that required or justified greater disparity beyond the 2-year reduction that Mr Kosick received because he led the police to the gravesite. The absence of greater disparity was not such as to give rise to a legitimate or justifiable sense of grievance on Mr Kosick's part, or to give the appearance in the mind of an objective observer that justice was not done as between Mr Kosick, on the one hand, and Ms Broadbent and Mr Young, on the other, or generally.
329 As to ground 2, the principles relevant to whether a sentence may be reduced on the ground that the offender will be subject to prison conditions more arduous than normal were summarised by me in Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [151] - [157].
(a) The fact that an offender is, or is likely, to serve part of a term of imprisonment in conditions that are materially more arduous than those in the general prison population is a mitigating factor.
(b) The prosecutor and defence counsel should provide information to the sentencing judge as to:
(i) the facts and circumstances of the offender's detention in custody;
(ii) how those facts and circumstances differ from the general prison population; and
(iii) the nature and extent of any consequential hardship or benefit to the offender.
(c) The weight to be given to the more arduous conditions of imprisonment will depend on the facts of the case, including, for example, the reasons why an offender requires protection and the duration or likely duration of the arduous conditions and whether any benefits accrue to the offender as a consequence of the special conditions of his incarceration.
(d) Greater leniency will ordinarily be given where there is a risk of reprisals from other criminals because of an offender's cooperation with law enforcement authorities.
(e) Greater leniency will ordinarily be extended where the arduous conditions exacerbate the offender's physical or mental illness or disability.
331 During the sentencing hearing before the trial judge, the only reference to hardship in prison was a brief exchange between Mr Kosick's defence counsel and his Honour during the plea in mitigation delivered on his behalf (ts 3623 - 3624). Two points arise from that exchange. First, defence counsel was relating what she had been told (presumably, by Mr Kosick himself). It was open to Mr Kosick to produce evidence of such hardship at the sentencing hearing. He did not do so, despite being represented by competent and experienced defence counsel. Accordingly, there was a paucity of information before his Honour as to any degree of hardship that had been or would be suffered by Mr Kosick. Secondly, there is no evidence, either at first instance or on appeal, in support of the claimed threats or any additional hardship being suffered by Mr Kosick in prison. In his written submissions, Mr Kosick asserted that he has been
'moved from prison to prison because of safety issues for helping Police' which, he claims, has put his life in danger. Mr Kosick has not provided any evidence that establishes that he has suffered, or is likely to continue to suffer, from conditions materially more arduous than the general prison population. For example, there is no suggestion that Mr Kosick is being held in solitary or some other form of highly restrictive confinement.
332 I am satisfied, based on the unchallenged evidence of Mr Southgate and Ms Fuller, that:
(a) Mr Kosick is not being held in any form of protective custody because of any cooperation with the police or for any other reason;
(b) Mr Kosick is not being and has not been treated differently from or more harshly than any other prisoner in his circumstances; and
(c) Mr Kosick is currently being kept at Roebourne Regional Prison and is expected to remain at that prison until his release.
(a) Any period that Mr Kosick has previously been or will in future be held in any form of protective custody was or will be attributable, wholly or partly, to his cooperation with the police; and
(b) Mr Kosick has previously been or will in future be transferred between different prisons, wholly or partly, 'because of safety issues for helping Police'.
Mr Kosick's appeal against sentence: conclusion
335 Neither ground 1 nor ground 2 has been made out. Mr Kosick's appeal against sentence should be dismissed.
(1988) 165 CLR 314
(1998) 197 CLR 250
(1989) 168 CLR 79
(2009) 229 FLR 452
(1995) 5 NTLR 45
(2000) 199 CLR 620
(2006) 230 CLR 234
(1984) 153 CLR 521
(2007) 35 WAR 344
(2000) 206 CLR 161
(2011) 244 CLR 462
(2014) 46 WAR 324
(1986) 161 CLR 315